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Article 12. Declaration by State Preserving Domestic Formal Requirements [see arts. 11, 29 and Part II]

TEXT OF ARTICLE 12

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 a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect or this article.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

12A Effect of reservation under article 96 rejecting article 11

12A1 Formalities of State of either party may be applicable

12A11 Applicable formalities based on private international law

12B Mandatory character of article 12


DESCRIPTORS

Formal requirements ; Declaration, Art. 96


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 seven cases in its Digest of Art. 12 case law:

Belgium    1           Hungary    1           Netherlands      2                 
France     1           Italy     1           Russian Federation       1           TOTAL:   7

Presented below is a composite list of Art. 12 cases reporting UNCITRAL Digest cases and other Art. 12 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 6 November 2001 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.
 

Netherlands 17 February 2009 Gerechtshof [Appellate Court] 's-Gravenhage (U.S. party v. Restauratiebedrijf B.V.)
 

United States 7 October 2008 U.S. District Court [New Jersey] (Forestal Guarani, S.A. v. Daros International, Inc.) 12A

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

United States 7 February 2006 Federal District Court [Texas] (China North Chemical Industries v. Beston Chemical Corporation)

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

Croatia 26 July 2005 High Commercial Court

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

Russia 9 June 2004 Arbitration Award 125/2003 12A [translation available]

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

Russia 16 February 2004 Arbitration Award 107/2002 12A1 [translation available]
 

Austria 17 December 2003 Oberster Gerichtshof [Supreme Court] 12A [translation available]
 

Russia 20 March 2002 Presidium of Supreme Court (Resolution No. 6134/01) 12A [translation available]
 

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

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

Netherlands 12 July 2001 Arrondissementsrechtbank [District Court] Rotterdam 12A [translation available]
 

China 17 July 2000 Higher People's Court [Appellate Court] of He'nan Province (Minterrnet S.A. v. He'nan Local Product Import and Export Company) [translation available]

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

Spain 16 June 2000 Audiencia Provincial [Appellate Court] Castellón
 

Russia 10 June 1999 Arbitration award 55/1998 12A [translation available]

China 29 March 1999 CIETAC Arbitration Award [CISG/1999/14] (Flanges case) 12A [translation available]
 

* Russia 16 February 1998 High Arbitration Court [Information Letter No. 29] 12A
 

China 31 December 1997 CIETAC Arbitration Award [CISG/1997/37] (Lindane case) 12A [translation available]

China 15 December 1997 CIETAC Arbitration Award [CISG/1997/34] (Hot rolled coils case) 12A [translation available]

* Netherlands 7 November 1997 Hoge Raad [Supreme Court] 12A

Hungary 17 June 1997 Fovárosi Bíróság [Metropolitan Court]

Netherlands 16 April 1997 Arrondissementsrechtbank [District Court] 's Gravenhage

Russia 25 March 1997 Presidium of Supreme Court of Russian Federation (Resolution No. 4670/96) 12A [translation available]

Russia 1997 High Arbitration Court [Ruling No. 4, case 2]
 

China 17 October 1996 CIETAC Arbitration Award [CISG/1996/47] (Tinplate case) 12A [translation available]

China 6 September 1996 CIETAC Arbitration Award [CISG/1996/42] (Engines case) 12A [translation available]

Netherlands 5 June 1996 Gerechtshof [Appellate Court] Leeuwarden

Mexico 29 April 1996 Compromex Arbitration proceeding 12A [translation available]
 

* Belgium 2 May 1995 Rechtbank van Koophandel [District Court] Hasselt 12A
 

Netherlands 11 August 1994 Arrondissementsrechtbank [District Court] Leeuwarden

Germany 5 July 1994 Landgericht [District Court] Giessen

China 20 February 1994 CIETAC Arbitration Award [CISG/1994/03] (Cysteine case) 12A [translation available]
 

United States 15 June 1993 Federal Appellate Court [5th Circuit] (Beijing Metals v. American Business Center) 12A
 

* Hungary 24 March 1992 Fovárosi Bíróság [Metropolitan Court] 12A


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/12 [8 June 2004]
Reproduced with the permission of UNCITRAL

[Text of Article 12
Digest of Article 12 case law
-    General issues and requirements
-    Sphere of application and effects]
ARTICLE 12

     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 a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect of this article.

