Reproduced with permission of the authors.
Brazil and the Accession to the 1980 United Nations Convention
on Contracts for the International Sale of Goods (CISG):
Advantages and Disadvantages [*]
Alberto de Campos Cordeiro Neto
Gisely Moura Radael
Luiz Felipe Calábria Lopes [**]
Presentation of Arguments - Abstract
1.1. Preparation of the CISG and the objectives of the Convention
1.2. The scope of application of the CISG and the consolidation of its objectives
2.1. Guiding principles of the CISG, the Brazilian Civil Code (BCC) and the Constitution of the Federative Republic of Brazil
2.2. CISG: Adequate rules to the international trade
2.3. Conflicts of law between the CISG and the Brazilian legal system
2.3.1. Proof of the existence of the Contract
2.3.2. (Ir)revogability of the offer
2.3.3. Termination of the contract: fundamental breach and nachfrist
2.4. Japan as an example
PRESENTATION OF ARGUMENTS - ABSTRACT
The present article exposes several circumstances that may influence Brazil in adopting the 1980 UN Vienna Convention on Contracts for the International Sale of Goods (CISG or simply Convention), demonstrating the advantages and disadvantages of the accession. In a first moment, it analyzes the context in which the Convention is inserted (i.e. international trade), as well as the issue involving legal certainty in international transactions as the main motivation for adopting of international treaties, specially the CISG. In this sense, it focuses on the objectives of the CISG, by analyzing the process of formation of the Convention, in order to verify how these objectives were consolidated and have evolved in the jurisprudence. Later, it examines the compatibility of the CISG to the Brazilian legal and social reality, encompassing the integration of the Convention to the Brazilian domestic law, in light of the guiding principles and rules of both legal systems. It is expected that, in the end, it will be possible to obtain a clear idea of the advantages and disadvantages of the adoption of the CISG by Brazil. The conclusion which can be drawn is that the Brazilian accession to the CISG has an outstanding balance of advantages.
Keywords: Brazil ; UN 1980 Vienna Convention (CISG) ; Accession
1. INTERNATIONAL TRADE AND LEGAL CERTAINTY
The international trade has moved into a phase of intense development and progress, stimulating economic growth and, consequently, providing higher global stability and prosperity.
In a short time, we have been experiencing a vertiginous internationalization of the social relations, as a result of the increasing development of the media, a more intense competitiveness reality and the interconnection between companies and entrepreneurs of various countries, in an eager search for a higher reach of consuming market.
The extended scene of international liquidity contributed for many years to the strengthening of the international trade and the intensification of the relations between countries, mainly in what it refers to Brazil.
In this perspective, regarding the intensification and growth of international economy, fostered by the stabilization of interest rates, the increase of the investment necessities, the new forms of raising capital and, consequently, the increase in the conditions of supply and demand, the Brazilian economy is also being stimulated to a level without historical precedents.
Together, all these factors contributed to the promotion of our economic and productive development and to the attraction of new investments.
In 2007, Brazilian exports reached the amount of US$ 160.6 billion, a record for the Brazilian trade balance. Imports also reached the high value of US$ 120.6 billion. Therefore, the Brazilian commercial exchange reached the mark of US$ 281.2 billion, with surplus of US$ 40 billion. It is also noteworthy that in 2006 exports grew 16.6% and imports 32%, contributing to the increase of the Brazilian participation in international business transactions.
In accordance with the Ministry of Development, Industry and Foreign Trade, 2007 was very significant due to the changes occurred in the national portfolio, in order to diversify the destination of the products of domestic manufacture. Brazilian exports grew significantly in Asia, Africa, Middle East and Western Europe, and the exports to traditional economic partners, such as the European Union and Mercosur, also reached a significant amount.
This scenario may be corroborated by a brief analysis of our trade balance in 2008. In June of 2008, for example, before the collapse of Lehman Brothers bank, considered a symbol of the international economic crisis, exports grew 35% and imports 62.6% over the same period of 2007. The daily average of exports and imports in June recorded the second largest monthly movement, exceeded only by May 2008.
However, the subprime mortgage crisis finally came, causing intense and devastating consequences on national economies around the world and culminating in the current international economic crisis.
As a result of this economic collapse and the insecurity generated in the international market, inflation and the level of unemployment increased highly. The turmoil that has gripped the financial markets eventually made credit a luxury item and, consequently, produced extremely negative impact on the flow of foreign investment.
The bankruptcy of large financial institutions, the creation of new business arrangements in order to prevent the insolvency of traditional corporations and the gigantic financial contributions made by governments recalled, even minimally, the stock market crash of 1929 and the Great Depression.
Fortunately, the world economy began timidly to react. The improvement of economic indicators of major countries on the financial world, the wave of rehiring employees previously dismissed by the companies and the prompt result of government actions in some way lessened the tension on the global economy.
Indeed, the current level of world economic integration and the growing numbers of international business transactions is an evident and obvious fact. As evident as this reality is also the declining of these achievements during the current period of international crisis. However, in spite of this scenario, it is inevitable to affirm that the Brazilian market reached a very significant level in the role played by international investors.
An example of the importance of such role is that, despite the current economic status worldwide, the trade flow (sum of exports and imports) of 2010, until the third week of February, was US$ 39,577 billion (daily average of US$ 1,199 billion). Such trade flow was 13.5% higher compared with the same period last year.
Were this not enough, in 2009 aggregate, from January to December, the Brazilian balance of trade posted a surplus of US$ 25,685 billion (daily average of US$ 119.4 million), an increase of 9.8% compared with the same period of 2008.
However, as it always happens, there is a cost for all the benefits. The intensification of international trade relations, both in terms of value of those transactions and the new participants of this scenario requires an increasingly greater care and control of commercial companies when facing the legal problems that may arise from this new perspective.
Trade relations between nations are developing in large scale, requiring legislators to present a rapid and effective solution to disputes involving different nations, providing specific and secure laws.
One of the major obstacles and barriers to international trade lies on the fact that it is governed by several jurisdictions, essentially different. The diversity of legal systems able to regulate a legal relationship might cause problems in the regulation of important aspects of international contracts, in matters such as risk transfer, the time of formation of contracts, civil liability, clauses of limitation and exemption of liability, etc.
International trade equals to legal certainty. There is no doubt that the players in this market would act with more certainty and confidence if they were all governed by the same law.
In short, to maintain the international trade peaceful and safe, it would be necessary to set rules providing a stable environment for the international commercial agents, who would be capable of selling and negotiating while supported by a regulatory system that ensures certainty and security, reducing costs and risks.
The adoption of a set of uniform rules, which aims at transcending national boundaries (by offering the harmonization of rules applicable to international business transactions) is the most effective submission to achieve the goal of legal certainty in international trade. After all, economic integration also requires legal integration.
It was in this direction and to ensure legal certainty and a focused and clear application of international law to contractual relations that, on December 11th 1980, the final text of the 1980 United Nations Vienna Convention on Contracts for the International Sale of Goods was approved, with the purpose of instituting a set of uniform and harmonic rules related to international sale of goods.
1.1. Preparation of the CISG and the objectives of the Convention
The efforts for the uniformization and development of a set of rules applicable to international sale of goods date from the early 30's. In this period, the International Institute for the Unification of Private Law (UNIDROIT) started the preparation of a uniform law on the international sale of goods. A preliminary work, completed in 1935, was directed to the members of the League of Nations. However, this draft was abandoned due to the Second World War (1939-1945).
Some years later, in 1951, a diplomatic conference was held with the intention of renewing the efforts for the unification of private legislation. In this occasion, the projects previously elaborated by the UNIDROIT were discussed, as well as the creation of a committee for the preparation of a new project incorporating some of the suggestions and commentaries made by the previous participant members.
After intense deliberation through the years, two new Conventions were proposed during the Hague Conference of 1964: the Uniform Law on the International Sale of Goods -- ULIS and the Uniform Law on the Formation of Contracts for the International Sale of Goods -- ULF. Both Conventions entered into force in 1972; however, they were only ratified by nine countries, what clearly contributed for their failure.
In this aspect, we should ask why the Hague Conventions of 1964 had so little acceptance. Fact is that this important step towards the unification of international commercial law was questionable mainly because of two closely related problems. First, despite the efforts of UNIDROIT in this field, only some countries, mainly of Western Europe, had participated in the drafting process at the Hague Conference. As a result, the preparation of the uniform sales law was very narrowly connected to the legal aspects of the industrialized nations that took part in the preparatory works. This was said to favor the sellers of manufactured goods from developed countries.
Therefore, it became clear that a wider perspective, based in a more including participation, was necessary. In this context the CISG appeared, deriving from more than ten years of work of the United Nations Commission on International Trade Law (UNCITRAL), and approved in a diplomatic conference held in Vienna, Austria, in 11th April 1980.
Unlike the Hague Conventions, the CISG Working Groups had world-wide representation. With the purpose of overcoming its less succeeded antecedents, the main objective of the CISG "was to produce a document that was truly global in conciliating the legal traditions, apt to represent all the legal systems".
