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Reproduced with permission of 8 Vindobona Journal of International Commercial Law and Arbitration (2004) 181-195

Digesting CISG Case Law: How Much Regard Should We Have?

Joseph Lookofsky [*]

  1. Introduction: The UNCITRAL CISG Case Digest
  2. The Command in Article 7: To Have Regard
  3. The Special Nature of CISG Case Law
  4. What the Digest can tell us (and what it cannot)
  5. Conclusion

1.  INTRODUCTION: THE UNCITRAL CISG CASE DIGEST

In 1966 the United Nations set up UNCITRAL [1] in order to promote 'the progressive harmonization and unification of the law of international trade'.[2] The 1980 Vienna Convention (CISG) [3] not only furthers that goal; it surely stands as UNCITRAL's greatest achievement thus far.[4] Indeed, since the contract of sale (involving an exchange of goods for money) is the single most important contract type, and since the CISG has been ratified by some 60 nations accounting for more than 2/3 of world trade,[5] a realist might be hard put to even imagine a more significant step in the harmonisation and unification [page 181] of commercial law.[6]

UNCITRAL has not, however, been resting on its CISG laurels,[7] especially since the Commission also has been charged with the task of 'promoting ways and means of ensuring uniform interpretation and application' of the CISG and other uniform law.[8] Most recently, the UNCITRAL CISG Case Digest was published (and made available on line),[9] and those associated with the project are predicting that the promulgation of the Digest (in the six official United Nations languages) will 'revolutionize' the understanding and practice of international sales law.[10]

We can, at least, expect CISG practitioners (judges, arbitrators, lawyers) to like the new Digest,[11] because it is '[im]practicable for the average practitioner, with limited resources and time, to achieve the international perspective needed to implement a truly global international commercial law system.'[12] Just as other kinds of Convention 'commentaries' already help practitioners gain a more global perspective,[13] the Digest provides access to a large amount of well-organised CISG information compressed into a compact and readily usable format.[14] Based on an increasingly large number of CISG court decisions, including those which UNCITRAL's network of national correspondents [page 182] monitor and collect,[15] the new Digest tool will serve as an important adjunct to the CLOUT system,[16] as well as to other key CISG information bases.[17]

UNCITRAL expects the Digest to promote uniform interpretation and application of the Convention.[18]Among other things, the Digest indicates how a majority of courts have interpreted individual – perhaps controversial – Convention rules. Conversely, the Digest also highlights questionable decisions: 'aberrations' which run counter to (and therefore dilute) the majority view.[19] If we liken uniform CISG interpretation to a well-kept garden, the new Digest tool might serve to pull out the weeds: if judges get (and accept) the majority-message, the Digest will help UNCITRAL nip abhorrent minority positions in the bud.

But before Digest readers allow themselves to be swept away by the coming uniformity tide, they might pause to consider the special nature of CISG case law, i.e., the large mass of raw material which the Digesters 'digest' and succinctly report. Digest readers should also take note of the special constraints imposed by UNCITRAL on the Digesters to ensure a work-product devoid of criticism, thus ensuring a (UN) politically acceptable result.

2.  THE COMMAND IN ARTICLE 7: TO HAVE REGARD

Just as UNCITRAL has been charged to promote uniform interpretation and application of the Convention,[20] Article 7(1) of the treaty charges CISG Contracting States with a similar task:

In the interpretation of this Convention, regard is to be had to its international character and to the need to promote unifor­mity in its application [...][21

ince the CISG treaty should, where possible, be interpreted in accordance with the ordinary meaning to be given to its terms,[22] and since the phrase 'is to be had' plainly [page 183] carries the same meaning as 'you shall have',[23] we can safely conclude that Article 7(1) contains a clear (public international law) command to all CISG Contracting States and their courts as regards the interpretation of the entire Convention text: you shall have regard to the international character of the treaty and the need to promote its uniform application.

With Article 7(1) as their starting point, most CISG commentators – and an increasing number of national courts – agree that the command 'to have regard' requires that particular consideration be given to CISG 'foreign case law', i.e., relevant decisions emanating from courts in (other) CISG Contracting States.[24] Then again, since Art. 7(1) does not specify the degree of 'regard' to foreign case law which courts should have,[25] those who seek to clarify the meaning of other Convention provisions by resort to foreign case law need to deal with a peculiarly slippery CISG source: 'a process or methodology involving awareness of and respect for, but not necessarily blind obedience to, interpretations of the CISG from outside one's own legal culture.'[26]

3.  THE SPECIAL NATURE OF CISG CASE LAW

The term 'case law' means different things to different jurists in different legal systems. By virtue of the Common law doctrine of precedent (stare decisis[27])– whereby a court within a given judicial hierarchy (e.g., in England, India, New Mexico) is bound by its own prior decisions, as well as by prior decisions handed down by that jurisdiction's superior courts – Common lawyers consider their case law (often also referred to as 'judge-made law') to be an extremely important source of law. On the other hand, we might expect that a Civilian jurist – educated to believe that 'real' law can only be made by a legislator (parliament)– would reject the concept that judges are empowered to 'make' law at all.

These traditional distinctions notwithstanding, UNCITRAL (an organ designed to serve the interests of all legal systems) regularly refers to CISG 'case law'[28] and even dubbed [page 184] its own case dissemination system 'Case Law on UNCITRAL Texts' (CLOUT).[29] The explanation, of course, is that the case law conception is no longer strictly confined to Common law systems. For although judges in jurisdictions like Denmark, France and Germany are not formally required to follow the decisions of higher (Danish, French and German) courts, the Scandinavian or Civilian judge who 'distinguishes' herself as a maverick, ignorant or disrespectful of relevant precedents, can hardly expect promotion to any higher court bench. For this and other reasons, judges in all national systems tend to follow the decisions of their superior courts, thus indicating broad-based support for the basic stare decisis idea.[30]

There are, however, real problems related to the CISG case law conception, and one of these is the absence of any 'higher' (international) court capable of promoting uniform CISG interpretation, e.g., by issuing preliminary rulings as to the proper interpretation of the Convention text.[31]  In other words, the CISG judicial 'pyramid' is essentially flat: no court sits atop with the authority to iron out differences in opinion among the numerous sovereign national instances and judicial hierarchies spread across the globe.

