Go to Database Directory || Go to Information on other available case data
Search the entire CISG Database (case data + other data)

2,000 cases 7,500 case annotations

Article 6. Convention Yields to Contract; Agreements to Apply

TEXT OF ARTICLE 6

The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

6A Exclusion or modification of Convention by contract

6A1 Implied exclusion or modification

6B Agreements to apply Convention

6B1 Transactions or goods excluded under arts. 2, 3, 4 or 5

6B2 Place of business of seller and buyer in same State (art. 1(1))

6B3 Transaction not related to a Contracting State (art. 1(1(a) or (b))

6B4 Other factual settings


DESCRIPTORS

Autonomy of parties ; Choice of law ; Exclusion of Convention ; Opting in Convention


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. UNCITRAL cites 64 cases in its Digest of Art. 6 case law:

Austria        7           Hungary      1           Russian Federation        1
Belgium   1 ICC      7 Switzerland        5
France   5 Italy       4 United States        4
Germany       29       TOTAL:   64

Presented below is a composite list of Art. 6 cases reporting UNCITRAL Digest cases and other Art. 6 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 11 June 2003 citation reported below. Cases are coded to the UNCITRAL Thesaurus.

English texts and full-text English translations of cases are provided as indicated. In most instances researchers can also access UNCITRAL abstracts and link to Unilex abstracts and full-text original-language case texts sourced from Internet websites and other data, including commentaries by scholars to the extent available.

There are scholars who believe that there are circumstances in which the UNIDROIT Principles of International Commercial Contracts may be used to interpret or supplement this Article of the CISG. See match-up of this Article with counterpart provisions of the Principles and commentary on this subject. To the extent this reasoning fits, cases on the counterpart provisions of the UNIDROIT Principles may be relevant. To the extent available, such cases may be found on the Unilex website.
 

United States 29 May 2009 Federal District Court [New York] (Doolim Corp. v. R Doll LLC et al.)

Australia 20 May 2009 Federal Court of Australia (Olivaylle Pty Ltd v. Flottweg GmbH & Co KGAA) 6A

Netherlands 15 April 2009 Rechtbank [District Court] Utrecht

Austria 2 April 2009 Oberster Gerichtshof [Supreme Court] (Boiler case)

Italy 16 February 2009 Tribunale di Forli [District Court] (Cisterns and accessories case) [translation available]

Netherlands 11 February 2009 Rechtsbank [District Court] Arnhem (Tree case) [translation available]

Serbia 28 January 2009 Foreign Trade Court of Arbitration, Serbian Chamber of Commerce (Medicaments case) 6B [English text]

Netherlands 16 January 2009 Rechtsbank [District Court] Breda (Watermelon case) [translation available]
 

Italy 11 December 2008 Tribunale di Forli [District Court] (Mitias v. Solidea S.r.l.) [translation available]

Netherlands 15 October 2008 Rechtsbank [District Court] Rotterdam (Fire resistant paint case) 6B [abstract available]

United States 7 October 2008 U.S. District Court [New Jersey] (Forestal Guarani, S.A. v. Daros International, Inc.)

Chile 22 September 2008 Corte Suprema [Supreme Court] (Jorge Plaza Oviedo v. Sociedad Agricola Sacor Limitada) 6A1 [translation available]

Serbia 15 July 2008 Foreign Trade Court of Arbitration, Serbian Chamber of Commerce (Milk packaging equipment case) [translation available]

Switzerland 19 May 2008 Cour supreme du canton [Appellate Court] Berne

United States 19 May 2008 U.S. District Court [Florida] (Zhejiang Shaoxing Yongli Printing and Dyeing Co., Ltd v. Microflock Textile Group Corporation)

Germany 31 March 2008 Oberlandesgericht [Appellate Court] Stuttgart (Automobile case) 6B [translation available]

Spain 17 January 2008 Supreme Court (Used automobiles case) [translation available]
 

Germany 20 December 2007 Oberlandesgericht [Appellate Court] Oldenburg (Industrial tools case) [translation available]

Austria 18 December 2007 Oberlandesgericht [Appellate Court] Innsbruck (Steel bars case) [translation available]

Netherlands 13 November 2007 Gerechtshof [Appellate Court] 's-Hertogenbosch (Adex International Ltd v. First International Computer Europe B.V.)

Slovak Republic 10 October 2007 Regional Court Bratislava (Spare parts case) 6A1 [translation available]

United States 28 September 2007 Federal District Court [Michigan] (Easom Automation Systems, Inc. v. Thyssenkrupp Fabco. Corp.) 6A

Austria 24 September 2007 Oberlandesgericht [Appellate Court] Linz (Laminated glass case) [translation available]

Switzerland 20 September 2007 Handelsgericht [Commercial Court] Aargau (Die-cutting tools case)

Austria 4 July 2007 Oberster Gerichtshof [Supreme Court] (Auto case) 6A1 [translation available]

China 30 June 2007 CIETAC Arbitration Award [CISG 2007/04] (Color concrete block production line case) 6A [translation available]

United States 27 June 2007 California Appellate Court (Orthotec, LLC v. Eurosurgical S.A.) 6A

Spain 13 March 2007 Audiencia Provincial [Appellate Court] Valencia (Coconut case) [translation available]

United States 31 January 2007 Federal District Court [Minnesota] (Travelers Property Casualty Company of America v. Saint-Gobain Technical Fabrics Canada Limited) 6B

Netherlands 2 January 2007 Gerechtshof [Appellate Court] 's-Hertogenbosch (G.W.A. Bernards v. Carstenfelder Baumschulen Pflanzenhandel GmbH) 6B
 

Switzerland 20 December 2006 Bundesgericht [Supreme Court] [translation available]

Russia 6 December 2006 Arbitration Award 137/2005

Switzerland 8 November 2006 Zivilgericht [Civil Court] Basel-Stadt (Packaging machine case)

Germany 23 October 2006 Landgericht [District Court] Bamberg (Plants case) 6B [translation available]

Germany 19 October 2006 Oberlandesgericht [Appellate Court] München (Auto case) 6B [translation available]

Russia 19 October 2006 Arbitration Award 53/2006

Australia 13 October 2006 Supreme Court of New South Wales [Appellate Court] (Italian Imported Foods Pty LKtd v Pucci S.r.l.) 6A

United States 23 August 2006 Federal District Court [New York] (TeeVee Tunes v. Gerhard Schubert GmbH)

Russia 24 July 2006 Arbitration Award 40/2005

Russia 5 July 2006 Arbitration Award 133/2005

Russia 30 June 2006 Arbitration Award 81/2005

Germany 24 May 2006 Oberlandesgericht [Appellate Court] Köln

Belgium 24 April 2006 Hof van Beroep [Appellate Court] Antwerpen (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International) 6A [translation available]

Russia 13 April 2006 Arbitration Award 105/2005 [translation available]

Spain 24 February 2006 Tribunal Supremo [Supreme Court] (Auto accessories case) 6A1

Belgium 15 February 2006 Rechtbank van Koophandel [Commercial Court] Hasselt (Bruggen Deuren BVBA v. Top Deuren VOF) [translation available]

United States 7 February 2006 Federal District Court [Washington State] (Beltappo Inc v. Rich Xiberta, S.A.) 6B

United States 30 January 2006 Federal District Court [Rhode Island] (American Biophysics v. Dubois Marine Specialties) 6A

Austria 23 January 2006 Oberlandesgericht [Appellate Court] Linz (Auto case) 6B [translation available]

Russia 20 January 2006 Arbitration Award 84/2005 [translation in process]

United States 6 January 2006 Federal District Court [Pennsylvania] (American Mint LLC v. GOSoftware, Inc.)
 

France 25 October 2005 Cour de Cassation [Supreme Court] (Weed killer case) 6A1 [translation available]

United States 16 August 2005 Federal District Court [Pennsylvania] (American Mint LLC v. GOSoftware, Inc.) 6B

Austria 8 August 2005 Oberlandesgericht [Appellate Court] Linz (Spacers for insulation glass case) [translation available]

Germany 3 August 2005 Landgericht [District Court] Neubrandenburg (Pitted sour cherries case) 6A [translation available]

Canada 22 July 2005 Supreme Court of Canada (GreCon Dimter Inc v. J.R. Normand Inc. et al.) 6B

Austria 21 June 2005 Oberster Gerichtshof [Supreme Court] (Software case) [translation available]

United States 15 June 2005 Federal District Court [New Jersey] (Valero Marketing v. Greeni Oy) 6B

Austria 24 May 2005 Oberster Gerichtshof [Supreme Court] [translation available]

China 18 March 2005 Beijing Higher People's Court [Appellate Court] (Beijing Chen Guang Hui Long Electronic Technology Development Ltd. v. Thales (France) Co.)

Russia 16 March 2005 Arbitration Award 155/2004 6A [translation available]

France 25 February 2005 Cour d'appel [Appellate Court] Paris

Switzerland 21 February 2005 Kantonsgericht [Appellate Court] Valais (CNC machine case) [translation available]

Austria 26 January 2005 Oberster Gerichtshof [Supreme Court] [translation available]

Belgium 25 January 2005 Rechtbank van Koophandel [District Court] Tongeren (Scaforn International BV & Orion Metal BVBA v. Exma CPI SA) [translation available]

Russia 24 January 2005 Arbitration Award 68/2004 [translation available]

Italy 11 January 2005 Tribunale [District Court] Padova (Rabbit case) 6A ; 6B [translation available]

Ukraine 2005 Arbitration Award Case no. 48 6A [translation available]
 

Switzerland 24 November 2004 Tribunal cantonal [Appellate Court] Vaud (Cement case)

Ukraine 18 November 2004 Arbitration Award (Manufactured articles case) 6A [translation available]

Russia 12 November 2004 Arbitration Award 174/2003

Russia 5 November 2004 Arbitration Award 164/2003 (Grain case) 6A ; 6B [translation available]

Switzerland 3 November 2004 Tribunal Cantonal [Appellate Court] Jura 6B [translation available]

Russia 22 October 2004 Arbitration Award 4/2004 6B [translation available]

Belgium 20 October 2004 Hof van Beroep [Appellate Court] Ghent 6B [translation available]

Belgium 4 October 2004 Hof van Beroep [Appellate Court] Ghent (Deforche NV v. Prins Gebroeders Bouwstoffenhandel BV) 6A [translation available]

China September 2004 CIETAC Arbitration Award [CISG 2004/07] (Steel products case) [English text]

Serbia 23 August 2004 High Commercial Court [translation available]

Germany 27 July 2004 Landgericht [District Court] Kiel (Fat for frying case) [translation available]

Serbia 9 July 2004 High Commercial Court 6A1 [translation available]

Germany 1 June 2004 Landgericht [District Court] Saarbrücken (Pallets case) 6B [translation available]

Austria 21 April 2004 Oberster Gerichtshof [Supreme Court] (Omnibus case) 6B [translation available]

Germany 21 April 2004 Oberlandesgericht [Appellate Court] Düsseldorf [15 U 88/03] [translation available]

Russia 20 April 2004 Arbitration Award 115/2003 6B [translation available]

Ukraine 15 April 2004 Tribunal of International Commercial Arbitration, Ukrainian Chamber of Commerce & Trade 6B [translation available]

Belgium 14 April 2004 Hof van Beroep [Appellate Court] Antwerp (ING Insurance v. HVA Koeling BVBA and Fagard Winand / HVA Koeling BVBA v. Fagard Winand and Besseling Agri-Technic BV) [translation available]

Russia 12 April 2004 Arbitration Award 11/2003 6A [translation available]

Russia 9 April 2004 Arbitration Award 129/2003 6A [translation available]

Belgium 24 March 2004 Rechtbank van Koophandel [Commercial Court] Brussel

Italy 25 February 2004 Tribunale [District Court] Padova [translation available]

Switzerland 19 February 2004 Bundesgericht [Supreme Court]

Germany 2 February 2004 Oberlandesgericht [Appellate Court] Zweibrücken 6B [translation available]

Russia 2 February 2004 Arbitration Award 56/2003 [translation available]
 

Switzerland 18 December 2003 Handelsgericht [Commercial Court] Aargau (Building material and timberware case) 6A [translation available]

Austria 17 December 2003 Oberster Gerichtshof [Supreme Court] 6B [translation available]

Switzerland 11 December 2003 Kantonsgericht [District Court] Zug

China 10 December 2003 CIETAC Arbitration Award [CISG 2003/04] (Agricultural tools dumped products case) [translation available]

Switzerland 24 October 2003 Handelsgericht [Commercial Court] Zürich

Switzerland 20 October 2003 Kantonsgericht [District Court] Schaffhausen [detailed abstract available]

Spain 19 September 2003 Audiencia Provincial [Appellate Court] Ciudad Real

Switzerland 19 September 2003 Cour de Justice [Appellate Court] Genève

Russia 17 September 2003 Arbitration Award No. 24/2003 [translation available]

Switzerland 11 September 2003 Obergericht [Appellate Court] Thurgau (Marble slab case)

Switzerland 22 August 2003 Appellationsgericht [Appellate Court] Basel 6B [translation available]

Russia 15 August 2003 Arbitration Award No. 57/2001 6B [translation available]

Russia 25 June 2003 Arbitration Award No. 151/2002 6A ; 6B [translation available]

Russia 16 June 2003 Arbitration Award No. 135/2002 [translation available]

* United States 11 June 2003 U.S. Circuit Court of Appeals [5th Cir.] (BP Oil International v. Empresa Estatal Petroleos de Ecuador) 6B

Netherlands 21 May 2003 Rechtbank [District Court] Zwolle (Remeha B.V. v. Keramab N.V.)

Germany 30 April 2003 Bundesgerichtshof [Federal Supreme Court] [translation available]

Germany 25 March 2003 Landgericht [District Court] Köln [translation available]

Switzerland 11 February 2003 Handelsgericht [Commercial Court] St. Gallen [translation available]

United States 29 January 2003 U.S. District Court [Illinois] (Ajax Tool Works v. Can-Eng Manufacturing) 6A ; 6B
 

Switzerland 3 December 2002 Handelsgericht [Commercial Court] St. Gallen [translation available]

Russia 2 December 2002 Arbitration Award No. 18/2002 6B [translation available]

Netherlands 15 October 2002 Netherlands Arbitration Institute Case No. 2319 [English text]

Russia 11 October 2002 Arbitration Award No. 62/2002 [translation available]

Russia 6 September 2002 Arbitration Award No. 217/2001 6A [translation available]

Germany 26 July 2002 Oberlandesgericht [Appellate Court] Zweibrücken [translation available]

Switzerland 9 July 2002 [Commercial Court] Zürich 6B [translation available]

Germany 2 July 2002 Landgericht [District Court] Saarbrücken 6B [translation available]

* Belgium 15 May 2002 Hof van Beroep [Appellate Court] Gent 6A [translation available]

Switzerland 23 April 2002 Kantonsgericht [District Court] Schaffhausen [translation available]

Switzerland 11 April 2002 Tribunal Cantonal [Appellate Court] Vaud

United States 26 March 2002 U.S District Court [Southern Dist., NY] (St. Paul Insurance v. Neuromed) 6B

China 5 March 2002 Guangxi Beihai Maritime Court 6B [translation available]

Bulgaria 28 February 2002 Bulgaria Chamber of Commerce Arbitration award, Case 26/00 6B [translation available]

Belgium 26 February 2002 Rechtbank van Koophandel [Commercial Court] Hasselt (Fagard Winand v. HVA Koeling BVBA / HVA Koeling BVBA v. Besseling Agri-Technic BV and NV De Vanderlandsehe)

Belgium 18 February 2002 Rechtbank van Koophandel [District Court] Ieper 6A

* Belgium 15 January 2002 Tribunal de commerce [District Court] Namur 6B [translation available]

* Austria 14 January 2002 Oberster Gerichtshof [Supreme Court] 6B [translation available]

ICC 2002 International Court of Arbitration, Case 11333 (Machine case) 6b [English text]
 

France 6 November 2001 Cour d'appel [Appellate Court] Paris 6B

* Austria 22 October 2001 Oberster Gerichtshof [Supreme Court] [1 Ob 77/01g] 6B [translation available]

Germany 10 October 2001 Oberlandesgericht [Appellate Court] Rostock 6B [translation available]

* United States 27 July 2001 U.S. District Court [California] (Asante v. PMC-Sierra) 6B

* France 26 June 2001 Cour de Cassation [Supreme Court] [Q 99-16.118] 6A1 [translation available]

Russia 25 June 2001 Arbitration Court [Appellate Court] for Moscow Region (Case No. KG-A40/3057-01) 6B [translation available]

Germany 28 May 2001 Oberlandesgericht [Appellate Court] Köln (Motorcycle clothing and accessories case) 6B [translation available]

United States 1 May 2001 U.S. District Court [California] (China National Metal Products v. Digital) 6B

Belgium 25 April 2001 Rechtbank van Koophandel [District Court] Veurne 6A [translation available]

Belgium 19 April 2001 Rechtbank van Koophandel [District Court] Kortrijk 6A ; 6B

Bulgaria 12 June 2001 Bulgaria Chamber of Commerce Arbitration award, Case 41/00 6B [translation available]

Denmark 15 February 2001 Højesteret [Supreme Court] [translation available]

Australia 1 February 2001 Supreme Court of South Australia (Perry Engineering v. Bernold) 6B

France 30 January 2001 Cour d'appel [Appellate Court] Amiens

Belgium 29 January 2001 Rechtbank van Koophandel [District Court] Ieper
 

* Australia 17 November 2000 Supreme Court of Queensland

* Spain 16 November 2000 Audiencia Provincial [Appellate Court] Alecante 6A1 [translation available]

Germany 23 October 2000 Oberlandesgericht [Appellate Court] Dresden (Powdered milk case) 6A [translation available]

* Germany 12 October 2000 Landgericht [District Court] Stendal 6A [translation available]

Austria 28 September 2000 Oberlandesgericht [Appellate Court] Graz (Computer telephone board case) [translation available]

Germany 13 September 2000 Landgericht [District Court] Memmingen (Plastic filter plate case) [translation available]

* Germany 30 August 2000 Oberlandesgericht [Appellate Court] Frankfurt 6B [translation available]

* Italy 12 July 2000 Tribunale [District Court] Vigevano 6A [translation available]

Netherlands 29 June 2000 Arrondissementsrechtbank [District Court] Alkmaar 6B

* Italy 19 June 2000 Suprema Corte di Cassazione [Supreme Court] 6A [translation available]

Austria 15 June 2000 Oberlandesgericht [Appellate Court] Graz [translation available]

Russia 6 June 2000 Arbitration award 406/1998 6B [translation available]

Russia 30 May 2000 Arbitration award 30 May 2000 6B [translation available]

Switzerland 26 May 2000 Tribunal cantonal [Appellate Court] Vaud (Asphalt case)

Austria 28 April 2000 Oberster Gerichtshof [Supreme Court] 6B [translation available]

Austria 13 April 2000 Oberster Gerichtshof [Supreme Court] 6B [translation available]

Belgium 13 April 2000 Rechtbank van Koophandel [District Court]

Belgium 29 March 2000 Hof van Beroep [Appellate Court] Gent

* Austria 21 March 2000 Oberster Gerichtshof [Supreme Court] [translation available]

Austria 9 March 2000 Oberster Gerichtshof [Supreme Court] [translation available]

* Russia 24 January 2000 Arbitration award 54/1999 [translation available]

China 2000 CIETAC Arbitration Award [CISG 2000/17] (Souvenir coins case) 6A [translation available]

ICC 2000 International Court of Arbitration, Case 10329 6B [English text]

ICC 2000 International Court of Arbitration, Case 9781 6B [English text]
 

* Germany 27 December 1999 Oberlandesgericht [Appellate Court] Dresden 6B [translation available]

Germany 28 October 1999 Oberlandesgericht [Appellate Court] Braunschweig 6A [translation available]

* ICC July 1999 International Court of Arbitration, Case 9448

Austria 29 June 1999 Oberster Gerichtshof [Supreme Court] [translation available]

Switzerland 8 June 1999 Tribunale d'appello [Appellate Court] Lugano 6A [translation available]

* ICC June 1999 International Court of Arbitration, Case 9187 6B [English text]

Ukraine 10 May 1999 Arbitration Award (Sunflower seeds meal case) 6B [translation available]

United States 9 March 1999 State District Court [Minnesota] (KSTP-FM v. Specialized Communications) 8B

ICC March 1999 International Court of Arbitration, Case 9978 [English text]

Austria 24 February 1999 Oberlandesgericht [Appellate Court] Graz (Military weapons case) [translation added]

* Switzerland 10 February 1999 Handelsgericht [Commercial Court] Zürich [translation available]

Netherlands 9 February 1999 Gerechtshof [Appellate Court] Arnhem 6A

Germany 13 January 1999 Oberlandesgericht [Appellate Court] Bamberg 6B [translation available]
 

* Germany 29 December 1998 Hamburg Arbitration proceeding 6B [translation available]

Switzerland 16 December 1998 Handelsgericht [Commercial Court] Zürich 6A

Belgium 2 December 1998 Rechtbank van Koophandel [District Court] Hasselt 6A

* Germany 25 November 1998 Bundesgerichtshof [Federal Supreme Court] 6B [translation available]

Germany 24 November 1998 Landgericht [District Court] Bielefeld 6A [translation available]

Switzerland 23 November 1998 Bezirksgericht [District Court] Weinfelden (Milking machinery case) 6A [translation available]

Russia 22 October 1998 Arbitration award 196/1997 6B [translation available]

* Austria 15 October 1998 Oberster Gerichtshof [Supreme Court] 6B [translation available]

Germany 5 October 1998 Oberlandesgericht [Appellate Court] Hamburg 6B [translation available]

Austria 10 September 1998 Oberster Gerichtshof [Supreme Court]

Germany 2 September 1998 Oberlandesgericht [Appellate Court] Celle 6B [translation available]

ICC September 1998 International Court of Arbitration, Case 9419

Switzerland 30 June 1998 Kantonsgericht Wallis / Tribunal cantonal Valais [Canton Appellate Court] (Granite stones case) [translation available]

* Germany 23 June 1998 Oberlandesgericht [Appellate Court] Hamm [translation available]

Germany 8 May 1998 Landgericht [District Court] Aurich

Germany 6 May 1998 Oberlandesgericht [Appellate Court] Hamm 6A

Russia 14 April 1998 Arbitration award 47/1997 [translation available]

