|Art. 6 bis|
44. The text of article 4, as adopted by the Working Group on the International Sale of Goods, is as follows:
"This Convention also applies where it has been chosen as the law of the contract by the parties."
45. The Committee noted that article 4 was based on the premise, accepted by most legal systems, that the parties to a sales transaction were at liberty to choose the law applicable to their contract, and that the article was designed to extend the application of the Convention to contracts of sale in circumstances not envisaged by article 1.
46. The discussions in the Committee revealed that the article was not free from ambiguities and was thus open to divergent interpretations. Whilst it was generally agreed that parties were free to incorporate provisions of the Convention into their contract to the extent that these provisions did not conflict with the applicable law, opinions differed greatly on the question as to the extent to which and the circumstances in which parties could choose the Convention as the law of the contract. Amongst the issues that were raised in this context was that of the relationship of article 4 to the preceding articles of the Convention, in particular whether the article could be interpreted as permitting parties to make the Convention applicable to domestic sales contracts and to the types of contract that were excluded from the Convention by virtue of articles 2 or 3.
47. The Committee considered various proposals which, by restricting the tenor of article 4, were designed to clarify these issues. None of these proposals commanded sufficient support and were therefore not retained.
48. Under one proposal, the choice of the Convention as the law of the contract would be effective only if the contract was entered into by parties whose places of business were in different States and one of these States was a Contracting State. The purpose of this proposal was to ensure that the Convention would apply only to international sales and, by its insertion into article 4 prevent its application to sales excluded from the Convention under articles 2 or 3. However, there was significant support for the view that the proposal, if adopted, would needlessly restrict the application of the Convention, for instance in circumstances where a business firm had a branch in another State which sold goods to a buyer whose place of business was situated in that same State. Under the terms of article 6(a), the parties would have their place of business in the same State and the Convention would not apply, although the transaction could be qualified as international. Adherents to the view that the parties should be able, in such a case, to choose the Convention as the law of the contract were therefore opposed to the restriction to party autonomy which the proposal sought to achieve. Consequently, the Committee did not retain this proposal.
49. Concern was, however, expressed, also amongst those opposing the proposal, that article 4, if retained, should not be used to circumvent article 2 (a) which expressly excluded consumer sales, since many countries had enacted consumer protection legislation governing important aspects of this type of sale.
50. The Committee did not retain a proposal, based on article 4 of the 1964 Hague Uniform Law on the International Sale of Goods (ULIS), that the Convention, if chosen as the law of the contract, would be subject to the mandatory provisions of the law that would have been applicable if the parties had not chosen the Convention.
51. At the close of the discussions on article 4, there was a considerable body of opinion in the Committee which questioned the practical need for a special provision on the lines of article 4. Whatever the parties agreed would only be valid within the limits of mandatory law.
52. The Committee concludes that article 4 raises many difficult questions of interpretation which even protracted discussions have failed to solve. Because of this, and in view of the fact that a provision on the lines of article 4 is not strictly necessary to achieve the purpose for which it was drafted, the Committee recommends to the Commission that the article should be deleted. [page 28]
53. The text of article 5, as adopted by the, Working Group on the International Sale of Goods, is as follows:
"The parties may exclude the application of this Convention or derogate from or vary the effect of any of its provisions."
54. The Committee considered a proposal that the Convention apply to a sales transaction only if it is made so applicable by the parties to the transaction. The purpose of this proposal was to facilitate accession to the Convention by States which, though viewing the Convention favourably as a whole, had reservations concerning particular issues. A subsidiary reason cited in support was that, since many rights under the Convention depended upon compliance with the Convention and the contract, it would be preferable to require that the parties expressly adopt the Convention rather than relying on article 5 to ensure that inconsistent contractual provisions will govern.
55. The proposal did not command sufficient support in the Committee and was therefore not retained. Amongst the arguments put forward against its retention was the view that to make the application of the Convention dependent upon any express stipulation by the parties would turn the Convention into a model law and would thereby remove the raison d'être of the Convention, namely, that it would apply automatically unless the parties had excluded it, or derogated from or varied the effect of any of its provisions.
56. The Committee also did not retain a proposal that the Convention may be excluded only by an express stipulation of the parties. In support of this proposal it was submitted that it should not be possible that the Convention, which was to apply as the law of the contract, could be set aside by mere implication. The suggestion was also made that the faculty which the parties had to exclude the Convention should be subject to their choosing another law of the contract to replace the Convention.
57. The proposal, and the allied suggestion, were opposed on the ground that it may be perfectly clear that the parties do not wish the Convention to apply even though this intention was not stated expressly. Another argument against the proposal was that the Convention itself envisaged exclusion or modification of its provisions by other than express means, as in article 8 on usages.
58. The Committee concludes that no change of substance is called for in respect of this article, now renumbered as article 4. It therefore recommends that the Commission should adopt the following text:
"The parties may exclude the application of this Convention or derogate from or vary the effect of any of its provisions." [page 29]
[...]Go to entire text of Report of the 1977 UNCITRAL Committee of the Whole I relating to draft Convention on International Sale of Goods