So although a given lower court in a given CISG State (A) would consider itself 'bound' by a CISG ruling emanating from a higher court within (A), it would seem impossible for a court in a different CISG State (B) to regard a prior decision from a court in A as 'binding' (for B).[32] For this reason, among others, the national courts in the many Contracting States resemble – and sometimes act like – 'members of an orchestra without a conductor';[33] and though we find many good examples of harmonious CISG interpretation,[34] the numerous CISG musicians do not –and cannot be compelled to – [page 185] always play the same tune.[35]

These observations should shed light on a related CISG case law problem: just as the absence of a higher CISG court means that foreign precedent cannot bind, we have no established system or scale which can be used to evaluate the weight (precedential value) to be attributed to any given foreign precedent(s) on point.[36] So although Art. 7(1) CISG commands courts to have 'regard' to decisions previously rendered by courts in other CISG States, the treaty does not – indeed, could not – tell courts how much regard they should have. In other words, the CISG drafters' failure to tell us what weight foreign case law should have is an intentional omission, and this gap in the treaty text can hardly be filled by use of the gap-filling techniques laid down in Art. 7(2) CISG.[37]

Two Italian courts have dealt with the question of the value which foreign CISG decisions should have. According to the Digest, the answer provided by both these courts is that foreign court decisions 'merely have persuasive, non-binding value'.[38] The Digester's main message, I assume, is that foreign court decisions are not 'binding' in the stare decisis sense.[39] But when it comes to measuring the 'pursuasiveness' of foreign precedent – i.e., the degree of 'regard' courts should have – I would suggest a slight reformulation (or at least clarification) of the Digest synopsis of the case law on point.[40] In particular, I think the Italian cases cited in the Digest support the proposition that foreign court decisions 'at most have persuasive value',[41] thus accounting for the very real possibility that (e.g.) an Italian court might find one or more foreign 'precedents' to be unpersuasive — i.e., of no 'persuasive value'.[42] In other words, the requirement that an Italian (or other CISG) court must have 'regard' to the Convention's international [page 186] character and the need to promote its uniform application requires only that the court consider foreign case law, 'take [it] into account'.[43]

Because there is no established system or scale to evaluate the weight of CISG foreign precedent, the persuasive – or unpersuasive – nature of any given foreign decision will depend on various factors, including (but not limited to) the force of the reasoning in the (foreign) opinion and the apparent soundness of the result;[44] it may also depend on the prominence of the (foreign) court and whether the decision has support in other jurisdictions.[45]

I concede that my argument as to the factors affecting the precedential value of CISG foreign case law is influenced by the (American and Scandinavian) versions of precedential doctrine with which I am most familiar.[46] Still, the logic and reasoning which underlies this national doctrine should also ring true – or at least sound persuasive—in the international CISG context;[47] I can, at least, cite one Italian CISG decision to help back it up.[48]

Within a given national court hierarchy, a decision rendered by a lower court can be reversed or overruled, thus stamping the prior precedent as unpersuasive and wrong. Indeed, the highest court in a given system might even prove the majority (of lower [page 187] courts in that system) wrong.[49] We cannot, of course, expect to see that kind of thing happen in the CISG context, simply because we have no higher/international court, but that does not mean that a given CISG majority view is necessarily persuasive, let alone 'right'. So when the Digest provides us with a head count of decisions rendered thus far with respect to a debatable CISG proposition – (e.g.) 2 cases for, 1 against – a previously uncommitted court might take that statistical fact 'into account', but the numbers should not count for much, especially if the reasoning of the (first-in-time) majority is unpersuasive.[50][

For example, even if a majority of courts thus far have held that only standard (off-the-shelf) software qualifies as a 'good' under the Convention,[51] courts in other jurisdictions which later rule on the same question remain free to treat all software – even custom-made software – as CISG goods.[52] In other words, a court in a given CISG State (C) which takes foreign decisions rendered in CISG States A and B 'into account' can decide to beat an entirely different path, especially if the (C) court is not persuaded by the force of the reasoning of the A and B cases or the soundness of their results.

Consider, to take another example, the question of whether a successful CISG claimant, who establishes her right to damages under Art. 74,[53] should be reimbursed for her attorney fees as part of the damages suffered 'in consequence of the breach'.[54] Since the Convention expressly governs the rights and obligations of the parties to a CISG contract,[55] and since an injured CISG party is generally entitled to full expectation-interest protection under Art. 74,[56] several decisions rendered by courts in Europe lend support to the proposition that the prevailing party in a CISG litigation should – by reason of that CISG rule – recover its attorneys' fees,[57] and a U.S. Federal District [page 188] Court, citing this CISG foreign case law, has also so held.[58] However, since the general American (no-fee-shifting) rule applies in all civil cases,[59] and since the regulation of fee-shifting (a "procedural" issue) by Art. 74 CISG might lead to absurd results, it has been argued that the fee-shifting matter is not – and ought not be – governed by the Convention at all.[60] So it should hardly seem surprising that a U.S. Court of Appeal elected to ignore the unpersuasive views of the 'conscious majority'[61] and to reverse the decision of the U.S. District Court.[62] And now that we have a highly persuasive opinion (by a heavyweight judge in a high-level court),[63] an increasing number of courts – both inside and outside the United States – are likely to discount the previously prevailing view.[64]

