Go to Database Directory || Go to Entire Honnold Text || Go to Bibliography to Honnold Text || Go to Honnold Text Schedule of Abbreviations: Judicial & Arbitral Decisions

Excerpt from John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. (1999), pages 531-535. Reproduced with permission of the publisher, Kluwer Law International, The Hague.

Article 90

Relation to Other Conventions

Text of Article
(a) Basis for Future Amendment
(b) Relation to Past Conventions
      (i)   CISG Rules on Inspection and Notification
      (ii)  The Scope of the Problem
      (ii)  Does CISG yield to Hague (1995)?
      (iii) CISG and Hague (1996)

This article is important and deserves quotation:

Article 90 [2]

"This Convention does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement."

§463 (a) Basis for Future Amendment

The present Convention does not contain any provision that expressly provides for amendment. However, under the Vienna Treaty on Treaties (1969) (Arts. 40(4), 41(1)(b)) the lack of an express provision for amendment does not bar amendment—and an amendment will be effective for the parties who agree without the concurrence of all parties to the original treaty.[3] Article 90 of CISG, by providing that it "does not prevail over any international agreement which...may be entered into and which contains provisions concerning the matters governed by the Convention", should avoid any doubt that this Convention is subject to amendment by the flexible procedures provided by the Vienna Treaty on Treaties. This is fortunate since amendment by denunciation (Article 101, infra) and readoption would be difficult for a widely-adopted treaty like the Sales Convention; in the absence of extraordinary precautions the cumbersome character of adoption procedures coupled, with the preoccupation or neglect by officials and legislatures, could produce unintended gaps in the applicability of [page 531] the uniform law.[4] It should also be reassuring to note that the 1974 Convention on the Limitation Period in the International Sale of Goods, containing a provision substantially the same as CISG 90 and no other provision relating to amendment, was amended without objection or mishap by a Protocol approved at the 1980 Conference that finalized the Sales Convention.[5]

§464 (b) Relation to Past Conventions

Article 90 states that the Sales Convention does not prevail over any international agreement "which already has been or may be entered into...". Since Article 1 of the Convention contains rules governing its applicability we need to consider the relationship between the 1980 Sales Convention and the 1955 Hague Convention on the Law Applicable [P.I.L.] to International Sales of Goods ("1955 Hague P.I.L. Convention")[6]—a Convention that has been adopted by some States that have adopted the 1980 Convention.[7] Article 1(1)(b) of the Sales Convention (CISG) and the 1955 Hague P.I.L. Convention are complementary rather than in conflict. CISG 1(1)(b) (§47, supra) provides that the Sales Convention is applicable "when the rules of private international law lead to the application of the law of a Contracting State", and thus invite the use of "conflicts" (P.I.L.) rules of the 1955 Hague Convention or any other applicable convention.

A more interesting question is presented by CISG 1(1)(a), which provides an additional basis for applicability when the places of business of the seller and buyer are in different "Contracting States". Under unusual circumstances (e.g. contracting and performance do not take place in the States of either the seller or buyer but in a third-non-Contracting State) Article 1(1)(a) could call for applicability of the Convention although the [page 532] forum’s rules of private international law designate the law of a non-Contracting State.

Happily, such a conflict with the 1955 Hague P.I.L. Convention will be rare. The general P.I.L. rules in Article 3 of the 1955 Convention designate the law of the State where the seller has its residence subject to a narrow exception designating the State where the buyer has its residence. Thus, in the cases to which CISG 1(1)(a) applies (seller and buyer are in different Contracting States), both CISG and Article 3 of the 1955 Hague Convention point to the Convention. In unusual cases where law under the Convention on the point in controversy is different in these two States (e.g. because only one has exercised a permitted reservation or there is an irreconcilable conflict in interpreting a relevant provision of the Convention) the rule of the Contracting State designated by Article 3 of 1955 Hague P.I.L. would be applicable.