Germany 31 March 1998 Oberlandesgericht [Appellate Court] Zweibrücken (Vine wax case) [translation available]

China 24 March 1998 CIETAC Arbitration proceeding 6A [translation available]

Austria 11 March 1998 Oberlandesgericht [Appellate Court] Graz (Timber case) [translation available]

Russia 2 March 1998 Arbitration award 201/1997

ICC March 1998 International Court of Arbitration, Case 9117 [English text]

Russia 16 February 1998 High Arbitration Court [Information Letter No. 29] 6B

Austria 12 February 1998 Oberster Gerichtshof [Supreme Court] 6B [translation available]

Bulgaria 2 February 1998 Bulgaria Chamber of Commerce Arbitration award, Case 20/1997 6A [translation available]

* Germany 21 January 1998 Oberlandesgericht [Appellate Court] München (Insulating materials case) [translation available]
 

Austria 10 December 1997 Vienna Arbitration award S 2/97 6A [translation available]

* Switzerland 3 December 1997 Kantonsgericht [District Court] Nidwalden (Furniture case) 6B [translation available]

Netherlands 20 November 1997 Gerechtshof [Appellate Court] Amsterdam

* France 15 October 1997 Cour d’appel [Appellate Court] Paris

Belgium 6 October 1997 Rechtbank van Koophandel [District Court] Kortrijk 6A [translation available]

Bulgaria 29 September 1997 Bulgaria Chamber of Commerce Arbitration award 71/1994 6A1 [translation available]

Switzerland 26 September 1997 Handelsgericht [Commercial Court] Aargau (Cutlery case) [translation available]

Germany 2 September 1997 Landgericht [District Court] Siegen

China 5 August 1997 CIETAC Arbitration Award [CISG/1997/25] (Cold-rolled coils case) 6A [translation available]

* Germany 23 July 1997 Bundesgerichtshof [Federal Supreme Court] [VIII ZR 130/96] [Benetton I] 6A

Germany 23 July 1997 Bundesgerichtshof [Federal Supreme Court] [VIII ZR 134/96] [Benetton II] 6B [translation available]

* Germany 9 July 1997 Oberlandesgericht [Appellate Court] München [7 U 2070/97] [translation available]

* Germany 9 July 1997 Oberlandesgericht [Appellate Court] München [7 U 2246/97] (Fitness equipment case) 6B [translation available]

Germany 9 July 1997 Oberlandesgericht [Appellate Court] Köln 6B [translation available]

* Germany 25 June 1997 Oberlandesgericht [Appellate Court] Karlsruhe 6B [translation available]

Hungary 8 May 1997 Budapest Arbitration award Vb 96036

Germany 17 April 1997 Landgericht [District Court] Frankenthal

China 4 April 1997 CIETAC Arbitration Award [CISG/1997/04] (Black melon seeds case) [translation available]

* Austria 4 March 1997 Oberlandesgericht [Appellate Court] Wien

Russia 3 March 1997 Arbitration award 82/1996 6A [translation available]

Switzerland 20 February 1997 Bezirksgericht [District Court] Saane [translation available]

* Austria 11 February 1997 Oberster Gerichtshof [Supreme Court]

Germany 5 February 1997 Bundesgerichtshof [Federal Supreme Court] 6A1 [ULIS precedent]

* Switzerland 5 February 1997 Handelsgericht [Commercial Court] Zürich [translation available]

Germany 31 January 1997 Oberlandesgericht [Appellate Court] Koblenz [translation available]

* Germany 8 January 1997 Oberlandesgericht [Appellate Court] Köln [translation available]

* Switzerland 8 January 1997 Obergericht [Appellate Court] Luzern [translation available]

Belgium 6 January 1997 Rechtbank van Koophandel [District Court] Kortrijk

ICC 1997 International Court of Arbitration, Case 8855
 

* France 17 December 1996 Cour de Cassation [Supreme Court] 6B [translation available]

Austria 9 December 1996 Bezirksgericht [District Court] Wels

* Germany 4 December 1996 Bundesgerichtshof [Federal Supreme Court] [translation available]

ICC December 1996 International Court of Arbitration, Case 8482 6A ; 6B [English text]

ICC December 1996 International Court of Arbitration, Case 8769 6B [English text]

Netherlands 20 November 1996 Arrondissementsrechtbank [District Court] Utrecht

Germany 2 October 1996 Landgericht [District Court] Heidelberg

France 26 September 1996 Cour d'appel [Appellate Court] Paris

Germany 30 August 1996 Hamburg Arbitration award 6A1 [translation available]

Netherlands 5 June 1996 Gerechtshof [Appellate Court] Leeuwarden

Germany 21 May 1996 Oberlandesgericht [Appellate Court] Köln 6A [translation available]

Netherlands 7 May 1996 Gerechtshof [Appellate Court] Arnhem

Germany 25 April 1996 Bundesgerichtshof [Supreme Court]

Bulgaria 24 April 1996 Bulgaria Chamber of Commerce Arbitration award 56/1995 [translation available]

China 29 March 1996 CIETAC Arbitration Award [CISG/1996/15] (Caffeine case) 6B [translation available]

* Germany 21 March 1996 Hamburg Arbitration award 6B [translation available]

* Germany 15 March 1996 Oberlandesgericht [Appellate Court] Frankfurt [Benetton I]

Germany 15 March 1996 Oberlandesgericht [Appellate Court] Frankfurt [Benetton II]

* Switzerland 11 March 1996 Tribunal Cantonal [Appellate Court] Vaud [01 93 1061] 6B [translation available]

* Germany 15 February 1996 Landgericht [District Court] Kassel [11 O 4185/95]

China 5 February 1996 CIETAC Arbitration Award [CISG/1996/07] (Antimony ingot case) 6B [translation available]
 

United States 6 December 1995 Federal Appellate Court [2nd Circuit] (Delchi Carrier v. Rotorex) 6B

Russia 1 December 1995 Arbitration award 22/1995 6B [translation available]

* Hungary 17 November 1995 Budapest Arbitration award Vb 94124

Belgium 18 October 1995 Rechtbank van Koophandel [District Court] Hasselt 6A

* Germany 12 October 1995 Landgericht [District Court] Trier [translation available]

Germany 11 October 1995 Landgericht [District Court] Düsseldorf 6A ; 6B [translation available]

Germany 6 October 1995 Amtsgericht [Lower Court] Kehl [translation available]

* ICC October 1995 International Court of Arbitration, Case 8453 6A ; 6B [English text]

* France 26 September 1995 Cour d'appel [Appellate Court] Colmar [translation available]

Germany 20 September 1995 Oberlandesgericht [Appellate Court] Nürnberg

France 13 September 1995 Cour d'appel [Appellate Court] Grenoble [translation available]

* Germany 9 June 1995 Oberlandesgericht [Appellate Court] Hamm 6B [translation available]

Netherlands 7 June 1995 Arrondissementsrechtbank [District Court] 's Gravenhage 6B

* Germany 29 May 1995 Landgericht [District Court] München (Computer hardware case) [translation available]

* Germany 24 May 1995 Oberlandesgericht [Appellate Court] Celle [translation available]

Germany 2 May 1995 Landgericht [District Court] Kassel [Benetton I]

China 28 April 1995 CIETAC Arbitration Award [CISG/1995/08] (Rolled wire rod coil case) 6B [translation available]

* France 26 April 1995 Cour d'appel [Appellate Court] Grenoble (Alain Veyron v. Ambrosio) [translation available]

Netherlands 26 April 1995 Arrondissementsrechtbank [District Court] Almelo

Russia 25 April 1995 Arbitration award 142/1994 [translation available]

* United States 12 April 1995 Court of Appeals of Oregon (GPL Treatment v. Louisiana-Pacific)

* Germany 5 April 1995 Landgericht [District Court] Landshut 6A1 [translation available]

Russia 16 March 1995 Arbitration award 155/1994 [translation available]

* Switzerland 16 March 1995 Kantonsgericht [District Court] Zug 6B

ICC March 1995 International Court of Arbitration, Case 7645 [English text]

* Germany 8 February 1995 Oberlandesgericht [Appellate Court] München [7 U 3758/94] (Plastic granulate case) 6A1 [translation available]

Belgium 24 January 1995 Rechtbank van Koophandel [District Court] Hasselt 6A

ICC January 1995 International Court of Arbitration, Case 7754 6A1 [English text]

ICC 1995 International Court of Arbitration, Case 8128 6B [translation available]

* ICC 1995 International Court of Arbitration, Case 8324 6B
 

Russia 17 November 1994 Arbitration award 493/1993

* Austria 10 November 1994 Oberster Gerichtshof [Supreme Court] [translation available]

Russia 3 November 1994 Arbitration award 442/1993 6B

Argentina 6 October 1994 Juzgado Nacional de Primera Instancia en lo Comercial [National Commercial Court of First Instance] 6A [translation available]

United States 9 September 1994 Federal District Court [Northern Dist. NY] (Delchi Carrier v. Rotorex) 6B

* Germany 26 August 1994 Oberlandesgericht [Appellate Court] Köln [translation available]

Netherlands 11 August 1994 Arrondissementsrechtbank [District Court] Leeuwarden

* Germany 5 July 1994 Landgericht [District Court] Giessen

* Switzerland 29 June 1994 Tribunal Cantonal [Appellate Court] Valais (Furniture case) 6B [translation available]

* Austria 15 June 1994 Vienna Arbitration award SCH-4318 6A [translation available]

Netherlands 15 June 1994 Arrondissementsrechtbank [District Court] Amsterdam

Germany 14 June 1994 Amtsgericht [Lower Court] Nordhorn

* Italy 19 April 1994 Florence Arbitration award 6A1 [translation available]

* Germany 22 February 1994 Oberlandesgericht [Appellate Court] Köln 6B [translation available]

Germany 10 February 1994 Oberlandesgericht [Appellate Court] Düsseldorf [6 U 32/93] 6B [translation available]

Germany 24 January 1994 Kammergericht [Appellate Court] Berlin [translation available]

Hungary 17 January 1994 Budapest Arbitration award Vb 92068

* ICC 1994 International Court of Arbitration, Case 7565 [English text]

* ICC 1994 International Court of Arbitration, Case 7660

* ICC 1994 International Court of Arbitration, Case 7844 6A
 

Germany 1 December 1993 Landgericht [District Court] Hanover 6A

Germany 18 November 1993 Oberlandesgericht [Appellate Court] Düsseldorf

* Germany 17 September 1993 Oberlandesgericht [Appellate Court] Koblenz 6A [translation available]

* Germany 2 July 1993 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]

* ICC 26 March 1993 International Court of Arbitration, Case 6653 [translation available]

* Italy 14 January 1993 Tribunale Civile [District Court] Monza [translation available]

* Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken (Doors case) [translation available]

* Germany 8 January 1993 Oberlandesgericht [Appellate Court] Düsseldorf [translation available]

ICC 1993 International Court of Arbitration, Case 6653 6B [translation available]
 

* Germany 20 November 1992 Oberlandesgericht [Appellate Court] Karlsruhe (Frozen chicken case) [translation available]

Germany 9 July 1992 Landgericht [District Court] Düsseldorf

Germany 23 March 1992 Landgericht [District Court] Saarbrücken

ICC 1992 International Court of Arbitration, Case 7585 6B [English text]
 

Germany 13 August 1991 Landgericht [District Court] Stuttgart (Women's clothes case) 6A [translation available]
 

* United States 24 October 1989 Federal International Trade Court (Orbisphere v. U.S.) 6A ; 6B


UNCITRAL CASE DIGEST

The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods
[*]

A/CN.9/SER.C/DIGEST/CISG/6 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Text of Article 6
Digest of Article 6 case law
-    Introduction
-    Derogation
-    Express exclusion
-    Implicit exclusion
-    Opting-in]

ARTICLE 6

     The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.

DIGEST OF ARTICLE 6 CASE LAW

Introduction

1. According to article 6 of the Convention, the parties may exclude the Convention’s application (totally or partially) or derogate from its provisions. Therefore, even if the Convention is otherwise applicable, one must nevertheless determine whether the parties have excluded it or derogated from its provisions in order to conclude that the Convention applies in a particular case.[1] According to various courts, the possibility of opting-out is subject to a clear intent of the parties.[2]

2. By allowing the parties to exclude the Convention and derogate from its provisions, the drafters affirmed the principle according to which the primary source of the rules governing international sales contracts is party autonomy.[3] In doing so, the drafters clearly acknowledged the Convention’s non-mandatory nature [4] and the central role that party autonomy plays in international commerce and, in particular, in international sales.[5]

Derogation

3. Article 6 makes a distinction between the exclusion of the application of the Convention and the derogation from some of its provisions. Whereas the former does not encounter any limitations, the latter does. Where one of the parties to the contract for the international sale of goods has its place of business in a State that has made a reservation under article 96,[6] the parties may not derogate from or vary the effect of article 12. In those cases, any provision "that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply" (art. 12). All other provisions may be derogated from.[7]

4. Although the Convention does not expressly mention it, there are other provisions that the parties cannot derogate from, more specifically, the public international law provisions (i.e. arts. 89-101). This is due to the fact that those provisions address issues relevant to contracting States rather than private parties. It should be noted that this issue has not yet been addressed by case law.

Express exclusion

5. The applicability of the Convention can be expressly excluded by the parties. In respect of this kind of exclusion, two lines of cases have to be distinguished: the exclusion with and the exclusion without any indication by the parties of the law applicable to their contract. In those cases in which the Convention’s application is excluded with an indication of the applicable law, which in some countries can be made in the course of the legal proceedings,[8] the law applicable will be that applicable by virtue of the rules of private international law of the forum,[9] which in most countries makes applicable the law chosen by the parties.[10] Where the Convention is expressly excluded without an indication of the applicable law, the applicable law is to be identified by means of the private international law rules of the forum.

Implicit exclusion

6. A number of courts have considered the question of whether application of the Convention can be implicitly excluded. According to many courts,[11] the lack of an express reference in the Convention to the possibility of implicitly excluding its application does not preclude it. This view is supported by a reference in the Official Records, which shows that the majority of delegations were opposed to the proposal advanced during the diplomatic conference according to which a total or partial exclusion of the Convention could only be made "expressly".[12] The express reference in the Convention to the possibility of an implicit exclusion merely "has been eliminated lest the special reference to ‘implied’ exclusion might encourage courts to conclude, on insufficient grounds, that the Convention had been wholly excluded".[13] According to few court decisions [14] and an arbitral award,[15] however, the Convention cannot be excluded implicitly, on the grounds that the Convention does not expressly provide for that possibility.

7. A variety of ways of implicitly excluding the Convention have been suggested. One possibility is for the parties to choose the law [16] of a Non-contracting State as the law applicable to their contract.[17]

8. The choice of the law of a Contracting State as the law governing the contract poses more difficult problems. It has been suggested in an arbitral award [18] and several court decisions [19] that the choice of the law of a Contracting State ought to amount to an implicit exclusion of the Convention’s application, since otherwise the choice of the parties would have no practical meaning. Most court decisions [20] and arbitral awards,[21] however, take a different view. The grounds for that view may be summarized as follows: on the one hand, the Convention is part of the law of the  Contracting State chosen by the parties and, on the other, the choice of the law of the  Contracting State functions to identify the law by which the gaps in the Convention must be filled.[22] According to this line of decisions, the choice of the law of a  Contracting State, if made without particular reference to the domestic law of that State, does not appear to exclude the Convention’s applicability. Of course, where the parties clearly chose the domestic law of a Contracting State to apply, the Convention must be considered as having been excluded.[23]

9. The choice of a forum may also lead to the implicit exclusion of the Convention’s applicability. In those cases, however, where the forum chosen is located in a contracting State and there is evidence that the parties wanted to apply the law of the forum, two arbitral tribunals have applied the Convention.[24]

10. The question has arisen of whether the Convention’s application is also excluded where the parties argue a case on the sole basis of a domestic law despite the fact that all of the Convention’s criteria of applicability are met. In those countries where the judge must always apply the correct law even if the parties based their arguments on a law that does not apply in the case (jura novit curia), the mere fact that the parties argued on the sole basis of a domestic law did not in itself lead to the exclusion of the Convention.[25] One court found that if the parties are not aware of the Convention’s applicability and argue on the basis of a domestic law merely because they believe that this law is applicable, the judges will nevertheless have to apply the Convention.[26] In one country which does not recognize the principle of jura novit curia, a court applied domestic law when the parties argued their case by reference to  domestic sales law.[27] This approach has also been adopted by a court [28] as well as an arbitral tribunal [29] sitting in countries that acknowledge the principle jura novit curia.

11. According to one court decision, the inclusion of Incoterms by the parties does not constitute an implicit exclusion of the Convention.[30]

Opting-in

12. While the Convention expressly provides the parties with the possibility of excluding its application either in whole or in part, it does not address the issue of whether the parties may make the Convention applicable when it would not otherwise apply. This issue was expressly dealt with by the 1964 Hague Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods, which contained a provision, article 4, that expressly provided the parties with the possibility of "opting in". The fact that the Convention does not contain a provision comparable to that article does not necessarily mean that the parties are not allowed to "opt in". This view is also supported by the fact that a proposal made by the former German Democratic Republic during the diplomatic conference [31] that the Convention should apply even where the preconditions for its application are not met, as long as the parties wanted it to be applicable. This proposal was rejected.  It was noted during the discussions that the proposed text was unnecessary in that the principle of party autonomy was sufficient to allow the parties to "opt in" to the Convention.


FOOTNOTES

* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.

[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]

1. See CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>]; CLOUT case No. 338 [GERMANY Oberlandesgericht [Appellate Court] Hamm  23 June 1998, available online at <http://cisgw3.law.pace.edu/cases/980623g1.html>]; CLOUT case No. 223 [FRANCE Cour d’appel [Appellate Court] Paris 15 October 1997, available online at <http://cisgw3.law.pace.edu/cases/971015f1.html>] (see full text of the decision); CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (see full text of the decision); CLOUT case No. 190 [AUSTRIA Oberster Gerichtshof [Supreme Court] 11 February 1997, available online at <http://cisgw3.law.pace.edu/cases/970211a3.html>] (see full text of the decision); CLOUT case No. 311 [GERMANY Oberlandesgericht [Appellate Court] Köln 8 January 1997, available online at <http://cisgw3.law.pace.edu/cases/970108g1.html>] (see full text of the decision); CLOUT case No. 211 [SWITZERLAND Tribunal Cantonal [Appellate Court] Vaud 11 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960311s1.html>] (see full text of the decision); CLOUT case No. 170 [GERMANY Landgericht [District Court] Trier 12 October 1995, available online at <http://cisgw3.law.pace.edu/cases/951012g1.html>] (see full text of the decision); CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof [Supreme Court] 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>] (see full text of the decision); CLOUT case No. 199 [SWITZERLAND Tribunal Cantonal [Appellate Court] Valais 29 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940629s1.html>] (see full text of the decision); CLOUT case No. 317 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 20 November 1992, available online at <http://cisgw3.law.pace.edu/cases/921120g1.html>] (see full text of the decision).

2. [UNITED STATES Asante Technologies, Inc. v. PMC-Sierra, Inc. U.S. District Court [California] 27 July 2001, available online at <http://cisgw3.law.pace.edu/cases/010727u1.html>]; [BELGIUM Tribunal de Commerce [District Court] Namur 15 January 2002, available online at <http://cisgw3.law.pace.edu/cases/020115b1.html>].

3. For a reference to this principle, see CLOUT case No. 229 [GERMANY Bundesgerichtshof [Federal Supreme Court] 4 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961204g1.html>] (see full text of the decision).

4. For an express reference to the Convention’s non-mandatory nature, see [ITALY Suprema Corte di Cassazione [Supreme Court] 19 June 2000, available online at <http://cisgw3.law.pace.edu/cases/000619i3.html>]; [AUSTRIA Oberster Gerichtshof [Supreme Court] 21 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000321a3.html>]; CLOUT case No. 240 [AUSTRIA Oberster Gerichtshof [Supreme Court] 15 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981015a3.html>] (see full text of the decision); Handelsgericht Wien, 4 March 1997, unpublished; [SWITZERLAND Valais [Appellate Court] 29 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940629s1.html>].

5. [GERMANY Landgericht [District Court] Stendal 12 October 2000, available online at <http://cisgw3.law.pace.edu/cases/001012g1.html>].

6. See article 96: "A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in that State."

7. For example, a court has stated that article 55, relating to open-price contracts, is only applicable where the parties have not agreed to the contrary (CLOUT case No. 151 [FRANCE Cour d’appel [Appellate Court] Grenoble 26 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950426f1.html>]), while another court observed that article 39, relating to the notice requirement, is not mandatory and can be derogated from [GERMANY Landgericht [District Court] Gießen 5 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940705g1.html>]. Similarly, the Austrian Supreme Court has concluded that article 57 also can be derogated from (CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof 10 November 1994, available online at <http://cisgw3.law.pace.edu/cases/941110a3.html>]).

8. This is true for instance in Germany, as pointed out in case law; see, for example, CLOUT case No. 122 [GERMANY Oberlandesgericht [Appellate Court] Köln 26 August 1994, available online at <http://cisgw3.law.pace.edu/cases/940826g1.html>]; CLOUT case No. 292 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 13 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930113g1.html>] (see full text of the decision); this is also true in Switzerland, see [SWITZERLAND Handelsgericht [Commercial Court] Zürich 10 February 1999, available online at <http://cisgw3.law.pace.edu/cases/990210s1.html>].

9. See CLOUT case No. 231 [GERMANY Bundesgerichtshof [Supreme Court] 23 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970723g1.html>] (see full text of the decision) ; [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 15 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960315g1.html>].

10. Where the rules of private international law of the forum are those laid down either in the 1955 Hague Convention on the Law Applicable to International Sales of Goods Convention, 510 U.N.T.S. 149, in the 1980 Rome Convention on the Law Applicable to Contractual Obligations (United Nations, Treaty Series, vol. 1605, No. 28023), or in the 1994 Inter-American Convention on the Law Applicable to Contractual Obligations (Organization of American States Fifth Inter-American Specialized Conference on Private International Law: Inter-American Convention on the Law Applicable to International Contracts, March 17, 1994, OEA/Ser.K/XXI.5, CIDIP-V/doc.34/94 rev. 3 corr. 2, March 17, 1994, available on the Internet at <http://www.oas.org/juridico/english/Treaties/b-56.html>), the law chosen by the parties will govern.