The diplomatic conference that adopted the CISG comprised eight international organizations with observer status and 62 States, representatives of the most diverse legal, economic and social systems: 22 European countries and from other developed western countries, 11 Socialists, 11 South Americans, 11 Asians and 7 Africans countries. From another point of view, there were 22 Western countries, 11 Socialist and 29 countries of the Third World. This diversity demonstrates the different legal and economic traditions embraced by the CISG.
It is important to stress that among the 62 countries above mentioned, Brazil was actively present, being one of the nations that signed the Final Act and the Convention itself. Represented by Mr. Franchini Netto, First Class Minister for Commercial Subjects of the Ministry of Foreign Affairs, ambassador and legal advisor of the Ministry of Foreign Affairs, Brazil participated in the discussion and draft of the text and each one of the articles of the Convention. Besides, in March 13th 1980, Brazil was nominated, jointly with some other countries, a member of the CISG's Drafting Committee, and also participated in the election of the vice-presidents of the diplomatic conference and the presidents of each Committee.
In fact, Brazilian participation in the discussion and approval of the legal instruments in the scope of international commercial law is bigger than one might imagine. Soon after the failure of the Hague Conventions of 1964, for example, a new study group of 14 countries, amongst them Brazil, was formed by the UNCITRAL for the preparation of a new text. After almost one decade of studies, two projects were produced: in 1976, the Draft Convention on the International Sale of Goods and, in 1977, the Draft Convention on the Formation of Contracts for the International Sale of Goods. Later, in 1978, both projects were revised, culminating in the draft of the CISG.
Therefore, Brazil participated actively and directly not only in the preparation of the CISG, but also in the studies and analysis of the previous legal instruments, supported by the same objectives that guided the text of the Convention.
Having always in sight the search for the gradual harmonization and unification of international commercial law, the formation process of the CISG took in consideration different legal, economic and social systems. So, the CISG was created for the unification of the rules applicable to the international sale of goods, in order to surpass the divergences that hindered the development of international trade.
These objectives were evidenced at the Sixth Committee's Report on the United Nations Commission on International Trade Law (UNCITRAL), elaborated at the General Assembly of December 4th 1980, at the time of the conclusion of the CISG. According to the Report: "[r]educing or removing legal obstacles to the flow of international trade, especially those affecting the developing countries, would significantly contribute to universal co-operation among all States on a basis of equality, equity and common interests and to elimination of discrimination in international trade and, thereby, to the well-being of all peoples".
The objectives are also highlighted in the Convention's preamble, which states that "the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade".
In this sense, despite the doctrinal debate concerning the legal importance of the preamble of the CISG, it remains clearly evidenced that the essential purpose of the Convention is to contribute with the new international economic order, based in the harmony and equality, the promotion of friendly relations between its Contracting States and the development of international trade.
Aware of its legislative history and mainly of the context that culminated in the failure of the previous conventions, the CISG centered its formation in three fundamental principles: (i) respect to its international character, (ii) uniform application of its rules, and (iii) observance of good faith in international trade.
As Di Matteo teaches, the international character of a convention is its main characteristic. This aspect is intrinsically connected to the intention of creating an international convention: the standardization of rules above any national legislation, in order to prevent conflict between the rules of different legal systems.
Being so, the acceptance of the idea that, due to its origin and international nature, the Convention must be interpreted independently from the national legislation is only a pre-condition for its practical uniform application. That is so, because still exists the possibility of giving divergent interpretations to the Convention in different parts of the world, even considering the Convention as an autonomous legal set of rules.
The CISG has the main purpose to provide legal certainty in the level of contractual legislation of international sale of goods. To achieve such goal, it is not enough that the States adhere to the Convention. It is equally important that the Convention's provisions are interpreted uniformly by all countries, as much as possible. Thus, the search for uniformity imposes a duty upon the agents of international trade and to the applicators of the CISG to observe the international practices regarding the interpretation and the determination of the text of the Convention.
One of the main causes of the success of the CISG was exactly the care in determining its interpretative parameters. In this perspective, there is also the necessity to observe the good faith in international trade, so that the Convention reaches its objectives. In the same way, we must observe the fact that the Convention did not search, through its international character and the observance of the good-faith, only to guarantee a uniform set of rules for contracts for the international sale of goods. Bonell  affirms that the objective is wider: it consists of offering rules that will be more receptive than the traditional national laws for the real necessity of international trade.
The observance of the factors above mentioned by those responsible for applying the law and operating economic agents in the scope of the CISG has decisively contributed for its development and consequently increase.
Until February, 2010, including the last accessions of Japan, Lebanon, Armenia and Albania, the CISG had already been ratified by 74 (seventy four) countries, representatives of 3/4 (three quarters) of the international trade. These countries represent the greatest players of the current international commercial scene, such as United States, China, Germany and France, and also the new economic powers and emergent countries, amongst them Russia, Chile, Singapore and South Korea.
Perhaps for these reasons, the CISG has been greeted as "the center of international commercial law", "the first truly accepted international commercial instrument by great segments of the international community" and as "the biggest success until the current moment in the attempts of unification of international commercial legislation".
1.2. The scope of application of the CISG and the consolidation of its objectives
The drafting of the CISG, mainly regarding its global scope, was certainly a challenge. However, the problems faced for overcoming the discrepancies between the Contracting States cannot be forgotten in its application. That is because, as foreseen by Honnold when the CISG entered into force, "uniforms words do not create uniforms results".
Therefore, at this moment, we should ask: have the court and arbitral decisions that applied the CISG, until now, reached a certain degree of uniformity? In other terms, has the Convention reached its purposes?
As demonstrated above, the uniform interpretation and application of the text of the Convention have been two of UNCITRAL's goals since its creation. This elapses from the recognition that the uniformity of the practical results, in last analysis, promotes the international trade.
The most efficient way to guarantee the uniformity in the application of the Convention consists in analyzing how it is being interpreted in other countries. The good intentions of the ones that interpret the Convention, in individual cases, are not enough by itself to carry through the objective of maximum uniformity of its application. It is equally necessary for judges and arbitrators to be concerned about theirs important task to disclose fair decisions, adequated to the cases.
The standards of good practice from other countries and international precedents should be considered when a question involving the CISG is examined. As teach Enderlein & Maskow, it is not strictly necessary to follow the international precedents, especially when the judge considers them incorrect or inapplicable to the case. However, there is a duty to take into account international practices applied in similar cases.
The databases of the internet concerning the CISG are the main sources of dissemination of its content and doctrine produced by its main scholars, as well as cases in which the Convention was the material law applicable. The speed in which the information about the interpretation of the CISG is being spreaded, creating trends and breaking barriers, only reaffirms what is obvious: the information revolution is today a reality, and the access to knowledge becomes ever more unrestricted. Just see, e.g., <http://www.cisg.law.pace.edu>, <http://www.cisg-online.ch> or <http://www.unilex.info> to evidence what is affirmed hereof.
Through the inquiry of the available instruments in these databases, it is possible to analyze the direction that the CISG has taken. In this way, some illustrative examples can be given so that we can understand its evolution process.
In the case Chicago Prime Packers, Inc, v. Northam Food Trading Co. a north-american company purchased from another company of the same nationality 40,500 pounds of frozen pork, immediately sold to a Canadian buyer (meat processer). However, twenty one boxes were outside the standard of compliance set by the parties when concluding the contract. Nine days after the start of meat processing, the Canadian processer notified the buyer and the United States Department of Agriculture (USDA) about the non-conformity of the goods. After the verification of non-conformity by the USDA, it was ordered the destruction of the defective part of the goods. Thus, the Canadian buyer sent a notification to the North-american seller stating that it would not pay the established price for the goods. Once the North-american seller had already made the payment to his supplier, it started a demand against the buyer, arguing lack of timely notification.
In its decision, the Court considered that the buyer did not prove that the goods were non-conforming at the moment of the passing of risk. Besides, the Court stated that even if the goods were already defective at the moment of the passing of risk, the buyer did not prove that it had inspected the goods within a short period as is practicable in the circumstances, as stated by Article 38 of the CISG; and that it had not given notice to the seller of the alleged defect of the goods within a reasonable time after the discovery of the defects, as stated by Article 39 of the CISG.
Eventually, the Court affirmed the necessity of observing cases derived from other countries, in virtue of the international character of the CISG. Because of the absence of extensive case law in the United States about the CISG, the judges used cases from other countries and from one of the databases of the CISG in the internet (UNILEX), stating that, although the international case law is not binding, still remains the instructive character for the decision making.
In another case, ruled by the Austrian Supreme Court, the necessity of uniformity in the application of the Convention was emphasized, and both decisions deriving from other legal systems and international doctrines were considered important resources for achieving this goal.
In this case, an Austrian buyer and a German seller concluded a contract for the sale of used machines. The buyer did not pay part of the price alleging that the machines did not correspond to the requested norms of security stated by a directive instruction of the European Union (EU). In this manner, the seller initiated a demand against the buyer to recover the remaining price of the goods.
Making reference to international doctrines and to an important decision of the German Supreme Court (Bundesgerichtshof, 08.03.1995 - Mussels Case), the Court considered that it cannot be expected the seller to observe special requirements of public law of the buyer's country, not even when the seller knows the country to which the goods will be exported.
