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Article 13. Telegram and Telex as a "Writing"

TEXT OF ARTICLE 13

For the purposes of this Convention "writing" includes telegram and telex.


OUTLINE OF ISSUES

Reproduced with permission of UNCITRAL

13A Application to requirement of "writing" in Arts. 21(2) and 29(2)

13B Electronic communications similar to telegram or telex


DESCRIPTORS

Writing, definition of


CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES

UNCITRAL cites two cases in its Digest of Art. 13 case law:
 

* Austria 26 April 1997 Oberster Gerichtshof [Supreme Court]

* Austria 2 July 1993 Oberster Gerichtshof [Supreme Court] 13A
 

The following additional Art. 13 citations are provided:
 

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

Egypt 11 April 2006 Court of Cassation [Supreme Court] (Marble case) 13B
 

Ukraine 25 November 2002 Arbitration Award 13A [translation available]

Finland 26 October 2000 Helsingin hoviokeus [Helsinki Court of Appeals] [translation available]
 

Russia 10 June 1999 Arbitration award 55/1998 13B [translation available]
 

China 26 June 1997 CIETAC Arbitration Award [CISG/1997/17] (Monohydrate zinc sulphate case) [translation available]

Hungary 17 June 1997 Fovárosi Bíróság [Metropolitan Court]

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

Russia 28 April 1995 Arbitration award 400/1995 13A [translation available]
 


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/13 [8 June 2004]
Reproduced with the permission of UNCITRAL

ARTICLE 13

For the purposes of this Convention “writing” includes telegram and telex.

DIGEST OF ARTICLE 13 CASE LAW

1. The goal of this provision, which is based upon article 1(3)(g) of the 1974 UNCITRAL Convention on the Limitation Period in the International Sale of Goods, is to make sure that declarations that take the form of a telegram or telex met any writing requirement where such a requirement exists at all.

2. In case law, this provision has been referred to very rarely. In one case,[1] a court had to decide whether the avoidance of a lease contract via telefax met the writing requirement of the applicable domestic law. On that occasion, the court stated that if the Convention were applicable, a message sent by telefax should be considered valid on the basis of article 13 of the Convention. The court then stated that article 13 of the Convention is applicable only to international sales contracts and should not be applied by analogy to lease or other contracts. In another case,[2] that same court reaffirmed its view according to which article 13 of the Convention cannot be applied by analogy, justifying it on the grounds that article 13 contains an exception and that exceptions have always to be interpreted restrictively.


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. [AUSTRIA Oberster Gerichtshof [ Supreme Court] 2 July 1993, available online at <http://cisgw3.law.pace.edu/cases/930702a3.html>].

2. [AUSTRIA Oberster Gerichtshof [Supreme Court] 26 April 1997, available online at <http://cisgw3.law.pace.edu/cases/970426a3.html>].


CASE ANNOTATED COMPARATIVES
-  UNIDROIT Principles and
    CISG-AC Advisory Opionion
-  PECL comparative

Growth of the CISG with Changing Contract Technology:
"Writing" in Light of the UNIDROIT Principles and CISG-Advisory Council Opinion no. 1

Andrea L. Charters [1a]
October, 2004

  1. Introduction
  2. Context for interpreting Article 13 in light of UNIDROIT Principles Article 1.10
  3. a. Interpretations contemporary to adoption of the CISG are silent or raise questions about Article 13
    b. Practical needs of traders using electronic media
    c. Recent scholarship on the CISG endorses the use of electronic communication
    d. UNCITRAL Model Law - Avoid anomaly
  4. Article 13 presents a monolithic definition of "writing" that may not be sufficiently flexible for all uses
  5. a. Legislative history introduced examples of electronic communication and made "writing" a definition
    b. Article 13 does not address burden of proof or presumptions; sparse case law
  6. Current electronic means of communication pose technological dilemmas
  7. Practitioners' approach as a springboard into default rules
  8. Interpretation in light of UNIDROIT Principles by CISG-Advisory Council Opinion no. 1 addresses the challenges of flexibility, fairness and efficiency
  9. a. Private organization, interpretive, not authoritative
    b. The commentary builds on the Principles approach to "writing"
    c. A Presumption, related to Article 9 trade usages
  10. Conclusion

I. Introduction

Article 13 of the Convention on Contracts for the International Sale of Goods (the "CISG"),[1] defining a writing, raises particular questions of interpretation given the technological advances that have occurred since its drafting in 1980. CISG Article 13 states that:

"For the purpose of this Convention 'writing' includes telegram and telex."[2]