§ 464.1 (i) CISG Rules on Inspection and Notification

Another provision of the 1955 Hague P.I.L. Convention, while narrow in scope, raises significant questions concerning the application of Article 90 to conventions on private international law ("conflicts"). Article 4, as an exception to the above general rules of Article 3, provides that "...the domestic law of the country in which inspection of goods delivered pursuant to a sale is to take place shall apply in respect of...the periods within which the inspection shall take place, the notifications concerning the inspection and the measures to be taken in case of refusal of the goods".[8] This problem can be illustrated as follows:

Example 90A. Seller and Buyer have their places of business, respectively, in States A and B. Both States have adopted the Sales Convention and the 1955 Hague P.I.L. Convention. A contract made by the parties called for delivery of a machine to Buyer in State C; this State had not adopted the Sales Convention. The domestic law of State C provides that a buyer may not recover for loss or damage resulting from defects in the goods if the buyer fails to notify the seller of the defects within six months following delivery with no exception when latent defects are discovered at a later date. The machine delivered to Buyer had a serious latent defect that Buyer, in spite of appropriate inspection, did not discover until [page 533] eight months following delivery. Buyer immediately notified Seller and made a claim for damages. Seller rejected the claim, relying on the above rules of State C, the place of delivery. Buyer brings an action against Seller in State A, a Contracting State.

Deciding which law applies touches sensitive nerves. Time limits for inspection of goods and notification of defects are of great practical importance and were the subject of extended debate and hard-fought compromises embodied in Articles 39 and 44, §§254-261, supra. Happily, as we shall see, conflicts between domestic rules designated by Article 4 of the Hague P.I.L. Convention and the substantive rules of the Sales Convention (CISG) can arise only in unusual circumstances.

§464.2 (ii) The Scope of the Problem

One factor limiting the scope of the problem results from the provision of CISG 90 that the Sales Convention yields to another convention (e.g. the Hague Convention) only when the seller and buyer "have their places of business" in different States both of which are parties to the Hague Convention. A second limitation on the scope of our problem results from the fact that conflict between the two conventions can arise only when an international sale subject to the Sales Convention calls for delivery in a non-contracting State. As we have seen, the Hague Convention (Art. 4) states that the law applicable to inspection and notification is that of the place of delivery; when the place of delivery is in a Contracting State the law of that State for a contract governed by the Sales Convention is, of course, the law of the Convention, including its rules on inspection and notification.

In view of these practical limitations one may well wonder whether the problem is worth the bother; however, working with this issue in one specific setting may make it easier to cope with similar problems in other settings.[9]

§464.3 (ii) Does CISG yield to Hague (1955)?

Example 90A posed this question: Which rules on inspection and notification apply—the rules of non-contracting State C via Hague (Art. 4) or the rules of the Sales Convention (Arts. 39 & 44)? Since this sale is in general governed by the Sales Convention the application of other rules depends on the interpretation of Article 90.[10] The crucial language of Article 90 is this: The [page 534] Sales Convention yields only to another treaty "which contains provisions concerning the matters governed by this Convention". The Hague Convention, of course, does not "contain provisions" on inspection, notification and related rules of the law of sales (note 8, supra). The only possible overlap could be between the P.I.L. rules of Hague Article 4 and the rules of CISG 1(1) that govern the applicability of the Convention.

Both of these provisions address the general question of the applicability of law. However, we can conclude that Hague Article 4 governs the same "matter" as Article 1 of the Sales Convention only if we forget that Article 1 is an integral part of a Convention to unify a large and inter-connected body of substantive law. Article 1(1) states that it determines when "this Convention applies"—this means all of the Convention subject only to those reservations specified in Articles 92–96.[11]

Whether Article 90 was intended to yield to another treaty in the setting of Example 90A can be tested by asking: Suppose that a delegate to the Vienna Sales Conference had proposed an amendment that the Convention’s provisions on inspection of the goods, notification of defects and related provisions (note 8 supra) would not apply when a contract governed by the Convention called for delivery in a non-Contracting State. This participant in the legislative process has no doubt that any such proposal would have been rejected out of hand. If this is correct, it seems difficult to construe Article 90 so broadly as to reach this unacceptable result.