Another good example of the evolution regarding the application of the CISG throughout the years, as well as of the observance of its interpretative rules expressed in its Article 7, is the Award nr. 2319, of the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut). In this case, Dutch sellers and an English buyer conflicted about the conformity of the oil delivered, by reason of its high mercury concentration. Such precedent has been considered a leading case, because it presented in a very well based manner an interpretation constructed in accordance with the rules of the CISG, international doctrine and diverse precedents related to Article 35(2)(a) - i.e. implicit contractual guarantee of the seller that the goods delivered to the buyer are in accordance with its "ordinary use". The called "ordinary use" of the product was, and still is, treated by many scholars of the common law system as "guarantee to merchantability"; to the step that, in the civil law system, the association of the concept of "ordinary use" is made to the recognized "average quality".
The great contribution of the Award nr. 2319 was to demonstrate that by providing the assurance of the conformity of the goods for the ordinary use normally given to the products with the same description, the Convention is intended to enforce an autonomous concept, established in its own principles, about the quality of the goods. Thus, the Arbitral Tribunal concluded that the criterion to be used to determine the conformity of the goods under Article 35(2)(a) is the "reasonable quality", thus diverging from both the criteria of "merchantability" and "average quality", since these would not reflect the objectives of the Convention. Therefore, being the principle of reasonableness intensely present in the CISG and in international transactions, the decision considered specific aspects of the case, as the price and nature of the contract (it was a long-duration contract), to determine the reasonable quality expected by the buyer, deciding for the non-conformity of the oil with high concentration of mercury.
Therefore, it is one of the countless examples of successful application of the CISG, which has over the time given sensitivity to the interpreters and applicators of the Convention and concreteness to the precepts perceived at the time of its formation. It can be shown that the CISG is reaching its goals of harmonization of international trade law, based on the respect of its international character, the need for uniformity in its application and to promote good faith in international trade.
At the same time, decisions that deviate from the principles and objectives of the Convention stand out in a negative way on the international scene, as in the example set by Di Matteo, also concerning the issue of conformity of the goods. In the case Schmitz-Werke GmbH & Co. v. Rockland Industries, Inc., the U.S. Court in Circuit "disregarded CISG interpretive methodology and resorted to a homeward trend analysis. The court cited only U.S. cases and ignored other national court or arbitral decisions and scholarly commentaries on the CISG, concluding that if the CISG is not settled under its own terms then a court could resort to private international law. It then proceeded to analyze the problem under Article 2 of the Uniform Commercial Code".
In the case mentioned above, the judge not only disregarded the rules of interpretation set out in the CISG (and its guiding principles), but also used only North-american domestic law and case law to solve the conflict.
Nevertheless, despite some inevitable and initial uncertainty, the CISG has reached not only the status of a relevant set of rules for international business transactions, but also led a significant number of countries to modernize their domestic legislation (evidencing its compatibility with different legal traditions).
According to Ding Ding, the adhesion of the CISG in China expressed the attitude of the government towards the Convention: it is beneficial, reaching experiences of different countries (and not only one or two specific countries). Therefore, it will not affect the legal rights and interests of Chinese companies and other economic organizations in the country. Besides, in order to intensify the knowledge of the CISG, the Chinese government selected the Convention as a reference to the internal laws of the country.
The same aspect can be observed in other Contracting States of the Convention. Fatima Akaddaf  explains that "international trade law in the region [of Islamic tradition] can benefit from the power of adaptability of the Shari'a, which will make treaties as the CISG fully compatible with the principles of Islamic law".
Taking into account the fact that commercial rules in Finland are very sparse, Tuula Ämmälä  explains that "the most important set of rules can be found in the United Nations Convention on Contracts for the International Sale of Goods, which Finland adhered, entering into force on January 1st 1989".
In conclusion, in light of what has been observed, in spite of its limitations and shortcomings, the Convention is an extremely important step toward a safer and more balanced regulation of contracts for the international sale of goods.
2. THE CISG AND THE BRAZILIAN REALITY
Despite the natural interest concerning the CISG, mainly regarding the idea that the Convention represents, in order to analyze the advantages and disadvantages of and eventual accession by Brazil in a wider and more complete way, it is required not only to understand the important phenomenon of the search for legal certainty, but also to investigate the adequacy of the CISG text to the Brazilian social and legal reality. In other terms, a global trend for the harmonization of international commercial law  is not enough; it is not enough for the CISG to be a result of the efforts of innumerable scholars representatives of diverse legal systems; it is not enough that it has been ratified by 74 countries responsible for more than three quarters of international commercial transactions; it is not enough that, in 20 years of validity, it has vast repositories of international scholarly writings and case law, carefully organized and accessible, especially in English language, to whoever wants to research. To make all of this relevant, the CISG text must be satisfactory for the Brazilian public.
In this sense, firstly it is important to clarify how the integration of the Convention to the Brazilian legal system will happen, by defining in general lines its scope of application.
The CISG is applicable to contracts for international sale of goods, executed between parties whose place of business are in different States, as long as such States are signatory of the Convention or that, in accordance with the rules of private international law applicable to the case, the contract is governed by the law of a Contracting State. Thus, the first criterion to the application of the CISG is the international character of the contract, determined in virtue of the location of the place of business of the Contracting States.
Moreover, the exclusions mentioned on Article 2 must be observed, in which it is established the non applicability of the Convention when the goods are destined to personal, family or household use; or have been sold by auction; on execution or otherwise by authority of law; or are related to stocks, shares, investment securities, negotiable instruments or money; ships, vessels, hovercrafts and aircrafts; or electricity. In these cases, even if it the contract is about an international sale of goods where the requirements of the Article 1 are fulfilled, the Convention shall not be applied.
The sphere of application of the Convention is also restricted by the indication of the subject matter of the contract, i.e. sale, disregarding the possibility of its application on contracts in which the preponderant part of the obligations is the rendering of services, despite cumulated with the sale of goods. Restriction also occurs by establishing the subject matters that are governed by the Convention: formation of the contract and buyer and seller's rights and obligations arising from such contract. There are also expressly excluded themes related to validity (of the contract, of contractual clauses or of any usage established between the parties), to the effects which the contract may have on the property in the goods sold and to the seller's liability for death or personal injury caused by the goods to any person.
Obviously, all these subject matters excluded from the scope of the Convention shall be ruled by the applicable domestic law. In case of application of the Brazilian law (considering the applicability of the CISG), for example, the CISG would determine if there is, or not, a contract (matter of formation), and the general part of the Brazilian Civil Code (BCC) would verify the occurrence of an alleged consent defect (matter of validity).
Finally, still regarding the CISG's sphere of application, party autonomy remains enshrined in its text, mainly in Article 6, establishing the right of the parties to exclude, derogate or modify the provisions of the Convention, with the exception to observe the rule of Article 12, combined with Article 96.
After these considerations, it will be demonstrated ahead that the CISG was built under principles very compatible with those which underline our civil and commercial sale contractual relations  (2.1). It will be also demonstrated that CISG sets forth material rules appropriate to the international sale and inappropriately rare in the Brazilian legal system (2.2). Following, we shall address the main diverging points between the CISG and the Brazilian legal system, reflecting about the consequences and possible solutions (2.3). Finally, we will observe the example of Japan, the more significant new signatory country to the Convention (2.4).
2.1. Guiding principles of the CISG, the Brazilian Civil Code and the Constitution of the Federative Republic of Brazil
If a legal system can be defined as an "axiological or teleological order of general principles" it is essential that in order to verify the compatibility of the CISG with the Brazilian domestic legislation we analyze the governing principles of the Convention.
In Article 7(2), the Convention makes reference to its "general principles" as an instrument of gap-filling. Consulting the literature on this specific provision, it is noted a considerable divergence of doctrine as to the number of principles governing the CISG. However, while there is no consensus on the number and labeling of such principles, by further study, it is recognized great similarity in their content.
For example, is unanimous the consolidation of party autonomy as one of the governing principles of the CISG, as explicit in the text of Article 6, which guarantees the parties in a contractual relationship the possibility to exclude the application of the Convention or, subject to article 12, derogate from or vary the effect of any of its provisions (by referring to matters of public policy of the Contracting State). This permission is also enhanced in several other provisions, which include expressions such as "unless otherwise agreed" and "except where the parties have agreed otherwise" (see, e.g., Articles 9 and 35) or "in accordance with the contract" and "as required by the contract" (see, e.g., Articles 29 to 35), or other provisions that otherwise establish the contract as a primary source of the obligations of the parties, providing a subsidiary rule in case of contractual omission.
Party autonomy as a fundamental principle of the CISG can be supported in particular by the wording of Article 8 of the Convention, that by establishing the procedure for interpretation of the conduct and statements of the parties, requires as a first rule to observe the intention of the party that made the conduct or issued the statement, in a clear reference to the subjectivism theory of the origin of obligations, known as "meeting of minds". Finally, party autonomy represents, under the CISG, an essential role in the formation of the contract, because, without the intention to commit, a proposal has no effect, making safe any attempt to create contractual relations by its offeree. In this topic, it should be noted that the revocability of proposals is a question that depends on the will of the offeror.