From both a common sense and a syntactical approach, this provision must be interpreted flexibly because of the use of "includes" and the omission of paper and ink.[3]

With this demand for flexibility, many reasons for looking at the application of the UNIDROIT Principles of International Commercial Contracts (the "Principles")[4] to the interpretation of Article 13 of the CISG come into view. Principles Article 1.10 uses a functional approach to define "writing":

"'writing means any mode of communication that preserves a record of the information contained therein and is capable of being reproduced in tangible form.'"[5]

These stark differences in definitional style reflect not a different philosophy of drafting, but different technological environments at the time of drafting. The Principles, after all, define "court" not as an organization that "means" something, but as it "includes an arbitral tribunal".[6] By 1994, however, electronic commerce had grown in media and significance and was becoming a growth area in the law.[7] Thus, listing examples of "writing" or even of electronic commerce could only have been doomed to obsolescence by the time of drafting of the Principles.[8] Not only facsimile, electronic data interchange, the Internet and e-mail had come into common use, but also combinations of services were appearing; new products were inevitable.[9]

Thus, a functional approach was a logical choice for an international provision, the aim of which was to maintain flexibility for the future by being open-ended.[10]

The Principles have in turn prompted a new CISG commentary, as discussed in Section VI below, CISG-Advisory Council Opinion no. 1,[11] which adopts a functional approach similar to that of the Principles:

"The term 'writing' in CISG also includes any electronic communication retrievable in perceivable form."[12]

Thus, the Principles provisions of "preserve a record" and "retrievable in perceivable form" are condensed in the more detailed provision "retrievable in perceivable form," adding the requirement that the information must be "perceivable."

A number of detailed reasons to consider the interpretation of the CISG writing definition in light of that in the Principles follow upon this brief introduction.

II. Context for interpreting Article 13 in light of UNIDROIT Principles Article 1.10

The context for interpreting Article 13 in light of UNIDROIT Principles Article 1.10 has several aspects: the historical changes in interpretations of Article 13 of the CISG, the electronic environment and the need to avoid an anomalous result with an UNCITRAL model law.

a. Interpretations contemporary to adoption of the CISG are silent or raise questions about Article 13

The interpretations of Article 13 which were contemporary to adoption of the CISG were silent or raised questions with regard to this now problematic provision, a timely reflection on the unproblematic nature of its provisions at the time. There is no Secretariat Commentary on Article 13, nor any pre-UNCITRAL legislative history.[13] The UNCITRAL legislative history is sparse[14] and reflects little debate.[15] Examples of restricting the view of electronic communication to telegram and telex abound. Gyula Eörsi summed up Article 13 in 1984, shortly after the 1980 adoption of the Convention, in a major commentary: "This Article needs no comment."[16] In 1986, Kazuaki Sono wrote that an Article 96 reservation in favor of requiring writing, sought mainly by Socialist countries, "would in most cases not result in much practical difference" from no writing requirement, since telegram and telex are included as examples in Article 13.[17] J. Rajski, in a Bianca and Bonell 1987 treatise, reviewed some then-recent East European statutes on what constituted "writing".[18] Jacob S. Ziegel raised two questions about Article 13 in 1981: whether electronic means would be included, or whether a paper record would be required, and whether the requirements of Articles 12 and 96 would have been met "where the domestic law of the declarant state has a narrower definition of writing;" the answer to the latter question was "presumably no", since Article 12 was designed to enable states to retain their own writing requirements.[19] Commenting on the legislative history, Peter Schlechtriem praised the initiative by the Federal Republic of Germany of adding the telegram and telex provisions to facilitate quick decisions in commerce, and further argued the conclusion reached by Professor Ziegel with regard to Article 96 reservations.[20]

As will be shown in subsection "c" below, within five years scholarship had shifted to arguing for inclusion of other electronic means within the definition of "writing", in response to the growing practical need to accommodate the use of other electronic means of communication.

b. Practical needs of traders using electronic media

The practical need to accommodate the growing use of other electronic means of communication has affected both the lives of traders and the growth of the CISG. The day-to-day life of a lawyer or legal scholar attests to the prevalence and growth of these means of communication.[21] The prevalence of electronic forms as contract media also abounds in the growth of laws and legal literature about these forms.[22] The development of CISG law also requires that the CISG accommodate these forms, in order to avoid being "petrified" and "unable to change or be changed as needed," and thus, in fact, electronic communications are an "assay" for whether the CISG can grow.[23]