To avoid misunderstanding, I should perhaps emphasise that I am not arguing that judges [page 189] or other practitioners should disregard the CISG majority view. When, for example, an Italian court was asked to rule on the proper interpretation of Art. 1(1)(b), that court should have shown more respect for the well-reasoned opinions previously rendered by an overwhelmingly large – and well-reasoned – majority of foreign CISG courts.[65] Happily, another Italian court, in a subsequent CISG decision, set a 'world record' for foreign case citation (40), thus demonstrating that courts in Italy now take CISG foreign case law very much 'into account'.[66]

4.  WHAT THE DIGEST CAN TELL US (AND WHAT IT CANNOT)

Some years ago, before the Digest project assumed its final form, UNCITRAL considered a more far-reaching supplement to the CLOUT system,[67] one which involved the establishment of an Editorial Board empowered to issue non-binding recommendations to the courts of Contracting States.[68] This prospect prompted a prominent CISG scholar to warn that the implementation of such a plan might prove impracticable, even dangerous.[69]

UNCITRAL seems to have been conscious of the danger, and the Digest project as realised does not involve the participation of that kind of Board.[70] On the other hand, the task which UNCITRAL ultimately assigned to each of its distinguished Digesters is not simply to provide information on the case law as such (the decisions of national courts);[71] the Digesters should also provide guidance as to the proper interpretation of the Convention.[72]

To this end UNCITRAL has encouraged its Digesters to cite the CISG legislative history (travaux préparatiores), especially since this Convention source – having been [page 190] translated into the six official languages of the United Nations – offers the advantages of accessibility and neutrality.[73] On the other hand, prior experience with similar legislative histories (international travaux) would seem to dictate both caution and skepticism when it comes to the usefulness of this kind of secondary source.[74] The Convention history is, to be sure, voluminous,[75] but it is often inconclusive,[76] so – as regards controversial CISG issues where practitioners might need help – it would seem difficult for the Digesters to base much (objective) guidance on it. Even the Secretariat Commentary to the 1978 Draft Convention – probably the most helpful travaux-tool available [77] – does not provide binding authority as to what the (real) 1980 Convention means.[78]

These limitations with respect to the usefulness of the travaux are significant, especially given the Digest ground rules with respect to other secondary sources of CISG law. In particular, since any expression of preference for one judicial view over another might be viewed as criticism of national courts, and since UNCITRAL wants the Digest to reflect a more international view than existing national (arguably parochial) commentaries, [page 191] scholarly writing (doctrine) has been declared taboo in the Digest context.[9] This means that the Digesters (themselves academics) cannot cite the views of (other) academics, presumably not even in instances where a court expressly refers to such doctrine.[80] The Digesters should, of course, also resist the temptation to 'spin' the case law in the direction they themselves might like see it to go.[81]

For these reasons, the Digest provides no critical assessment of the widely diverging positions which national courts have taken on key CISG rules, e.g., Arts. 38 and 39 which regulate the buyer's post-delivery inspection and notice of non-conformity.82] At one extreme of the litigation spectrum, the Supreme Court of France (Cour de Cassation) has held that the timeliness of the buyer's notice is a highly discretionary determination best left in the hands of the individual (French) judges below,[83] and American courts have taken a similarly flexible stance.[84] Taking a very different approach, however, the German Supreme Court (Bundesgerichtshof) has established a fixed period of one month as a general – i.e., standard or generally acceptable – notification period,[85] whereas the Austrian Supreme Court has set 14 days as a 'regular' maximum period for the examination and subsequent notice combined.[86] So, although the Austrian and the [page 192] German approaches give cause for considerable concern, especially in light of the French and American precedents,[87] the designated Digester can only describe – but not comment upon – this crazy decisional quilt.[88] (The ground rules change, of course, when the same CISG expert removes his tight-fitting UNCITRAL cap.[89])

The decision by UNCITRAL to ban CISG scholarly writing (doctrine) – and thus criticism of national courts – from the Digest is understandable. Quite apart from the dictates of 'political correctness' within the United Nations context, the presentation of scholarly writing (and criticism) in the Digest might have raised legitimate questions which the Digesters would then have had to answer,[90] thus leading to an unwieldy, less readable work.

The decision to 'neuralise' the Digesters' work product might help explain why the Digest is also largely devoid of references to ratio,[91] i.e., the reasoning which underlies a given court decision,[92] thus leaving it up to Digest readers to determine for themselves why foreign courts decide as they do.[93] Hopefully, those practitioners who consult the Digest will take the trouble to make that (important) determination. But just as some national courts, before the advent of the Digest, did little to take foreign case law into account (at all),[94] some courts might now use the Digest to take the easy way out, siding blindly with the (uncritical) 'majority report'.[page 193]

5.  CONCLUSION

The UNCITRAL CISG Case Digest  assembles – and helps organise –much relevant and useful case law information 'under one roof', thus making it much easier for national courts and other practitioners to follow the Art. 7(1) mandate, to have the requisite 'regard' for the Convention's international character and the need to promote uniformity in its application. For this reason alone, the Digest surely represents a significant stride forward towards the development of what one distinguished CISG commentator (and Digester) has termed 'the "infrastructure" of the practice of the new international commercial law – resources that make it feasible (if not yet easy) to discover relevant foreign legal materials'.[95]

Its virtues notwithstanding, the advent of the Digest hardly signals the kind of 'revolution' heralded by the birth of the Convention itself.[96] Decision-makers who would honour the Art. 7(1) mandate need more than Digest access; they also need 'knowledge of how pertinent CISG issues have been handled by others, particularly courts and commentators representing different legal traditions'.[97] Because the Digest is largely devoid of (critical) information about the ratio underlying foreign precedent, and since the views of CISG commentators are UN-taboo, the Digest cannot help us distinguish the wheat from the chaff (precedents which are persuasive from those which are not). For this reason, the Digest – however helpful as an information-organiser – provides practitioners with a cropped snapshot of the big picture, the overall status of (real) 'CISG law'.