Compared with the Brazilian legal system, one can clearly conclude in favor of the full compatibility between the two systems. In accordance with the teachings of Caio Mario "so important is the role of will in the etiology of the legal business, that it seeks to identify its own conceptual idea to the declaration of will (...). The legal system acknowledges to the human volitional activity the creative power of effects on the world of law".
In a constitutional level, party autonomy can be found in the "general clause of freedom, extracted from the legality principle (Article 5º, II, of the Constitution of the Federative Republic of Brazil)". In an infra-constitutional level, principle of party autonomy embodies all the BCC, as it can be verified by a simple reading of its Articles 3, III; 88; 94; 107; 110; 111; 112; 116; 121 and 138, amongst many others.
Besides, from the principle of party autonomy we can extract the principle of consensualism, according to which the contract execution is independent of formalities (this principle opposes the principle of formalism in the way it states that the common intention of the parties suffices to reach an agreement perfect). This principle is evidenced in article 11 of the CISG. In this aspect, there is also an identity between the two systems, what can be proved by the wording of Article 107 of the BCC, corroborated by the affirmation of Caio Mário  that "the Brazilian law, as the generality of the modern legal systems, is inspired by the principle of the freedom of form".
Another principle adopted by the CISG is the obligatoriness of the contract ("pacta sunt servanda"), limited by the excuse of the impediment beyond the control of the party (Article 79). The existence of this principle can be corroborated by CISG's initiative to preserve the contractual relation that, in accordance with Bonell, means preference, whenever possible, of solutions that favor the maintenance of the contractual bond in detriment of its breach. The principle in favor contractus is evidenced in the following articles: 19(2), that provides for the possibility of an acceptance with modifications (a reply to an offer containing additional or different terms which do not materially alter the terms of the offer) bind the parties; 21, that provides for the possibility of a late acceptance be effective as an acceptance; 25 combined with 49(a) or 64(a), that states as a pre-condition for the termination of the contract the existence of a fundamental breach; 34, 37 and 48, that establish legal measures capable of correcting certain breaches of contract without need to resort to avoidance; 49 and 64, that limit the cases of contractual breach to an exhausting roll; and 51(1), that provides for the possibility of protecting the contract, even if only partially; amongst others.
The principle of the obligatoriness of the contract is also reinforced by the principle of specific performance which, in accordance with Enderlein & Maskow, can be found in Articles 46-52 and 62-65, although it may find some obstacles in Article 28.
In the Brazilian legal system, it is also possible to find references to these principles. In accordance with the lessons of Washington de Barros, the "a) the principle of party autonomy; (...) c) the principle of obligatoriness of the contract, only limited to the excuse of unforeseeable circumstances or force majeure" are fundamental principles of the Brazilian contract law. And just to mention, the excuse referred to in item c) above is also present in Article 79 of the CISG.
Furthermore, as Grebler points out, Article 475 of the BCC enshrines the principle of specific performance. Moreover, in regard to the principle in favor contractus, statement nr. 22 of the Journey of Civil Law of the Brazilian Justice National Counsel states that "the social function of the contract, predicted under art. 421 of the BCC, provides a general clause which reinforces the principle of conservation of the contract, providing useful and fair trade".
The CISG also recognizes the principle of full compensation, establishing the obligation to pay interest (Article 78) and to provide full compensation for losses and damages suffered concerning the non performance of the party in breach (Articles 74-76). This same principle can be found in Articles 395 and 402 of the BCC.
In regard to the effect of the declarations of the parties, there is certain disparity between the CISG and the BCC. This because the BCC considers only the expedition principle, concerning the formation of the contract and posterior communications (Articles 428, IV, 430 and 431). On the other hand, with regard to the formation of the contract, the CISG adopts the reception principle (Articles 15 and 18 (2)), and regarding the communications after-formation, it adopts the expedition principle (Article 27). It also must be observed that the UNIDROIT Principles adopt only the reception principle, either for the formation of the contract or posterior communications.
Concerning the burden of proof, in accordance to majority doctrine, the CISG adopts the principle that the burden of proof of a controverted situation is of the part that wants to benefit from it, principle of similar content (perhaps identical), to that one contained in Article 333 of the Brazilian Civil Procedure Code (CPC).
Finally and certainly, one of the most important contractual principles adopted by the CISG is the principle of good-faith. The majority, even not so unanimous doctrine, considers in the Convention the principle of the objective good-faith, corroborated by its sub-principles, such as the principle of the cooperation between the parties, of non venire contra factum proprium, of information and transparency, fair dealing and mitigation of damages.
The principle of objective good-faith in contracts is positivated in Article 422 of the BCC, that encloses the others sub-principles. On the fair dealing of the parties, regard must be had to statement nr. 26 of the Journey of Civil Law, which states that "the general clause mentioned in art. 422 of the BCC imposes to the judge the duty to interpret and, when necessary, to supply and correct the contract in accordance with the objective good-faith, understood as the requirement of fair dealing between the contracting parties".
Concerning the sub-principles of the prohibition of contradiction and the duty to mitigate damages in our legal system, it must be noted the decision of the Appellate Court of São Paulo. In this decision is stressed that "the confidence established in the negotiation and execution of a legal business exposes the party to ethical and moral considerations. The protection granted to this confidence is therefore a fundamental principle of good faith by which the law shall protect the investment entrusted by the parties. Thus, this confidence protected by one party deserves special legal protection, since it cannot be frustrated. Therefore, being legitimate the expectation created, and being the good faith a general clause inserted in the Brazilian legal system, the legal protection favors the party who had his confidence violated, as, for example, is the prohibition of 'venire contra factum proprium'. (...). In this sense, the Brazilian legal system not only can, but has already approved, in the contractual aspect, the principle of 'duty to mitigate the loss".
The Statements nr. 169 e 362 of the Journey of Civil Law follow the same sense, stating that "the principle of objective good faith must lead the creditor to prevent the aggravation of the proper damage" and that "the prohibition of a contradictory behavior (venire contra factum proprium) is based in the confidence protection, as extracted from arts. 187 and 422 of the Brazilian Civil Code".
The last corollary of the good-faith principle, and last example of the underlying principle compatibility between the CISG and the Brazilian legislation, it is evidenced the principle of reasonableness. Many parts of the CISG's provisions expressly mention the principle of reasonableness. It is the case, for example, of Articles: 8, on interpretation of the statements made by and other conduct of a party; 16 (2)(b), on revocation of the proposal; 18(2), on period for acceptance of an offer; 35(2)(b), on conformity of the goods to the particular purpose of the contract; and 79, on exemptions of liability, amongst others.
The presence of the principle of reasonableness in the Brazilian contractual law is unquestionable, as observed in the case law from the Superior Court of Justice. In one of the decisions it is stated that "interpretation that conferred the outcome intended by the claimant, towards the declaration of unenforceability of the contract concluded between the parties, because of formal vice, would confront the principle of reasonableness, as well as the objective good-faith principle, that must guide the adjustment and the fulfillment of the legal transactions in general".
Therefore, demonstrated the undisputed principiologic similarity between the CISG and the Brazilian legal system, we must proceed to the study of CISG's rules and its adequacy to the Brazilian context.
2.2. CISG: Adequate rules to the international trade
The contracts that will be governed in Brazil by the CISG have just a little expertise treatment in Brazilian legal system. Apparently, the fact that a contract is domestic or international produces no practical consequences in terms of our national law. There is even no legal distinction between these types of contract. However, there is obviously a huge difference with regard to the practical and socio-economic point of view, being necessary full attention from the Contracting States, of its counsels and, especially, of the person responsible for resolving a dispute. After all, the national or international nature of the contract is a factor of great influence, which requires very often the combination of the national rules applicable to domestic contracts of sale of goods. Therefore, the absence of specific provisions of international nature is inappropriate for Brazilian companies which perform international transactions.
Take for example the decision of the Judge Cândido Além, of the XVI Chamber of Private Law of São Paulo Superior Court, that partially reversed a lower court decision in order to determine the reduction of a contractual penalty, recognizing the relevance of CISG's rules. It is stated that "with the improvement of the social function of the contract, the principle of objective good faith led to the materialization of Statement No. 26, from the Brazilian Federal Council of Justice, in the I Journey of Civil Law, by which 'the general clause contained in art. 422 of the BCC requires the judge to interpret and, when necessary, supply and amend the contract in accordance with the objective good faith, understood as the requirement of fair conduct of the contracting parties'. Alongside this principle, another one is applied. One that is already effective for a long time, the principle of 'duty to mitigate the loss', or mitigation of damage by the creditor, or no-charging of the debtor in order to not cause him more prejudice, which led to the adoption of Statement Nr. 169 in the III Journey of Civil Law of that same Council: 'The principle of objective good faith must lead the creditor to avoid additional injury or loss. Such proposal was made by Professor Vera Maria de Fradera Jacob, from the University of Rio Grande do Sul, which emphasized the duty of cooperation between the parties at all stages of the contract. It was based on art. 77 of the Vienna Convention of 1980 on international sale of goods: 'A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated'".