c. Recent scholarship on the CISG endorses the use of electronic communication

The recent scholarship on the CISG endorses the use of electronic communication. Just five years later than his early phase comments of 1986, regarding the Article 96 reservation and the necessity of telegraph and telex, in 1991/92, Peter Schlechtriem further argued that fax should be included as "writing".[24] An internal gap in the CISG should be filled pursuant to Article 7(2), since fax "was unknown when the Convention was drafted."[25] Fritz Enderlein and Dietrich Maskow in 1992 focused on the 1988 Factoring Convention approach to "telecommunication capable of being reproduced in tangible form",[26] another functional approach. The PECL approach, adopted six years later, was to look to four examples of electronic communication, telegram, telex, telefax and electronic mail, and "other means of communication capable of providing a readable record of the statement on both sides", thus a liberalization of the "reproduction" language and also, in part, a functional approach.[27] In his comparative analysis of CISG Article 13 and the counterpart provisions in the PECL, Ulrich Schroeter analyzes four means of contemporary communication, two of which are PECL examples:[28] telefax, electronic data interchange, electronic mail, the Internet and World Wide Web, under the CISG and the Principles of European Contract Law.[29] John Honnold in the 1999 edition of his treatise, Uniform Law for International Sales Under the 1980 United Nations Convention, identified facsimiles and electronic data interchange as major means of electronic communication, along with telegram and telex.[30]

d. UNCITRAL Model Law - Avoid anomaly

It would be anomalous for an UNCITRAL Convention, the CISG, to include provisions inconsistent with an UNCITRAL Model Law. The UNCITRAL Model Law on Electronic Commerce (1996) provides in Article 6 that the requirement of "writing" is met "by a data message if the information contained therein is accessible so as to be usable for subsequent reference."[31] The "subsequent reference" language is parallel to the "readable record" of the PECL,[32] and the "retriev[al] in perceivable form" of the CISG-AC Opinion no. 1.[33] "Data message" is defined as "information generated, sent, received or stored by electronic, optical or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy."[34] Thus, the Model Law definition is consistent with the interpretations advanced in the recent era of scholarship on the CISG and it would be anomalous for it to be otherwise.

With this context at hand, it is important to turn to the characteristics of the definition of "writing." The first major feature of the definition of "writing" is just that, it is a definition. How this affects the need for interpretation will be seen below.

III. Article 13 presents a monolithic definition of "writing" that may not be sufficiently flexible for all uses

"Writing" is defined in both the CISG and the UNIDROIT Principles in a monolithic manner that may not be sufficient for all purposes, as seen in subsection b. and Section VI below. As a definition, "writing" applies to all uses of the term.

a. Legislative history introduced examples of electronic communication and made "writing" a definition

The legislative history reflects introduction of the two then prevalent means of electronic communication, telegraph and telex,[35] and assurance that "writing" remained a definition.[36]

b. Article 13 does not address burden of proof or presumptions; sparse case law

As a definition that specifies the inclusion of telegram and telex, the definition of "writing" does not address burdens of proof or presumptions; this tends to create a bias against the inclusion of modern electronic communication in the definition of "writing". From a litigation perspective, a party favoring exclusion of modern means of communication from the definition of "writing" could argue post-transaction that the specific reference to "telegraph" and "telex" indicated a preference for these means over other electronic means. This would be a textual argument, simple to make, concise to argue. This point could be raised out of litigation strategy, not out of a genuine preference for these dated media. Similar arguments have long plagued the Common Law Statute of Frauds.[37]

The party arguing for inclusion of modern media would face a much more fact-based argument in favor of practicality and common sense, absent scholarship and comparison to the Principles. How this burden of proof and presumption problem is treated in the CISG-AC Opinion no. 1 is addressed in Part VI.

The sparse case law and arbitral decisions regarding the definition of "writing" under the CISG do not resolve this litigation dilemma. One case merely recited the CISG definition.[38] Another two cases are reported in English to have ruled out application of the CISG definition to leases, which are not sale of goods transactions.[39] Two Russian arbitrations provide some direction as to how an arbitral tribunal, at least in Russia, might look at Article 13. The first tribunal ruled on a case involving telex messages, noted the Article 13 provision, and bolstered the reference with a citation of the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958.[40] The second tribunal looked to domestic law to accept facsimile changes to an agreement.[41] One scholar has noted that this last arbitration apparently accepted looking to domestic law under Article 13.[42]

Before turning to the comparative law answer to this litigation dilemma in Part VI, let us compound the problem.

