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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 99 [Entry into force]

[TEXT OF THE UNIFORM LAW]

(1) This Convention enters into force [1], subject to the provisions of paragraph (6) [4] of this article, on the first day of the month following the expiration of twelve months after the date of deposit of the tenth [2] instrument of ratification, acceptance, approval or accession, including [5] an instrument which contains a declaration made under article 92.

(2) When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession [6], this Convention, with the exception of the Part excluded, enters into force in respect of that State, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of ratification, acceptance, approval or accession.

(3) A State [7] which ratifies, accepts, approves or accedes to this Convention and is a party to either or both the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Formation Convention) and the Convention relating to a Uniform Law on the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Sales Convention) shall at the same time denounce, as the case may be, either or both the 1964 Hague Sales Convention and the 1964 Hague Formation Convention by notifying the Government of the Netherlands [8] to that effect.

(4) A State party to the 1964 Hague Sales Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 92 that it will not be bound by Part II of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Sales Convention by notifying the Government of the Netherlands to that effect.

(5) A State party to the 1964 Hague Formation Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 92 that it will not be bound by Part III of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect.

(6) For the purpose of this article, ratifications, acceptances, approvals and accessions in respect of this Convention by States parties to the 1964 Hague Formation Convention or to the 1964 Hague Sales Convention shall not be effective until such denunciations as may be required on the part of those States in respect of the latter two Conventions have themselves become effective [9]. The depositary of this Convention shall consult with the Government of the Netherlands, as the depositary of the 1964 Conventions, so as to ensure necessary co-ordination in this respect.

[COMMENTARY]

[1] This article regulates the entry into force of the Convention in two ways: it determines the required number of Member States and the period of time to expire after the required number of Member States has been attained.

[2] There is no general rule as to the number of approvals required for a Convention to enter into force. For this Convention to take effect, ten Member States were needed, i.e. the same number as in the case of the Limitation Convention. A suggestion made at the diplomatic conference, according to which the number of six Member States would be sufficient, was not adopted (O.R., 456). The Hague Sales and Formation Conventions entered into force after five accessions. At times a tendency could be noted to agree on a greater number of Member States. The Hamburg Rules require, for instance, 20 Member States, and the United Nations Convention on the International Multimodal Transportation of Goods even 30. Since the entry into effect can be greatly delayed in this way, because many States consider accession only after a Convention has taken effect, the required number of approvals was reduced again in the case of later conventions. The Convention on Bills of Exchange, therefore, requires ten States, the draft Convention on the Operator of Transport Terminal five, and the Leasing Convention and the Factoring Convention enter into force after the third approval. This procedure greatly facilitates the entry into force for those States which are interested in a unification of law.

[3] This period of time has to be seen in connection with the period of denunciation of the Hague Sales and Formation Conventions which is also 12 months. The Limitation Convention, in contrast, takes effect already six months after the tenth instrument has been deposited. As for the transportation of goods at sea and the multimodal transportation of goods, too, a period of 12 months is required. This time is usually needed domestically to take all measures needed to broadly inform of the changes in the legal situation in due form.

[4] Paragraphs 3 to 6 exclusively refer to the States Parties to the Hague Conventions, i.e. Belgium, Britain, Gambia, Germany, Israel, Italy, Luxembourg, the Netherlands and San Marino. The first to denounce the Hague Conventions was Italy which did so on 11 December 1986.

[5] For the purposes of the entry into force, States are counted which have acceded only to parts of the Convention. The first ten States to accede, however, did not make relevant declarations.

[6] For States which later, prior to or after the entry into force, accede to the Convention, the period of twelve months applies too.

[7] Paragraphs 3 to 5 are dealt with in such great detail in order to cover all variants of membership to only one of the Hague Conventions and/or of accession of only part of the CISG. These paragraphs contain the obligation to denounce the Hague Conventions. If this were not so, the CISG and the Hague Conventions would exist in parallel (c. Article 90). However, the Hague Conventions would cease to be in force without denunciation as soon as all its Member States have acceded to the CISG (c. Article 59 Vienna Treaty Convention). The requirement of denunciation of the old conventions might have delayed accession to the CISG because no State would want to give up the old convention without being sure of the new one taking effect. A joint action of the European Member States of the Hague Convention envisaged originally did not come about.

[8] The Government of the Netherlands is the depositary of the Hague Conventions.

[9] According to the Hague Conventions, the denunciations will become effective twelve months after notification. In order to avoid a time gap between the expiration of the denounced Hague Convention and the entry into force of the CISG, Italy has declared that the Hague Conventions will continue to be effective for Italy until 31 December 1987 (the period of twelve months for denunciation expired on 11 December 1987). As to the effect of this declaration, [page 388] there are differing views (see E. Jayme, "Das Wiener Kaufrechtsübereinkommen und der deutsch-italienische Rechtsverkehr", Tagung in Ferrara, IPRax, 1989/2, p.128 fol). In the view of the FRG, the legal situation has become confusing for a transition period because the German judge is not bound by the unilateral Italian declaration (see G. Reinhart, "Vom Haager zum Wiener Einheitlichen Kaufrecht", in: Jahrbuch für Italienisches Recht, Band 2, Eherecht - Schadensregulierung - Wiener Kaufrecht -Sprachrisiko, p. 65 fol).

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