In fact, CISG's accession can represent for Brazil a huge breakthrough in terms of positive rules of contractual law. Besides the rule of mitigation of damage  mentioned in the decision above, the Convention enshrines many other rules based on the general duty of good faith, taking as reference the contract concluded between the parties and their legitimate expectations towards that relationship. This is the case, e.g., of fundamental breach (Article 25), nachfrist (Articles 47(1) and 63(1)), anticipatory breach (Articles 71 and 72), preservation of the goods (Articles 85 to 88) and conformity of the goods (Article 35). All these rules reflect the lex mercatoria guidance and the more select doctrine of contractual law, with similar provisions on the UNIDROIT Principles.
Another important aspect of the CISG is the fact that its rules are widely recognized as flexible in trying to adapt itself to the diversity of cases. Besides, the Convention provides to judges and arbitrators a sufficient sphere of leeway to enable it to decide in the best way possible. However, this fact is also highlighted as one of the major causes of non-uniform application of the Convention. Flechtner explains that there are in the CISG two kinds of non-uniformity: "[t]he intentional flexibility that permits the CISG to accommodate the incredible diversity of circumstances in its subject matter and the unintended non-uniformity resulting from limitations in human understanding and communication".
The flexibility of CISG's rules should be positively explored, through a conscious and effective implementation of the Convention in strict compliance with its Article 7 -- which disposes about interpretation and gap-filling.
It follows therefore that with proper application of the CISG the flexibility of its rules, the Convention will be a positive and appropriate attribute to the complex reality of international trade, especially by the fact that they are considered relevant principles of contract law.
2.3. Conflicts of law between the CISG and the brazilian legal system
Once exposed the regulatory burden that will be brought by the CISG to the Brazilian legal system, it must be shown, even briefly, the three major points of conflict between the two systems:
2.3.1. Means of contract's proof
Both the CISG and the BCC adopt the principle of consensus (see item 2.1 above). However, the second part of Article 11 of the CISG goes further and allows the contracts on international sale of goods to be proved by any means, including witnesses.
Considering that such contracts often refer to big transactions, it is possible that the permission contained in the second part of Article 11 of the CISG would conflict with Article 227 of the BCC, according to which contracts with a value higher than the tenfold of the minimum wage may not be proved through witnesses only.
This apparent contradiction, however, can be easily solved. One solution would be the adhesion to the CISG adopting the reservation of Article 96, so as to limit the freedom of form/proof under the domestic law, both in the formation and the modification of the contract.
Despite restricting party autonomy and going against the principle of consensus, not reflecting the needs of international trade (dynamic and frequently informal), it is believed that this solution would not essentially change the current legal system. It is recalled also that any evidence - as mere exchange of letters - are "non-witnesses evidence", which means that the contract necessarily does not need to be articulated in a contractual instrument that remains evident.
The issue could also be solved in accordance with a systematic interpretation of the two provisions. When you look at the wording of Article 227 of the BCC, it appears that the provision starts with the caveat "except express cases". Thus, taking into account the economic factors related to international transactions, the second part of Article 11 of the CISG could easily fit as an exception of Article 227 of the BCC, as provided by the article itself. However, we must note that, subject to interpretation by the Judiciary, there is the risk of not integrating the provisions with proper certainty. So, in case it is adopted the total freedom of form and proof for contracts governed by CISG, the ideal would be to mention in the statement of justification of the accession an explicit reference to a conscious choice of non-implementation of the reservation aforementioned.
Naturally, in case Brazil adopts the reservation of Article 96, it will be excluding the hypothesis of complete freedom of form/proof of contracts for international sale of goods.
2.3.2. Revocation of an Offer
If, on one hand, the Brazilian legal system (typically civil law) welcomes the principle of irrevocability of offers; on the other hand, the CISG provides as a general rule that before the expedition of an acceptance the offers are revocable, adopting a theory closer to the countries of common law tradition.
This difference in approach seems to be more difficult to solve, since the international trend is moving towards the irrevocability, indicating, perhaps, a possible deficiency of the CISG. However, this problem may be reduced by the use of exceptions to the rule of Article 16(1), according to which the offer cannot be revoked if: (i) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable, or (ii) the offeree can reasonably rely on its irrevocability and act based on this confidence.
When we look at the wording of Article 16(2), it can be clearly noted that it is permeated by the principle of good faith, serving as an effective barrier against abuses, since the exceptions contained therein favor parties' autonomy (Article 16(2)(a)) and the protection of legitimate expectations of law (Article 16 (b)).
Therefore, although the rule of Article 16(1) does not follow the same system of the Brazilian law, it is well defined by the exceptions of Article 16(2). In this sense, the issue regarding the revocation of an offer does not constitute a challenging barrier to the accession of Brazil to the CISG.
2.3.3. Termination of the contract: fundamental breach and nachfrist
Generally, our legal system contemplates the right of the aggrieved party to claim termination of the contract whenever the other party breaches the principle of pacta sunt servanda.
However, the reality of international trade, which involves not only high-value transactions, but often great distances, imposes greater importance to another principle: the principle of preservation of the contract. Thus, the CISG limits the possibility for a party to opt for termination of the contract, as set forth in the hypothesis listed in detail in its articles 49 and 64. It shall be mentioned that other legal measures (remedies) are made available to the innocent parties; however, there is great resistance to the termination of the contract, mainly because of the difficulty in returning the parties to their status quo ante.
According to the CISG, the termination of the contract can only be pursued if: (i) the non-performance of the other party causes a fundamental breach of the contract, or (ii) the non-performance does not involve a fundamental breach, but the injured party gives to the non-performing party an additional time (Nachfrist) to repair its performance and the latter does not do or makes clear that it will not do. In the first case, the right to terminate the contract is conditioned to the notification in reasonable time to the other party.
Therefore, there is a discrepancy between the BCC, which allows termination of the contract in any kind of breach, and the CISG, which imposes inflexible conditions.
However, even if at first glance the permission of Article 475 of the BCC conflicts with Articles 49 and 64 of the CISG, it is perceived that the Convention's provisions are perfectly adequate to the reality of international trade, focusing not only in the principle of preservation of contract as well as the mitigation of damages. Thus, considering the CISG's sphere of application (international contracts), the new rule, restricting the possibility of avoidance, ought to be welcomed into our legal system.
2.4. Japan as an example
On July 4th 2008, Japan became the 71st (seventieth first) country to adhere to the CISG. The Convention entered into force in the country on August 1st 2009, in accordance with its Article 99(2).
After 20 years, the non-accession of the CISG by Japan had already started to raise some doubts, mainly by the strong Japanese participation in international trade nowadays. However, in fact, no decision regarding the non-application of the CISG had been taken by the Japanese government through the years.
In 1989, soon after the CISG entered into force, Japan's Minister of Justice organized a group for the analysis of the Convention. However, the study group, which held its proceedings until 1993, was terminated without reaching any conclusion. The main reason was that the Japanese crisis in the early 90's created a need for emergency measures to contain the damage and ultimately shifted the focus of Japanese economic policy. Moreover, in the early 90's, with the adoption of the CISG by "only" thirty countries, there was little certainty as to the success of the Convention and its application within international scope. Besides, at that time, there were no research resources available as there are today.
Some also believe in the existence of a fallacious idea that, in order to adopt the CISG, Japan would need to promote a revision in its Civil Code with the purpose to accommodate the Convention, so that a recent provision of the Japanese government to reform the Civil Code would ultimately help removing this false barrier.
Despite the scenario faced by Japan, its non-accession to the Convention was seen as surprising by CISG's scholars. However, during the Congress held in the 14th annual session of UNCITRAL, between 9-12 July 2007 in Vienna, Prof. Hiroo Sono, Japan rapporteur during the conference regarding the preparation of the CISG, announced that "most likely, Japan will join the club soon. In October last year , the MOJ resumed its work toward accession to the CISG. The plan is to get approval from the Diet which is a constitutional requirement as early as in 2008". In his opinion, what made this change happen is that "the most direct reason is that the congested legislative agenda have cleared somewhat and the MOJ is now able to devote their manpower to this task again. A more indirect reason, but an equally important one, is the phenomenal success of the CISG. (…) The number of Contracting States has more than doubled. With the emergence of the vast array of court and arbitral decisions, and the enormous amount of scholarly writings, doubts about the predictability of the CISG have diminished as well".
Japan realized the necessity to adopt the CISG not only for its own interests, but also by the use of the Convention by its main trading partners, which represent almost 40% (forty percent) of its international trade at that time.
Like Japan, Brazil also plays a prominent position among the countries that take part of the international trade scenario in its region. Thus, Brazil should be inspired by the Japanese example, in order to take part to the significant group of states signatories to the Convention.
3. CONCLUSION 
Confirming the intense phase of development of international trade and the prominence position of Brazil in this scenario, in the comparison of January/May-2008/2007 (thus, before the international economic crisis), it was verified the growth of Brazilian foreign sales to all major countries engaged in international trade.
International sales to the Asian market grew 41.7%, going from US$ 9.3 billion to US$ 12.9 billion. Regarding China, the most important partner for Brazil in the region, exports grew 51.9% and left the country as the third major buyer of Brazilian products in the world at that time, only behind United States and Argentina (nowadays, China is Brazil's major economic partner ). Besides China, were major buyers of Brazilian products in that continent: Japan (US$ 2.0 billion, +17.9%) and South Korea (US$ 988.6 million, +26.1%).