DIGEST OF ARTICLE 12 CASE LAW

General issues and requirements

1. Article 12 recognizes that some States consider that it is important that contracts or their modifications or termination by agreement be in writing. Therefore, article 12 enables a Contracting State to make a declaration under article 96 to prevent the application of any provision of article 11, article 29 or Part II of the Convention which 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 where any party has his place of business in that Contracting State.[1] It must be pointed out, however, that according to article 96 of the Convention only those Contracting States are allowed to declare an article 96 reservation whose legislation requires contracts of sale to be concluded in or evidenced by writing.

2. As set forth both in the legislative history [2] and case law, article 12, unlike most provisions of the Convention, cannot be derogated from.[3]

Sphere of application and effects

3. In light of the legislative history, it appears that, as the operation of article 12 is confined to articles 11 and 29 and to Part II of this Convention, it does not encompass all notices or indications of intention required under the Convention but only those which relate to the formation of the contract, it modifications and its termination by agreement.[4]

4. The effects of article 12 of the Convention 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.[5] Opposing views exists as to the effects of the article 96 reservation. According to one view, 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.[6] Rather, it will depend on the rules of private international of the forum whether any form requirements have to be met. Thus, where those rules lead to the law of a State that made an article 96 reservation, the form requirements of that State will have to be complied with; where, on the other hand, the law applicable is that of a contracting State that did not make an article 96 reservation, the principle of freedom from form requirements laid down in article 11 applies, as repeatedly pointed out in case law.[7] According to the opposing view, however, where one party has its relevant place of business in a State that made an article 96 reservation, the contract must be concluded or evidenced or modified in writing.[8]


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. For this statement, albeit with reference to the draft provisions contained in the 1978 Draft Convention, see United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 20.

2. See United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 20: "Since the requirement of writing in relation to the matters mentioned in article 11 [draft counterpart of the Convention’s article 12] is considered to be a question of public policy in some States, the general principle of party autonomy is not applicable to this article. Accordingly, article 11 [draft counterpart of the Convention’s article 12] cannot be varied or derogated from by the parties."

3. [FRANCE Cour d’appel [Appellate Court] Paris 6 November 2001, available online at <http://cisgw3.law.pace.edu/cases/011106f1.html>]; CLOUT case No. 378 [ITALY Tribunale [District Court] Vigevano 12 July 2000, available online at <http://cisgw3.law.pace.edu/cases/000712i3.html>], expressly stating that article 12 – as well as the final provisions - cannot be derogated from (see full text of the decision).

4. For the wording used in the text, see United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 20.

5. [BELGIUM Rechtbank [Court] Hasselt 2 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950502b1.html>].

6. [NETHERLANDS Rechtbank [District Court] Rotterdam 12 July 2001, available online at <http://cisgw3.law.pace.edu/cases/010712n1.html>].

7. [NETHERLANDS Rechtbank [District Court] Rotterdam 12 July 2001, available online at <http://cisgw3.law.pace.edu/cases/010712n1.html>]; [NETHERLANDS Hoge Raad [Supreme Court] 7 November 1997, available online at <http://cisgw3.law.pace.edu/cases/971107n1.html>]; CLOUT case No. 52 [HUNGARY Fovárosi Biróság [Metropolitan Court] Budapest 24 March 1992, available online at <http://cisgw3.law.pace.edu/cases/920324h1.html>].

8. [RUSSIA High Arbitration Court of the Russian Federation: Information Letter 29 of 16 February 1998, available online at <http://cisgw3.law.pace.edu/cases/980216r1.html>]; [BELGIUM Rechtbank [District Court] Hasselt 2 May 1995, available online at <http://cisgw3.law.pace.edu/cases/950502b1.html>].


Pace Law School Institute of International Commercial Law - Last updated June 25, 2009
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