11. [AUSTRIA Oberster Gerichtshof [Supreme Court] 22 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011022a3.html>]; [FRANCE Cour de Cassation [Supreme Court] 26 June 2001, available online at <http://cisgw3.law.pace.edu/cases/010626f1.html>]; CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>]; [GERMANY Oberlandesgericht [Appellate Court] Desden 27 December 1999, available online at <http://cisgw3.law.pace.edu/cases/991227g1.html>]; CLOUT case No. 273 [GERMANY Oberlandesgericht [Appellate Court] München 9 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970709g1.html>] (see full text of the decision); [GERMANY Landgericht [District Court] München 29 May 1995, available online at <http://cisgw3.law.pace.edu/cases950529g1/.html>]; CLOUT case No. 136 [GERMANY Oberlandesgericht [Appellate Court] Celle 24 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950524g1.html>] (see full text of the decision).

12. Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 85-86.

13.  Ibid., 17.

14. [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>]; [UNITED STATES Orbisphere Corp. v. United States [Federal] Court of International Trade 24 October 1989, available on the Internet at: <http://cisgw3.law.pace.edu/cases/891024u1.html>].

15. See Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, award No. 54/1999, referred to on the Internet at <http://cisgw3.law.pace.edu/cases/000124r1.html>.

16. Whether such a choice is to be acknowledged at all depends on the rules of private international law of the forum.

17. See CLOUT case No. 49 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 2 July 1993, available online at <http://cisgw3.law.pace.edu/cases/930702g1.html>] (see full text of the decision).

18. See CLOUT case No. 92 [ITALY Arbitration - Ad hoc tribunal Florence 19 April 1994, available online at <http://cisgw3.law.pace.edu/cases/940419i3.html>].

19. [FRANCE Cour d’Appel [Appellate Court] Colmar 26 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950926f1.html>]; CLOUT case No. 326 [SWITZERLAND Kantonsgericht [District Court] Zug 16 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950316s1.html>]; CLOUT case No. 54 [ITALY Tribunale [District Court] Monza 14 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930114i3.html>].

20. [BELGIUM Hof van Beroep [Appellate Court] Gent 12 Month 2000, available online at <http://cisgw3.law.pace.edu/cases/020515b1.html>]; [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 30 August 2000, available online at <http://cisgw3.law.pace.edu/cases/000830g1.html>]; CLOUT case No. 270 [GERMANY Bundesgerichtshof [Supreme Court] 25 November 1998, available online at <http://cisgw3.law.pace.edu/cases/981125g1.html>]; CLOUT case No. 297 [GERMANY Oberlandesgericht [Appellate Court] München 21 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980121g1.html>] (see full text of the decision); CLOUT case No. 220 [SWITZERLAND Kantonsgericht [District Court] Nidwalden 3 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971203s1.html>]; CLOUT case No. 236 [GERMANY Bundesgerichtshof [Supreme Court] 23 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970723g2.html>]; CLOUT case No. 287 [GERMANY Oberlandesgericht [Appellate Court] München 9 July 1997, available online at <http://cisgw3.law.pace.edu/cases/970709g1.html>]; CLOUT case No. 230 [GERMANY Oberlandesgericht [Appellate Court] Karlsruhe 25 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970625g1.html>] (see full text of the decision); CLOUT case No. 214 [SWITZERLAND Handelsgericht [Commercial Court] Zürich 5 February 1997, available online at <http://cisgw3.law.pace.edu/cases/970205s1.html>] (see full text of the decision); CLOUT case No. 206 [FRANCE Cour de Cassation [Supreme Court] 17 December 1996, available online at <http://cisgw3.law.pace.edu/cases/961217f1.html>] (see full text of the decision); [GERMANY Landgericht [District Court] Kassel 15 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960215g1.html>]; CLOUT case No. 125 [GERMANY Oberlandesgericht [Appellate Court] Hamm 9 June 1995, available online at <http://cisgw3.law.pace.edu/cases/950609g1.html>]; [NETHERLANDS Arrondissementsrechtbank [District Court] s'Gravenhage 7 June 1995, available online at <http://cisgw3.law.pace.edu/cases/950607n1.html>]; CLOUT case No. 167 [GERMANY Oberlandesgericht [Appellate Court] München 8 February 1995, available online at <http://cisgw3.law.pace.edu/cases/950208g1.html>] (see full text of the decision); CLOUT case No. 120 [GERMANY Oberlandesgericht [Appellate Court] Köln 22 February 1994, available online at <http://cisgw3.law.pace.edu/cases/940222g1.html>]; CLOUT case No. 281 [GERMANY Oberlandesgericht [Appellate Court] Koblenz 17 September 1993, available online at <http://cisgw3.law.pace.edu/cases/930917g1.html>]; CLOUT case No. 48 [GERMANY Oberlandesgericht [Appellate Court] Düsseldorf 8 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930108g1.html>].

21. [ICC Court of Arbitration, case No. 9187 of [June 1999], available online at <http://cisgw3.law.pace.edu/cases/999187i1.html>; CLOUT case No. 166 [GERMANY Hamburg Arbitration Award of 21 March / 21 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960621g1.html>]; [HUNGARY Budapest Arbitration Award case No. Vb 94124 of 17 November 1995, available online at <http://cisgw3.law.pace.edu/cases/951117h1.html>]; [ICC Court of Arbitration, case No. 8324 of 1995, available online at <http://cisgw3.law.pace.edu/cases/958324i1.html>]; [ICC Court of Arbitration, case No. 7844 of 1994, available online at <http://cisgw3.law.pace.edu/cases/947844i1.html>]; [ICC Court of Arbitration, case No. 7660 of 23 August 1994, available online at <http://cisgw3.law.pace.edu/cases/947660i1.html>]; [ICC Court of Arbitration, case No. 7565 of 1994, available online at <http://cisgw3.law.pace.edu/cases/947565i1.html>]; CLOUT case No. 103 [ICC Court of Arbitration, case No. 6653 of 26 March 1993, available online at <http://cisgw3.law.pace.edu/cases/936653i1.html>]; CLOUT case No. 93 [AUSTRIA Vienna Arbitration Award case No. SCH-4336 of 15 June 1994, available online at <http://cisgw3.law.pace.edu/cases/940615a3.html>].

22. [UNITED STATES BP Oil International v. Empresa Estatal Petroleos de Ecuador, Federal Appellate Court [5th Circuit] 11 June 2003, available online at <http://cisgw3.law.pace.edu/cases/991207u1.html>].

23. [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 30 August 2000, available online at <http://cisgw3.law.pace.edu/cases/000830g1.html>]; [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 15 March 1996, available online at <http://cisgw3.law.pace.edu/cases/960315g1.html>].

24. [GERMANY Arbitration Award [Arbitral Tribunal] Hamburg 29 December 1998, available online at <http://cisgw3.law.pace.edu/cases/981229g1.html>]; CLOUT case No. 166 [GERMANY Hamburg Arbitration Award of 21 March / 21 June 1996, available online at <http://cisgw3.law.pace.edu/cases/960621g1.html>]; (see full text of the decision).

25. See CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>]; CLOUT case No. 125 [GERMANY Oberlandesgericht [Appellate Court] Hamm 9 June 1995, available online at <http://cisgw3.law.pace.edu/cases/950609g1.html>]; [GERMANY Landgericht [District Court] Landshut 5 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950405g1.html>].

26. See CLOUT case No. 136 [GERMANY Oberlandesgericht [Appellate Court] Celle 24 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950524g1.html>] (see full text of the decision).

27. [UNITED STATES GPL Treatment Ltd. v. Louisiana-Pacific Group [Appellate Court] Oregon 12 April 1995, available online at <http://cisgw3.law.pace.edu/cases/950412u1.html>].

28. [FRANCE Cour de Cassation [Supreme Court] 26 June 2001, available on the Internet at <http://cisgw3.law.pace.edu/cases/010626f1.html>].

29. [ICC Court of Arbitration case No. 8453 of October 1995, available online at <http://cisgw3.law.pace.edu/cases/958453i1.html>].

30. [AUSTRIA Oberster Gerichtshof [Supreme Court] 22 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011022a3.html>].

31. See Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), 86, 252-253.


REMARKS ON UNCITRAL DIGEST

Remarks on the UNCITRAL Digest's Comments on Article 6 CISG

Franco Ferrari [*]

  1. Introduction
  2. Effects of Article 6 in General
  3. Implied Exclusion of the CISG and Choice of the Applicable Law
  4. Exclusion of the CISG by Virtue of Standard Contract Forms and Choice of Forum
  5. Implicit Exclusion and Pleadings on the Sole Basis of Domestic law
  6. Express Exclusion of the CISG
  7. Applicability of the CISG and Opting-in

I. INTRODUCTION

The text of the UNCITRAL Digest of Case Law on the United Nations Convention on the International Sales of Goods (Digest) relating to Article 6 CISG, not unlike the text relating to other provisions, evidences both the Digest's usefulness as well as its weaknesses.[1] As far as the former is concerned, it can easily be evinced from the number of court decisions cited in the Digest, the retrieval of which would otherwise be difficult.[2] Furthermore, the Digest is helpful as it organizes all decisions under different headings, thus making the research even easier. Also, the fact that the Digest is published in each of the six official languages of the United Nations allows it to reach more scholars and practitioners than any other instrument of interpretation. However, the use of all six official languages, albeit necessary for achieving a more global outreach, does bear some risk, namely that of certain statements drafted in one language being wrongly translated into another.

Although this appears to be a point too general to be made here, in the beginning of a number of comments on that part of the Digest that deals with Article 6 CISG, this is exactly the time and place where to make this comment, as an error in the translation from (at least) English to French did occur. Having drafted the Digest part to be discussed, I can vouch at least for what the drafter wanted to state in the English version of the relevant part of the Digest. [page 13]

The error occurred in relation to that part of the Article 6 Digest (para. 5) that deals with those cases where the CISG's application is excluded with an indication of the applicable law. According to the English version of the Digest, the applicable law is determined by virtue of the rules of private international law of the forum, which in most countries makes applicable the law chosen by the parties, at least in those countries where the 1980 Convention on the law applicable to contractual obligations is to be applied. Unfortunately, the French version of the Digest refers to this solution when dealing with the cases where l'application de la Convention est exclue sans indication du droit applicable, a line of cases specifically dealt with at a later stage.

Apart from this weakness, there are other reasons why one should go beyond the Digest. These reasons can be summarized as follows: since the Digest cites many (albeit not all) decisions that deal with a specific provision, there will be cases where a contrast in case law will emerge. Pursuant to a decision taken by the United Nations Commission on International Trade Law when authorizing the drafting of the Digest,[3] the Digest itself does not criticize any decision,[4] neither does it point out those cases that are worth being followed. This means, however, that ultimately the Digest is not too helpful in guiding the interpreter through the labyrinth of case law which it makes readily available. If one were to look for a guide, one would have to look elsewhere, for instance to comments by legal writers such as those made on the occasion of this Conference.

Furthermore, the Digest does not deal with all the cases that have been decided by courts in relation to a given provision. This is of course a natural consequence of there having to be a deadline for comments to be drafted in order for the Digest to be published, but it poses a problem nonetheless, as important issues may have been dealt with after the deadline for the Digest's finalization.

In respect of the Digest comments on Article 6 CISG, this is an important issue, given a very recent Italian court decision [5] which dealt with a particular problem -- namely the effect of the parties' choice to apply the CISG to [page 14] contracts to which it would otherwise not apply. Although this issue is referred to in the Article 6 Digest (para. 12), the Digest does not refer to any court decisions dealing with that issue, even though today there is case law on this issue.[6]

In the following pages, I will comment on the decisions referred to in (and missing from) the Article 6 Digest. In doing so, I will be a little more critical then when drafting those Digest comments.

II. EFFECTS OF ARTICLE 6 IN GENERAL

It is common knowledge, that even where all the CISG's requirements of applicability (international, substantive, temporal, and personal/territorial)[7] are met, the CISG does not necessarily apply,[8] since pursuant to Article 6,[9] the parties may exclude the CISG's application. Consequently, in order to decide whether the CISG is applicable, one must also look into whether it has been excluded by the parties,[10] as pointed out by several court decisions,[11] some of [page 15] which (albeit not all) are quoted in the Digest.[12] Thus, the lack of an exclusion can be regarded as a (negative) applicability requirement.[13]

By providing for this possibility, the draftsmen of the CISG reaffirmed one of the general principles already embodied in the 1964 Hague Conventions,[14] that is, the principle according to which the primary source of the rules governing international sales contracts is party autonomy,[15] which is why it is no surprise that some court decisions state that the CISG is based upon the general principle of "prevalence of party autonomy."[16] By stating [page 16] that the CISG can be excluded, the drafters clearly acknowledged the dispositive nature [17] -- emphasized also in case law [18] -- and the "central role which party autonomy plays in international commerce and, particularly, in international sales."[19]

As far as party autonomy is concerned,[20] it must be pointed out (as the Digest does in para. 3) that Article 6 CISG refers to two different lines of [page 17] cases.[21 One where the Convention's application is excluded, the other where the parties derogate from -- or modify the effects of -- the provisions of the CISG on a substantive level.[22] These two situations differ from each other in that the former does, according to the CISG, per se not encounter any restrictions,[23] as also pointed out in the Digest (para. 3), whereas the latter is limited, as there are provisions the parties are not allowed to derogate from. Where, for instance, at least one of the parties to the contract governed by the CISG has its place of business in a State that has made a reservation under Article 96, the parties may not derogate from or vary the effect of Article 12. In those cases, according to Article 12, any provision "that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply."

Although this matter has been referred to in the Digest as well (para. 3), the Digest does not conclusively deal with the effects of such a reservation, not even in its comments on Article 12. It states -- correctly -- that the effects of Article 12 lead to the principle of freedom from form requirements not being per se applicable where one party has its relevant place of business in a State that made an Article 96 declaration.[24] It then cites the contradictory views held in case law in respect of the effects of an Article 96 declaration, unfortunately without stating which view is the correct one: that according to which the sole fact that one party has its place of business in a State that made an Article 96 reservation does not necessarily mean that the form requirements of that State apply,[25] thus letting it (correctly) depend on the law to which the rules of private international of the forum lead whether any form requirements have to be met;[26] or that pursuant to which where one party has its relevant [page 18] place of business in a State that made an Article 96 reservation, the contract must necessarily be concluded or evidenced or modified in writing.[27]

It should be noted that although the Convention does not expressly mention it, there are other provisions that the parties cannot derogate from, as also pointed out by the Digest (para. 4), namely the public international law provisions (i.e. Articles 89-101) [28] As the Digest correctly states, this is due to the fact that those provisions relate to issues relevant to Contracting States rather than private parties. Even though the Digest holds that there is no case law on this point yet, it should be noted that the Tribunale di Vigevano in its rather famous decision of 12 July 2000, expressly took the view referred to in the Digest and stated that Articles 89-101 cannot be derogated from.[29] In a 2005 decision, the Tribunale di Padova not only confirmed that the parties cannot exclude the CISG's final provisions, but it also stated that the parties cannot derogate from Article 28 either.[30] In my opinion, that view is correct, as Article 28 is not directed to the parties, but rather to the courts of [page 19] Contracting States.[31] However, the aforementioned exceptions are the only ones. All other provisions can be derogated from.[32]

III. IMPLIED EXCLUSION OF THE CISG AND CHOICE OF THE APPLICABLE LAW

Party autonomy also played a very important role under the ULIS.[33] A comparison of Article 6 CISG and its "direct predecessor,"[34] Article 3 ULIS, could even lead to the conclusion that under ULIS party autonomy was more widely recognized,[35] since the ULIS expressly stated that its exclusion could also be made implicitly.[36] However, this provision was later criticized,[37] which is why the express reference to the possibility of an implicit exclusion [page 20] was not retained by the drafters of the CISG,[38] even though at the Vienna Diplomatic Conference proposals to reintroduce that express reference were made.[39] In my opinion, this does not mean that under the CISG the exclusion always has to be made expressly,[40] as, however, stated in several court decisions cited -- Once again, without any comment in the Digest,[41] as well [page 21] as in some other court decisions not cited at all.[42] This is evidenced, inter alia, by the fact that "the majority of delegations was ... opposed to the proposal according to which a total or partial exclusion of the Convention could only be made 'expressly'."[43] Consequently, the lack of express reference to the possibility of an implicit exclusion must not be regarded as precluding such possibility.[44] Rather it has a different meaning, to discourage courts from too easily inferring an 'implied' exclusion or derogation.[45] Therefore, an implicit exclusion must be regarded as possible, a view which has already been confirmed by many court decisions.[46] Some of these [page 22] decisions the Digest cites (para. 6 ff.) without commenting on, not unlike the cases holding the opposite view. Of course, there must be clear indications that the parties really wanted such an exclusion,[47] that is, there must be a real -- as opposed to theoretical, fictitious or hypothetical [48] -- agreement of exclusion.[49]

This is not a merely theoretical problem, as evidenced by the variety of ways to implicitly exclude the CISG. A typical [50] way of implicitly excluding the CISG is through the parties' choice of the applicable law.[51] There is no doubt that such a choice must be considered as being an effective exclusion [page 23] of the CISG, at least where the applicable law chosen by the parties is the law of a non-Contracting State.[52] This was true under the ULIS as well [53] and has been confirmed by a German court decision [54] cited in the Digest.

The choice of the law of a Contracting State as the law governing the contract poses more difficult problems.[55] One of these problems relates to the question of whether the CISG is applicable when the parties agree upon a national law, such as French, U.S. or Italian law, as the law applicable to their contract. As the Digest clearly shows (para. 8), the case law is contradictory on this issue as well. Since the Digest, however, simply lists the contradictory cases, once again without commenting on them, the interpreter has to look elsewhere to determine which cases should be followed.

In respect to the issue at hand, several courts,[56] as well as several legal writers,[57] suggest that the indication of the law of a Contracting State ought [page 24] to amount to an (implicit) exclusion of the CISG, because otherwise the indication of the parties would have no practical meaning.[58] In my opinion,[59] however, this solution is not tenable under the CISG,[60] not unlike under the ULIS.[61] The indication of the law of a Contracting State, if made without particular reference to the domestic law of that State,[62] as in two of the cases cited by the Digest,[63] does not per se exclude the Convention's application,[64] [page 25] as confirmed by many court decisions [65] and arbitral awards [66] cited in the [page 26] Digest. This is true even where the law chosen is that of a Contracting State that made an Article 95 reservation.[67]

The application of the Convention does not make the national law irrelevant, as suggested [68] The indication of the law of a Contracting State must be interpreted as both making the CISG applicable (as part of the chosen law) [69] and as determining the law applicable to the issues not governed by the CISG (to the extent to which the parties are allowed to make a choice in respect of those issues),[70] such as the issues relating to the validity, thus avoiding to have to resort to the complex rules of private international law in order to determine the law applicable to the issues not governed by the CISG.[71]

Quid iuris if under the 1964 Hague Conventions the parties have established practices between themselves according to which the reference to the law of a Contracting State had to be interpreted as an exclusion of the uniform sales law and the parties continue to refer to the law of that State even [page 27] after that State becomes a Contracting one to the CISG? Does the continuing reference to the law of that State have to be considered as an exclusion of the CISG? Even though several authors have argued in favor of an affirmative answer to this question,[72] most recently the opposite view was adopted by a German court.[73]

IV. EXCLUSION OF THE CISG BY VIRTUE OF STANDARD CONTRACT FORMS AND CHOICE OF FORUM

The choice of the law of a State -- whether Contracting or not -- does not constitute the sole kind of implicit exclusion which can be used to bar the Convention's application.[74] Indeed, in certain situations, and this was also true under the 1964 Hague Conventions,[75] the use of standard contract forms can lead to the exclusion of the CISG's application.[76] This is true provided that these forms become part of the contract [77] and that (a) their contents are so profoundly influenced by the rules and the concepts of a specific legal system that their use is incompatible with the CISG and implicitly manifests the parties' intention to have the contract governed by that legal system [78] and [page 28] (b) their use tends at the same time to exclude the application of the CISG as a whole.[79] Where, on the contrary, standard contract forms are intended to merely regulate specific issues in contrast with the CISG, one must presume that only a derogation of some of the CISG provisions is desired.[80]

Furthermore, as pointed out also by the Digest (para. 9), the choice of forum can lead to the exclusion of the CISG's application,[81] and the same is true with reference to the choice of an arbitral tribunal,[82] provided that two requirements are met: (a) one must be able to infer from the parties' choice their clear intention to have the domestic law of the State where the forum or arbitral tribunal is located govern their contract,[83] and (b) the forum must not be located in a Contracting State,[84] otherwise the CISG would be applicable,[85] as confirmed by two arbitral rewards referred to in the Digest.[86] [page 29]

Finally, although this possibility is nowhere referred to in the Digest, parties can exclude the CISG by agreeing that specific issues of their contract be subject to specific provisions of a law different than the CISG, provided, however, that those issues are fundamental ones [87] and that from the subjection of those issues to a domestic sales law one can infer the parties' clear intention to have the contract governed by a law different from the uniform one, as pointed out by various court decisions rendered in respect of the 1964 Hague Conventions.[88] As correctly stated in a decision referred to in the Digest (para. 11), the inclusion of Incoterms by the parties does not amount to an implicit exclusion of the CISG.[89]

V. IMPLICIT EXCLUSION AND PLEADINGS ON THE SOLE BASIS OF DOMESTIC LAW

Quid iuris where the parties argue a case on the sole basis of a domestic law despite the fact that all of the CISG's criteria of applicability are met? Although this issue is referred to in the Digest (para. 10), as there is case law on it, the Digest itself does not help to answer the question. The cases it cites are contradictory and the Digest once again does not help to solve the contradiction.

In my opinion,[90] the mere fact that the parties argue on the sole basis of a domestic law does not per se lead to the exclusion of the CISG,[91] a view recently confirmed by several courts,[92] unless the parties are aware of the CISG's applicability or the intent to exclude the CISG can otherwise be [page 30] inferred with certainty. If the parties are not aware of the CISG' s applicability and argue on the basis of a domestic law merely because they believe that this law is applicable, the judges will nevertheless have to apply the CISG on the grounds of the principle iura novit curia, provided that this principle is part of the lex fori.