Argentina, the main Brazilian partner in South American, occupies the second position among the major buyers of Brazilian products in aggregate of that period, with exports of US$ 7.0 billion, up 38.4% over the previous year. Exports to Chile, the second main destination in Latin America, expanded 6.9%, totalizing US$ 1.8 billion. International sales to the north-american market - main destination of national exports - expanded up to 5.3% and totaled US$ 10.2 billion.
In Europe, the Russian Federation, the main market of destination in the region, contributed with sales of US$ 1.7 billion (+28.2%), followed by Ukraine (US$ 148.3 million, +40.4%). Exports to the European Union rose 21.4%. Stood out as the main Brazilian partners in the block with greater participation in the period in question: the Netherlands (US$ 4.1 billion, +35.1%), Germany (US$ 3.0 billion, +6.9 %), Italy (US$ 2.2 billion, +19.7%), Belgium (US$ 1.6 billion, +8.6%) and France (US$ 1.6 billion, +9.7%).
It is a fact, however, that we cannot ignore the extremely negative effects generated by the international economic crisis. The economic parameters mentioned above were no longer the same in 2009 and are still trying to reach the values pre-crisis. The main reasons for the strong economic growth experienced in recent years - international liquidity and expansion of credit, inflation control, decreasing interest rates and the acceleration in the development of the productive sources - are not the same they were before September 2008.
Nevertheless, though it may be a step backward for the development of free trade, inevitably this is a temporary situation; and there is no doubt that Brazil is now one of the most active countries in international trade.
The country is a destiny each time more important for foreign investment and the foreign market for Brazilian products is growing exponentially. In this sense, just look at the 15.6% growth in exports in comparison January 2010/2009 and 11.2% growth in imports comparison in the same period, indicating a recovery trend of Brazilian economic power.
Therefore, although the international economic crisis changed substantially the international trade itself, Brazilian main partners, products and trade flow did not change in essence.
On the other hand, it must be observed that the main Brazilian partners in international trade have already acceded to the CISG. Regarding this theme, it is worthy to note that 11 countries between the 13 main countries in the Brazilian commercial portfolio (China, United States, Germany, Argentina, Japan, Netherlands, South Korea, France, Chile, Italy and Mexico), are all Contracting States of the CISG, and transacted the amount of US$ 15.2 billion in January 2010.
Besides, the main products subject of the transactions mentioned above are under the CISG's sphere of application, such as fuels, motor vehicles, mechanical and electrical equipment, machinery, plastics, iron works, chemicals, metals and minerals, fruits, grains and fertilizers.
As stated before, international trade requires legal certainty. Consequently, the need for a systematic set of rules that provides importers and exporters with significant predictability, legal certainty and the stability they need. That is why the adoption of the CISG would be an important step taken by Brazil towards wider economic and legal integration.
However, while there is no doubt that Brazil pursues its way out of a gray zone, trying to overcome social inequality through economic development, many questions remain on how to proceed or where to start.
While problems and conflicts of various kinds - often scandalous - take the Congress, disturb the Judiciary, divert the attention of the Government and economic agents, those questions are suffocated before many other urgent matters.
However, the battle for development is carried out day after day, step by step. One cannot sleep for many years and wake up, suddenly, pretending to be an economic power. Legal integration is a fundamental stage of economic and social integration. Otherwise, Brazil will remain the land of worried and anxious people, waiting for opportunity.
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SCHLECHTRIEM, Peter, Uniform Sales Law: The Un Convention On Contracts For The International Sale Of Goods, Vienna: Manz, 1986. [Available at <http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem.html>]
SCHMITTHOFF, Clive. Export Trade: The Law and Practice of International Trade. 9ª ed. Stevens & Sons: London, 1990.
SONO, Hiroo: Contract Law Harmonization And Non-Contracting States: The Case Of The CISG. In Modern Law for Global Commerce -- Congress to celebrate the fortieth annual session of UNCITRAL, Vienna, 9-12 July 2007.
THINGO, Thor. The United Nations Convention on Contracts for the International Sale of Goods (1980) and Norway's Ratification Process. Lex Mundi World Reports. s.l.:s.n., 1993. pp. 32-51. Available at: <http://www.cisg.law.pace.edu/cisg/biblio/thingbo.html>. Access in 8 July 2011.
TUNC, André. Commentary on the Hague Conventions of the 1st of July 1964 on International Sale of Goods and the Formation of the Contract of Sale. Available at: <http://www.cisg.law.pace.edu/cisg/biblio/tunc.html>. Access in 10 July 2011.
UNIDROIT. Principles. Official Comments. s.n.t. Available at: <http://www.cisg.law.pace.edu/cisg/principles/uni16.html>. Access in 12 July 2011.
UNITED NATIONS. United Nations Convention on Contracts for the International Sale of Goods of 1980 (CISG).
UNITED NATIONS. UNCITRAL. Paragraph 8th of the Resolution of the General Assembly No. 2205 (XXI). 17, December, 1966.
UNITED NATIONS. UNCITRAL. Resolution of the General Assembly about Sixth Committee's Report (A/51/628). UNCITRAL's Report about the 29th session. Available at: <http://www.un.org/documents/ga/res/51/ares51-161.htm>. Access in 15 July 2011.
ZELLER, Bruno. Four Corners - The Methodology for Interpretation and Application of the UN Convention on Contracts for the International Sale of Goods. s.l. s.n. 2003. Available at: <http://www.cisg.law.pace.edu/cisg/biblio/4corners.html>. Access in 12 July 2011.
ZIEGEL, Jacob S. Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods. Toronto: s.n., 1981. Available at: <http://cisgw3.law.pace.edu/cisg/text/ziegel3.html>. Access in 12 July 2011.
* This article is a revised version of a paper originally written in Portuguese entitled "O Brasil e a Ratificação da Convenção de Viena sobre Compra e Venda Internacional de Mercadorias (CISG): Vantagens e Desvantagens ", which was awarded with a national prize in a competition organized by the Brazilian Center of Studies of Law Firms (Centro de Estudos das Sociedades de Advogados - CESA).
1. BRAZIL. Ministry of Development, Industry and Foreign Trade - Perspective of the Brazilian Foreign Trade - Commercial Balance (consolidated data). See at <http://www.mdic.gov.br/sitio/interna/interna.php?area=5&menu=571> (last visited April 30, 2011).
2. BRAZIL. Ministry of Development, Industry and Foreign Trade - Perspective of the Brazilian Foreign Trade - Commercial Balance (consolidated data). See at <http://www.mdic.gov.br/sitio/interna/interna.php?area=5&menu=571> (last visited April 30, 2011).
3. BRAZIL. Department of Planning and Development of Foreign Trade. Press Release - Brazilian Trade Balance - June/2008. See at <http://www.mdic.gov.br/sitio/interna/interna.php?area=5&menu=1869&refr=1161> (last visited April 30, 2011).
4. João Luis Nogueira Matias. Lex Mercatoria e Contratos Comerciais Internacionais. Revista da Procuradoria Geral do Município de Fortaleza/CE. Vol. 8, Year 07 (2000).
5. The CISG entered into force on January 1, 1988 originally ratified by 11 (eleven) countries: Argentina, China, Egypt, United States, France, Hungary, Italy, Yugoslavia, Lesotho, Syria and Zambia. The date in which the CISG entered into force is the 1st day of the month following the expiration of the period of 12 months counted from the date of deposit of the tenth instrument of ratification, as provided in Article 99(1) of the Convention.
6. André Tunc. Commentary on the Hague Conventions of the 1st of July 1964 on International Sale of Goods and the Formation of the Contract of Sale. See at <http://www.cisg.law.pace.edu/cisg/biblio/tunc.html> (last visited April 30, 2011).
7. Thor Thingo. The United Nations Convention on Contracts for the International Sale of Goods (1980) and Norway's Ratification Process. Lex Mundi World Reports. s.l.:s.n., 1993. pp. 32-51. See at <http://www.cisg.law.pace.edu/cisg/biblio/thingbo.html> (last visited April 30, 2011).
8. Germany, Belgium, Gambia, Netherlands, Israel, Italy, Luxembourg, United Kingdom and San Marino.
9. Alejandro M. Garro. Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods. 23 Int'l Lawyer. 443 (1989).
10. Gyula Eörsi, 'A Propos For The 1980 Vienna Convention On Contracts For The International Sale Of Goods' (1983) 31 The American Journal of Comparative Law 333, 335.
11. Legislative History - 1980 Vienna Diplomatic Conference. Summary Records of the Plenary Meetings - 11 April 1980. See at <http://www.cisg.law.pace.edu/cisg/plenarycommittee/summary12.html>. (last visited April 30, 2011).
12. Necessity to mention the principle of good faith in the text of the CISG: Legislative History - 1980 Vienna Diplomatic Conference - 5th Meeting - 13 March 1980; Obligation to observe the laws of each country: Legislative History - 1980 Vienna Diplomatic Conference. 11th Meeting - 18 March 1980. See at <http://www.cisg.law.pace.edu/cisg/firstcommittee/Meeting11.html>. CISG's reservations: Legislative History - 1980 Vienna Diplomatic Conference. 4th Meeting - 24 March 1980. See at <http://www.cisg.law.pace.edu/cisg/2dcommittee/articles/meeting4.html> (last visited April 30, 2011)
13. Legislative History - 1980 Vienna Diplomatic Conference. 5th Plenary Meetings - 13 March 1980. See at <http://www.cisg.law.pace.edu/cisg/plenarycommittee/summary1-6.html> (last visited April 30, 2011).