Having said that, I would emphasise that the solution to the (potential) problems generated by the narrow range of Digest sources does not lie in the establishment by UNCITRAL of an Editorial Board to take up the slack.[98] We can understand and accept – maybe even applaud – the neutrality of the Digest, but we cannot fill the continuing need for healthy academic debate by the creation of yet another centralised (opinionative) CISG source.[99]

However we balance the pros and cons of unification and harmonisation, in this and other [page 194] commercial contexts,[100] we ought not measure CISG success in terms of the 'certainty' which highly uniform – centralised and formalistic – interpretation and application might be thought to represent. Viewed from a realistic perspective, the cost of pursuing such an illusion would be prohibitive.[101] Fortunately, Art. 7(1) 'does not mandate a doomed quest for an unobtainable [and] ultimately harmful ideal'.[102][ [page 195]


FOOTNOTES

* Professor of Law, University of Copenhagen. The author wishes to express his sincere thanks to Professor Harry Flechtner, University of Pittsburgh, for providing a set of most helpful comments to a prior draft of this article.

1. The United Nations Commission on International Trade Law (UNCITRAL). See <http://www.uncitral.org>.

2. Resolution no. 2205 (XXI) of 17 December 1966. See also Jernej Sekolec, 'Digest of Case Law on the UN Sales Convention: The Combined Wisdom of Judges and Arbitrators Promoting Uniform Interpretation of the Convention', The Draft UNCITRAL Digest and Beyond (Ferrari, Flechtner & Brand (ed.) 2004) at p. 4 with fn. 4.

3. The 1980 United Nations Convention on Contracts for the International Sale of Goods. See <http://www.uncitral.org/english/texts/sales/CISG.htm>.

4. The (also highly successful) 1958 New York Convention (regarding the recognition and enforcement of foreign arbitral awards) was prepared by the United Nations prior to the existence of UNCITRAL, although the promotion of this Convention later became an integral part of the Commission's program of work. See <http://www.uncitral.org/en-index.htm> (Adopted Texts, International Commercial Arbitration).

5. As of July 2004 the number of CISG Contracting States was 63: see <http://www.uncitral.org/english/status/status-e.htm>.

6. Regarding the unlikely (and undesirable) merger of the UNIDROIT Principles of International Commercial Contracts (<http://www.unilex.info/>) into an international convention or 'Global Commercial Code' see Michael Joachim Bonell, 'UNIDROIT Principles 2004 - The New Edition of the Principles of International Commercial Contracts adopted by the International Institute for the Unification of Private Law', 9 Uniform Law Review (2004 -1) 5 at pp. 37 ff. (comparing The Principles of European Contract Law as a basis for a possible 'European Civil Code').

7. See generally <http://www.uncitral.org/en-index.htm>.

8. And other international conventions and uniform laws in the field of the law of international trade. See Report of UNCITRAL on its 34th Session, 25 June - 13 July 2002, A/56/17, at para. 386.

9. See United Nations document A/CN.9/SER.C/DIGEST/CISG and the official English version of UNCITRAL Digest of case law on the United Nations Convention on the International Sales of Goods at <http://www.uncitral.org/english/clout/digest_cisg_e.htm>. See also the prior draft in The Draft UNCITRAL Digest and Beyond (Ferrari, Flechtner & Brand (ed.) 2004), pp. 501 ff.

10. See The Draft UNCITRAL Digest, ibid at p. VIII (Preface and Acknowledgements).

11. This was the clear (oral) message delivered by the distinguished Professor – and arbitrator – Professor Filip de Ly at Session Five of the conference held at the University of Pittsburgh on February 7, 2003, also noted ibid.

12. Harry Flechtner, 'Recovering Attorneys' Fees as Damages under the U.N. Sales Convention: A Case Study on the New International Commercial Practice and the Role of Foreign Case Law in CISG Jurisprudence', 22 Northwestern J. Bus. L. & Policy (2002) 121, at p. 155, a draft of which is available at <http://cisgw3.law.pace.edu/cisg/biblio/flechtner4.html>.

13. See, e.g. Peter Schlechtriem, Kommentar zum Einheitlichen UN-Kaufrecht – CISG (3d ed. Munich 2000) and the English translation (of the 2d ed.): Commentary on the UN Convention on the International Sale of Goods (CISG) (Oxford University Press, 1998).

14. See the Note by the UNCITRAL Secretariat, A/CN.9/562, para. 15, and the Report of UNCITRAL's 34th session, 25 June - 13 July 2001, A/56/17, at paras. 391 and 395, available at <http://www.uncitral.org/english/sessions/unc/unc-34/A-56-17e.pdf>.

15. See Jernej Sekolek, 'Digest of Case Law' (see supra fn. 2),  at p. 6.

16. See <http://www.uncitral.org/english/clout/>.

17. The two most prominent being 'cisgw3' available at <http://cisgw3.law.pace.edu/> and 'UNILEX' available at <http://www.unilex.info/>.

18. See Jernej Sekolec, 'Digest of Case Law' (see supra fn. 2), at pp. 11 ff.

19. Ibid, at p. 14.

20. See supra fn. 8 and accompanying text.

21. As regards the remaining part of Article 7(1) – which deals with 'the observance of good faith in international trade' – e.g., Joseph Lookofsky, Understanding the CISG in the USA (2d ed. 2004), at  § 2.10.

22. See Article 31(1) of the 1969 Vienna Convention on the Law of Treaties (available at <http://www.un.org/law/ilc/texts/treatfra.htm>): 'A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.' (Emphasis added).

23. The equally authentic French Convention text is in accord: 'Pour l'interprétation de la présente Convention, il sera tenu compte [...].' (Emphasis added).

