[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]

70. Article 6 of the CISG reaffirms the well-known principle of contractual freedom and the status of the Convention as a supplementary regime. Article 6 provides as follows:

A. Contracting Out

71. The Convention was designed to eliminate or at least reduce the application of domestic sales law in international contexts, but like the domestic rule-sets which it displaces, the CISG is designed primarily to serve as a supplementary regime which fills contractual 'gaps'.[1] For this reason, Article 6 expressly gives parties to an international sales contract the right to 'contract out' of the CISG - in whole or in part - and thus prevent the automatic application of the Convention pursuant to Article 1(1).

So if, for example, a seller in France and a buyer in Russia agree that their sales contract shall be governed by the 'Swedish Sale of Goods Act of 1990' (Koplagen), then that Swedish (domestic) law will displace the CISG, i.e., even though both French and Russian courts otherwise (absent the clause) would have applied the Convention between the parties concerned, simply because they reside in different Contracting States.[2]

For those who would seek to contract out of the CISG, however, careful contract drafting is advised: a clause which simply states that, e.g. 'French law' applies will not be interpreted as displacing the CISG, because the CISG has become an integral part of French law.[3]

72. As regards contracting out, where the parties do not elect to displace the CISG regime in its entirety, they will often contract out to a more limited extent, e.g. where the contract expressly incorporates the INCOTERMS.[l]

Another common example of partial contracting out is provided in situations where certain terms are set forth in a standard form agreement containing, e.g. a repair-or-replace clause, a disclaimer or limitation of liability,[2] an arbitration clause, etc. In such situations the parties' rights and obligations will be governed by a combination of (a) the express contractual provisions, (b) the applicable domestic rules of validity (which may serve to limit the effect of the express provisions)[3] and (c) the supplementary Convention rules.

B. Contracting In

73. In those situations where the CISG would not automatically apply,[1] there is, of course, no need for the parties to 'contract out' of the Convention regime; rather, the starting point would ordinarily be the application of the domestic sales and sales contract formation rules as determined by the choice of law rules of private international law. Then again, as a compromise between 'provincial' solutions, the parties to an international sale can elect to 'contract in' to the Convention - not only in cases where the parties do not reside in Contracting States, but also, e.g. with respect to the sale of a 'ship'.[2]

Note also in this connection that a court might well interpret a general reference to 'New York law' as evidencing an intent to 'contract in' to the Convention, i.e., in case where the Convention would not otherwise (in the absence of such a clause) apply.[3]