§ 464.4 (iii) CISG and Hague (1986)

In any event, the problem posed by Example 90A will become moot under the 1986 Hague Convention on the Law Applicable [P.I.L.] to Contracts for the International Sale of Goods (15 Int. Leg. Mat. 1575). Article 23 provides: "This Convention does not prejudice the application of the U.N. Convention on contracts for the international sale of goods". Similar deference to the 1980 Sales Convention results from Articles 8(5) and 22(1). The specificity on these points of the 1986 Hague convention compared with the generality of CISG 90 avoids any impasse between the two Conventions based on Alphonse-Gaston politesse.[page 535]


FOOTNOTES: Chapter on Final Provisions

(...)

2. Article 90 is substantially the same as Article 37 of the 1974 Convention on the Limitation Period in the International Sale of Goods (A/Conf. 63/15). There was little discussion of Article 90 at the 1980 Vienna Conference. See O.R. 439–440, 479.

3. I. Sinclair, The Vienna Convention on the Law of Treaties 106–109 (2d ed. 1984). Article 40(2) & (3) of the Vienna Treaty on Treaties prescribes procedures for amending a multinational treaty—e.g., all parties to the treaty must be notified of the proposal to amend and have the right to take part in the decision on whether to amend.

4. CISG 101(2) provides that a denunciation may provide a longer delay before effectiveness than the twelve-month delay specified in this article. Delicate handling of this provision could minimize the danger of gaps but it would be hazardous to rely on inclusion of the same flexible period in the instruments of denunciation filed by all Contracting States.

5. The Protocol amended the 1974 provisions on sphere of application to conform to the approach that had developed in preparing the 1980 Convention. The Protocol appears in the Official Records of the 1980 Conference at p. 191. The 1974 Limitation Convention, as amended, entered into force on August 1, 1988. See also Winship, n. 1, supra at 731–732.

6. U.N. Treaty Series, vol. 510, p. 149, No. 7411 (1964); UNCITRAL Register, Vol. I, p. 5. Detailed procedures for replacement of the 1964 Hague Conventions on Sales (ULF & ULIS) are specified in CISG Article 99(3)–(6). The text of Article 99 appears in Appendix A, infra.

7. The question whether CISG yields to the Hague PIL Convention when the Hague PIL rules conflict with the rules of applicability in CISG is deferred to §§464.3–464.5 so that the question can be considered in a setting where such a conflict may occur.

8. For simplicity, the impact of this provision on CISG is discussed in terms of its rules in inspection and notification. However, the reference in Hague Article 4 to "measures to be taken in case of refusal of the goods" could supersede Articles 85–88 that deal specifically with this question and, to an uncertain extent, the applicability of general rules on rejection and avoidance with respect to defective goods (Arts. 49, 81–84).

9. Sinclair, supra note 3, 93, describes this area as a "particularly obscure aspect" of treaty law. Nothing that follows contradicts this view.

10. Article 30 of the Vienna Treaty on Treaties provides that when successive treaties have incompatible provisions the earlier treaty yields (para. 3) unless the later treaty provides otherwise (para. 2)—i.e., the 1955 Hague Convention would yield to the 1980 Sales Convention.

11. The 1955 Hague P.I.L. Convention was not designed to intrude on a Convention establishing uniform law for sales; the first such convention (ULIS) was adopted in 1964. The care taken to avoid such intrusion in the 1986 Hague P.I.L. Convention is described infra at §464.4.

(...)


Pace Law School Institute of International Commercial Law - Last updated March 2, 2005
Go to Entire Honnold Text || Go to Database Directory || Go to Table of Contents to Annotated Text of CISG