14. Legislative History - 1980 Vienna Diplomatic Conference. 3th Plenary Meetings - 11 March 1980. See at <http://www.cisg.law.pace.edu/cisg/plenarycommittee/summary1-6.html> (last visited April 30, 2011).
15. John O. Honnold. The Draft Convention on Contracts for the International Sale of Goods: An Overview. J. Comp. L. s.l.:s.n., 1979.
16. UNITED NATIONS. UNCITRAL. Resolution adopted by the General Assembly on the Report of the Sixth Committee (A/51/628) - Report of the UNICTRAL on the work of its 29th session. See at <http://www.un.org/documents/ga/res/51/ares51-161.htm> (last visited April 30, 2011).
17. KRITZER, Albert H. Report on different opinions as to legal importance of Preamble. s.n.t. See at <http://www.cisg.law.pace.edu/cisg/text/reportpre.html> (last visited April 30, 2011).
18. DI MATTEO, Larry A.; DHOOGE, Lucien J.; GREENE, Stephanie; MAURER, Virginia G.; PAGNATTARO, Marise Anne. International Sales Law: A Critical Analysis of CISG Jurisprudence. Cambridge University Press: New York, 2005, p. 8.
19. FERRARI, Franco. Specific Topic of the CISG. 15 J. L. & COM. s.l.:s.n., 1995. "The interpreter must consider 'what others have already done,' i.e. he must consider the decisions rendered by judicial bodies of other Contracting States."
20. SCHLECHTRIEM, Peter, Uniform Sales Law: The UN Convention On Contracts For The International Sale Of Goods 36. s.l.:s.n., 1986.
21. BONELL, Michael Joachim. Commentary on the International Sales Law. Giuffrè: Milan, 1987. p. 9.
22. SCHMITTHOFF, Clive. Export Trade: The Law and Practice of International Trade. 9ª ed. Stevens & Sons: London, 1990. p. 252.
23. LOOKOFSKY, Joseph. International Encyclopedia of Laws. s.l.:Kluwer, 1993. p. 17.
24. Financial Times. London, 21, Setembro, 1993. Business Section 1.
25. HONNOLD; John. O. The Sales Convention in Action -- Uniform International Words: Uniform Application?. J.L. & COM. s.l.:s.n., 1988.
26. NAÇÕES UNIDAS. UNCITRAL. Paragraph 8th of the General Assembly Resolution No. 2205 (XXI). 17, December, 1966. s.n.t.
27. ENDERLEIN, Fritz & MASKOW, Dietrich, International Sales Law. s.l.:s.n., 1992. "What matters here is not a prejudicial effect of rulings by foreign courts or arbitral tribunals and not that the decision taken by an organ, which by accident was entrusted first to deal with a specific legal issue, is attached a particularly great importance; rather, the existing material in regard to relevant rulings has to be taken account of when giving the reasons for a decision." See at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein.html> (last visited April 30, 2011).
28. ILLINOIS. U.S. District Court. North. District. East. Div. 01 C 4447. Chicago Prime Packers, Inc, v. Northam Food Trading Co. 21 de maio de 2004. See at <http://cisgw3.law.pace.edu/cases/040521u1.html> (last visited April 30, 2011).
29. See ILLINOIS. U.S. District Court. North. District. … Cit. n.t. 11-12:"[I]n the light of the Convention's directive to observe the CISG's international character and the need to promote uniformity in its application, this court has looked to foreign case-law for guidance in interpreting the relevant provisions of the CISG in this case" and that "although foreign case-law is not binding on this court, it is nonetheless instructive in deciding the issues presented here". Consequently, in its reasoning the Court repeatedly referred to foreign decisions dealing with similar cases and addressing the same or similar issues at stake, and since most of these decisions have been rendered by German, Dutch or Italian courts which are not translated into English and therefore could not be cited directly, the Court declared that it relied "upon the detailed abstracts of those decisions provided by UNILEX, an 'intelligent database' of international case law on the CISG".
30. AUSTRIA. Oberster Gerichtshof - 2 Ob 100/00 w, 13.04.2000.
31. GERMANY. Bundesgerichtshof. VIII ZR 159/94. March 8, 1995. See at <http://www.cisg.law.pace.edu/cases/950308g3.html> (last visited April 30, 2011).
32. DI MATTEO, Larry A. The Interpretive Turn in International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence. J. Nw. Internat'l L. & Bus 34. s.n.:s.l., 2004. p. 398: "the concept of "merchantability" or "merchantable quality," is a standard of conformity that is found in English common law. Its counterpart is the "average quality rule" found in the German, Austrian, French, and Swiss civil codes".
33. See note no. 32, supra, p. 398.
34. According to the criterion of "reasonable quality" the goods must be delivered within the standards of use of goods under the same description. Such standards shall be set according to the circumstances of the case, with the purpose to know the quality of the product that was intended to market. If above or below average quality, whether or not subject to resale at that price, etc.
35. See note no. 35, supra, p. 398
36. DING, Ding. China and CISG. In: CISG and China: Theory and Practice. Genebra: Faculté de droit, Université de Genève, 1999. p. 37.
37. AKADDAF, Fatima. Application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) to Arab Islamic Countries: Is the CISG Compatible with Islamic Law Principles?. s.l.:Pace International Law Review; 2001. p. 58.
38. Shari'a is the Arabic term for "islamic law". It is considered a divine law, an expression of the desires for justice of Gods, governing all aspects of human life, including marriage, divorce, etc. Uhlman, Kristine. Overview of Shari'a and Prevalent Customs in Islamic Societies - Divorce and Child Custody. See at <http://www.expertlaw.com/library/family_law/islamic_custody.html#10> (last visited April 30, 2011).
39. ÄMMÄLÄ, Tuula. International Trade in Finland - the Applicable Rules. 5 Turku Law Journal. s.l.:s.n, 2003. pp. 85-105. See at <http://www.cisg.law.pace.edu/cisg/biblio/ammala.html> (last visited April 30, 2011).
40. See Part I of the Article.
41. See Part I of the Article.
42. See Part I of the Article.
43. See Part I of the Article.
44. See Article 1 of the CISG.
45. See Article 3 of the CISG. ZIEGEL, Jacob S. Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods. Toronto: s.n., 1981. p. 46. See at <http://cisgw3.law.pace.edu/cisg/text/ziegel3.html> (last visited April 30, 2011). "Art. 3(2) deals with contracts under which the seller undertakes to supply labour or other services in addition to supplying goods, and excludes them from the scope of the convention".
46. See Article 4 of the CISG.
47. Many scholars discuss what would be a matter of validity for the CISG, arguing that error would be disciplined by the Convention. Peter Huber teaches that "[d]omestic legal systems will often allow the buyer to rescind the contract if he had been induced to conclude the contract by an error concerning essential characteristics of the goods. At first sight this type of remedy seems to fall under the validity exception as it is concerned with the "internal consensus" and not with the "external mechanism". Several authors indeed take this position and argues that domestic remedies for an error concerning the characteristics or quality of the goods should remain applicable by virtue of Art. 4 lit.(a) CISG". HUBER, Peter & MULLIS, Alastair. The CISG. s.l.:Sellier European Law Publishers, 2007. p. 22.
48. See Articles 12 and 96 of the CISG. See Part II, (c), of the Article.
49. This work does not separate the "civil" or "non-commercial" from the "commercial", especially taking into account the unification of commercial and civil law promoted by the Brazilian Civil Code - in accordance with Article 1(3) of the CISG, which states that the nature of the contracting parties will not influence the application of the Convention. Therefore, such distinction is irrelevant at this point. It is enough to observe that, as stated by Article 2(a) of the CISG, the Convention does not apply to sales of goods for personal, family or household use; in other terms, it is not applicable to consumer contracts.
50. CANARIS, Claus-Wilhelm. In: PORTANOVA, Rui. Princípios do Processo Civil. Porto Alegre: Livraria do Advogado, 2005. p.13.
51. ZELLER, Bruno. Four Corners - The Methodology for Interpretation and Application of the UN Convention on Contracts for the International Sale of Goods. s.l. s.n. 2003. See at <http://www.cisg.law.pace.edu/cisg/biblio/4corners.html> (last visited April 30, 2011).
52. See note no. 55, supra, p. 6.
53. See Article 14(1), supra, of the CISG.
54. See Article 16(2)(a), supra, of the CISG.
55. PEREIRA, Caio Mario da Silva. Instituições de Direito Civil. Vol. 1. 21ª ed. Rio de Janeiro: Forense, 2005. p. 477.
56. BRAZIL. STF. Pleno. ADPF-QO 54/DF. Rapporteur Min. Marco Aurélio. Published on August 31, 2007. "At stake values enshrined in our Fundamental Law - as are the human person, health, freedom, autonomy of will and legality".
57. "Article 11 - A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form (…)".
