Excerpt from John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed. (1999), pages 536-537. Reproduced with permission of the publisher, Kluwer Law International, The Hague.
In 1964 separate conventions were adopted on formation of contracts for international sales (ULF) and on obligations under the contract (ULIS). Following this pattern, the UNCITRAL Working Group prepared separate draft conventions. However, the full Commission in 1978 merged the two drafts into a single draft convention but provided (Article 92) that Contracting States may declare that they will not be bound by Part II (Formation) or by Part III (Obligations under the contract).
Interest in this option was shown primarily by the Scandinavian States, based on their satisfaction with their uniform law on contract formation. In fact, Denmark, Finland, Norway and Sweden have all ratified the Convention subject to a declaration under Article 92 not to be bound [page 536] by Part II: Formation of the Contract. As of 1998 no other State has made a declaration under Article 92.
The application of Article 92 in most situations presents little difficulty. However, it may be useful to illustrate the interplay of a reservation excluding Part II and the alternative grounds for applicability in Article 1(1)(a) and (b).
Example 92A. Seller (in State A) and Buyer (in State B) communicated with each other in a manner that raised a question as to whether they had made a contract. Both States had adopted the Convention but State B had also made declaration under Article 92 excluding Part II of the Convention on formation of the contract. Under what circumstances will Part II apply to this question?
This question calls for an application of Article 1 of the Convention (§§44-47, supra). Applicability cannot be based on Article 1(1)(a). Under Article 92(2) "in respect of the matters governed by" Part II, State B "is not to be considered a Contracting State" within Article 1(1). Consequently, with respect to Part II on Formation the places of business of both parties are not in "Contracting States". Under Article 1(1)(b), Part II will apply if "the rules of private international law lead to the application of the law of State A but not if the P.I.L rules point to State B. See Evans, B-B Commentary 643. [page 537]
FOOTNOTES: Chapter on Final Provisions
14. See §9, supra and UNCITRAL, Report of the Eleventh Session (1978) paras. 20–22, IX Y.B. 13–14.