One of the courts stated this very clearly:

"The fact that during the preliminary legal proceedings in this case the parties based their arguments exclusively on Italian domestic law without any references to the [CISG] cannot be considered an implicit manifestation of an intent to exclude application of the Convention. ... [R]eference in a party's brief to the non-uniform national law of a Contracting State -- even though it is theoretically some evidence of an intent to choose the national law of that State -- does not imply the automatic exclusion of the [CISG]. We will assume that the parties wanted to exclude the application of the Convention only if it appears in an unequivocal way that they recognized its applicability and they nevertheless insisted on referring only to national, non-uniform law. In the present case, it does not appear from the parties' arguments that they realized that the [CISG] was the applicable law ...; we cannot, therefore, conclude that they implicitly wanted to exclude the application of the Convention by choosing to refer exclusively to national Italian law. Thus according to the principle iura novit curia, it is up to the judge to determine which Italian rules should be applied; for the reasons mentioned above, the applicable rules are those in the Vienna Convention."[93]

In light of what has been said thus far, one has to reject the opposite view held by two tribunals (a state court [94] and an arbitral tribunal [95]) according to which pleadings on the sole grounds of domestic law automatically leads to the exclusion of the CISG.

VI. EXPRESS EXCLUSION OF THE CISG

In addition to problems concerning the CISG's implicit exclusion, problems can also arise with respect to its explicit exclusion.[96] In this respect, two lines of cases have to be distinguished: the exclusion with and the [page 31] exclusion without indication of the law applicable to the contract between the parties.[97]

Nulla quaestio in the case in which the CISG is excluded with the indication of the applicable law, indication which under the CISG can, not unlike under the Hague Conventions,[98] also be made in the course of a legal proceeding,[99] at least where this is admissible according to the lex fori,[100] as in Germany [101] and Switzerland for instance,[102] even though the parties will normally make their choice before the conclusion of the contract.[103] In this case, the judge has to apply the law chosen by the parties,[104] and it is this law on the basis of which he has to decide upon the validity of the choice of law, at least where the applicable rules of private international law correspond to those laid down in the 1980 Convention on the law applicable to contractual obligations.[105] Where the parties' choice of law is invalid, the contract should [page 32] be governed by the law to be determined on the basis of the rules of private international law of the forum.[106] If this law turns out to be that of a Contracting State to the CISG, its domestic law rather than the CISG will have to be applied.[107]

Quid iuris, however, in the case of an express exclusion without indication of the applicable law, an issue also referred to in the Digest, although there is no case law on it yet?[108] In this case, the preferable view, held by most legal scholars,[109] is the one according to which "if the parties merely agree that the Convention does not apply, rules of private international law would determine the applicable domestic law."[110] And whenever these rules refer to the law of a Contracting State, its domestic sales law, not the uniform one, should apply.[111]

Undoubtedly, this rule applies in cases in which the CISG is excluded in toto.[112] However, its application to cases in which it is excluded only partially created disagreement among legal scholars.[113] Some authors favor the view according to which the issues dealt with in the excluded provisions must be [page 33] settled, according to Article 7(2) CISG, in conformity with the CISG's general principles.[114] In my opinion,[115] the better view seems to be the opposite one: the rules to substitute the excluded CISG provisions are to be determined, not unlike in the case of an exclusion in toto of the Convention, by applying the rules of private international law (of the forum State) [116] -- without resorting to the general principles of the CISG -- otherwise the exclusion would have no practical meaning. Indeed, it would make little sense to substitute specific solutions provided for by the Convention and which, therefore, are necessarily in conformity with its general principles, with solutions that are "in conformity with the general principles on which [the Convention] is based."[117]

VII. APPLICABILITY OF THE CISG AND OPTING-IN

As stated, the CISG provides for the parties' possibility of excluding (totally or partially) its application. To contrast, the Convention does not address the issue of whether the party may make the Convention applicable when it would otherwise not apply,[118] that is, where the prerequisites for application are not met.[119] [page 34]

As also pointed out in the Digest (para. 12), this issue did not arise at all under the ULIS which embodied a provision, Article 4,[120] that expressly provided for the parties' possibilityof"opting-in."[121] The fact that the drafters did not retain that express reference to the parties' possibility of opting-in should, however, not be interpreted as preventing the parties from being entitled to do so.[122] This view can be justified on the grounds that the proposal (made by the former German Democratic Republic),[123] according to which the CISG should apply even where the preconditions for its application are not met, as long as the parties wanted it to be applicable, was rejected on the sole ground that an express provision to allow such possibility was not necessary,[124] because of the already existing principle of party autonomy.[125] Most recently, this view was confirmed by a Chinese court decision which applied the CISG by virtue of the parties' opting-in to a contract for the sale [page 35] of fish powder which otherwise would have fallen outside the CISG's scope of application or its substantive scope,[126] a decision not referred to in the Digest.

As far as the significance of the parties' "opting-in" is concerned, it must be emphasized that by virtue of the "opting-in," the CISG becomes part of the contract not unlike any other contractual clause.[127] In other words, the choice of the CISG in contracts to which it would otherwise not apply does not constitute a "choice of law," as there are no private international law rules that allow such a "choice" to have a different value. Consequently, it can be presumed, that "[t]he mandatory rules of the applicable law are ... not affected by this [opting-in]."[128] Very recently, this view has been confirmed by the Tribunale di Padova in a decision of 11 January 2005,[129] a decision which the Digest does (obviously) not refer to. Referring to both the 1980 Convention on the law applicable to contractual obligations as well as the 1955 Hague Convention on the law applicable to contracts for the international sale of goods, the Italian court correctly decided that the choice of the CISG as the "law" applicable to a contract in cases where the CISG would otherwise not apply cannot amount to a "choice of law," since the aforementioned conventions do not allow for a choice of law different from State law. [page 36]

Although it is not surprising that the aforementioned Italian decision is not included in the Digest, it poses the problem of how to deal with new case law, of which there is a lot. This is for sure one of the challenges UNCITRAL will face in the future. [page 37]


FOOTNOTES

* Full Professor of International Law, Verona University School of Law; former Legal Officer, United Nations Office of Legal Affairs, International Trade Law Branch; the author is the drafter of the UNCITRAL draft Digest on Articles 1-13 and 78 on which the final version of the Digest is based.

1. For an overview of the advantages and disadvantages of the UNCITRAL Digest, see Heinz A. Friehe, Review of The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention, INTERNATIONALES HANDELSRECHT 175-76 (2004).

2. See also Joseph Lookofsky, Digesting CISG Case Law: How Much Regard Should We Have?, 8 VINDOBONA J. INT'L COM. L. & ARB. 181-82 (2004).

3. See Report of the United Nations Commission on International Trade Law on its Thirty-Fourth Session, U.N. GAOR, 56th Sess., Supp. No.17, U.N. Doc. A/56/17 (2001).

4. See Jernej Sekolec, Digest of case law on the UN Sales Convention: The combined wisdom of judges and arbitrators promoting uniform interpretation of the Convention, in THE DRAFT UNCITRAL DIGEST AND BEYOND: CASES, ANALYSIS AND UNRESOLVED ISSUES IN THE U.N. SALES CONVENTION 1, 14 (Franco Ferrari et al. eds., 2004).

5. See Tribunale di Padova, Italy, 11 Jan. 2005, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=1005&step=FullText>.

6. For a more detailed analysis of this issue, see infra text accompanying note 118 ff.

7. For comments on these requirements, see, most recently, Franco Ferrari, The CISG's Sphere of Application: Articles 1-3 and 10, in THE DRAFT UNCITRAL DIGEST AND BEYOND: CASES, ANALYSIS AND UNRESOLVED ISSUES IN THE U.N. SALES CONVENTION 21 ff. (Franco Ferrari et al. eds., 2004).

8. See FRANCO FERRARI, THE SPHERE OF APPLICATION OF THE VIENNA SALES CONVENTION 20 (1995).

9. For a detailed overview of the history of Article 6 CISG, see Maureen T. Murphy, United Nations Convention on Contracts for the International Sale of Goods: Creating Uniformity on International Sales Law, 12 FORDHAM INT'L L.J. 727-29 (1989).

10. See also Kenneth C. Randall & John E. Norris, A New Paradigm for International Business Transactions, 71 WASH. U.L.Q. 616 f. (1993).

11. For decisions not referred to in the Digest that also refers to the lack of exclusion as an applicability requirement, see Tribunale di Padova, supra note 5; Tribunale di Padova, Italy, 31 Mar. 2004, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=966&step=FullText>; Tribunale di Padova, Italy, 25 Feb. 2004, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=972&step=FullText>.

12. See, e.g., Tribunale di Vigevano, Italy, 12 July 2000, published in GIURISPRUDENZA ITALIANA 281 ff. (2001), also available at <http://cisgw3.law.pace.edu/cases/000712i3.html>; Oberlandesgericht Hamm, Germany, 23 June 1998, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/434.htm>; Cour d'appel Paris, France, 15 Oct. 1997, available at <http://witz.jura.uni-sb.de/CISG/decisions/151097v.htm>; Oberlandesgericht München, Germany, 9 July 1997, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/281.htm>; Oberlandesgericht Karlsruhe, Germany, 25 June 1997, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/263.htm>; Oberster Gerichtshof. Austria, 11 Feb. 1997, available at <http://www.cisg.at/10_150694.htm>; Landgericht Landshut, Germany, 5 Apr. 1995, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/193.htm>; Landgericht Oldenburg, Germany, 15 Feb. 1995, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/197.htm>; Oberster Gerichtshof. Austria, 10 Nov. 1994, published in ZEITSCHRIFT FÜR RECHTSVERGLEICHUNG 79 f. (1995); Tribunal Cantonal Valais, Switzerland, 29 June 1994, published in ZEITSCHRIFT FÜR WALLISER RECHTSPRECHUNG 125 (1994); Amtsgericht Nordhorn, Germany, 14 June 1994, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/259.htm>; Oberlandesgericht Karlsruhe, Germany, 20 Nov. 1992, published in NEUE JURISTISCHE WOCHENSCHRIFTRECHTSPRECHUNGS -- REPORT 1316 (1993); Landgericht Düsseldorf, Germany, 9 July 1992, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/42.htm>.

13. In this respect, see Landgericht Trier, Germany, 12 Oct. 1995, published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS -- REPORT 564 ff. (1996) (expressly mentioning the parties' not excluding the CISG as a requirement for the CISG's applicability).

14. Despite some textual differences, Article 6 CISG is based upon Article 3 ULIS, as has often been pointed out; see, e.g., M.J. Bonell, Art. 6, in COMMENTARY ON THE INTERNATIONAL SALES LAW 51 (C.M. Bianca & M.J. Bonell eds., 1987); FRANCO FERRARI, LA VENDITA INTERNAZIONALE. APPLICABILITA ED APPLICAZIONI DELLA CONVENZIONE DI VIENNA 157 (1997); Rolf Herber, Art. 6, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT 83 (Peter Schlechtriem ed., 2d ed. 1995).

15. For a similar statement, see BERNARD AUDIT, LA VENTE INTERNATIONALE DE MARCHANDISES 37 (1990) (stating that "the Convention makes of the parties' will the primary source of the sales contract"); Fritz Enderlein, Die Verpflichtung des Verkaufers zur Einhaltung des Lieferzeitraums und die Rechte des Kaufers bei dessen Nichteinhaltung nach dem UN-Übereinkommen über Vertrage über den Internationalen Warenkauf, in PRAXIS DES INTERNATIONALEN PRIVAT-UND VERFAHRENSRECHTS 314 (1991); Hans Hoyer, Der Anwendungsbereich des Einheitlichen Wiener Kaufrechts, in DAS EINHEITLICHE WIENER KAUFRECHT 41 (Hans Hoyer & Willibald Posch eds., 1992) (stating the same); ULRICH MAGNUS, KOMMENTAR ZUM BÜRGERLICHEN GESETZBUCH MIT EINFÜHRUNGSGESETZ UND NEBENGESETZEN, WIENER UN-KAUFRECHT (CISG) 133 (13th revised ed., 1999) (making a similar statement).

16. See Tribunale di Rimini, Italy, 26 Nov. 2002, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=823&step=FullText>; Hof Beroep Gent, Belgium, 17 May 2002, available at <http://www.law.kuleuven.ac.be/int/tradelaw/WK/2002-05-17.htm>; Rechtbank Koophandel Ieper, Belgium, 29 Jan. 2001, available at <http://www.law.kuleuven.ac.be/int/tradelaw/WK/2001-01-29.htm>; Landgericht Stendal, 12 Oct. 2000, published in INTERNATIONALES HANDELSRECHT 32 (2001).

17. For this statement, see Sergio M. Carbone, L'ambita di applicazione ed i criteri interpretativi della convenzione di Vienna, in LA VENDITA INTERNAZIONALE. LA CONVENZIONE DELL' 11 APRILE 1980 78 (1981); Sergio M. Carbone & Riccardo Luzzatto, I contratti del commercio internazionale, in 11 TRATTATO DI DIRITTO PRIVATO 131 (Pietro Rescigno ed., 1984); Johan Erauw, Waneer is het Weens koopverdrag van toepassing?, in HET WEENS KOOPVERDRAG 47 (Hans van Houtte et al. eds., 1997); FRANCO FERRARI, VENDITA INTERNAZIONALE DI BENI MOBILI. ART.1-13. AMBITO DI APPLICAZIONE. DISPOSIZIONI GENERALI 110 (1994); Herber, supra note 14, at 84; ALESSANDRA LANCIOTTI, NORME UNIFORMI DI CONFLITTO E MATERIALI NELLA DISCIPLINA CONVENZIONALE DELLA COMPRA VENDITA 146 (1992); BURGHARD PILTZ, INTERNATIONALES KAUFRECHT 64 (1993); GERT REINHART, UN-KAUFRECHT 26 (1991); Giorgio Sacerdoti, I criteri di applicazione della convenzione di Vienna sulla vendita internazionale: diritto uniforme, diritto internazionale private e autonomic die contratti, 44 RIVISTA TRIMESTRALE DI DIRITTO E PROCEDURA CIVILE 744 (1990); Ingo Sanger, Art. 6, in 3 KOMMENTAR ZUM BÜRGERLICHEN GESETZBUCH §§ 1297-2385. EGBGB. CISG 2779 (Heinz G. Bamberger & Herbert Roth eds., 2003); Claude Witz, L'exclusion de la Convention des Nations Unies sur les contrats de vente internationale de marchandises par la volonté des parties (Convention de Vienne du 11 avril 1980), RECEUIL DALLOZ CHRONIQUE 107 (1990).

Note, however, that even though the principle of party autonomy is widely accepted, there were some States which expressed reservations to it; "[t]heir concern was that, in practice, the principle could be abused by the economically stronger party imposing his own national law or contractual terms far less balanced than those contained in the Convention," Bonell, supra note 14, at 51; see also 1 UNCITRAL YEARBOOK 168 (1968-1970); 2 UNCITRAL YEARBOOK 43-44 (1971); 3 UNCITRAL YEARBOOK 73 (1973).

18. For an express reference to the Convention's non-mandatory nature, see Cassazione Civile, Italy, 19 June 2000, published in GIURISPRUDENZA ITALIANA 236 (2001); Oberster Gerichtshof, Austria, 21 Mar. 2000, published in INTERNATIONALES HANDELSRECHT 41 (2001); Oberster Gerichtshof, Austria, 15 Oct 1998, published in ZEITSCHRIFT FÜR RECHTSVERGLEICHUNG 63 (1999); Handelsgericht Wien, Austria, 4 Mar. 1997, available at <http://www.cisg.at/1R4097x.htm>; Kreisgericht Wallis, Austria, 29 June 1994, published in ZEITSCHRIFT FÜR WALLISER RECHTSPRECHUNG 126 (1994).

19. M.J. Bonell, Commento all'art. 6, NUOVE LEGGI CIVILI COMMENTATE 16 (1989); for similar affirmations in scholarly writing, see Samuel Date-Bah, The United Nations Convention on Contracts for the International Sale of Goods: Overview and Selective Commentary, in REVIEW OF GHANA LAW 54 (1979); Enderlein, supra note 15, at 316; Hoyer, supra note 15, at 41; PETER SCHLECHTRIEM, EINHEITLICHES UN-KAUFRECHT 21 (1981). For a reference in case law to the party autonomy's central role, see Landgericht Stendal, Germany, 12 Oct. 2000, published in INTERNATIONALES HANDELSRECHT 32 (2001).

20. Note, that Carbone, supra note 17, at 78, has compared the reaffirmation of party autonomy as a basic principle of the CISG to "the recognition of a necessity for the development of international commerce." See also Luigi Rovelli, Conflitti tra norme della Convenzione e norme di diritto internazionale privato, in LA VENDITA INTERNAZIONALE. LA CONVENZIONE DELL' 11 APRILE 1980 102 (1981), stating that the introduction of Article 6 CISG and, therefore, the recognition of party autonomy was, a "political need."

21. For this statement, see also Bonell, supra note 14, at 53; ESPERANZA CASTELLANOS RUIZ, AUTONOMIA DE LA VOLUNTAD Y DERECHO UNIFORME EN LA COMPRAVENTA INTERNACIONAL 37 (1998); FRANCO FERRARI, LA COMPRAVENTA INTERNACIONAL 119 ff. (1999); TOMAS VAZQUEZ LEPINETTE, COMPRAVENTA INTERNACIONAL DE MERCADERIAS. UNA VISION JURISPRUDENCIAL 86 (2000).

22. For this distinction, see also LANCIOTTI, supra note 17, at 148 f.; MAGNUS, supra note 15, at 105 ff.; Dieter Martiny, Kommentar zum UN-Kaufrecht, in 7 MÜNCHENER KOMMENTAR ZUM BÜRGERLICHEN GESETZBUCH 1655 f. (Hans-Jürgen Sonnenberger ed., 1989); Sacerdoti, supra note 17, at 745-746.

23. For this statement, see Hoyer, supra note 15, at 41.

24. See Rechtbank van Koophandel, Hasselt, Belgium, 2 May 1995, available at <http://www.law.kuleuven.ac.be/int/tradelaw/WK/1995-05-02.htm>.

25. Rechtbank Rotterdam, Netherlands, 12 July 2001, published in 278 NEDERLANDS INTERNATIONAAL PRIVAATRECHT (2001).

26. Id.; Hooge Raad, Netherlands, 7 Nov. 1997, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=333&step=FullText>.

27. The High Arbitration Court of the Russian Federation, 16 Feb. 1998, available at <http://cisgw3.law.pace.edu/cases/980216r2.html>; Rechtbank van Koophandel Hasselt, Belgium, 2 May 1995, available at <http://www.law.kuleuven.ac.be/int/tradelaw/WK/1995-05-02.htm>.

28. For this conclusion, see also BEATE CZERWENKA, RECHTSANWENDUNGSPROBLEME IM INTERNATIONALEN KAUFRECHT 172 (1988); FERRARI, supra note 17, at 111.

29. See Tribunale di Vigevano, Italy, 12 July 2000, available at <http://cisgw3.law.pace.edu/cases/000712i3.html>.

30. Tribunale di Padova, Italy, 11 Jan. 2005, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=1005&step=FullText>.

31. For this conclusion, see also AUDIT, supra note 15, at 123 f.; Franco Ferrari, Art. 6, in KOMMENTAR ZUM EINHEITLICHEN UN-KAUFRECHT (CISG) 125-26 (Peter Schlechtriem & Ingeborg Schwenzer eds., 4th ed. 2004); Martin Karollus, Art. 28, in KOMMENTAR ZUM UN-KAUFRECHT 298, 309 (Heinrich Honsell ed., 1997); contra Amy H. Kastely, The Right to Require Performance in International Sales: Towards an International Interpretation of the Vienna Convention, 63 WASH. L. REV. 607, 641-42 (1988), stating that:

Arguably, however, article 28 differs from most of the Convention's provisions because it deals directly with a court's power and discretion to grant injunctive relief. In this way, article 28 is more like article 12, regarding domestic statutes of frauds. Article 12 is expressly exempted from the contractual waiver power in article 6. The parties cannot agree to be bound by an oral modification if any party has its principal place of business in a Contracting State that has preserved its own statute of frauds under article 96. Similarly, one may argue, the parties cannot require specific performance when the court would not otherwise grant it under article 28. On balance, however, article 6 should be interpreted to permit waiver of article 28. First, only article 12, not article 28, is expressly exempted from article 6. Furthermore, the Convention's drafters reasonably might have concluded that the domestic policies supporting a statute of frauds are more significant than those protecting a court's discretion to deny specific performance.

Id. (citations omitted).

32. Thus, it cannot surprise that a court has recently stated that Article 55, relating to open-price contracts, is only applicable where the parties have not agreed to the contrary. See Cour d'appel Grenoble, France, 26 Apr. 1995, available at <http://witz.jura.uni-sb.de/CISG/decisions/2604952v.htm>. Neither is a court decision surprising which expressly states that Article 39, relating to the notice requirement, is not mandatory and can be derogated from. See Landgericht Giessen, Germany, 5 July 1994, published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 438 (1995). To make another example, according to the Austrian Supreme Court, Article 57 also can be derogated from. See Oberster Gerichtshof, Austria, 10 Nov. 1994, published in ZEITSCHRIFT FÜR RECHTSVERGLEICHUNG 79 ff. (1995).

33. For a similar statement, see Rolf Herber, Art. 3, in KOMMENTAR ZUM EINHEITLICHES KAUFRECHT 19 (Hans Dölle ed., 1976); Hoyer, supra note 15, at 41; LANCIOTTI, supra note 17, at 145-46.

34. Bonell, supra note 19, at 17.

35. This has already been pointed out by Carbone & Luzzatto, supra note 17, at 132.

36. Article 3 ULIS reads as follows: "The parties to a contract of sale shall be free to exclude the application thereto of the present Law either entirely or partially. Such exclusion may be express or implied." Uniform Law on the International Sale of Goods (ULIS) ch. 1, art. 3 (1964).

37. See 1 UNCITRAL YEARBOOK 168 (1968-1970).

38. See Claude Samson, La Convention des Nations Unies sur les contrats de vente internationale de marchandises: Etude comparative des dispositions de la Convention et des règles de droit québécois en la matiere, CAHIERS DE DROIT 931 (1982).