58. See note no. 59, supra, p. 477.
59. However, in this point we shall mention a divergence between both systems, in virtue of Article 227 of the Brazilian Civil Code, according to which the legal transaction whose value exceeds ten times the highest minimum wage in the country cannot be proven only by witness. This issue will be discussed in Part II, (c), of this Article. Article 108 of the Brazilian Civil Code also mentions that the public deed is essential to the validity of legal transactions aimed to create, transfer, modify or waiver of in rem rights over real properties worth more than thirty times the highest minimum wage in the country.
60. See note no. 55 supra.
61. See note no. 24, supra, p. 65-94.
62. HUBER, Peter. Some introductory remarks on the CISG. London: Sellier, Eruopean Law Publishers, s.d. See at <http://www.cisg.law.pace.edu/cisg/biblio/huber-07.html> (last visited April 30, 2011).
63. ENDERLEIN, Fritz & MASKOW, Dietrich. International Sales Law - United Nations Convention on Contracts for the International Sale of Goods - Convention on the Limitation Period in the International Sale of Goods. s.l.: Oceana Publications, 1992. See at <http://www.cisg.law.pace.edu/cisg/biblio/enderlein-art07.html> (last visited April 30, 2011).
64. See Article 28 of the CISG: "Article 28 - (…) a court is not bound to enter a judgment for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this Convention".
65. MONTEIRO, Washington de Barros. Curso de Direito Civil. Vol 5. 34ª ed. São Paulo: Saraiva, 2003. p. 9.
66. GREBLER, Eduardo. The Convention on International Sale of Goods and Brazilian Law: Are Differences Irreconcilable? in Journal of Law and Commerce. s.l. s.n., 2005-06. See at <http://www.cisg.law.pace.edu/cisg/biblio/grebler.html> (last visited April 30, 2011).
67. BONELL, M. Joachim. The Unidroit Principles of International Commercial Contracts and the CISG -Alternative or Complementary Instruments?. 26 Uniform Law Review. s.l.:s.n., 1996. Item II.a.
68. See note no. 50, supra.
69. KEILY, Troy. Good Faith and the Vienna Convention on Contracts for the International Sale of Goods (CISG) in Vindobona Journal of International Commercial Law and Arbitration. s.l.s.n., 1999. pp. 15-40. See at <http://www.cisg.law.pace.edu/cisg/biblio/keily.html> (last visited April 30, 2011).
70. See note no. 24, supra.
71. See the wording of Article 80: "A party may not rely on a failure of the other party to perform, to the extente that such failure was caused by the firts party's act or ommission".
72. HONNOLD, John O. Uniform Law for International Sales under the 1980 United Nations Convention, 3ª ed. s.l. s.n., 1999, pp. 88-114 <http://www.cisg.law.pace.edu/cisg/biblio/ho7.html#ic> (last visited April 30, 2011).
73. See note no. 24, supra.
74. SÃO PAULO. TJSP. Sixth Chamber of Private Law. Appeal 1.170.013-1. Auto Posto Shopping Diadema e Outros v. Mercoil Distribuidora de Petróleo Ltda. Rapporteur Appeals Court Judge Cândido Além. Judged on July 27, 2007.
75. BRAZIL. STJ. REsp. 681856 RS. Rapporteur Minister Hélio Quaglia Barbosa. T4. Published on August 6, 2007.
76. See note no. 78, supra.
77. See Article 77 of the CISG: "A party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach. If he fails to take such measures, the party in breach may claim a reduction in the damages in the amount by which the loss should have been mitigated."
78. See Article 25 of the CISG: "A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such result."
79. See Article 47(1) of the CISG: "The buyer may fix an additional period of time of reasonable length for performance by the seller of his obligations." and Article 63(1) of the CISG: "The seller may fix an additional period of time of reasonable length for performance by the buyer of his obligations."
80. See Article 71 of the CISG: "(1) A party may suspend the performance of his obligations if, after the conclusion of the contract, it becomes apparent that the other party will not perform a substantial part of his obligations as a result of:(a) a serious deficiency in his ability to perform or in his creditworthiness; or (b) his conduct in preparing to perform or in performing the contract. (…)" and Article 72 of the CISG: "(1) If prior to the date for performance of the contract it is clear that one of the parties will commit a fundamental breach of contract, the other party may declare the contract avoided. (…)".
81. See Article 85 of the CISG: "If the buyer is in delay in taking delivery of the goods or, where payment of the price and delivery of the goods are to be made concurrently, if he fails to pay the price, and the seller is either in possession of the goods or otherwise able to control their disposition, the seller must take such steps as are reasonable in the circumstances to preserve them. He is entitled to retain them until he has been reimbursed his reasonable expenses by the buyer."
See Article 86 of the CISG: "(1) If the buyer has received the goods and intends to exercise any right under the contract or this Convention to reject them, he must take such steps to preserve them as are reasonable in the circumstances. He is entitled to retain them until he has been reimbursed his reasonable expenses by the seller. (…)"'
82. See Article 35 of the CISG:
83. See note no. 71, supra, p. 26-39.
84. FLECHTNER, Harry M.. 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. s.l.:s.n., 1998. p. 206. See at <http://www.cisg.law.pace.edu/cisg/text/flechtnerauthentic.html>.
85. See second part of Article 11 of the CISG: "(...) [A contract of sale] may be proved by any means, including witnesses".
86. See Article 227 of the Brazilian Civil Code: "Except the situations expressly stated by law, the proof exclusively testimonial is only admissible in legal transactions whose value does not exceed ten times the highest minimum wage in the country at the time they were concluded."
87. See Article 427 of the Brazilian Civil Code: "The offer for a contract obliges the offeror, if the opposite does not result from its terms, the nature of the business or the circumstances of the case.".
88. See Article 16(1) of the CISG: "Until a contract is concluded an offer may be revoked if the revocation reaches the offeree before he has dispatched an acceptance".
89. UNIDROIT Official Comments. s.n.t. See at <http://www.cisg.law.pace.edu/cisg/principles/uni16.html> (last visited April 30, 2011): "[T]he common law approach [is that] an offer is as a rule revocable, and the opposite approach [is] followed by the majority of civil law systems".
90. MALIK, Shahdeen. Offer: Revocable or Irrevocable. Will Art. 16 of the Convention on Contracts for the International Sale Ensure Uniformity? s.n.t. See at <http://www.cisg.law.pace.edu/cisg/biblio/malik.html>: "Recent trends in national legislation suggest a move towards making offers irrevocable, or at least to restrict the circumstances under which the offeror may revoke his offer without liability".
91. See Article 16(2) of the CISG: "However, an offer may not be revoked: (a) if it indicates, whether by stating a fixed time for acceptance or otherwise, that it is irrevocable; or (b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer".
92. See Article 475 of the Brazilian Civil Code: "The injured party may ask for the termination of the contract, if does not prefer to require its performance. In both cases, it is admissible the compensation for damages.".
93. See Articles 25, 49(1)(a) and 64(1)(a) of the CISG about "fundamental breach".
94. See Articles 47(1) combined with 49(1)(b) and 63(1) combined with 64(1)(b) of the CISG about additional period of time (Nachfrist).
95. See Articles 26, 49(2) and 64(2) of the CISG.
96. SONO, Hiroo: Contract Law Harmonization And Non-Contracting States: The Case Of The CISG. Modern Law for Global Commerce -- Congress to celebrate the fortieth annual session of UNCITRAL. Viena:s.n., s.d. p.15.
See also NOMI, Yoshihisa. The CISG from the Asian Perspective. Celebrating Success: 25Years United Nations Convention on Contracts for the International Sale of Goods. s.l.:Singapore International Arbitration Centre, 2005. See at <http://cisgw3.law.pace.edu/cisg/biblio/nomi.html> (last visited April 30, 2011).
97. See note no. 100, supra, p.2-3.
98. See note no. 101, supra.
99. Thomas L. FRIEDMAN. O Mundo é Plano. Uma breve história do século XXI, Segunda Edição Revisada e Atualizada. Tradução de Cristina Serra, S. Duarte e Bruno Casotti. s.l.: Objetiva, 2006, p.433-434: There is not just the plane world and the non-plane world. A lot of people are in the gray zone between both. (...) There is a large number of people that has not been covered by the world flattening (...) They are healthy people who live in countries where major regions are even, but do not have the tools, the capacity or infrastructure to participate in a significant or sustained way. They have only enough information to know that the world is getting increasingly plan around them and that they are not being able to obtain any benefits (...) be flat by half brings its own specific anxiety. (free translation)
100. BRAZIL. Ministry of Development, Industry and Foreign Trade. Brazilian Balance of Trade. January-May 2008. II.3. Buying Markets. See at <http://www.desenvolvimento.gov.br/sitio/interna/interna.php?area=5&menu=1841&refr=1161> (last visited April 30, 2011).
101. BRAZIL. Ministry of Development, Industry and Foreign Trade. Brazilian Balance of Trade. January-June 2011. <http://www.desenvolvimento.gov.br/arquivos/dwnl_1312201939.pdf>.
102. CISG: Table of Contracting States. See at <http://www.cisg.law.pace.edu/cisg/countries/cntries.html> (last visited April 30, 2011).