Guide to the Pace Annotated Electronic Library on the CISG

The challenge to CISG researchers is not a shortage of materials on the subject, far more has been written on the CISG than on any other new sales law. The challenges are locating the material you need (many law libraries do not have an extensive collection of CISG material) and getting to it expeditiously. The website helps on both counts.

Initial research

• Begin with the Text of the treaty. If the CISG is new to you, proceed to the section of the database entitled, Introductions to the CISG. It contains primers on the CISG for persons of common law and civil law backgrounds.

A fundamental rule

• "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application." Article 7(1) of the CISG.

• "Judges and arbitrators are bound . . . to look beyond local precedents and local modes of thought".[1] Scholars are obligated to help the Bar and the bench by analyzing the legislative history (travaux préparatoires) of the CISG and its literature (doctrine) and case law (jurisprudence) as thoroughly as possible in order to present the full picture of interpretations and opinions to attorneys and jurists.[2] The Annotated Electronic Library utilizes computer technology to help make their responses available to you. These responses are analyses of:

Case law, scholarly writings and legislative history

• Case law (jurisprudence) , scholarly writings (doctrine), and legislative history (travaux préparatoires) are aids to interpretation of the CISG. To research these aids to interpretation, go to our Annotated text of the CISG. For each article, the annotated text contains links to material on its legislative history, scholary writings, and case law. We provide an outline of each article of the CISG, in many cases backed by a "book" of material on the subjects it addresses.

• Each outline begins with a guide to the article. The Secretariat Commentary is highlighted as it is the closest available counterpart to an official commentary on the CISG. Under the legislative history sections of the annotated texts, the highlighted entry is a Chronology of the development of the article at the 1980 Vienna Diplomatic Conference, the conference at which the final text of the CISG was promulgated. Other sections of the annotated texts contain "buttons" that take you to case presentations, "buttons" that lead to citations to doctrine on the CISG and, in many instances, full texts of scholarly writings on this Convention. We also provide words and phrases annotations, cross-reference editorial analyses, links to related articles, and other relevant material.

• For further legislative history research, go to the legislative history sections of the annotated articles and to the section of the database entitled, Diplomatic Conference texts and to the Diplomatic Conference search form. For further access to scholarly writings on subjects of interest, go to the Bibliography and to its Search form. Over 3,000 bibliography citations are presented. For further case law research, go to the Schedule of cases by country and Search form for cases of interest. Over 600 CISG cases are presented. We also have initiated a case translation program. For data on the status of this program, go to full English texts of cases. Our Case presentation format is: Case identification; Case abstract; Classification of issues present; Editorial remarks; Citations to other material on the case; Case text (including English translation where available); Case commentaries. Not all of our Case presentations are as complete as we would like them to be; we are working on this.

• The database identifies the countries that have adopted the CISG with effective dates and reservations where they apply. Texts of antecedent uniform laws and Links to other international trade law databases are provided. You may also go to our collection of Full-texts of scholarly writings on the CISG and the UNIDROIT Principles of International Commercial Contracts.

Spirit of this database

• An important audience is the attorney who seeks to put his client's best foot forward in a litigation. Where different interpretations of a provision are available, we seek to present them -- each in the author's own words. Counsel can select as he sees fit. If he pleads a minority view, he is forewarned and can conduct himself accordingly.

Caveats and search tips

• No statute can address specifically all situations that may arise. For matters governed by this Convention which are not expressly settled in it, the CISG's response is reliance on its general principles (Article 7(2)). Its reliance on such principles is greater than would be usual under the U.S. Uniform Commercial Code but lesser than under many civilian codes. This means, look not solely at individual articles of the CISG; examine each also in the context of the entire text of the CISG. Common lawyers who may be less used to reliance upon general principles can find this more of a challenge than civilians.

• An example of the way the CISG works can be found in a review of Josef Esser's classic text, Grundsatz und Norm in der richterlichen Forbildung des Privatrechts: Rechtsvergleichende Beitrage zur Rechtsquellen- und Interpretationslehre [see Bibliography for translation of title and citation]: "A promissor will thus be held to be bound not only to what he has promised expressly but also to numerous 'auxiliary duties' of protecting the interest of the obligee. The latter in turn has been held to be bound to exercise his rights so as not unnecessearily to burden the obligor." Max Rheinstein, 24 University of Chicago Law Review (1957) 602.