39. Both the representatives of England and Belgium made proposals to reintroduce a reference to the possibility of implicitly excluding the CISG's application; for a reference to these attempts, see FERRARI, supra note 14, at 162; Herber, supra note 14, at 83-84; MAGNUS, supra note 15, at 134; United Nations Conference on Contracts for the International Sale of Goods, Vienna, Mar. 10, 1980 -- Apr. 11, 1980, Official Records: Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committees 85-86, 249-50, U.N. Doc. A/CONF.97/19 (1981) [hereinafter Records]; SCHLECHTRIEM, supra note 19, at 22 n.98.

40. This conclusion, possibility of an implicit exclusion, is favored by most legal scholars; see, e.g., WILHELM-ALBRECHT ACHILLES, KOMMENTAR ZUM UN-KAUFRECHTSÜBEREINKOMMEN (CISG) 25 (2000); AUDIT, supra note 15, at 38; Kevin Bell, The Sphere of Application of the Vienna Convention on Contracts for the International Sale of Goods, 8 PACE INT'L L. REV. 237, 255 (1996); CHRISTOPH BRUNNER, UN-KAUFRECHT -- CISG: KOMMENTAR ZUM ÜBEREINKOMMEN DER VEREINTEN NATIONEN ÜBER DEN INTERNATIONALEN WARENKAUF VON 1980, at 68 (2004); Jacopo Cappuccio, La deroga implicita nella Convenzione di Vienna del 1980, 8 DIRITTO DEL COMMERCIO INTERNAZIONALE 867, 868 (1994); Carbone & Luzzatto, supra note 17, at 132; CZERWENKA, supra note 28, at 170; Date-Bah, supra note 19, at 54; FERRARI, supra note 17, at 113; Ferrari, supra note 31, at 128; ALEJANDRO M. GARRO & ALBERTO LUIS ZUPPI, COMPRAVENTA INTERNACIONAL DE MERCADERIAS 98 (1990); ROLF HERBER & BEATE CZERWENKA, INTERNATIONALES KAUFRECHT 42 (1992); Rudiger Holthausen, Vertraglicher Ausschluß des UN-Übereinkommens über internationale Warenkaufverträge, RECHT DER INTERNATIONALEN WIRTSCHAFT 515 (1989); Hoyer, supra note 15, at 41; MARTIN KAROLLUS, UN-KAUFRECHT 38 (1991); Nicole Lacasse, Le champ d'application de la Convention des Nations Unies sur les contrats de vente internationale de marchandises, in ACTES DU COLLOQUE SUR LA VENTE INTERNATIONALE 23, 37 (Nicole Lacasse & Louis Perret eds., 1989); Fabio Liguori, La Convenzione di Vienna sulla vendita internazionale di beni mobili nella pratica; un'analisi critica della prime cento decisioni, FORO ITALIANO 145, 158 (1996); JOCHEN LINDBACH, RECHTSWAHL IM EINHEITSRECHT AM BEISPIEL DES WIENER UN-KAUFRECHTS 253 (1996); Ulrich Magnus, Das UN-Kaufrecht tritt in Kraft, 51 RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 123, 126 (1987); Martiny, supra note 22, at 1655 f.; Barry Nicholas, The Vienna Convention on International Sales Law, 105 L.Q. REV. 201, 208 (1989); REINHART, supra note 17, at 27; Bradley J. Richards, Contracts for the International Sale of Goods: Applicability of the United Nations Convention, 69 Iowa L. REV. 209,237 (1983); Saegner, supra note 17, at 2779; SCHLECHTRIEM, supra note 19, at 21; Peter Winship, The Scope of the Vienna Convention on International Sale Contracts, in INTERNATIONAL SALES: THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 1.35 (Nina M. Galston & Hans Smit eds., 1984); Witz, supra note 17, at 108.

See also Arthur Rosett, Critical Reflections on the United Nations Convention on Contracts for the International Sale of Goods, 45 OHIO ST. L.J. 265, 281 (1984), where the author criticizes the draftsmen who, although they could have foreseen the problems which the lack of an express reference to the possibility of implicitly excluding the Convention would cause, "chose to provide little guidance."

41. See Helen Kaminski Pty. Ltd. v. Mktg. Australian Products, Inc., No. 96B46519, 1997 U.S. Dist. LEXIS 10630 (S.D.N.Y. July 27, 1997); Landgericht Landshut, Germany, 5 Apr. 1995; Orbisphere Corp. v. United States, 13 Ct. Int'l Trade 866,726 F. Supp. 1344 (Ct. Int'l Trade 1990).

42. See BP Oil Int'l, Ltd. v. Empresa Estatal Petroleos de Ecuador, 323 F. 3d 333 (5th Cir. 2003), available at <http://cisgw3.law.pace.edu/cases/030611u1.html>; Ajax Tool Works, Inc. v. Can-Eng Mfg. Ltd., No. 01 C 5938, 2003 U.S. Dist. LEXIS 1306 (N.D. Ill. Jan. 29, 2003), available at <http://cisgw3.law.pace.edu/cases/030129u1.html>; St. Paul Guardian Ins. Co. v. Neuromed Med. Sys. & Support, No. 00 Civ. 9344(SHS), 2002 WL 465312, at *2 (S.D.N.Y. Mar. 26, 2002).

43. Bonell, supra note 14, at 52; see also AUDIT, supra note 15, at 38; PILTZ, supra note 17, at 48. For the proposal mentioned in the text, see Records, supra note 39, at 86, 249-50.

44. However, several authors have argued that in order to be effective, the exclusion of the Convention's application must be explicit; see, e.g., Isaak I. Dore & James E. DeFranco, A Comparison of the Non-Substantive Provisions of the UNCITRAL Convention on the International Sale of Goods and the Uniform Commercial Code, 23 HARV. INT'L L.J. 49, 53-54 (1982), stating that "[u]nlike the U.C.C. ... the Convention does not seem to recognize implied agreements which exclude the application of the Convention. The Convention may therefore govern contracts which the parties by their implied agreement might have assumed to be governed by domestic law."

For a similar conclusion, see also Isaak I. Dore, Choice of Law under the International Sales Convention: A U.S. Perspective, 77 AM.J. INT'L L. 521,532 (1981); Caroline D. Klepper, The Convention for the International Sale of Goods: A Practical Guide for the State of Maryland and Its Trade Community, 15 MD. J. INT'L L. & TRADE 235, 238 (1991); Murphy, supra note 9, at 728; Robert S. Rendell, The New U.N. Convention on International Sales Contracts: An Overview, 15 BROOK. J. INT'L L. 23,25 (1989).

45. For a similar justification of the lack of reference to the possibility of implicitly excluding the CISG's application, see also Records, supra note 39, at 17 (stating that "[t]he second sentence of UUS, article 3, providing that 'such exclusion may be express or implied' has been eliminated lest the special reference to 'implied' exclusion might encourage courts to conclude, on insufficient grounds, that the Convention had been wholly excluded"); PETER SCHLECHTRIEM, UNIFORM SALES LAW. THE UN-CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 35 (1986) (stating that "[i]n 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 or the Convention"); see also Bell, supra note 40, at 255; Cappuccio, supra note 40, at 868; Thomas C. Ebenroth, Internationale Vertragsgestaltung im Spannungsverhältnis zwischen AB GB, IPR-Gesetz und UN-Kaufrecht, in JURISTISCHE BLÄTTER 681, 684 (1986); Ferrari, supra note 31, at 128; MAGNUS, supra note 15, at 104; PILTZ, supra note 17, at 48; Reifner, infra note 49, at 55.

46. See Tribunale di Padova, Italy, 11 Jan. 2005, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=1005&step=FullText>; Tribunale di Padova, Italy, 31 Mar. 2004, available at <http://cisgw3.law.pace.edu/cases/040331i3.html>; Tribunale di Padova, Italy, 25 Feb. 2004, available at <http://cisgw3.law.pace.edu/cases/040225i3.html>; Tribunale di Rimini, Italy, 26 Nov. 2002, available at <http://cisgw3.law.pace.edu/cases/021126i3.html>; Oberster Gerichtshof, Austria, 22 Oct. 2001, available at <http://www.cisg.at/1_7701g.htm>; Cour de Cassation, France, 26 June 2001, available at <http://witz.jura.uni-sb.de/CISG/decisions/2606012v.htm>; Tribunale di Vigevano, Italy, 12 July 2000, published in GIURJSPRUDENZA ITALIANA 281 (2001); Oberlandesgericht Dresden, Germany, 27 Dec. 1999, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/511.htm>; Oberlandesgericht München, Germany, 9 July 1997, available at <http://www.cisg-online.ch/cisg/urteile/282.htm>; Landgericht München, Germany, 29 May 1995, published in NEUE JURISTISCHE WOCHENSCHRIFT 401 (1996); Oberlandesgericht Celle, Germany, 24 May 1995, available at <http://www.cisg-online.ch/cisg/urteile/152.htm>.

47. For a similar affirmation, see Michael J. Bonell, La nouvelle Convention des Nations-Unies sur les contracts de vente internationale de marchandises, DROIT ET PRATIQUE DU COMMERCE INTERNATIONAL 7, 13 (1981) (stating that a "tacit exception may only be admitted if there are valid elements of indications showing the parties' 'true' intention"); FRITZ ENDERLEIN & DIETRICH MASKOW, INTERNATIONAL SALES LAW 48 (1992) (suggesting that there must be clear indications that an implicit exclusion is wanted); Erauw, supra note 17, at 47 (stating the same); Rovelli, supra note 20, at 105 (stating that "of course, the determination of the applicable law can result from an implicit choice of the parties, but is must be 'certain': this means that the intention of implicitly excluding the Convention must be real, not hypothetical").

48. See also Kammergericht Berlin, Germany, 24 Jan. 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 683 (1994) (expressly stating that the CISG's applicability cannot be excluded by a hypothetical choice of law).

49. For a similar statement, see JOHN O. HONNOLD, UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE 1980 UNITED NATIONS CONVENTION 80 (3d ed 1999) (stating that "although an agreement to exclude the Convention need not be 'express' the agreement may only be implied from facts pointing to real -- as opposed to theoretical or fictitious -- agreement"); for similar statements, see Christina Reifner, Stillschweigender Ausschluss des UN-Kaufrechts im Prozess?, in INTERNATIONALES HANDELSRECHT 55 (2002).

Note, however, that according to Murphy, supra note 9, at 749, the possibility of implicitly excluding the CISG contrasts with the need for certainty of law.

50. For this evaluation, see also Ferrari, supra note 31, at 129; Herber, supra note 14, at 81; MAGNUS, supra note 15, at 138.

51. As far as the validity of the choice of law is concerned, it must be evaluated on the grounds of the law applicable to this issue. According to Article 2 of the 1955 Hague Convention on the Law Applicable to Contracts for the International Sale of Goods, the electio iuris is governed by the law chosen by the parties; the same is true according to Article 3(4) and 8 of the 1980 EEC Convention on the Law Applicable to Contractual Obligations. For further reference to this problem, see Bonell, supra note 19, at 19; FERRARI, supra note 17, at 115-16; HERBER & CZERWENKA, supra note 40, at 43.

52. For a similar statement, see, e.g., Bonell, supra note 14, at 56 (stating that there is an "[implicit] indication of the parties' intention to exclude the application of the Convention, either entirely or partially, whenever they have chosen as the proper law of their contract the law of a non-Contracting State ..."); see also AUDIT, supra note 15, at 39; Carbone & Luzzatto, supra note 17, at 132; FRITZ ENDERLEIN ET AL., INTERNATIONALES KAUFRECHT: KAUFRECHTSKONVENTION. VERJÄHRUNGSKONVENTION. VERTRETUNGSKONVENTION. RECHTSANWENDUNGSKONVENTION 58 (1991); FERRARI, supra note 14, at 166; Ferrari, supra note 31, at 129; GARRO & ZUPPI, supra note 40, at 95; Holthausen, supra note 40, at 515; Ole Lando, The 1985 Hague Convention on the Law Applicable to Sales, in RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 84 (1987); Liguori, supra note 40, at 158; LINDBACH, supra note 40, at 308; MAGNUS, supra note 15, at 138; Martiny, supra note 22, at 1656; PILTZ, supra note 17, at 48; Reifner, supra note 49, at 55; Sacerdoti, supra note 17, at 746; Christian Thiele, Das UN-Kaufrecht vor US-amerikanischen Gerichten - zugleich Anmerkung zu Viva Vino Import Corp. v. Franese Vini S.r.l. (E. D. Pa. 2000), in INTERNATIONALES HANDELSRECHT 9 (2002); Winship, supra note 40, at 1.35.

53. See Herber, supra note 33, at 20.

See, however, Rechtbank Koophandel Tongeren, Belgium, 18 Mar. 1976, in INTERNATIONALE RECHTSPRECHUNG ZU EKG UND EAG 136 f. (Peter Schlechtriem & Ulrich Magnus eds., 1987); Rechtbank Koophandel Tongeren, Belgium, 9 June 1977, in INTERNATIONALE RECHTSPRECHUNG ZU EKG UND EAG 138.

54. See, e.g., Oberlandesgericht Düsseldorf. Germany, 2 July 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 845 (1993).

55. For an overview of this issue, see Franco Ferrari, Zum vertraglichen Ausschluss des UN-Kaufrecht, in ZEITSCHRIFT FÜR EUROPÄISCHES PRIVATRECHT 743 (2002); MAGNUS, supra note 15, at 138-39.

56. See Cour d'Appel Colmar, France, 26 Sept. 1995, available at <http://witz.jura.uni-sb.de/CISG/decisions/260995.htm>; Kammergericht Zug, Germany, 16 Mar. 1995, published in INTERNATIONALES HANDELSRECHT 44 (2000); Ad Hoc Arbitral Tribunal Florence, 19 Apr. 1994, published in DIRITTO DEL COMMERCIO INTERNAZIONALE 861 (1994); Tribunale di Monza, Italy, 14 Jan. 1993, published in FORO ITALIANO 916 (1994).

57. See, e.g., Franz Bydlinski, Diskussionsbeitrag, in DAS UNCITRAL-KAUFRECHT IM VERGLEICH ZUM ÖSTERREICHISCHEN RECHT 48 (Peter Doralt ed., 1985); Martin Karollus, Der Anwendungsbereich des UN-Kaufrechts im Überblick, JURISTISCHE SCHULUNG 381 (1993).

58. See, apart from the authors cited in the preceding note, KAROLLUS, supra note 40, at 38-39; Francis A. Mann, Anmerkung zu BGH; Urteil vom 4.12.1985, JURISTEN ZEITUNG 647 (1986); Walter A. Stoffel, Ein neues Recht des internationalen Warenkaufs in der Schweiz, SCHWEIZERISCHE JURISTENZEITUNG 173 (1990); Lajos Vekas, Zum personlichen und räumlichen Anwendungsbereich des UN-Einheitskaufrechts, RECHT DER INTERNATIONALEN WIRTSCHAFT 346 (1987).

59. See Franco Ferrari, Exclusion et inclusion de la CVIM, REVUE DE DROIT DES AFFAIRES INTERNATIONALES 401, 403 (2001).

60. This view was also expressed on the occasion of the Vienna Diplomatic Conference, when a large number of delegations rejected proposals by Canada and Belgium (for these proposals, see Records, supra note 39, at 250) according to which the domestic sales law, and not the CISG, would have to be applied whenever the parties indicated the law of a Contracting State as the proper law for their contract.

For a reference to the rejection of the foregoing proposals as argument in favor of the view expressed in the text, see also Bonell, supra note 14, at 56; MAGNUS, supra note 15, at 106.

61. This view was predominant under the 1964 Hague Conventions; for a reference to this view in legal writing, see, e.g., ENDERLEIN & MASKOW, supra note 47, at 49; Herber, supra note 33, at 21; Gert Reinhart, Dix ans de jurisprudence de la République Fédérale D'Allemagne à propos de la loi uniforme sur la vente internationale d'objets mobiliers corporels, UNIFORM LAW REVIEW 424 (1984); Witz, supra note 17, at 110; Konrad Zweigert & Ulrich Drobnig, Einheitliches Kaufrecht und internationales Privatrecht, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 162-63 (1965).

62. There is no doubt that the CISG's application is excluded where the parties merely refer to the domestic law of a Contracting State; for a similar conclusion, see Bonell, supra note 19, at 18; BRUNNER, supra note 40, at 70; Cappuccio, supra note 40, at 873; Erauw, supra note 17, at 49; FERRARI, supra note 17, at 117; SCHLECHTRIEM, supra note 45, at 35. Consequently, where the parties state, for instance, that "the contract be governed by American law as laid down in the U.C.C.," the CISG's application should be considered as being excluded.

For further examples of clauses that successfully exclude the Convention's application, see B. Blair Crawford, Drafting Considerations under the 1980 United Nations Convention on Contracts for the International Sale of Goods, 8 J.L. & COM. 193 (1988); E. Allen Farnsworth, Review of Standard Forms or Terms under the Vienna Convention, 21 CORNELL INT'L L.J. 442 (1988); Herber, supra note 14, at 87; Holthausen, supra note 40, at 515; David L Perrott, The Vienna Convention 1980 on Contracts for the International Sale of Goods, INTERNATIONAL CONTRACT LAW AND FINANCE REVIEW 580 (1980); PILTZ, supra note 17, at 48; Winship, supra note 40, at 1.35.

63. Oberlandesgericht Frankfurt, Germany, 30 Aug. 2000, available at <http://cisgw3.law.pace.edu/cases/000830g1.html>; Oberlandesgericht Frankfurt, Germany, 15 Mar. 1996, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/284.htm>.

64. This view is shared by the majority of commentators; see, e.g., AUDIT, supra note 15, at 39; Bonell, supra note 14, at 56; Erauw, supra note 17, at 21,25,48; Farnsworth, supra note 62, at 442; FERRARI, supra note 17, at 117; Rolf Herber, Anwendungsvoraussetzungen und Anwendungsbereich des Einheitlichen Kaufrechts, in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT 104 (Peter Schlechtriem ed., 1987); HERBER & CZERWENKA, supra note 40, at 44; ALBERT H. KRITZER, GUIDE TO PRACTICAL APPLICATIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS 100-01 (1989); Jean-Pierre Plantard, Un nouveau droit uniforme de la vente internationale: La Convention des Nations Unies du 11-4-1980, JOURNAL DU DROIT INTERNATIONAL 321 (1988); SCHLECHTRIEM, supra note 19, at 22; Pierre Thieffry, Les Nouvelles Règles de la Vente Internationale, 15 DROIT ET PRATIQUE DU COMMERCE INTERNATIONAL 373 (1989); Peter Winship, International Sales Contracts under the 1980 Vienna Convention, 17 UCC L.J. 55, 65 (1984).

65. Hof van Beroep Gent, Belgium, 17 May 2002, available at <http://www.law.kuleuven.ac.be/int/tradelaw/WK/2002-05-17.htm>; Oberlandesgericht Frankfurt, Germany, 30 Aug. 2000, available at <http://cisgw3.law.pace.edu/cases/000830g1.html>; Bundesgerichtshof, Germany, 25 Nov. 1 998, published in TRANSPORTRECHT-INTERNATIONALES HANDELSRECHT 18 (1999); Oberlandesgericht Hamburg, Germany, 5 Oct. 1998, available at <http://www.cisg-online.ch/cisg/urteile/473.htm>; Kantongericht Nidwalden, Switzerland, 3 Dec. 1997,published in TRANSPORTRECHT-INTERNATIONALES HANDELSRECHT 10 (1999); Bundesgerichtshof, Germany, 25 June 1997, available at <http://www.cisg-online.ch/cisg/urteile/277.htm>; Oberlandesgericht München, Germany, 9 July 1997, available at <http://www.cisg-online.ch/cisg/urteile/281.htm>; Oberlandesgericht Karlsruhe, Germany, 25 June 1997, available at <http://www.cisg-online.ch/cisg/urteile/263.htm>; Handelsgericht Kanton Zurich, Switzerland, 5 Feb. 1997, available at <http://www.cisg-online.ch/cisg/urteile/327.htm>; Cour de Cassation, France, 17 Dec. 1 996, available at <http://www.cisg-online.ch/cisg/urteile/220.htm>; Landgericht Kassel, Germany, 15 Feb. 1996, published in NEUE JURISTISCHE WOCHENSCHRIFT RECHTSPRECHUNGS-REPORT 1146 (1996); Oberlandesgericht Hamm, Germany, 9 June 1995, published in RECHTDER INTERNATIONALEN WIRTSCHAFT 689 (1996); Arrondissementsrechtbank Gravenhage, Netherlands, 7 June 1995, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=154&step=FullText>; Oberlandesgericht München, Germany, 8 Feb. 1995, available at <http://www.cisg-online.ch/cisg/urteile/142.htm>; Oberlandesgericht Köln, Germany, 22 Feb. 1995, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 393 ff. (1995); Oberlandesgericht Koblenz, Germany, 17 Sept. 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 934 (1993); Oberlandesgericht Düsseldorf, Germany, 8 Jan. 1993, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 325 (1993).

66. See Court of Arbitration of the International Chamber of Commerce, Arbitral Award No. 9187, June 1999, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=466&step=Fu11Text> (CISG applicable pursuant to the choice of French law, i.e., the law of a Contracting State); Schiedsgericht der Handelskammer Hamburg, Germany, 21 Mar. 1996, published in MONATSSCHRIFT FÜR DEUTSCHES RECHT 781 (1996) (applying the CISG on the grounds that the choice of the Hamburg arbitral tribunal was to be analogized to the choice of German law, i.e., that of a Contracting State); Court of Arbitration of the Hungarian Chamber of Commerce and Industry, 17 Nov. 1995, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=217&step=FullText> (stating that the CISG was applicable, among others, because the parties had chosen the law of two (!) Contracting States as the law governing the contract); Court of Arbitration of the International Chamber of Commerce, Arbitral Award No. 8324, 1995, published in JOURNAL DU DROIT INTERNATIONAL 1019 (1996) (applying the CISG to a contract which the parties had subjected to French law, i.e., the law of a Contracting State); Court of Arbitration of the International Chamber of Commerce, Arbitral Award No. 7844, 1994, published in ICC COURT OF ARBITRATION BULLETIN 72 (1995) (stating that the CISG is applicable where the parties have chosen the law of a Contracting State to govern their international sales contract); Court of Arbitration of the International Chamber of Commerce, Arbitral Award No.7660, 23 Aug. 1994, published in ICC COURT OF ARBITRATION BULLETIN 68 (1995) (holding that the CISG was applicable on the grounds that the parties had agreed upon the law of a Contracting State (Austria) as the law governing their contract and that the choice of the law or a Contracting State included the CISG); Court of Arbitration of the International Chamber of Commerce, Arbitral Award No. 7565, published in ICC COURT OF ARBITRATION BULLETIN 64 (1995) (applying the CISG to a contract to which the parties had made applicable "the laws of Switzerland" based upon the argument that "Swiss law, when applicable, consists of the Convention itself as of the date of its incorporation into Swiss law"); Court of Arbitration of the International Chamber of Commerce, Arbitral Award No. 6653, published in JOURNAL DU DROIT INTERNATIONAL 1040 (1993) (applying the CISG to a contract which the parties had agreed upon to subject to French law, the law of a Contracting State to the CISG); Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft -- Wien, Austria, Arbitral Award No. SCH-4366, 15 June 1994, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 590 (1995) (expressly stating that "the parties' choice of the law of a Contracting State is understood as a reference to the corresponding national law, including the CISG as the international sales law of that State and not merely to the -- non-unified -- domestic sales law").