24. See, e.g., Franco Ferrari, 'International Sales Law and the Inevitability of Forum Shopping: A Comment on Tribunale Di Rimini, 26 November 2002,' 23 Journal of Law and Commerce 169, at p. 172 with fn. 12 (and the numerous sources cited there).

25. Refer Harry Flechtner, 'The Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and other Challenges to the Uniformity Principle in Article 7(1)', 17 Journal of Law and Commerce (1998) 187, at p. 211; also available at <http://cisgw3.law.pace.edu/cisg/biblio/flecht1.html>. See also text infra with fn. 36 et seq.

26. Harry Flechtner, ibid, at p. 188.

27. From stare decisis et non quieta movere (to stand by the decisions and not disturb settled points). Regarding the application of the doctrine within American law, see E. Allan Farnsworth, An Introduction to the Legal System of the United States (3d ed. 1996), at p. 51.

28. See, e.g., Jernej Sekolec, 'Digest of Case Law' (see supra fn. 2), at p. 8.

29. See text supra with fn. 16.

30. See generally K. Zweigert & H. Kötz, An Introduction to Comparative Law (3d ed. 1998), at pp. 259-65. Refer (regarding Danish law) Henrik Zahle, Rettens Kilder (Sources of Law, Copenhagen, 1999), at p. 48: 'For the individual judge, the judgment and its ratio become part of a communication directed to that judge and to other judges. The reasoning used on that one day becomes "judge-made law" (retspraksis) on the next' (translation by the present author).

31. Regarding the special jurisdiction granted to the European Court of Justice to interpret the Brussels Convention on Jurisdiction and Enforcement of Judgments, see Joseph Lookofsky & Ketilbjørn Hertz, Transnational Litigation and Commercial Arbitration (2d. ed. New York & Copenhagen 2003), at p. 31. In 2002 the Brussels Regulation replaced the Convention (in all European Union Member States formerly parties to the Convention, except Denmark); see ibid, at pp. 32 ff.

32. Refer Franco Ferrari, 'Forum Shopping' (supra fn. 24), at p. 173 (lack of rigid hierarchical structure does not allow for creation of a 'supranational stare decisis').

33. Peter Schlechtriem, 'Uniform Sales Law in the Decisions of the Bundesgerichtshof, reproduced (in English) at <http://cisg.law.pace.edu/cisg/biblio/schlechtriem3.html>, at p. 2.

34. For a prime example of uniform interpretation under Art. 6 see Joseph Lookofsky, Understanding the CISG (supra fn. 21), at § 2-7 (when parties expressly designate law of 'State X' (a CISG State), nearly all courts interpret the clause to mean the Convention applies, absent clear contrary evidence of parties' mutual intent to 'contract out'). See also text infra with fn. 65.

35. Regarding the varied interpretations of the inspection and notice rules in Arts. 38-39, see text infra with fn.   82 et seq.

36. For a discussion of this problem – and a proposed method for determining the prece­den­tial authority of foreign CISG decisions – see generally Harry Flechtner, 'Attorneys' Fees'  (supra fn. 12).

37. Regarding the proper use of Art. 7(2) see Joseph Lookofsky, Understanding the CISG (supra fn. 21), at § 2-11.

38 See the UNCITRAL Digest (supra fn. 9) of Art. 7, at para. 4 (emphasis added here), with fn. 13 (citing CLOUT case No. 378, Italy, 2000; CLOUT case No. 380, Italy, 1999 Trib. Rimini, Italy, 2002).

39. See Franco Ferrari, 'Forum Shopping' (supra fn. 24), at p. 173, indicating agreement on this point between the decision of Tribunale di Vigevano (CLOUT case No. 378, preceding fn., also available at <http://cisgw3.law.pace.edu/cisg/text/000712i3italian.html>) and the more recent decision of Tribunale di Rimini, 26 November 2002, English translation in 23 J. Law & Comm. 193, at p. 197 (foreign case law 'can only have persuasive value and not binding value'). Refer Harry Flechtner, 'Several Texts' (supra fn. 25), at p. 211.

40. I.e., as quoted supra at fn. 38.

41. See Joseph Lookofsky, 'CISG Foreign Case Law: How Much Regard Should We Have?', The Draft UNCITRAL Digest and Beyond (Ferrari, Flechtner & Brand (ed.) 2004) 216, at p. 218. Regarding the CLOUT decisions cited in the Digest to support the proposition (supra fn. 38) see fn. 43 infra. The more recent decision of Tribunale di Rimini, 26 November 2002, supra fn. 38 and 39, also seems consistent with the view taken here (court decisions of other countries 'have only persuasive and not binding value') . See also Franco Ferrari, 'Forum Shopping' (supra fn. 24), at p. 173.

42. See also text infra with fn. 50 et seq.

43. Regarding the quoted passage see the UNCITRAL Digest (supra fn. 9) of Art. 7, at para. 3. See also the decision of Tribunale di Vigevano of 12 July 2000, supra fn. 39 ('che, sebbene non vincolante, come invece vorrebbe una dottrina minoritaria, dev'essere comunque presa in considerazione al fine di assicurare e promuovere l'applicazione uniforme della Convenzione [...]') and the English translation in 20 Journal of Law and Commerce 209, at para. 5 ('foreign case law [...] not binding on this TR [...] must nevertheless be considered [...]'). The CLOUT digest of Case No. 380, cited by the Tibunale di Vigevano at ibid and as authority for the Digest proposition (supra fn. 38) is also in accord ('the Court recognized that foreign decisions, though not binding, should be taken into account by the judge in construing and applying the Convention').

44. See E. Alan Farnsworth, Introduction (supra fn. 27), at pp. 52-57 (speaking of the American notion of 'persuasive' – as opposed to binding – 'case law authority', a category which includes the decisions of courts of other jurisdictions).

