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Published by Manz, Vienna: 1986. Reproduced with their permission.

excerpt from

Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods

Univ. Prof. Dr. Peter Schlechtriem [*]

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III. The Sphere of Application

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H. Party Autonomy (Article 6)

Article 6 guarantees party autonomy over both the conflict rules and the substantive law. On the basis of proposals from Anglo-Saxon countries,[93] a fundamental issue much debated in UNCITRAL reappeared, namely whether the parties must affirmatively choose CISG in order for it to apply (the so-called "opting-in" solution) or whether the Convention would automatically apply, unless the parties agreed to apply a different law (the "opting-out" solution).[94] In the end, the "opting-in" proposal, which would have turned the Convention into a set of standard contract terms, was rejected, as was the demand to include a reservation clause in the Final Provisions, as had been done in ULIS.[95]

Also rejected was a Canadian proposal to exclude certain principles, such as the standard of good faith, from the domain of the party autonomy.[96]

The Convention can be excluded by choice of law if the parties choose to apply a different local domestic law. It is also possible simply to reject CISG without choosing an applicable law. Substantively, any rule of the Convention can be altered or rejected by the parties, even by standard contract terms,[97] as long as the requirements for their validity in domestic law are fulfilled.

In contrast to Article 3 sentence 2 of ULIS, the Convention does not mention the possibility of an "implied" exclusion, but this does not mean that a tacit exclusion is impossible. The intent of deleting the word "implied" was to prevent the courts from being too quick to impute exclusion of the Convention.[98] Therefore, the fact that the parties have agreed on an arbitral tribunal in a specified country or on standard contract terms enacted before the Convention takes effect and based on the background of a particular domestic substantive law does not by itself imply that the parties wished to exclude the application of the Convention.[99] [page 35]

Just because the parties choose a domestic law does not necessarily mean that country's local sales law applies. The delegates rejected proposals by Canada and Belgium [100] which would have mandated the application of a state's domestic sales law whenever a national law was chosen.[101] The French delegate argued that, in case of doubt, the parties' choice of a national law means that the Convention applies if that state has adopted the Convention, unless, of course, the parties have explicitly chosen the local sales law of that country. This corresponds to the interpretation generally accepted in Germany with regard to ULIS.[102]

Not only can the parties agree to reject the application of the Convention, but they can also agree to apply the Convention when the preconditions for application have not been met, e.g., in the case of the sale of a ship. A proposal by the German Democratic Republic to this effect,[103] however, encountered resistance partly because it was thought to be superfluous and partly because it was considered dangerous. It is domestic law that grants the parties the autonomy to choose the Convention, and therefore, the limitations of that law must be observed.[103a] For example, an agreement to apply the Convention in an instalment purchase of goods for personal use cannot override the mandatory regulations of German instalment-purchase law where German law is applicable.[104] In other words, CISG does not incorporate in the principle of party autonomy the parties' ability to bypass the limits on party autonomy in domestic law. The only alternative would have been an article that corresponds to ULIS Article 4,[105] but this would simply have restated the obvious. [page 36]

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FOOTNOTES

* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.

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93. Canada (A/Conf. 97/C.1/L.10 = O.R. 86); Australia (A/Conf. 97/C.2/L.3= O.R. 144 et seq.).

94. See A/Conf. 97/C.1/SR.3 at 6 et seq. (= O.R. 247) (discussion); A/Conf. 97/C.2/SR.1 at 7 et seq. (= O.R. 437); id. SR. 2 at 2 (= O.R. 439) (debates in the Second Committee).

95. See infra at VII.B.

96. Cf. A/Conf. 97/C.1/SR.3 at 8 (= O.R. 247).

97. Cf. Huber at 427.

98. See Secretariat's Commentary at 44. Another attempt by the U.K. to insert the word "implied" at the Vienna Conference was unsuccessful. Thus was avoided the possibility that an exclusion of the Convention could be "implied by law." The commentators favor implied exclusion. See Winship, Scope at 1-35 ("an express exclusion should not be required"); Honnold, Commentary 76 ("normal rules of construction of the contract would apply . . . ").

99. Cf. Huber at 426; Magnus at 150 (both with references to the discussion with respect to ULIS).

100. A/Conf. 97/C.1/L.10; id. L.41 (= O.R. 86).

101. A/Conf. 97/C.1/SR.4 at 6 et seq. (= O.R. 250).

102. Cf. Judgment of April 14, 1978, OLG Karlsruhe, 1978 RIW/AWD 544; Judgment of November 11, 1975. Schiedsgericht der Hamburger freundschaftlichen Arbitrage, 1978 RIW/AWD 337; Judgment of Dec. 4, 1985, BGH, supra note 52.

103. A/Conf. 97/C.1/L.32 (= O.R. 86).

103a. Cf. Nan 2.6 at 8.

104. See A/Conf. 97/C.1/SR.4 at 8 et seq. (= O.R. 251 et seq.) (discussion).

105. See A/Conf. 97/C.1/SR.4 at 9 (= O.R. 252) (statement by Bonell (Italy)).

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