67. For this solution, see also Gerold Herrmann, Anwendungsbereich des Wiener Kaufrechts -- Kollisionsrechtliche Probleme, in WIENER KAUFRECHT. DER SCLTWEIZERISCHE AUSSENHANDEL UNTER DEM ÜBEREINKOMMEN ÜBER DEN INTERNATIONALEN WARENKAUF 95 (Eugen Bucher ed., 1991); MAGNUS, Supra note 15, at 139. Contra, in the sense that in this line of cases the CISG should not apply, AUDIT, supra note 15, at 39 n.3.

68. For this affirmation, see also FERRARI, supra note 14, at 170. 69. See SCHLECHTRIEM, supra note 19, at 13.

70. Compare Franco Ferrari, Diritto Uniforme della Vendita Intemazionale: Questioni di Applicabilita e di Diritto Intemazionale Privato, RIVISTA DI DIRITTO CIVILE 669,685 (1995); Liguori, supra note 40, at 158.

71. For a similar conclusion in respect of the consequences of the parties' choice of the law of a Contracting State as the proper law for their contract, see ENDERLEIN & MASKOW, supra note 47, at 49, stating that:

When a state participates in the Convention the latter can be assumed to be part of his domestic law so that additional reference to it could be considered as superfluous at first, and/or for the reference to make sense, as an exclusion of the CISG. But the application of the Convention does in no way make the application of the other parts of the national law irrelevant. ... Therefore, it must be recommended to the parties to determine the national law that is applicable in addition to the Convention ... so that they can avoid the uncertainties involved in determining that law, using the conflict-of-law norms.

72. See, e.g., FERRARI, supra note 17, at 118; Holthausen, supra note 40, at 516.

73. Compare Landgericht Düsseldorf, Germany, 11 Oct. 1995, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/180.htm (stating that the express exclusion of the 1964 Uniform Sales Law did not amount per se to an implied exclusion of the CISG and therefore applied the CISG to an international sales contract which the parties had agreed upon subjecting to the sole law of Germany, i.e., the law of a Contracting State to the CISG).

74. See also ACHILLES, supra note 40, at 26; FERRARI, supra note 14, at 172 ff; MAGNUS, supra note 15, at 140 ff.

75. For a very detailed discussion of the possibility of implicitly excluding the application of both the ULIS and ULF, among others by adopting standard contract forms, see, e.g., Friedrich Graf von Westphalen, Allgemeine Geschäftsbedingungen und Einheitliches Kaufgesetz (EKG), in EINHEITLICHES KAUFRECHT UND NATIONALES OBLIGATIONENRECHT, supra note 64, at 49 ff; Rainer Hausmann, Stillschweigender Ausschluß der Einheitlichen Kaufgesetze durch allgemeine Geschäftsbedingungen, RECHT DER INTERNATIONALEN WIRTSCHAFT 186 (1977); Gert Reinhart, Erschwerter Ausschluß der Anwendung des Einheitlichen Kaufgesetzes, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 288 (1986).

76. For a similar statement, see Erauw, supra note 17, at 49; Herrmann, supra note 67, at 95-96; Martiny, supra note 22, at 1656.

77. See SCHLECHTRIEM, supra note 19, at 14.

78. The possibility of an implicit exclusion of the CISG by means of standard contract forms has also been favored by Bonell, supra note 14, at 56-57, stating that:

[T]he use of general conditions or of standard form contracts whose content is influenced by principles and rules typical of the domestic law of a particular State, is certainly an element from which one could infer the intention of the parties to have that domestic law rather than the Convention govern their contract. Before reaching such a conclusion, however, due consideration should be given to other circumstances of the case.

This view is shared by other authors as well; see, e.g., AUDIT, supra note 15, at 39; Ulrich Huber, Der UNCITRAL-Entwurfeines Übereinkommens über internationale Warenkaufverträge, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATRECHT 426 (1979); SCHLECHTRIEM, supra note 19, at 21.

79. See also MAGNUS, supra note 15, at 141 (stating that standard contract forms which contrast with specific provisions of the CISG should not per se be looked upon as excluding the CISG as a whole). This was true under the Hague Conventions as well; see, for instance, Oberlandesgericht Hamm, Germany, 7 May 1979, in INTERNATIONALE RECHTSPRECHUNG ZU EAG UND EKG, supra note 53, at 141 f.

80. For a similar solution, see ENDERLEJN & MASKOW, supra note 47, at 49 (stating that "[o]n no account can the exclusion of the Convention be deduced merely from agreement of such terms of contract which contradict specific provisions because deviating individual exclusions are indeed compatible with the CISG"). This view is also held by FERRARI, supra note 17, at 119; Witz, supra note 17, at 111.

81. Note to this regard, that it has been asserted that "[i]f the parties have not provided otherwise, but have included a choice of forum clause, courts are inclined to rule that the choice of forum indicates a choice of that jurisdiction's substantive law," Ronald A. Brand, Nonconvention Issues in the Preparation of Transnational Sales Contracts, 8 J.L. & COM. 145,167 (1988).

For practical applications of the aforementioned tendency, see Tzotrzis v. Monard Line A/B, [1968] W.L.R. 406, 411-12 (C.A); Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 14 n. 15 (1972).

82. For this conclusion, see Holthausen, supra note 40, at 517-18; MAGNUS, supra note 15, at 140-41.

83. Several authors have pointed out that, even though the choice of a forum or of an arbitral tribunal may indicate the parties' intention to exclude the CISG, that choice by itself is not sufficient to bar the Convention's application; for similar affirmations, see HERBER & CZERWENKA, supra note 40, at 43 (stating that an arbitration clause or the choice of a forum might indicate the parties' intention to exclude the Convention); Huber, supra note 78, at 426 (stating that the choice of an arbitral tribunal by itself does not lead to the exclusion of the Convention); Schlechtriem, supra note 45, at 35 (stating that the choice of an arbitral tribunal does not by itself imply that the parties wish to exclude the Convention's

84. For similar, albeit not identical conclusions, see Erauw, supra note 17, at 49; Herber, supra note 14, at 87; Holthausen, supra note 40, at 519; Reifner, supra note 49, at 55.

85. For this solution, see Gerhard Walter, Kaufrecht, HANDBUCH DES SCHULDRECHTS 632 (1987) (stating that whenever the arbitral tribunal chosen by the parties is located in a Contracting State, the CISG is applied).

86. See Schiedsgericht der Hamburger freundlichen Arbitrage, Germany, 29 Dec. 1998, published in INTERNATIONALES HANDELSRECHT 36-37 (2001) (applying the CISG on the grounds that the choice of the Hamburg arbitral tribunal was to be analogized to the choice of German law, i.e., that of the Contracting State in which the arbitral tribunal was located); Schiedsgericht der Handelskammer Hamburg, Germany, 21 Mar. 1996, published in MONATSSCHRIFT FÜR DEUTSCHES RECHT 781 (1996) (applying the CISG on the same grounds).

87. For this prerequisite, see Herber, supra note 14, at 87. 88. See, e.g., Landgericht Bamberg, Germany, 12 Oct. 1983, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 266 (1984); Bundesgerichtshof, 26 Nov. 1980, published in NEUE JURISTISCHE WOCHENSCHRIFT 1156 f. (1981).

89. Oberster Gerichtshof, Austria, 22 Oct. 2001, available at <http://www.cisg.at/1_7701g.htm>.

90. See Ferrari, supra note 55, at 744 ff.

91. For this conclusion, see SCHLECHTRIEM, supra note 19, at 14.

92. See Tribunale di Padova, Italy, 25 Feb. 2004, available at <http://cisgw3.law.pace.edu/cases/040225i3.html>; Landgericht Saarbrücken, Germany, 2 July 2002, available at <http://cisgw3.law.pace.edu/cases/020702g1.html>; Oberlandesgericht Rostock, Germany, 10 Oct. 2001, available at <http://cisgw3.law.pace.edu/cases/011010g1.html>; Tribunale di Vigevano, Italy, 12 July 2000, published in GIURISPRUDENZA ITALIANA 281 (2001); Oberlandesgericht Hamm, Germany, 9 June 1995, published in PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 269 (1996); Landgericht Landshut, Germany, 5 Apr. 1995, available at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/l193.htm>.

93. Tribunale di Vigevano, Italy, 12 July 2000, English translation quoted from 20 J.L. & COM. 213-14 (2001).

94. Cour de Cassation, France, 26 June 2001, available at http://witz.jura. uni-sb.de/CISG/docisions/2606012v.htm>.

95. Court of Arbitration of the International Chamber of Commerce, Arbitral Award No. 8453, Oct. 1995, published in ICC COURT OF ARBITRATION BULLETIN 56 (2000).

96. For a suggestion of various clauses by means of which the CISG can be expressly excluded, see Peter Winship, Changing Contract Practices in the Light of the United Nations Sales Convention: A Guide for Practitioners, 29 INT'L LAWYER 538 (1995).

97. For this distinction, see FERRARI, supra note 17, at 121.

98. Under the 1964 Hague Conventions, the indication of the applicable law could be made during the legal proceeding. For a reference to this rule in respect of ULIS and ULF, see Volker Stotter, Stillschweigender Ausschluß der Anwendbarkeit des internationalen Kaufabschlußübereinkommens und des Einheitlichen Kaufgesetzes, RECHT DER INTERNATIONALEN WIRTSCHAFT 38 (1980); Christoph von der Seipen, Zum Ausschluß des Einheitlichen Kaufrechts im deutsch-englischen Rechtsverkehr, PRAXIS DES INTERNATIONALEN PRIVAT- UND VERFAHRENSRECHTS 246 (1984).

For judicial applications of this principle, see Bundesgerichtshof, Germany, 26 Nov. 1980, published in NEUEIURISTISCHE WOCHENSCHRIFT 1156 (1981); Bundesgerichtshof; Germany, 26 Oct. 1983, published in RECHT DER INTERNATIONALEN WIRTSCHAFT 151 (1984).

99. See Erauw, supra note 17, at 47; KAROLLUS, supra note 40, at 38; Schlechtriem, supra note 19, at 14.

100. See ACHILLES, supra note 40, at 27; CZERWENKA, supra note 28, at 169-70; Holthausen, supra note 40, at 515; Ulrich Magnus, Zum raumlich-internationalen Anwendungsbereich des UN-Kaufrechts und zur Mängelrüge, PRAXIS DES INTERNATIONALEN PRVAT- UND VERFAHRENSRECHTS 391 (1993).

101. Oberlandesgericht Köln, Germany, 26 Aug. 1994, available at <http://www.cisg-online.ch/cisg/urteile/132.htm>; Oberlandesgericht Saarbrücken, Germany, 13 Jan. 1993, available at <http://www.cisg-online.ch/cisg/urteile/83.htm>.

102. Handelsgericht Kanton Zurich, Switzerland, 10 Feb. 1999, published in SCHWEIZERISCHE ZEITSCHRIFT FÜR INTERNATIONALES UND EUROPÄISCHES RECHT 111 (2000).

103. In this respect, it has been stated that:

One might expect that, in practice, the parties would normally indicate their intention at the beginning of their negotiations, or at least before the contract is concluded. Nonetheless, there is nothing to prevent them from deciding at a later stage, even after the initiation of a legal proceeding relating to their contract. ... It should, however, be borne in mind that any exclusion of or derogation from the Convention agreed upon after the conclusion of the contract amounts to a modification of the contract, which in some cases may require a particular form. Bonell, supra note 14, at 58.

104. For this solution see also Sacerdoti, supra note 17, at 746.

105. Although it is common knowledge that the question of whether the parties' choice of law is valid falls outside the sphere of application of the Convention, there is uncertainty about the law on the basis of which to decide whether the parties have validly excluded the Convention, as has been pointed out, for instance, by Bonell supra note 14, at 60-61 (stating that "given the special nature of a choice-of-laws clause, it is uncertain whether the validity of the parties' consent is to be decided according to the proper law as objectively determined, the law chosen by the parties, or the substantive rules of the forum." In this respect, "see Article 10 of the 1985 Hague Convention on the Law Applicable to Contracts for the International Sale of Goods, according to which whenever the parties' agreement as to the applicable law is either express or clearly demonstrated by the terms of the contract and the conduct of the parties, the existence and validity of that agreement shall be determined by the law chosen.").

106. This solution is shared by Bonell supra note 14, at 61; FERRARI, supra note 17, at 121; HONNOLD, supra note 49, at 126.

107. However, see HERBER & CZERWENKA, supra note 40, at 44 (favoring the view according to which the invalidity of the parties' choice of law leads to the application of the CISG).

108. Note, that while at one point an exclusion without indication of the applicable law was considered inadmissible, this view is no longer tenable. See Michael J. Bonell, UN-Kaufrecht und das Kaufrecht des Uniform Commercial Code im Vergleich, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALS PRIVATRECHT 28 (1994); HONNOLD, supra note 49, at 78.

109. This solution has been favored, for instance, by FERRARI, supra note 14, at 179; HERBER & CZERWENKA, supra note 40, at 41-42; KAROLLUS, supra note 40, at 38; Martiny, supra note 22, at 1655; Sacerdoti, supra note 17, at 746; Schlechtriem, supra note 19, at 21.

110. HONNOLD, supra note 49, at 78; see Bonell, supra note 19, at 19; FERRARI, supra note 17, at 122; Jolanta K. Kostkiewicz & Ivo Schwander, Zum Anwendungsbereich des UN-Kaufrechtsübereinkommens, in FESTSCHRIFT NEUMAYER 48 (Ferenc Majoros ed., 1997); MAGNUS, supra note 15, at 137.

111. For this solution, see also Heber, supra note 14, at 85; KAROLLUS, supra note 40, at 38; MAGNUS, supra note 15, at 104; Martiny, supra note 22, at 1656; Kurt Siehr, Der internationale Anwendungsbereich des UN-Kaufrecht, RABELS ZEITSCHRIFT FÜR AUSLÄNDISCHES UND INTERNATIONALES PRIVATECHT 600 (1988).

112. For this affirmation, see Bonell, supra note 14, at 59.

113. For a recent overview of the discussion on this issue, see MAGNUS, supra note 15, at 142-43.

114. For this view, see Bonell, supra note 14, at 59; Herber, supra note 14, at 88-89; HERBER & CZERWENKA, supra note 40, at 42.

115. See FERRARI, supra note 17, at 122.

116. Compare also FERRARI, supra note 14, at 180.

117. CISG art. 7(2).

118. For a discussion of this problem, see AUDIT, supra note 15, at 40; FERRARI, supra note 17, at 124-26.

119. Note, that according to Bonell, supra note 14, at 63-64, the issue of the possibility of "opting-in" arises only where State courts are involved, since generally the parties are not allowed to select by virtue of a choice of law an international convention, instead of a particular domestic law.

The situations may be different if the parties agree to submit the disputes arising from their contract to arbitration. Arbitrators are not necessarily bound by a particular domestic law. This is self-evident, if they are authorized by the parties to decide ex aequo et bono. ... But even in the absence of such an authorization there is a growing tendency to permit arbitrators to base their decisions on principles and rules different from those adopted by State courts. This tendency has recently received a significant confirmation by the Uncitral Model Law on International Commercial Arbitration, where it is expressly stated that '[t]he arbitral tribunal shall decide the dispute in accordance with such rules of law as are chosen by the parties as applicable to the substance of the dispute' (Article 28(1)). ... Following this approach the parties to an international contract would be free to indicate in the Convention the 'rules of law' according to which the arbitrators shall decide any dispute, with the result that the Convention would directly apply regardless of whether or not the positive and negative conditions for this application are fulfilled in the single case. Id.

120. See Article 4 ULIS.

The present law shall also apply where it has been chosen as the law of the contract by the parties, whether or not their places of business or their habitual residences are in different States and whether or not such States are Parties to the Convention dated the 1st day of July 1964 relating to a Uniform Law on the International Sale of Goods, to the extent that it does not affect the application of any mandatory provisions of the law which would have been applicable if the parties had not chosen the Uniform Law. Id.

121. For a reference to Article 4 ULIS in scholarly writing relating to Article 6 CISG, see FERRARI, supra note 14, at 182-83; HERBER & CZERWENKA, supra note 40, at 45.

122. For the possibility of "opting-in," see ENDERLEIN & MASKOW, supra note 47, at 51 (stating that "[t]he Convention can be interpreted in such a way that its application ... can be agreed. In this case the substantive and territorial, and hence personnel and time scope of application, can be extended"); SCHLECHTRIEM, supra note 45, at 36 (stating that "[n]ot 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"); Winship, supra note 40, at 1.34, stating that:

Although the conference rejected an amendment which would have expressly permitted parties to derogate from Articles 2 and 3 the debate suggests that delegations could not agree on how to express the limitations on party autonomy required by 'mandatory' national laws. Parties should not be foreclosed, therefore, from agreeing to have the convention apply to a transaction otherwise excluded as long as the policy behind the specific exclusion is not contravened. Id.

123. For this proposal, see Records, supra note 39, at 86 (reporting the proposal according to which Article 6 should be amended as follows: "Even if this Convention is not applicable in accordance with articles 2 ... or ... 3, it shall apply if it has been validly chosen by the parties. ...").

124. For a similar reasoning, see FERRARI, supra note 17, at 125; HONNOLD, supra note 49, at 83; MAGNUS, supra note 15, at 145.

125. For this argument, see the considerations of the delegate of the Republic of Korea at the Vienna Conference, reported in Records, supra note 39, at 252 (stating that "the provision proposed by the [former ] German Democratic Republic was not necessary because of the principle of the autonomy of the will of the parties. It [is] thus always permissible for the parties to decide to apply the Convention, even in the cases covered by articles 2 and 3").

126. See Xiamen Intermediate People's Court, People's Republic of China, 5 Sept. 1994, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=211&step=Abstract>

127. For a similar statement, see AUDIT, supra note 15, at 40.

128. ENDERLEIN & MASKOW, supra note 47, at 51.

For a similar conclusion, see Bonell, supra note 19, at 19 (stating that the result of the parties' "opting-in" "will be that the individual provisions of the Convention like any other contractual teffi1 may bind the parties only to the extent that they are not contrary to mandatory rules of the proper law of contract, i.e., the domestic law which by virtue of the rules of private international law of the forum governs the transaction in question"); Horacio Grigera Naon, The UN Convention on Contracts for the International Sale of Goods, in 2 THE TRANSNATIONAL LAW OF INTERNATIONAL COMMERCIAL TRANSACTIONS 101 (Norbert Horn & Clive M. Schmitthoff eds., 1982) (stating the same); HERBER & CZERWENKA, supra note 40, at 45 (stating the same); HONNOLD, supra note 49, at 87 (stating that "[r]ules of domestic law that are 'mandatory' are not disturbed when the Convention becomes applicable by virtue of an agreement by the parties"); MAGNUS, supra note 15, at Ill; Sacerdoti, supra note 17, at 746 (stating the same).

Note, however, that a similar statement had already been made at the Vienna Conference; see Records, supra note 39, at 252, reporting the Egyptian delegate's statement:

[T]he draft amendment was an attractive one but was unnecessary because of the principle of the autonomy of the will of the parties. If the latter agreed to apply the Convention, even in cases where it would noffi1ally not apply, their wish should be respected. Naturally, if the applicable law did not admit certain provisions of the Convention, that law would prevail. But it was not for the Convention to settle that question.

129. See Tribunale di Padova, Italy, 11 Jan. 2005, available at <http://www.unilex.info/case.cfm?pid=1&do=case&id=1005&step=FullText>.


CASE ANNOTATED COMPARATIVES
-  UNIDROIT Principles
-  PECL comparative

Remarks on the Manner in which the UNIDROIT Principles May Be Used to Interpret or Supplement Article 6 of the CISG

Bojidara Borisova [*]
December 2004

  1. Introduction
  2. CISG's dispositive character
  3. Manner in which party autonomy might be exercised
  4. Scope of party autonomy
  5. Party autonomy limitations

I. Introduction

The principle of party autonomy entrenched in CISG Art. 6 represents an important guarantee for the effective functioning of international trade and accommodates the fulfillment of the principle of freedom of contract, which is a basic tenet of international commercial relations.[1] The inclusion of this principle in the provisions of the CISG reflects the strong conviction of the international community that specific warranties must be created for the establishment of a freely operating, market-oriented international economy within the framework of which the contracting parties have the freedom to act in conformity with their business interests. Similar provisions were also incorporated in other international uniform laws adopted prior to the CISG.[2]

The UNIDROIT Principles, which were promulgated almost fifteen years after the adoption of the CISG, contain two articles that correspond in substance with CISG Art. 6. UNIDROIT Principles arts 1.1 and 1.5, though similar in essence to CISG Art. 6, better illustrate the concept of party autonomy and can be used for the interpretation and application of CISG Art. 6.[3] This concept was regulated in two other important conventions on international commercial relations -- one adopted the same year as the CISG and the other a few years later.[4] The solid interest that the international community showed in the importance of party autonomy once again underlines its significance. Although today it seems unthinkable to have a uniform act that regulates international commercial relations that does not explicitly emphasize party autonomy, there was a strong opposition against the inclusion of this concept during the draft process of the Convention.[5]

When discussing the provisions of CISG Art. 6, one must take into consideration the following basic problems.