45. Ibid.

46. See ibid and, regarding Danish 'case law' (retspraksis), Henrik Zahle, Rettens kilder (supra fn. 30), at pp. 51 ff.

47. Since, for example, Professor Farnsworth's observations (cited supra with fns. 44 and 45) apply to the 'regard' which a New York court might – or might not – have for a prior decision rendered in New Jersey, and the since law-making role played judges in Common law systems is much greater than in other systems (see, e.g., Mads Bryde Andersen, Ret & Metode (Law & Method, Copenhagen 2002), at p. 155), I consider it fair to generalise on this basis. For a fuller discussion – and a proposed method for determining the precedential authority of foreign CISG decisions – see generally Harry Flechtner, 'Attorneys Fees' (supra fn. 12).

48. Regarding the force-of-reasoning factor (text supra at fn. 44), see the decision of the Tribunale di Vigevano, 12 July 2000, translated in 20 J. L. & Comm. 209, at p. 220 (2001): 'According to better reasoned and more numerous authorities [...]'.) (emphasis added).

49. This could, for example, happen in the United States if the U.S. Supreme Court sided with the position previously taken on a given (federal) question by a minority of the 13 U.S. (Circuit) Courts of Appeal. See generally E.A. Farnsworth, Introduction (supra fn. 27), at pp. 38-43.

50. Refer Harry Flechtner, 'Several Texts' (supra fn. 25), at p. 211 ('Having "regard" for the "need to promote uniformity' in applying the Convention [...] surely does not require that a foreign decision [...] be treated as binding authority just because it happens to appear first.'); Clayton Gillette and Steven Walt, Sales Law. Domestic and International (Rev. ed. 2002), at p. 6 (U.S. court unlikely to adopt interpretation favoured by  a court elsewhere simply because that decision was promulgated first); Charles Knapp, Nathan Crystal and Harry Prince, Problems in Contract Law (5th ed. 2003), at p. 4:  'If a precedent [from another jurisdiction] is in fact unpersuasive, the judge is free to disregard it.'

51. See the UNCITRAL Digest (supra fn. 9) of Art. 1, at para. 10 with fns. 29 - 30.

52. Ibid.

53. CISG liability is essentially 'strict', i.e., the defendant's breach constitutes the 'basis' of liability: see Joseph Lookofsky, Understanding the CISG (supra fn. 21), at § 6.14.

54. As to the measure/extent of liability under Article 74 see generally ibid, at § 6.15.

55. See Art. 4 CISG.

56. At least within the limits of 'foreseeability'.  See Art. 74 CISG and Joseph Lookofsky, Understanding the CISG ( supra fn. 21), at § 6-15.

57. See generally Harry Flechtner, 'Attorneys' Fees' (supra fn. 12).

58. Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co, Inc., decided 28 August 2002, available at <http://cisgw3.law.pace.edu/cases/010828u1.html>.

59. I.e., not just contract cases. See (e.g.) Alyeska Pipeline Service Co. v. Wilderness Society (1975) 421 U.S. 240. Although the judgment rendered by an American court will usually require the losing party to pay the costs of the successful party (e.g. fees paid to the court), such costs do not generally include attorney's fees. Although this principle has been modified by fee shifting statutes in certain instances, no fee-shifting is still the overwhelming 'American rule': see Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, (2001) 532 U.S. 598. The same rule does not, however, necessarily apply in (American) arbitrations.

60. See Harry Flechtner, 'Attorney's Fees' (supra fn. 12) and Joseph Lookofsky, 'Zapata Herminos v. Hearthside Baking', 6 VJ (2002) 27, also available at < http://www.cisg.law.pace.edu/cisg/biblio/lookofsky5.html>. But see John Felemegas, 'The Award of Counsel's Fees under Article 74 CISG, in Zapata Hermanos Sucesores v. Hearthside Baking Co. (2001)', 6 VJ (2002) 30, also at <http://cisgw3.law.pace.edu/cisg/biblio/felemegas1.html>. Compare Peter Schlechtriem, 'Case comment: Attorneys' Fees as Part of Recoverable Damages', 14 Pace International Law Review (2002), also at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem4.html>.

61. Although most of the courts which have awarded attorney fees to a successful CISG claimant seem to have done so on the basis of domestic procedural rules (the CLOUT reports are usually silent on the issue), it seems fair on the basis of Professor Flechtner's analysis (supra fn. 12) to conclude that the majority of CISG cases – indeed, until Zapata came along, the unanimity of cases – that consciously addressed the issue found that Art. 74 allowed for damages to cover the prevailing claimant's fees.

62. Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Company, Inc., decided by the U.S. Court of Appeals for the 7th Circuit on 19 November 2002. The decision is available at <http://cisgw3.law.pace.edu/cases/021119u1.html>. For an analysis of the opinion see Harry Flechtner and Joseph Lookofsky, 'Viva Zapata! American Procedure and CISG Substance in a U.S. Circuit Court of Appeal,' 7 VJ (2003) 93, also available at <http://cisgw3.law.pace.edu/cisg/biblio/flechtner5.html>. For an analysis of prior precedents see Harry Flechtner, 'Attorneys' Fees' (supra fn. 12).

63. Regarding the prominence of the court – and even the judge (in this case, Richard Posner, the renowned 'father' of Law and Economics) – as supplementary factors which enter into the 'persuasiveness' (and precedential value) of CISG case law, see text supra with fn. 45.

64. See, e.g., Chicago Prime Packers, Inc. v. Northam Food Trading Co., 2004 WL 1166628 (U.S.D.C.N.D. Ill., May 24, 2004), also available at <http://cisgw3.law.pace.edu/cases/040521u1.html> (claim for attorney's fees is procedural matter governed by law of forum, citing Ajax Tool Works, Inc. v. Can-Eng Mfg. Ltd., No. 01 C 5938, 2003 WL 223187 at *7; also citing Zapata, supra fn. 62, for proposition that 'loss' in Art. 74 CISG does not include attorney's fees incurred in breach of contract litigation).

