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Reproduced with the permission of Oceana Publications

excerpt from

INTERNATIONAL SALES LAW

United Nations Convention on Contracts for the International Sale of Goods

Convention on the Limitation Period in the International Sale of Goods

Commentary by
Prof. Dr. jur. Dr. sc. oec. Fritz Enderlein
Prof. Dr. jur. Dr. sc. oec. Dietrich Maskow

Oceana Publications, 1992

Article 95 [Declaration concerning the exclusion of reference to conflict-of-law roles]

[TEXT OF THE UNIFORM LAW]

Any State [1] may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound [2] by subparagraph (1)(b) of article 1 of this Convention.

[COMMENTARY]

[1] Without this reservation, which was integrated in the Convention at the request of Czechoslovakia, an accession to the Convention would have the effect of putting the CISG in the place of what has been the domestic rule for international sales contracts, irrespective of whether or not the parties to the sales contract have their places of business in the Contracting States.

This would create a uniform rule for all international sales contracts to which the law of one Contracting Party is applicable. On the other hand, a specific rule for international economic contracts, e.g. the Czechoslovak law on international trade, would be excluded in regard to international sales contracts to the extent of which the CISG contains relevant rules.

There was a rather controversial discussion of Article 95 at the Vienna Diplomatic Conference. The Czechoslovak proposal was rejected in the Second Committee (O.R., 439), but adopted in the plenary (O.R., 230). Also as to publications, Article 95 has been the one most commented on among the final provisions (see, for instance, Vékas, 342 fol; Kindler, 776 fol; B. Piltz, "Internationales Kaufrecht", NJW, 1989/10, p. 615; Lando, The 1985 Hague Convention, 60 fol; Siehr, 587 fol). Winship (Parker) has explained in greatest detail the various possibilities for the application and/or non-application of Article 1, paragraph 1, subparagraph (b) (see the scheme on p. 1-53). The extensive discussion is out of proportion to the provision's practical significance. The reservation under Article 95 loses importance the more States accede to the CISG (c. preface 1.2.).

The Federal Republic of Germany has not made use of the reservation provided for in Article 95. The introductory law, however, stipulates that Article 1, paragraph 1, subparagraph (b), in the case of reference to the law of a Contracting State applies only when that Contracting State has itself not invoked the reservation under Article 95 (see Schlechtriem, Kaufrecht, 43). This can happen only when the partner of a German company has his place of business in [page 380] a non-Contracting State (because otherwise Article 1, paragraph 1, subparagraph (a), would apply) and when it was agreed that the law of a third State will be the applicable law, e.g. a sales contract between the FRG and Canada for which application of US law was agreed. In such a case, German courts would have to invoke the UCC instead of the CISG.

In contrast, we believe it correct in such event to apply, the CISG, providing the more adequate rules in respect of international sales contracts, i.e. to ignore the US reservation. We also hold that only the courts of the State making the reservation are bound by the reservation of Article 95. (Lando is of the same opinion, The 1985 Hague Convention, 82; Siehr, 621).

Only China, Czechoslovakia and the USA have declared a reservation under Article 95 so far.

[2] The States having made the reservation, hence only apply the CISG when the two parties to the sales contract have their place of business in Contracting States. Publications (c. note 1) consider as a problem, on the one hand, the case where the court of a Contracting State, which has not declared a reservation, through a reference to international private law has to apply the law of another Contracting State, which has declared a reservation, in regard to a sales contract of whose parties only one or none has his place of business in a Contracting State (e.g. the examples mentioned in note 1); and, on the other, the opposite case where the Forum of the State has declared a reservation but, through a reference to international private law, has to apply the law of a Contracting State which has not declared such a reservation (this would be the case where a US court would have to apply German law to a sales contract between Germany and Canada). It remains a question though whether a Forum must take account of the reservation of his own or of the one made by another State. The answers published in this regard differ from one another. Evans (BB, 656), for instance, suggests that a Forum of the State, which has declared a reservation, when applying the law of another Contracting State; which has not taken a reservation, invoke the domestic law of that other State instead of the provisions of the CISG. We fail to see the sense of such solution because the State when making a reservation does so only in favour of his own domestic law.

The Hague Sales Convention provided for the same reservation of which, by the way, the majority of the Contracting States, e.g. Germany, Gambia, Britain, the Netherlands and San Marino, made use. Only Belgium, Israel and Italy renounced to do so. [page 381]

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Pace Law School Institute of International Commercial Law - Last updated September 25, 2002
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