II. CISG's dispositive character

Although the principle of freedom of contract is generally recognized as one of the basic principles that ensures establishment and application of fair and competitive international economic rules, it might not be automatically enforced. Hence, as far as the prescriptions of one particular international act are concerned, an explicit text providing the possibility for the contracting parties to choose the applicable law and thus to define the exact terms of their contract must be included.[6] An additional requirement that makes the principle of party autonomy workable is the character of the Convention's prescriptions. If the Convention contains mandatory rules, i.e., rules from which the parties may not derogate, party autonomy cannot be applied and the contracting parties must define the exact terms of their contract in conformity with the corresponding provisions of the Convention.

This is for the most part not the case with the CISG and the UNIDROIT Principles. Both international instruments are of primarily non-mandatory character and this is unambiguously stated both in scholarly writing [7] and in the Official Comments on the UNIDROIT Principles.

III. Manner in which party autonomy might be exercised

Both CISG Art. 6 and its counterpart UNIDROIT Principles arts. 1.1 and 1.5 do not explicitly stipulate the manner in which the contracting parties may define the law applicable to their contractual relations. This was a long debated issue during the drafting period of the CISG, which attempts to balance the concept of party autonomy with the need for protection of the weaker party to the contract.[8]

Because of the unclear wording of CISG Art. 6, a controversy exists whether the application of the CISG might be explicitly or impliedly excluded. In general, there are two contrary opinions.

According to one school of thought, the CISG as a uniform set of rules allows only express exclusion.[9] The first argument of the proponents of this opinion is that only express exclusion can guarantee the uniform application of the CISG and, consequently, can ensure the success of the Convention.

The second argument in favor of express exclusion is derived from the provision of CISG under Art. 7, which includes the interpretation and gap-filling mechanism that the Convention must apply, providing that both operations must be fulfilled in conformity with the general principles underlying the Convention. One of the general principles of the international trade practice that CISG has been said to proclaim is the principle of fairness, to protect the weaker party from the dominant's party behavior and thus to guarantee the equality of both contracting parties.[10] There are authors who support only the express exclusion for purely pragmatic reasons.[11] According to them, requiring only express exclusion of the Convention will give more certainty to the contracting parties and will overcome the scholarly discrepancies.

Over the years of the CISG's application, it appears that the opinion stating that Art. 6 provides also for the implied opting-out of the Convention has received increasing support not only in commentary [12] but also in the case law.[13] This option is clearly stated also in the Official Comments as regards the interpretation and application of the UNIDROIT Principles.

Two basic arguments in favor of implied exclusion of the CISG can be stated.[14] The first is derived from the strict interpretation of the prescription of CISG Art. 6 and is based on the inference that if the drafters of the Convention wanted to allow only the express exclusion they would have formulated the text of this article differently, including in it an indisputable indication about the manner in which the exemption and the choice of law must be made. In view of the fact that such specification was not made, it is argued that implied exclusion is possible.

In this respect, it might be arguable that the Official Comments to the UNIDROIT Principles contributes to the deduction of the assertion that CISG Art. 6 provides the possibility that not only an express but also an implied exclusion of the Convention to be achieved by the contracting parties. Consequently, since CISG Art. 6 and its counterpart UNIDROIT Principles Arts. 1.1 and 1.5 do not stipulate the exact manner for the opting-out of the uniform law, both methods are possible.

The second argument in favor of implied exclusion is based on the currently existing practice of the international trade, which also confirms the possibility to exclude the application of the uniform law expressly or impliedly.[15]

When discussing party autonomy, the next important question that needs to be clarified is how to determine whether there is or is not an implied exclusion. In this respect, the UNIDROIT Principles Official Comment on Art. 1.5. provides certain indications in what circumstances would be considered to cause one to conclude that the contracting parties have impliedly excluded the application of the uniform law.

The first and probably most obvious occasion, which can also be applicable to the exclusion of the CISG, is when the contracting parties have negotiated contract terms that are totally inconsistent with the regulations of the uniform law. Thus the contracting parties, with one action, managed to achieve the exclusion of the Convention and also to determine the applicable law. The Official Comments to the UNIDROIT Principles do not differentiate between contract terms that are individually negotiated or form part of standard terms.[16]

In scholarly writings, it is unanimously accepted that the choice of the law of a non-Contracting State constitutes an implied exclusion.[17] Such definite conclusion cannot be made when the contracting parties had chosen the law of a Contracting State without explicitly referring to the domestic law of that State.[18] When a State adopts the CISG, the Convention becomes part of its law and only direct indication that the contracting parties have chosen the domestic rules of a Contracting State may lead to the conclusion that an implied opting-out of the Convention is made.

Finally, some authors[19] support the opinion that the choice of a forum or of an arbitral tribunal can be regarded as an implied exclusion if two requirements are met. The first condition is to deduce from the contracting parties' choice their intention to subject the contractual relation to the domestic law of the State where the forum or the arbitral tribunal is located. The second requirement is that the forum or the arbitral tribunal be located in a non-Contracting State. Both conditions concurrently are said to amount to an implied exclusion of the CISG.

IV. Scope of party autonomy

The basic objective of party autonomy is not the exclusion of the Uniform Law but the exercise of the freedom of the contracting parties to choose the law applicable to their contractual relationship. In this connection, what is important to be discussed is the extent of the contracting parties' freedom of choice.

Both CISG Art. 6 and its counterpart UNIDROIT Principles art. 1.5 indicate in similar manner the scope of the party autonomy. Both generally stipulate that contracting parties may exclude the application of the Uniform law in whole or they may choose to derogate only from the effect of any of its provisions.[20] Such inference can be easily drawn from the interpretation of CISG Art. 6 and is confirmed also in the Official Comments to the UNIDROIT Principles and in scholarly writings.[21]

With respect to this, several questions must be discussed. What must be considered first is the effect of the full or partial exclusion of the Convention when the contracting parties have chosen the applicable law. Secondly, both hypotheses must be discussed in the context of lack of designation of applicable law.

When contracting parties opt-out of the Convention entirely when choosing the applicable law, it must be noted once again that if the choice refers to the law of a Contracting State it is best to specifically state that the domestic law of that State is chosen. In cases of total exclusion without indication of the applicable law, both legal scholars and international case practice unanimously state that the rules of private international law should determine the applicable law.[22]

Basically, that also applies in the same manner when the contracting parties derogate only part of the CISG's provisions. With respect to the scope of a partial derogation of the CISG's articles, the following question arises: Is it necessary to apply the General provisions of the Convention (Part I, Chapter II) along with the prescriptions of the law chosen by the contracting parties or the law determined by the rules of the private international law, i.e., can we use the approach stated in the Official Comments on UNIDROIT Principles art. 1.5? [23] The answer of this question is negative and requires that the different nature of the two set of rules - CISG and UNIDROIT Principles - be taken into consideration. The former is part of the substantive law regulating the international sale of goods and is automatically applicable if the conditions of CISG Art. 1(1) are fulfilled, while the later requires the parties' consent.[24]

On the other hand, the Final Provisions of the CISG also regulate some general questions concerning the ratification and acceptance process of the Convention, its entrance into force and its denouncement,[25] the rights of the Contracting States to make reservations[26] and some other technical issues regarding the application of the Convention[27]. The opinion that the contracting parties cannot modify these provisions of the CISG, being a Contracting States' obligations under public international law, is more or less unanimously accepted. However, some authors accept the possibility that the contracting parties in their contract may modify even the effect of the CISG Final Provisions.[28]

V. Party autonomy limitations

Party autonomy is not unlimited. Both CISG Art. 6 and its counterpart UNIDROIT Principles art. 1.5 impose certain restrictions on the contracting parties freedom of choice.

In the case of partial exclusion of the Convention, the contracting parties may not derogate the application of two groups of prescriptions. Firstly, these are the mandatory provisions of the CISG itself and secondly these are the mandatory provisions of the law that should regulate the contractual relation in case when the party autonomy concept was not applied.[29] CISG Art. 6 indicates only one prescription of the Convention that has mandatory character and therefore the contracting parties may not derogate from its application - CISG Article 12.[30] The mandatory prescriptions in the second hypothesis should be determined in each separate case.

The limitation of CISG Art. 12 does not apply in the case of total exclusion of the Convention.[31] In that case the contracting parties should act only in conformity with the mandatory provisions of the domestic law that normally would regulate the contractual relation.[32]

Finally, it must be mentioned that some scholars express the opinion that except for CISG Art. 12 there are also other mandatory provisions of the Convention that impose a limitation on the contracting parties freedom of choice under the provision of CISG Art. 6.[33] To this effect the UNIDROIT Principles Official Comment provides little assistance towards the clarification of this problem, because it uses a more general and definition type approach. Still the issue is very controversial and must be carefully approached by the contracting parties.


FOOTNOTES

* Bojidara Borisova received her law degree from Sofia University St.Kl.Ohridsky, Bulgaria, in 2001. Currently, she is a Ph.D. candidate at the same university, working on her research project on international investment law. Since July 2003 she is working as a part time legal advisor at the InvestBulgaria Agency.

1. See the Official Comments on Art. 1.1 of the UNIDROIT Principles, available online at <http://cisgw3.law.pace.edu/cisg/principles/uni6.html#official>.

2. See the Uniform Law on the International Sale of Goods and the Uniform Law on the Formation of Contracts for the International Sale of Goods. For detailed historical analysis of the party autonomy concept see Murphy, United Nations Convention for the International Sale of Goods: Creating Uniformity in International Sales Law, 12 Fordham Int'l L.J., (1998), pp.727-750, also available online <http://cisgw3.law.pace.edu/cisg/biblio/murphy.html>.

3. See General Observations on use of the UNIDROIT Principles to Help Interpret the CISG, available online at <http://cisgw3.law.pace.edu/cisg/text/matchup/general-observations.html>.

4. See The Convention on the Law Applicable to Contractual Obligations the so-called Rome Convention of 1980 and The 1986 Hague Convention on the Law Applicable to Contracts for the International Sale of Goods the so-called 1986 Choice of Law Convention.

5. For the positions of the different CISG Contracting States, see Murphy, op. cit.

6. For confirmation that CISG Art. 6 provides the opportunity for the exclusion of the Convention, see the following illustrative case decisions:

    -     Italy 10 March 2000 Suprema Corte di Cassazione [Supreme Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/000310i3.html>;
    -     Germany 12 October 2000 Landgericht [District Court] Stendal, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/001012g1.html>;
    -     France 6 November 2001 Cour d'appel [Appellate Court] Paris, <http://cisgw3.law.pace.edu/cases/011106f1.html>;
    -     United States 29 January 2003 Federal District Court [Illinois], Ajax Tool Works, Inc. v. Can-Eng Manufacturing Ltd., <http://cisgw3.law.pace.edu/cases/030129u1.html>.

7. See Leete, Contract Formtion Under the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Commercial Code: Pitfall for the Unwary, 6 Temple International and Comparative Law Journal (1992), pp. 193-215, also available online at <http://cisgw3.law.pace.edu/cisg/text/leete6.html>; Ferrari, Specific Topics of the CISG in the Light of Judicial Application and Scholarly Writing, 15 Journal of Law and Commerce (1995), pp. 1-126, also available online at <http://cisgw3.law.pace.edu/cisg/text/franco6.html>; Schlechtriem, Uniform Sales Law in the Decisions of the Bundesgerichtshof [Federal Supreme Court of Germany], available online at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem3.html>.

8. For the legislative history of the CISG Art. 6, see Murphy, op. cit.

9. See Murphy, op. cit.; Winship, Changing Contract Practices in the Light of the United Nations Convention: A Guide for Practitioners, 29 International Lawyers (1995), pp. 525-554, also available online at <http://cisgw3.law.pace.edu/cisg/text/winship6.html>.

10. See Murphy, op. cit.

11. See Winship, op. cit.

12. See Enderlein & Maskow, International Sales Law, Oceana Publications, (1992) also available online at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein-art06.html>; Schlechtriem, Uniform Sales Law-The Experience w with Uniform Sales Laws in the Federal Republic of Germany, Juridikrift Tidskrift (1991/92), pp. 1-28, also available online at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem3.html>; Ferrari, op. cit.

13. See the following case decisions:

    -     Italy 12 July 2000 Tribunale [District Court] Vigevano, Rheinland Versicherungen v. Atlarex, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/000712i3.html>;
    -     Austria 22 October 2001 Oberster Gerichtshof [Supreme Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/011022a3.html>;
    -     Switzerland 3 December 2002 Handelsgericht [Commercial Court] St. Gallen, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/021203s1.html>.

14. See Murphy, op. cit.

15. See Murphy, op. cit.

16. For confirmation that the use of standard terms can exclude the Convention's application see Ferrari, op. cit., Schlechtriem, Uniform Sales Law - The UN Convention on Contracts for the International Sale of Goods, Manz, Viena, (1986), also available online at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem-06.html>.

17. See Ferrari, op. cit., Bonell & Liguori, The UN Convention on the International Sale of Goods: A Critical Analysis of Current International Case Law, Uniform Law Review (1997), pp. 385-395, also available online at <http://cisgw3.law.pace.edu/cisg/text/libo6.html>.

18. See Leete, op. cit., Ferrari, op. cit., Bonell & Liguori, op. cit., Enderlein & Maskow, op. cit.; See also the following case decisions:

    -     United States 27 July 2001 Federal District Court [California], Asante Technologies v. PMC-Sierra, at <http://cisgw3.law.pace.edu/cases/010727u1.html>;
    -     Austria 22 October 2001 Oberster Gerichtshof [Supreme Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/011022a3.html>;
    -     Belgium 15 January 2002 Tribunal de commerce [District Court] Namur, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/020115b1.html>;
    -     United States 11 June 2003 Federal Appellate Court [5th Circuit], BP Oil International v. Empresa Estatal Petroleos de Ecuador, case presentation available at <http://cisgw3.law.pace.edu/cases/030611u1.html>.

19. See Ferrari, op. cit.

20. CISG Art. 6 states: "The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions." UNIDROIT Principles art. 1.5 states: "The parties may exclude the application of these Principles or derogate from or vary the effect of any of their provisions, except as otherwise provided in the Principles."

21. See Schlechtriem, Uniform Sales Law - The UN Convention on Contracts for the International Sale of Goods, Manz: Vienna, (1986), also available online at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem-06.html>.

See also the following case decisions:

    -     Spain 16 November 2000 Audiencia Provincial [Appellate Court] Alicante, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/001116s4.html>;
    -     Austria 14 January 2002 Oberster Gerichtshof [Supreme Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/020114a3.html>;
    -     Belgium 15 January 2002 Tribunal de commerce [District Court], case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/020115b1.html>;
    -     Switzerland 3 December 2002 Handelsgericht [Commercial Court] St. Gallen, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/021203s1.html>;
    -     Austria 15 June 1994 Vienna Arbitration proceeding SCH-4318, case presentation including English translation available at <http://cisgw3.law.pace.edu/cases/940615a4.html>.

22. See Ferrari, op. cit.

23. See Official Comments of the UNIDROIT Principles on Art. 1.5, available online at <http://cisgw3.law.pace.edu/cisg/principles/uni6.html#official>. Comment 2: Exclusion or modification may be express or implied. Ibid.

24. See UNIDROIT Principles, Preamble, second sentence.

25. See CISG Arts. 89, 91, 99, 100 and 101.

26. See CISG Arts. 92, 95, 96, 97, 98.

27. See CISG Arts. 90, 93 and 94.

28. See Ulrich G. Schroeter, Freedom of Contract: Comparison between Provisions of the CISG (Article 6) and Counterpart Provisions of the Principle of European Contract Law, note 14, also available online at <http://cisgw3.law.pace.edu/cisg/text/peclcomp6.html>.

29. See Schlechtriem, Uniform Sales Law - The UN Convention on Contracts for the International Sale of Goods, Manz, Vienna, (1986), also available online at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem-06.html>.

30. See Enderlein & Maskow, op. cit. citing and discussing the opinion of Bonell that CISG except Art. 12 contains other prescriptions that may not be derogated by the contracting parties;

31. See Ferrari, op. cit.

32. See Schlechtriem, Uniform Sales Law - The UN Convention on Contracts for the International Sale of Goods, Manz, Vienna, (1986), also available online at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem-06.html>.

33. For example, CISG Arts. 4, 7, 28, etc. See also Ulrich G. Schroeter, Freedom of Contract: Comparison between Provisions of the CISG (Article 6) and Counterpart Provisions of the Principle of European Contract Law, notes 10, 11, 12, 13 and 14, available online at <http://cisgw3.law.pace.edu/cisg/text/peclcomp6.html>.


PECL COMPARATIVE

Freedom of contract: Comparison between provisions of the CISG (Article 6) and counterpart provisions of the Principles of European Contract Law

Ulrich G. Schroeter [*]
July 2002

1. Introduction
2. Freedom of Contract under the CISG and PECL
3. Restrictions to the parties' freedom of contract under the CISG and PECL

3.1 Good faith and fair dealing
3.2 Mandatory rules established by the CISG and PECL themselves
3.3 Mandatory rules of national, supranational and international law
4. Restrictions to the parties' freedom of contract in cases where CISG applies solely because of the parties' choice ("opting in)
5. Conclusions

1. Introduction

CISG Article 6 lays down the general rule that the Convention applies to international contracts of sale of goods, subject to a contrary agreement by the parties. Its counterparts in PECL Articles 1:102 and 1:103 likewise address the principle of freedom of contract and its limitations, but differ from CISG Article 6 in a number of respects. These differences primarily follow from the different legal nature of the two sets of rules -- while the CISG in its Contracting States forms part of the substantive law that the courts have to apply (lex fori), the applicability of the PECL in general requires an agreement of the parties that submits their contract to the Principles (PECL 1:101) -- but also reflect the different approaches that the drafters of the CISG and the PECL have adopted with respect to the limitations to the freedom of contract, in particular those limitations arising from so-called mandatory rules of law. As a consequence, the use of PECL Articles 1:102 and 1:103 as an aid to interpret CISG Article 6 is subject to a number of important caveats discussed below. [page 257][*]

2. Freedom of contract under the CISG and the PECL

The principle of freedom of contract, one of the basic principles underlying the international law of contracts in general, has been recognized by both the drafters of the CISG and of the PECL. The wording of CISG Article 6 and PECL Article 1:102(2) is in fact quite similar, and the prominent position of both provisions among the first articles in the Convention and the PECL illustrate the important role of the parties' autonomy.[1]

Articles 1:101(2), (3) and 1:103(1) PECL additionally address a somewhat related issue: the choice of the PECL as the law applicable to the contract. This issue concerns the applicability of the respective set of rules. The question of applicability may also arise under the CISG, albeit in different form: While the PECL are only applicable where the parties have chosen the Principles and the law otherwise applicable allows such a choice, the Convention is applicable as a matter of law whenever the prerequisites of CISG Article 1(1)(a), (b) are fulfilled (and none of the exceptions in CISG Articles 2-5 applies).[2] The parties' choice of the CISG as the law applicable to their contract will therefore lead to the Convention's applicability under CISG Article 1(1)(b) if the rules of private international law of the forum (being situated in a Contracting State) accept the principle of party autonomy,[3] as it will under the private international law rules of most non-Contracting States.[4] [page 258] On the contrary, under CISG Article 1(1)(a), which covers cases where both parties have their places of business in different Contracting States (statistically by far the most important group of CISG contracts), any agreement of the parties or any other indication that the parties were even aware of the CISG's applicability is unnecessary [5] -- the Convention is, unlike the PECL, not merely a model law or Restatement of principles of contract law, but is applicable by law whenever the parties have not excluded its application (so-called "opting out").[6]

3. Restrictions to the parties' freedom of contract under the CISG and the PECL

More important differences exist with respect to the restrictions to which the CISG and the PECL submit the parties' freedom to exclude the respective set of rules [page 259] and modify the effect of their provisions. The Principles list three different categories of restrictions:

3.1 Good faith and fair dealing

According to PECL Article 1:102(1), the parties may determine the contents of their contract "subject to the requirements of good faith and fair dealing." CISG Article 6 does not contain a similar limitation to the freedom of contract. During the 1980 Vienna Diplomatic Conference, a proposal to add a second sentence to the wording of CISG Article 6 stating that "the obligations of good faith, diligence and reasonable care prescribed by this Convention may not be excluded by agreement" was rejected by a substantial majority.[7]

However, the principles of good faith and fair dealing may under certain circumstances also affect the content of CISG contracts: This may, on one hand, be the case where, according to the applicable national law, the validity of the contract or of any of its provisions (CISG Article 4(a)) is subject to these principles. On the other hand, a number of commentators hold that CISG Article 7 similarly requires that the principles of good faith and fair dealing are to be taken into account when determining the parties' rights and obligations under the contract, although this interpretation is subject to dispute.[8]

3.2 Mandatory rules established by the CISG/PECL themselves

Secondly, PECL Article 1:102(1) and (2) subjects the freedom of contract to the mandatory rules established by these Principles. Such rules of mandatory nature are contained in PECL Articles 4:118 (limiting the exclusion or restriction of remedies for fraud, threats, excessive benefit or unfair advantage-taking, mistake [page 260] and incorrect information), 6:105 (dealing with the determination of the price and other contractual terms where it is to be determined by one party and that party's determination is grossly unreasonable) and 8:109 (declaring the exclusion or restriction of remedies for non-performance inadmissible when it would be contrary to good faith and fair dealing to invoke that restriction).