65. See the decision of Tribunale Civile di Monza, 14 January 1993, English translation available at <http://cisgw3.law.pace.edu/cases/930114i3.html>. For a well-founded criticism of the decision see Franco Ferrari, 'Specific Topics of the CISG in the Light of Judicial Application and Scholarly Writing', 15 J. Law & Commerce (1995) 1, also available at <http://cisgw3.law.pace.edu/cisg/wais/db/editorial /ferrari930329i3.html>. See also fn. 34 supra.

66. See the decision of Tribunale di Vigevano, 12 July 2000, supra fn. 39, and the commentary by Franco Ferrari, 'Tribunale di Vigevano: Specific Aspects of the CISG Uniformly Dealt With', 20 Journal of Law and Commerce (Spring 2001) 225, also at <http://cisgw3.law.pace.edu/cisg/biblio/ferrari6.html>. Regarding the even more recent decision of Tribunale Di Rimini, 26 November 2002, supra fn. 39, citing 35 foreign precedents, see Franco Ferrari, 'Forum Shopping' (supra fn. 39), at p. 171 ff.

67. See supra with fn. 16.

68. See the Report of UNCITRAL on the work of its 21st session, 11-22 April 1998, Ch X secs 98 et seq.. See also Document A/CN/9/312 on which the discussions were based.

69. See Rolf Herber in Peter Schlechtriem, Commentary on the UN Convention on the International Sale of Goods (Oxford 1998), Art. 7, Rd.Nr. 14. See also Report on UNCITRAL work on its 21st session, 11-22 April 1988, at ch. X § 98 et seq.

70. See generally Jernej Sekolec, 'Digest of Case Law' (supra fn. 2), at pp. 8 - 15.

71. Compare para. 3 of the Note on Uniform Interpretation by the UNCITRAL Secretariat, 26 April 2001, A/CN.9.498, also available at <http://www.uncitral.org/english/sessions/unc/unc-34/acn9-498e.pdf>.

72. Ibid.

73. See ibid regarding the Commission's reluctance to permit 'criticism' of the case law, but compare ibid regarding acceptable non-case law sources ('guidance may be provided [...] in particular on the legislative history and the reasons underlying it').

74. See, for example, Joseph Lookofsky and Ketilbjørn Hertz, supra fn. 31, at Ch. 4.2, regarding the U.S. Supreme Court's interpretation of the Hague Service Convention in Volkswagenwerk A.G. v. Schlunk, 486 U.S. 694 (1988), where both the majority and minority of the Court cite excerpts from the same history in support of their own, respective positions.

75. Many commentators trace the CISG 'history' back to the first Uniform Sales Law, ULIS (Joseph Lookofsky, Understanding the CISG, supra fn. 21, at § 1-2), but since that (separate and distinct) treaty was found unacceptable by most States who later became CISG Contracting States, the application of ULIS concepts, interpretations and precedents will not always advance the goal of a uniform (and autonomous) interpretation of the CISG. For examples of the use (and misuse) of ULIS as a CISG interpretative tool see Lookofsky, ibid, at § 2-5 with fn. 65, § 2-6 with fn. 104 and § 2-9 with fn. 144.

76. See Joseph Lookofsky, ibid., at § 2-8 (proposals, counter-proposals and comments by scores of delegates during years of drafting cannot provide simple solutions to complex questions of interpretation). Refer Clayton Gillette & Steven Walt, Sales Law (supra fn. 50, at p. 171. See also Franco Ferrari, 'Uniform Interpretation of the 1980 Uniform Sales Law', 24 Ga. J. Int. & Comp. L. 183 (1994), text with fn. 125 ('recourse to such materials must not be overestimated'). Even as regards the use of his own Documentary History of the 1980 Uniform Law for International Sales (1989), John Honnold has urged restraint: 'Interpretation based on discussions by a large legislative body is more meaningful for decisions of broad issues of policy than for detailed applications.' Uniform Law for International Sales Under the 1980 United Nations Convention (3rd ed. 1999), at p. 463.

77. Document A/CONF.97/5, reprinted in Honnold, Documentary History (ibid.), at p. 404.

78. An American proposal to draft an official Commentary to the 1980 Convention was rejected (see Peter Winship, 'The Scope of the Vienna Convention on International Sales Contracts', in International Sales:  The United Nations Convention on Contracts for the International Sale of Goods (Nina Galston and Hans Smit eds. New York, Matthew Bender & Co, 1984), at pp. 1-27). The subsequent proposal set forth by James E. Bailey ('Facing the Truth: Seeing the Convention on Contracts for the International of Goods as an Obstacle to a Uniform Law of International Sales', 32 Cornell Int'l L.J. (1999) 273) that the US adopt the (unofficial) Draft Convention Commentary as the 'official American' CISG commentary seems highly ill-advised.

79. See Jernej Sekolec, 'Digest of Case Law' (supra fn. 2), at pp. 15 - 15. See also 'Note on Uniform Interpretation' by the UNCITRAL Secretariat, 26 April 2001, A/CN.9.498, also available at <http://www.uncitral.org/english/sessions/unc/unc-34/acn9-498e.pdf>.

80. For an example of such an instance see MCC-Marble Ceramic Center Inc. v. Ceramica Nuova D'Agostino S.p.A., 144 F.3d 1384 (11th Cir. 1998), also reported as CLOUT Case 222 and at <http://cisgw3.law.pace.edu/cases/980629u1.html>, citing, inter alia, the views of Herbert Bernstein and Joseph Lookofsky in the first edition of Understanding the CISG in Europe (The Hague, Kluwer Law International, 1997). See also text infra with fn. 92. For a suggestion that UNCITRAL ought to permit Digest references to court citation of CISG doctrine, see Lookofsky, 'CISG Foreign Case Law' (supra fn. 41), at p. 233.