• The caveat by Honnold is: "[The CISG] presents a delicate balance between (1) developing the Convention's general principles and (2) recourse to domestic law -- a choice that inevitably will be influenced by the traditions and mind-set of the tribunal. . . . [C]ivil law practice is generally hospitable to the first alternative and common law to the second. Which is more compatible with the objectives of the Convention? This writer, although nurtured in the common law, has come to believe that international unification calls for us to re-examine our traditional approach."[3]

• The CISG does not purport to answer all questions that can arise in a transaction involving the international sale of goods. Articles 1 through 5 identify the scope of the CISG and exclusions from its coverage. Gaps include, inter alia, rights of third parties, agency matters, competency of parties, "validity" issues not expressly resolved in the CISG, and the passing of property in goods sold. See especially the Annotated Text of Article 4 for discussions of most of these subjects. Because these subjects are not covered by the CISG, one must turn to the gap-filling law, the law determined to be applicable by virtue of the rules of private international law. This means that for such subjects, one will not find answers in the Annotated Electronic Library on the CISG.

• You will encounter words and phrases of the CISG that can be confusing. For example, this Convention does not define "avoidance" as one's dictionary does. Domestic analogs to the CISG's "avoidance" include "cancellation", "termination" or "remission". The drafters of the CISG did not use such domestic analogs because they did not want to carry them forward with their domestic baggage. The legislative intent is to have the CISG interpreted autonomously, without reference to such baggage. Even so, domestic analogs can be helpful in your use of our database search forms. For example, if you are searching for commentaries on the CISG's term "avoidance", it would be prudent also to enter search terms such as "cancellation", "termination", and "rescission" -- commentators sometimes use these more familiar words in the titles to their articles. To further illustrate the search-form benefits one can derive from the use of domestic analogs, "force majeure" is a phrase nowhere encountered in the CISG; the CISG talks instead in terms of "exemptions" and "impediments". Nevertheless, commentaries on these CISG terms often contain the phrase "force majeure" in their titles. It is the same with "warranties". The CISG does not refer to them. Its phrase is "conformity with the contract".

• Other search tips (also illustrated in our annotated texts of the CISG): Sometimes it is appropriate to enter "stem" words on the Bibliography search form, e.g., warrant* which captures both "warranty" and "warranties" in commentary titles, or cancel* which captures both "cancellation" (U.S. spelling) and "cancelation" (British spelling). Also, when searching for phrases use the entry place pre/1 business for "place of business", and battle pre/2 forms for "battle of the forms" -- pre/1 for three-word phrases with preposition or article omitted; pre/2 for four-word phrases with preposition and article omitted. For further search tips, go to the section of the database entitled, Search mechanisms. Explanatory links also accompany each of our search forms.

• Some provisions of the CISG were carried forward from a uniform law antecedent. For example, Article 74, the CISG's general rule on damages, is a carry-forward of Article 82 of the 1964 Hague Uniform Law on International Sales (ULIS). When the CISG's legislators carried forward a concept such as this in a similar setting, it can be logically asserted that they intended to carry it forward with the prior uniform law meaning attached to it. There can be instances in which mining the travaux préparatoires, doctrine and jurisprudence of CISG antecedents can help one interpret the CISG. As stated by Audit, " The international character of the Convention should encourage courts to refer to the Convention's legislative history and prior instruments (i.e., the ULIS and [ULF]) in order to ascertain the most likely intent underlying the wording of a given provision."[4] We have included match-ups with CISG antecedents in our annotated texts of the CISG.

• The CISG was promulgated in 1980. The UNIDROIT Principles of International Commercial Contracts is a 1994 reference that can be helpful. Researchers who are familiar with U.S. Restatements should regard the Principles as akin to them. The Principles were promulgated after the CISG. Therefore, they obviously cannot be read retroactively into the minds of the drafters of the CISG. Even so, the UNIDROIT Principles are being used increasingly by arbitrators and others to resolve issues of interpretation not clarified in the CISG.[5]. The Principles are accompanied by commentaries that contain helpful illustrations. And, considering the eminent authorship of the Principles, where they adopt a CISG concept -- which is often the case -- the Principles would seem to be citable in CISG briefs as illustrative of probable CISG intent. Where it seemed appropriate, we have provided match-ups of the CISG with the Principles.

Good luck with your research!

Albert H. Kritzer

Pace Law School Institute of International Commercial Law