2007
Clive M. Schmitthoff Essay Competition

The following criteria were considered for the purpoise of ranking the finalist essays:

    -   Quality of analysis (is it convincing, substantiated, understandable?)
    -   Thoroughness of research (types and varieties of source material)
    -   Originality (even though the topic may have been discussed in various publications, is the author's approach innovative?)
    -   Interest of the subject matter
    -   Quality of writing (style, clarity, organization).

The Final Ranking of the Essays for the 2007 competition is:

1.   Keith William Diener, "The Recoverability of Attorneys' Fees under CISG Article 74: A Critique of the Case Law and Commentary with an Interpretation of Article 74"

An excellent essay, dealing with the (narrow) issue of recoverability of attorneys' fees under the CISG. The topic is very narrow, but it has considerable practical implications (in the application of the CISG by the US court hierarchy). The author examines the interpretative mandates in the Convention (Art. 7 CISG), he provides a contextual analysis of relevant CISG provisions regarding damages, followed by further (high quality) analysis of relevant international case law (court decisions and arbitral awards). The coverage of the identified issue by the author is comprehensive, intelligent and clear. The author offers detailed critical analysis of the Zapata litigation on point and the related scholarly writing which followed the Zapata litigation. The degree of reflective (as opposed to descriptive) analysis of relevant material and sources (doctrine and jurisprudence) is of very high order. The essays is structured and written at a very high standard (both in substance and form); it displays a high degree of originality and high scholarly merit.

2.   Lisa Spagnolo, "Pre-Contractual Liability and the CISG"

An excellent essay, offering a critical review and analysis two very important (and related) topics: good faith and pre-contractual liability under the CISG. The author provides a clear account of the scholarly debate (on the issue of whether pre-contractual liability is covered by the CISG). The author clarifies the scope of the issues under investigation, she deconstructs the particular debate on point and re-classifies the competing views of scholars engaged in that debate, she identifies differences in the respective methodology used by those scholars, and she introduces to the discussion some policy considerations in determining the direction for pre-contractual issues in the CISG. Both the width of research and the depth of reflective (as opposed to descriptive) analysis of relevant material and sources (doctrine and jurisprudence) are highly impressive; the essay displays high quality writing, a lot of intellectual maturity and a very good degree of originality and innovative thinking; it attains high scholarly merit.

3.   Thomas Neumann, "An Investigation of CISG Article 80: Approaches to Shared Liability"

A very good essay, addressing specific issues under Art. 80 CISG, in an organized, well-defined and structured piece of writing. The writing style is precise and the research is thorough. This essay provides a very sound, albeit not very original/innovative analysis of an unsettled issue under Art. 80 CISG. The author offers very good contextual (and textual) analysis of Art. 80, in order to discuss different (objective v. subjective) approaches to cases of shared liability under the said provision. Much of the offered analysis is reflective (as opposed to being merely descriptive) and there is ample evidence of critical thinking throughout the essay; the author's argument is supported by excellent research of primary and secondary sources (legislative history, doctrine and jurisprudence); it is further enhanced by the references to CISG principles (e.g., duty to cooperate, reasonableness) and comparative methodology (e.g., Unidroit Principles, PECL).

4.   Anna Linne, "Burden of Proof under Article 35 CISG"

A short but good essay, addressing a topic of narrow scope: particular issues related to burden of proof for conformity of goods under Art. 35 CISG. The author displays good understanding of the relevant issues and divergent approaches to them, offers good analysis of relevant material (case law and arbitral awards, drawn from the Uncitral Digest; some references to few scholarly writings, e.g., Ferrari, Kokkot, Shain) and makes a very strong, intelligent, original and convincing proposal for a three-step burden shifting approach in resolving disputes under Art. 35 CISG. The essay is generally well-written, but its main strength is the degree of substantive originality of its ideas. More headings, subheadings and better formatting would be (superficial) improvements to this essay of short length but much merit.

5.   Lereko Moronge Obonyo, "Good Faith in the CISG"

A good essay, addressing a very specific topic of importance: the concept of good faith under Art. 7 CISG. The topic has attracted much attention and much has already been written about good faith. The author provides a clear and intelligent (but not original) analysis of different opinions regarding the role/function of good faith in the Convention, finally concluding that there exists a (restricted) duty of good faith during negotiations, although the concept has not yet found a true or complete meaning under the CISG. The essay is supported by good level research of relevant sources and material (international case law, arbitral awards and scholarly writing), although some analysis/references perhaps remain descriptive in some sections of the essay.

6.   Chen Bin, "On the Application of the UNIDROIT Principles of International Commercial Contracts in International Commercial Arbitration: Another application of the Modern Lex Mercatoria, an Application Different from the CISG"

A good essay, addressing a generally interesting topic: the application of the Unidroit Principles as Lex Mercatoria in International Commercial Arbitration. The topic is interesting as well as current, with an important practical dimension, and the author's treatment of it is structured, contextual and intelligent. The author makes a cogent and optimistic argument, which is supported by references to and analysis of selected arbitral awards. Sections of the essay remain descriptive, and references to and reflective analysis of relevant material (doctrine and jurisprudence) would help improve further what is already a good essay.