CISG Article 6, on the contrary, names CISG Article 12 as the one provision in the Convention that the parties may not derogate from, thus making Article 12 the only mandatory rule in the CISG.[9] Although some commentators have suggested that other provisions in the Convention (such as Articles 4,[10] 7,[11] 28,[12] 89 et seq.[13]) are also mandatory despite not being mentioned in CISG Article 6, it is submitted that none of these articles restrict the parties' freedom of contract.[14] [page 261]

Thus, the principle of contractual freedom in the Convention goes beyond its counterpart provision in the PECL. The absence of limitations similar to the mandatory PECL rules mentioned above should not come as a surprise as the Convention's scope is restricted to transactions and issues which, within the various domestic laws, are traditionally governed by provisions of a non-mandatory character,[15] while the PECL additionally deal, inter alia, with questions of contractual validity and are also intended to apply to contracts involving consumers.[16]

3.3 Mandatory rules of national, supranational and international law

The third and last category of restrictions to the freedom of contract under the PECL covers the mandatory rules of national, supranational and international law (PECL Article 1:103(1), (2)). According to PECL Article 1:103(1), national mandatory rules are applicable if the law otherwise applicable does not allow their exclusion by way of choice by the parties, and PECL Article 1:103(2) requires courts and arbitrators to give effect to mandatory rules of national, supranational and international law which are applicable irrespective of the law governing the contract (mandatory rules carried by a strong public policy, so-called "directly [page 262] applicable rules" or règles d'application immédiate). The Principles thus demand that, when applying the law, a distinction is drawn between rules of mandatory and non-mandatory nature, between mandatory rules of national, supranational and international law and between "ordinary" mandatory rules and règles d'application immédiate -- decisions that can be difficult to make and will accordingly be often unforeseeable for the parties.[17]

Under the CISG, the situation is different: As far as matters governed by the Convention - either by way of an express provision or by way of its general principles identified in accordance with CISG Article 7(2) -- are concerned, no mandatory rule of national, supranational and international law may be applied.[18] This follows from the fact that the Contracting States have accepted an obligation under public international law to apply the Convention instead of any other legal rule wherever the Convention provides uniform rules.[19] Thus, provisions outside the CISG are -- irrespective of their mandatory or non-mandatory nature -- superseded if their subject matter is already covered by the Convention.

As not all matters which are potentially relevant to international sales contracts are governed by the Convention, mandatory rules of national, supranational and international law are to be given effect whenever a matter is outside the CISG's scope. In this respect, difficult questions may arise under CISG Article 4(a), which stipulates that "except as otherwise expressly provided in this Convention, it is not concerned with [...] the validity of the contract or of any of its provisions or of any usage". This provision seems to leave ample room for the application of mandatory rules that deal with questions of validity. However, CISG Article 4(a) sets out an important -- and often overlooked -- additional condition by requiring courts and arbitrators to establish in advance that the Convention is not itself concerned with the validity question regulated by the otherwise applicable mandatory provision. Accordingly, not all rules of national, supranational or international law [page 263] prescribing that a contract or one of its clauses is void or invalid are applicable to CISG contracts by virtue of CISG Article 4(a).[20]

Under CISG Article 4(a), it has thus to be taken into account not only whether the national provision has an effect on the validity of certain clauses in a CISG contract, but also why the national law imposes the sanction of invalidity. As a result, for instance, the doctrine on vices cachés under French law is inapplicable to CISG contracts although it addresses the validity of contractual clauses limiting the seller's liability as it does so by defining rules on the lack of conformity of the goods on which the Convention itself contains an exhaustive regulation.[21] The same applies to the Common Law validity doctrine of consideration, which conflicts with the express language of CISG Article 29(1).[22] Both examples are indications of one of the Convention's main contributions to the modern law for international sales which has been described by Ernst Rabel as "avoiding the awesome relics of the dead past that populate in amazing multitude" the national sales laws.[23] Other national mandatory rules remain applicable under CISG Article 4(a), but only under the condition that the CISG's provisions and fundamental principles are taken into account when they are applied to a CISG contract: If, for example, the national law declares clauses in general business terms invalid if they are incompatible with the [page 264] essential principles of the rules from which the parties are derogating,[24] the relevant essential principles are those of the Convention.[25]

4. Restrictions to the parties' freedom of contract in cases where the CISG applies solely because of the parties' choice ("opting in")

The limited relevance of mandatory rules of national, supranational or international law for CISG contracts that has been outlined above (see 3c, supra), however only extends to international contracts of sale to which the Convention applies by virtue of CISG Articles 1-5. The legal situation is different where the parties have chosen the Convention's rules when the CISG would otherwise not be applicable: Nothing in the CISG precludes such a contractual agreement leading to the applicability of the Convention (so-called "opting in").[26] It can be useful when two parties from non-Contracting States fail to reach agreement on which national law should govern their contract,[27] where "string contracts" or "chain transactions" are at stake which involve parties from CISG Contracting States and from non-Contracting States alike and which may therefore be only partially subject to the Convention, if no explicit choice in favor of the CISG is made,[28] and may be inserted into [page 265] distribution contracts or other frame contracts applying to sales to international and domestic customers alike.[29]

Thus, whenever the CISG applies solely because of the parties' choice and without the requirements of CISG Articles 1-5 having been met, mandatory rules of national, supranational or international law remain relevant and need to be applied by courts and arbitrators,[30] as in these cases the CISG resembles the PECL and other Restatements.[31] Accordingly, in such a setting, PECL Article 1:103 may be used as an aid in interpreting or supplementing the CISG.

5. Conclusions

While the parties' freedom of contract plays a very important role within both the CISG and the PECL, the two instruments are marked by a number of important differences that concern the legal restrictions to the parties' autonomy. The legal nature of the CISG as an international convention has allowed its drafters to go beyond the limits laid down in PECL Articles 1:102 and 1:103.[32] The specific scope of the freedom of contract under CISG Article 6 therefore makes it difficult to use the PECL as an aid to the interpretation of the said CISG provision. [page 266]


FOOTNOTES

* The author is a member of the Graduiertenkolleg "Europäisches Privat- und Wirtschaftsrecht" at the Humboldt-University in Berlin.

This comparative is also published at 6 Vindobona Journal of International Commercial Law and Arbitration (2002-2) 257-266. Pagination to that publication is provided to facilitate citation to the Vindobona text.

A match-up of CISG Article 6 and PECL Articles 1:102 [Freedom of contract] and 1:103 [Mandatory law] is available at <http://cisgw3.law.pace.edu/cisg/text/peclcomp6.html>. The match-up is accompanied by:

-   Comments on PECL Articles 1:102 and 1:103 authored by the European Commission describing and illustrating the manner in which they are to be applied; and
-   Notes that compare these PECL Articles with continental and common law domestic rules, doctrine and jurisprudence.

1. Cf. Michael Joachim Bonell, Article 6, in Commentary on International Sales Law, no. 1.2 (Cesare Massimo Bianca & Michael Joachim Bonell eds., 1987): "the prevailing view in UNCITRAL was in favour of the widest possible recognition of the parties' autonomy;" Kurt Siehr, Artikel 6, in Kommentar zum UN-Kaufrecht, no. 1 (Heinrich Honsell ed., 1997): the drafters of the CISG wanted to grant the parties a wide discretion in drafting their contract; see also Landgericht [Regional Court] Stendal, Germany, 12 October 2000, Internationales Handelsrecht 2001, at 32, where the court stated that CISG Art. 6 affirms the principle of party autonomy; for English translation of the text of this case, go to <http://cisgw3.law.pace.edu/cases/001012g1.html>.

2. For agreements to apply the Convention to transactions that fall outside the scope of CISG Articles 1-5, see 4, infra.

3. In practice, contractual choice of law clauses usually do not point to the Convention as such, but rather to the law of a certain State: If this State happens to be a Contracting State, the CISG will generally apply, as it forms part of the legal system of each Contracting State: see relevant case law, e.g.:

Bundesgerichtshof, [Federal Supreme Court] Germany 23 July 1997, Neue Juristische Wochenschrift (1997) 3309, at 3310 [Case presentation in English available at <http://cisgw3.law.pace.edu/cases/970723g1.html>]; Oberster Gerichtshof, [Supreme Court] Austria 22 October 2001, 1 Ob 77/01[English translation available at <http://cisgw3.law.pace.edu/cases/011022a3.html>]; U.S. Federal District Court [New York], 26 March 2002 (St. Paul Insurance Company et al. v. Neuromed Medical Systems & Support et al.), available on-line at <http://cisgw3.law.pace.edu/cases/020326u1.html >, where the court stated:

"The parties concede that pursuant to German law, the U.N. Convention on Contracts for the International Sale of Goods ("CISG") governs this transaction because (1) both the U.S. and Germany are Contracting States to that Convention, and (2) neither party chose, by express provision in the contract, to opt-out of the application of the CISG. The CISG aims to bring uniformity to international business transactions, using simple, non-nation specific language. To that end, it is comprised of rules applicable to the conclusion of contracts of sale of international goods. In its application regard is to be paid to comity and interpretations grounded in its underlying principles rather than in specific national conventions. See CISG art. 7(1), (2). Germany has been a Contracting State since 1991, and the CISG is an integral part of German law. Where parties, as here, designate a choice of law clause in their contract -- selecting the law of a Contracting State without expressly excluding application of the CISG -- German courts uphold application of the Convention as the law of the designated Contracting state. To hold otherwise would undermine the objectives of the Convention which Germany has agreed to uphold." [citations omitted]

See also Franco Ferrari, Artikel 6, in Kommentar zum Einheitlichen UN-Kaufrecht, no. 22 (Peter Schlechtriem ed., 3rd ed. 2000, with numerous references to international case law).

Whether an "isolated" choice of the CISG as the law applicable to the contract is valid and effective depends on the relevant conflict of law rule. Under the EC Convention of the Law Applicable to Contractual Obligations (Rome, 19 June 1980), this question is heavily disputed; cf. Kurt Siehr, Der internationale Anwendungsbereich des UN-Kaufrechts, 52 Rabels Zeitschrift für ausländisches und internationales Privatrecht (1988), at 612. See also John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, no. 83 (3rd ed. 1999) who argues that full effect should be given to the parties' agreement to apply the Convention.

4. In States that have not ratified the Convention, the courts do not apply CISG Article 1(1)(b) -- which, for lack of ratification, does not form part of the lex fori -- but look to the national private international law rules. Cf. C.J.G. Morse, Conflict of Laws, in Benjamin's Sale of Goods, no. 25-025 (Anthony Gordon Guest ed., 5th ed. 1997): "It is therefore possible that a United Kingdom court may have to apply the Vienna Convention on the International Sale of Goods 1980, if the law applicable under the Rome Convention is found to be the law of a country which is a party to that Convention and that country would regard that Convention as applicable." A choice of law clause will thus for all practical purposes yield identical results in Contracting States and non-Contracting States.

5. Alfonso-Luis Calvo Caravaca, Articulo 6, in La Compraventa Internacional de Mercaderias: Comentario de la Convencion de Viena, at 100 (Luis Díez-Picazo y Ponce de León ed., 1998); Ferrari, supra note 3, no. 23; Burghard Piltz, Internationales Kaufrecht (1993), § 2 no. 108.

6. Ferrari, supra note 3, no. 6; Ulrich Magnus, Artikel 6, in Julius von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, Wiener UN-Kaufrecht (CISG) (1999), no. 2.

7. The Canadian proposal (A/CONF.97/C.1/L.10) as orally amended aimed at revising the draft of CISG Article 6 to read as follows: "The parties may exclude the application of this Convention or, subject to Article 11 [became CISG Article 12], derogate from or vary the effect of any of its provisions. However, except where the parties have wholly excluded this Convention, the obligations of good faith, diligence and reasonable care prescribed by this Convention may not be excluded by agreement." See U.N. Official Records (1981), p. 86.

CISG Art. 6 thus goes beyond the language of the Uniform Commercial Code § 1-102(3) which contains a restriction similar to the one mentioned above, cf. E. Allan Farnsworth, Review of Standard Forms or Terms Under the Vienna Convention, 21 Cornell International Law Journal (1988) 439, at 441 note 8 [available on-line at <http://cisgw3.law.pace.edu/cisg/biblio/farns1.html>].

8. To the present writer, this interpretation of CISG Article 7 seems doubtful. In this respect, see John Felemegas, Editorial remarks on CISG Article 7, available on-line at <http://cisgw3.law.pace.edu/cisg/text/e-text-07.html>.

9. Rolf Herber, Artikel 6, in Commentary on the UN Convention on the International Sale of Goods, no. 5 (Peter Schlechtriem ed., 1998); Vincent Heuzé, La vente internationale de marchandises (1992), no. 97; Honnold, supra note 3, no. 74; Helga Rudolph, Kaufrecht der Export- und Importverträge (1996), Art. 6 no. 1; Siehr, supra note 1, no. 11.

10. Bonell, supra note 1, no. 3.4.

11. Bonell, supra note 1, Article 7, no. 3.3, who argues that "any legislation has to be interpreted in accordance with the criteria specifically laid down in it or generally adopted within the legal system from which it emanates." This approach accepts that the parties to an international sales contract are free to choose between the application of CISG and the application of a particular domestic law, but insists that once the contracting parties have accepted that their contract of sale is to be governed by the CISG, the provisions of the Convention must be applied in accordance with CISG Article 7, which provides the Convention's in-built interpretation rules.

12. Bonell, supra note 1, no. 3.4; Ferrari, supra note 3, no. 9; Magnus, supra note 6, no. 28; Gert Reinhart, UN-Kaufrecht (1991), Art. 28 no. 3.

13. Ferrari, supra note 3, no. 9.

14. Derogating from CISG Article 4 would make little sense, as it would lead to the Convention being applicable to questions of contractual validity and transfer of property on which it contains no rules (Ferrari, supra note 3, no. 11; Rudolph, supra note 9, no. 1).

An agreement by the parties on principles of interpretation other than those in CISG Article 7 is allowed under the parties' right to modify the Convention's provisions according to their own preferences (Ferrari, supra note 3, no. 10; Magnus, supra note 6, no. 55). Professor Bonell's argument against allowing parties to do away with CISG Article 7 via the autonomy given to them in CISG Article 6 (see supra note 11) seems, in the last analysis, unconvincing: CISG Article 6 expressly states that the parties may not only accept or exclude the Convention's application in toto, but also derogate from or vary the effect of any provision they consider undesirable despite the fact that the drafters of the CISG included it. Whenever such a contractual modification of one of the CISG's articles occurs, a court judgment or arbitral award applying the Convention to that particular contract cannot insofar be regarded as a persuasive precedent (which is to be taken into account by other courts under CISG Article 7) as it does not deal with the interpretation of the CISG's original rules, but merely with a modified version of the Convention. A scenario involving a contractual derogation from CISG Article 7 does in this respect not differ from cases where modifications of other provisions are at stake: Should the parties -- which, it is submitted, will rarely occur in practice -- choose to have, e.g., the CISG "as interpreted by German courts" or "as construed according to the principles of English law" govern their contract, this constitutes an admissible use of their party autonomy according to CISG Article 6, but deprives any judgment or arbitral award dealing with this contract of sale of its future persuasive value under CISG Article 7(1).

Under CISG Article 28, a court is not required to grant specific performance if, under its "own law", it would not do so. If the parties, by explicitly derogating from CISG Article 28 in their contract, have agreed on one or both parties' right to specific performance, it can be assumed that the court would carry out the agreement of the parties (Amy H. Kastely, The Right to Require Performance in International Sales: Towards an International Interpretation of the Vienna Convention, 63 Washington Law Review (1988), at 642 [available on-line at <http://cisgw3.law.pace.edu/cisg/biblio/kastely1.html>]; Ole Lando, Article 28, in Commentary on International Sales Law, no. 3.1 (Cesare Massimo Bianca & Michael Joachim Bonell eds., 1987)).

While the parties cannot modify the Contracting States' obligations under public international law arising from CISG Articles 89 et seq., they may modify the Final Provisions' effect on their own contract, e.g., by agreeing on the Convention's applicability although the prerequisites of CISG Article 100 are not met: CISG Articles 89 et seq. are thus subject to the parties' freedom of contract as far as they deal with the Convention's sphere of application (see Siehr, supra note 1, no. 11).

15. Bonell, supra note 1, no. 2.1; Calvo Caravaca, supra note 5, at 93; Honnold, supra note 3, no. 74.

16. Cf. Ole Lando & Hugh Beale, Introduction, in Principles of European Contract Law, Parts I and II (2000), at xxv. Purchases by consumers are excluded from the Convention's scope by virtue of CISG Article 2(a), although the CISG will apply if the seller neither knew nor ought to have known that the goods were bought for personal, family or household use -- a type of situation that may become more common as more consumers purchase goods over the internet. Sales by consumers are, on the contrary, not excluded from the Convention's scope (Herber, supra note 9, Article 2 no. 11; Magnus, supra note 6, Artikel 2 no. 18).

17. The vagueness of the term "mandatory" was also criticized during the discussions within UNCITRAL; see Honnold, supra note 3, no. 79.

18. Fritz Enderlein & Dietrich Maskow, International Sales Law (1992), Art. 6 no. 3.1 [available on-line at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein.html>]; Herber, supra note 9, no. 24; Manuel Lorenz, Artikel 6, in International Einheitliches Kaufrecht: Praktiker-Kommentar und Vertragsgestaltung zum CISG, no. 20 (Wolfgang Witz, Hanns-Christian Salger & Manuel Lorenz eds., 2000); Magnus, supra note 6, no. 55; Reinhart, supra note 12, Art. 6 no. 8; Rudolph, supra note 9, no. 6.

19. This has been aptly described by Professor Honnold as "the commitment that Contracting States make to each other: We will apply these uniform rules in place of our own domestic law on the assumption that you will do the same" .(Honnold, supra note 3, no. 103.2); see also Calvo Caravaca, supra note 5, at 100.

20. Ferrari, supra note 3, Artikel 4 no. 13; Herber, supra note 9, no. 13; Honnold, supra note 3, no. 65; Magnus, supra note 6, Artikel 4 no. 18. For an interesting discussion on how drafters of standard terms should deal with the interaction between the national rules on validity and the Convention, see Farnsworth, supra note 7, at 443 et seq.

See also Bundesgerichtshof, [Federal Supreme Court, Germany], 31 October 2001, Neue Juristische Wochenschrift (2002) 370, at 371 where the court ruled on the CISG's requirements for the inclusion of standard terms and conditions into contracts of sale. [Case presentation, including English translation and commentary available at <http://cisgw3.law.pace.edu/cases/011031g1.html>]. The court held that CISG Article 8(2) requires the user of standard terms to transmit the respective text to the other party or make it available in another way, and justified its interpretation inter alia with the assumption that "a control of the content of standard terms and conditions under national law (CISG Article 4(a)) is not always guaranteed." While the decision is likely to receive some criticism for imposing excessively strict requirements for the inclusion of standard terms, it indicates a tendency to limit the scope of the validity exception in CISG Article 4(a) in favor of the Convention's own rules.

21. Bernard Audit, La vente internationale de marchandises: Convention des Nations-Unies du 11 avril 1980 (1990), at 115 et seq.; Heuzé, supra note 9, no. 100.

22. Audit, supra note 21, at 32, 74; Heuzé, supra note 9, no. 201; Honnold, supra note 3, no. 204.1 et seq.; see also Peter Schlechtriem, Artikel 29, in Kommentar zum Einheitlichen UN-Kaufrecht, no. 3 (Peter Schlechtriem ed., 3rd ed. 2000).

23. Ernst Rabel, The Hague Conference on the Unification of Sales Law, 1 American Journal of Comparative Law (1952), at 61. See also Honnold, supra note 3, no. 30: "One may delight in legal antiques and in the patina of ingenious circumlocutions that have had to substitute for fundamental reform but these aesthetics may not be appreciated by a modern merchant and, more especially, by his trading partner from a different legal tradition."

24. See for example § 307(2) Nr. 1 of the German Civil Code.

25. Herber, supra note 9, no. 28; Robert Koch, Wider den formularmäßigen Ausschluss des UN-Kaufrechts, Neue Juristische Wochenschrift (2000), at 910; Lorenz, supra note 18, no. 14; Magnus, supra note 6, Artikel 4 no. 26; Piltz, supra note 5, § 2 no. 140; Harry Schmidt, in AGB-Gesetz, Anh. § 2 no. 12 (Peter Ulmer, Hans Erich Brandner & Horst-Dieter Hensen eds., 9th ed. 2001); Walter F. Lindacher, in AGB-Gesetz, Anh. § 2 no. 75 (Manfred Wolf, Norbert Horn & Walter F. Lindacher eds., 4th ed. 1999).

In Oberster Gerichtshof, [Supreme Court, Austria], 7 September 2000, Recht der Wirtschaft (2000), no. 9, the court held that the parties can derogate from CISG Article 49(1) and restrict the buyer's rights under the condition that these clauses are valid under the applicable domestic (here: German) law according to CISG Article 4. However, even if the changes are valid according to the rules of the applicable domestic law, such rules must not contradict the fundamental principles (Grundwertungen) of the CISG. The Court stated that one of the CISG's fundamental principles is the right for the buyer to avoid the contract, which the buyer must have as ultima ratio where the seller after an additional period of time still has not delivered the goods or where the goods in spite of the seller's remedies are still essentially useless. This right to avoid the contract can only be validly restricted if the buyer at least retains the right to damages. [Case presentation available in English at <http://cisgw3.law.pace.edu/cases/000907a3.html>].

26. Audit, supra note 21, at 41; Enderlein & Maskow, supra note 18, Art. 6 no. 3.2; Herber, supra note 9, no. 31; Honnold, supra note 3, no. 79 et seq.; Lorenz, supra note 18, no. 21; Reinhart, supra note 12, Art. 6 no. 9. For the discussions during the 1980 Vienna Diplomatic Conference, see U.N. Official Records (1981), p. 252 et seq.

27. Calvo Caravaca, supra note 5, at 100; Reinhart, supra note 12, Art. 6 no. 89.

28. Audit, supra note 21, at 41; Honnold, supra note 3, no. 82; Lorenz, supra note 18, no. 21; Burghard Piltz, Entscheidungen des BGH zum CISG, Internationales Handelsrecht -- Beilage zu der Zeitschrift Transportrecht (1999), at 14.

29. Audit, supra note 21, at 40; Heuzé, supra note 9, no. 125.

30. Audit, supra note 21, at 41; Bonell, supra note 1, no. 3.5.1; Calvo Caravaca, supra note 5, at 101; Enderlein & Maskow, supra note 18, Art. 6 no. 3.2; Herber, supra note 9, no. 31; Heuzé, supra note 9, no. 127; Honnold, supra note 3, no. 84; Reinhart, supra note 12, Art. 6 no. 9; contra Lorenz, supra note 18, no. 21; Siehr, supra note 1, no. 15.

31. Honnold, supra note 3, no. 84; Magnus, supra note 6, nos. 62, 65; Rudolph, supra note 9, no. 9.

32. See also Rudolph, supra note 9, no. 1: CISG Article 6 grants the parties more freedom than most national laws do; Farnsworth, supra note 7, at 441 note 8 (for the U.C.C.).


Pace Law School Institute of International Commercial Law - Last updated September 11, 2009
Go to Database Directory || Go to Information on other available case data
Comments/Contributions