81. I have previously detected a subtle sense of 'approval' or 'disapproval' in the Draft (supra fn. 9) reporting of 'majority' and 'minority' views: see (e.g.) the Draft of Article 1, at para. 6 ('Despite one court decision stating the contrary [...]') and the Draft of Article 3, at para. 3 (rearding one decision which 'contradicts' others). For a different kind of example, involving the nature of the foreign case law upon which Digest is based, see Joseph Lookofsky, 'CISG Foreign Case Law' (supra fn. 41) regarding the Danish decision cited in the "Draft Digest of Article 1, at para. 19, fn. 49.

82. See the UNCITRAL Digest (supra fn. 9) of Arts. 38 and 39.

83. Ibid.

84. With one District Court holding that the determination of what period of time is 'practicable' is a factual one: see U.S. District Court for the Northern District of Illinois, 29 May 2003, available at <http://cisgw3.law.pace.edu/cases/030529u1.html> (Chicago Prime Packers, Inc. v. Northam Food Trading Co., et al.).

85. BGH, 3 November 1999, CLOUT Case 319, English translation available at <http://cisgw3.law.pace.edu/cases/991103g1.html>. See also OLG Oldenburg, 5 December 2000, <http://cisgw3.law.pace.edu/cases/001205g1.html>. A Swiss court has held notice of non-conformity to be timely if given within one month after delivery, describing this period as a good compromise between the (earlier) German and the (far more lenient) American views: see Obergericht Kanton Luzern, 8 January 1997, CLOUT Case 192, available in English at <http://cisgw3.law.pace.edu/cases/001205g1.html>.

86. Unless 'special circumstances' indicate the reasonableness of a shorter or longer period. See OGH (Austria), 15 October 1998, CLOUT Case 240, also available at <http://cisgw3.law.pace.edu/cases/981015a3.html>. See also OGH (Austria), 27 August 1999, CLOUT Case 423, translation available in English at <http://cisgw3.law.pace.edu/cases/990827a3.html>.

87. See generally Joseph Lookofsky, Understanding the CISG (supra fn. 21), at § 4.9.

88. See generally the UNCITRAL Digest (supra fn. 9) of Arts. 38 and 39.

89. For an example of a Case Digester's scholarly view see Harry Flechtner, 'Buyer's Obligation to Give Notice of Lack of Conformity (Articles 38, 39, 40 and 44)', The Draft UNCITRAL Digest and Beyond (supra fn. 9) 377, at p. 380: 'My own view is that the standards for the timing and specificity of the Article 39 notice imposed by some of these decisions are too demanding on the buyer.' For a non-Digester's according view see Joseph Lookofsky, Understanding the CISG (supra fn. 21), at § 4.9.

90. As noted by Jernej Sekolec, 'Digest of Case Law' (supra fn. 2), at p. 14, 'a criticism in a publication sponsored by an intergovernmental organization such as UNCITRAL might raise a number of questions [...] such as who is the author of that view? Are there contrary views? Has the criticism taken into account all the factual particularities of the case? Could the State or the court respond to the criticism?'

91. I.e., in American legal parlance, the holding: see E. Allan Farnsworth, Introduction (supra fn. 27), at p. 54 (distinguishing the holding from less consequential dictum, i.e. 'whatever else the judges said which was not necessary to their decision').

92. The legislative history of the Digest does not, as far as I can determine, explain the apparent absence of information regarding the ratio underlying digested decisions, but the omission seems related to the objectivity requirement. In other words, UNCITRAL might regard the provision of ratio/reasoning related information as 'scholarship' and/or 'criticism'. Compare Jernej Sekolek, 'Digest of Case Law' (supra fn. 2), at p. 15 ('It would be for [Digest] readers [...] to delve into the grounds of the decisions in search of reasons that justify [...]'). For examples of the lack of information provided by the Draft UNCITRAL Digest(supra fn. 9) in this respect, see Joseph Lookofsky, 'CISG Foreign Case Law' (supra fn. 41), at pp. 223-224.

93. See Jernej Sekolek at ibid.

94. See, e.g., text supra with fn. 65.

95. Harry Flechtner, 'Attorneys' Fees' (supra fn. 12), at p. 155.

96. Compare text supra with fn. 10. See also Harry Flechtner, 'Several Texts' (supra fn. 25), at p. 216: 'Compared to [what Honnold called] the "Babel of diverse domestic legal systems" [...], the Convention represents vast progress towards a uniform international sales law'.

97. Harry Flechtner, ibid, at p. 215 (emphasis added).

98. See text supra with fn. 68.

99. The CISG Advisory Council' is a private initiative aimed at promoting uniform CISG interpretation by issuing (on request or on its own initiative) opinions relating to the interpretation and application of the Convention. Unlike the UNCITRAL Digesters, the Council is afforded the luxury of being critical. The Council issued its first two opinions in 2003-04. See generally  <http://cisgw3.law.pace.edu/cisg/CISG-AC.html>.

100. Regarding private law harmonisation at the regional level see, e.g., Joseph Lookofsky, 'The State of the Union in Contract and Tort', 41 Am. J. Comp. L. 89 (1993) and 'The Harmonization of Private and Commercial Law: "Towards a European Civil Code"', 39 Scandinavian Studies in Law (2000) 111.

101. Regarding the spirit of (e.g.) Scandinavian Realism see Joseph Lookofsky, Consequential Damages in Comparative Context. From Breach of Promise to Monetary Remedy in the American, Scandinavian and International Law of Contracts and Sales (DJØF Publishing, Copenhagen 1989) pp. 17-18, citing Richard Posner, 'Legal Formalism, Legal Realism and the Interpretation of Statutes and the Constitution', 37 Case Western Res. L. Rev. (1986/87) 179.

102. Harry Flechtner, 'Several Texts' (supra fn. 25), at p. 205.


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