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Published in J. Herbots editor / R. Blanpain general editor, International Encyclopaedia of Laws - Contracts, Suppl. 29 (December 2000) 1-192. Reproduced with permission of the publisher Kluwer Law International, The Hague.

[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).]

excerpt from

The 1980 United Nations Convention on Contracts
for the International Sale of Goods

Joseph Lookofsky

Article 90
Relationship to 1955 Hague Convention

326. According to Article 90, the CISG 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 the CISG.[l] In limited circumstances, this provision may be significant for those (relatively few) States which, prior to ratifying the CISG, had already ratified the 1955 Hague Convention on the Law Applicable to International Sale of Goods.[2]

As noted with respect to the provisions which regulate the. CISG sphere of application, those States which have ratified both the 1955 Convention and the CISG will utilize the 1955 treaty when applying CISG Article 1(1)(b),[3] i.e. to determine when the rules of private international law lead to the application of the law of a ClSG Contracting State.[4] In this respect, the two treaties work in tandem.

As regards the application of CISG Article l(l)(a), the relationship between the CISG and the 1955 Convention seems somewhat less clear.[5] Although Article l(l)(a) makes the CISG generally applicable without recourse to the rules of private [page 173] international law,[6] the 1980 CISG does not, according to Article 90, 'prevail' over the 1955 Convention to the extent that the older treaty contains provisions concerning the matters governed by the CISG. The potential for conflict seems limited, however: when the CISG would apply by virtue of Article 1(1)(a), the 'seller's law' rule in Article 3, the 1955 Convention would usually lead to the application of the CISG as well. In a few limited situations - e.g. where a sales contract calls for delivery in a non-CISG State and a problem arises as to the rules regarding inspection and notification in that State - the two conventions might lead to different results; presumably, in such a situation the 1955 Convention would prevaiI.[7] A primary goal of the 1986 revision of the 1955 Convention is to eliminate such potential conflicts with the CISG.[8]

1. Provided that the parties have their places of business in States parties to such agreement.
2. Belgium, Denmark, Finland, France, Italy, Norway, Sweden and Switzerland have ratified both Conventions. Niger, which has ratified the 1955 Convention has not (as of 1999) ratified the CISG.
3. Assuming, at least, that the State concerned has not made a declaration pursuant to Article 95 which limits the applicability of Article 1(1)(b). See infra No. 331.
4. Supra No. 54.
5. See generally Winship, P., 'Private International Law and the U.N. Sales Convention,' 21 Cornell International Law Journal 487 (1988).
6. See supra No. 53.
7. Under Article 4 of the 1955 Convention, the law applicable to inspection and notification is the place of delivery.
8. The 1986 Covention 'shall not prejudice' the application of the CISG. See generally Winship, P., 'The Scope of the Vienna Convention on International Sales Contmcts,' in International Sales (Galston and Smit ed. 1984) at pp. 1-43 [available at <http://www.cisg.law.pace.edu/cisg/biblio/winship5.html>] and Honnold, J., Uniform Law (1999) pp. 533-535 [available at <http://www.cisg.law.pace.edu/cisg/biblio/honnold.html>].
[page 174]

Pace Law School Institute of International Commercial Law - Last updated April 5, 2005