IV. Current electronic means of communication pose technological dilemmas

Many security, retrieval and storage concerns plague electronic communications media; these raise the specter of exotic, hard to trace fraud and mistakes; modern e-mail may be tampered with and messages may be lost through confusion with "Spam".[43]

"Writing", in the UNCITRAL Model Law, or in scholarship about the CISG, is designed to permit perceiving and storing information,[44] a limited means of preventing fraud.[45]

This new purpose is grounded in a reasonable[46] approach to communications in general. No one has a quantification of how easy it is to commit fraud with paper and ink, vs. telegram, telex, facsimile, email, electronic data interchange or other mechanisms.[47] Even telex has been subject to serious fraud, partly through human policy and procedure error.[48]

Given the extent of these problems, our answer is to turn, initially, to the deal lawyer's approach.

V. Practitioners' approach as a springboard into default rules

The reality of all these means of communication is that from a prospective position, where a lawyer is advising a client, particularly on a large transaction or a series of transactions, the counseling interaction between the lawyer and client is the critical story for security, retrieval of data and record storage. All of these issues are neither purely business nor purely legal issues. New products are available all the time to better secure electronic communications.[49] A practitioner thus has to work with clients on appropriate choices of communications media for contracts,[50] retrieval systems, record storage and security.[51] It does no good to have sent that notice timely and not be able to find the Postal System certified mail receipt and copy of the letter. Business, information technology and legal knowledge all need to be integrated to have the best approach. The client needs a team that can satisfy its needs.

What follows from this is that prospectively, in drafting a contract, a definition of a writing requirement, such as for amendments of the contract and for notice, must be crafted to the deal by the attorney and client in negotiation with their counterparts. Relying on default rules will not do the job for the lawyered contract. For example, would a certain brand of "certified e-mail" be an acceptable means of communication, while perhaps fax and other brands of "certified e-mail"[52] would not be? A facsimile is subject to loss in the office system, after all, while a "certified e-mail" could be sent to multiple company officers, with an opportunity for the sender to receive a confirmation when any of them had opened the message.

Model contracts for use in CISG transactions already include model provisions for choosing among media for "writing".[53] Under Article 6 of the CISG, the parties may derogate from the provisions of the CISG in their contract to be able to adopt the means of communication they choose.[54] CISG jurisprudence has demonstrated that the agreement of the parties will be honored, even if it is contrary to expected norms of commercial behavior, as demonstrated in MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino.[55]

MCC-Marble is a second springboard, however, into the jurisprudence of default rules. For the CISG is ultimately a law for the trader who does not always have time or a large enough transaction to go to her lawyer, such as in the MCC-Marble transaction at a trade show.[56] When faced with another party's invoice, the trader experiences the default rules as the critical issue for fairness under the CISG.

This is then the scholar's job, to guide court decisions that will protect the trader in the un-lawyered transaction. A major purpose of the CISG, without a traditional parol evidence rule or traditional writing requirement,[57] is to handle these true agreements by merchants at the trade show and in quick meetings. Today, these are often agreements over the e-mail circuits.[58] A great advantage of e-mail is that potential trading partners can find each other over the Internet and build a relationship with e-mails about very small transactions until their relationship warrants investing in travel and personal meetings. They may also wish to attend international trade shows and work with introducing parties, but there is no substitute for the Internet and e-mail.[59]

The importance of these means of contracting is indicated by the efforts of the International Chamber of Commerce Electronic Commerce Project to bolster the ability of traders to rely on electronic means of contracting.[60] The Project is focusing on the ability of traders to undertake the following tasks: "conducting their negotiations, making contracts, arranging for finance, transport or insurance on-line" for the reasons that "most of the rules that apply to international trade still presume the use of paper. Given that paper has certain inherent weaknesses as an information carrier, these rules create barriers that are unnecessary in the digital environment."[61]

Interpretation of the CISG, which applies to trade between nations that account for over two-thirds of world trade,[62] is thus essential to paving the way for traders to accomplish their trade goals along the lines just outlined. The CISG, as an international law, can be interpreted along the lines of both Common Law and Civil Law and a combination of the two that allows an autonomous interpretation of the CISG. Such an autonomous interpretation allows CISG Article 7(1)'s goal of an "international character"[63] to be fulfilled.[64] By looking to both of these techniques, scholars can assist the development of the law. This development may lead, rather than follow, case law. Traders, through reliance on lawyers and international bodies such as the International Chamber of Commerce that in turn rely on international bodies of scholarship,[65] look to the default rules elaborated by scholars for fairness where the code or statute leaves gaps.

When fairness is considered, having a default rule that encourages parties to plan, taking the rule into account, is also important. Thus, the rule chosen should not only be fair, but efficient.[66] Whether fairness and efficiency are in sync or at odds will be a question for the next Section.

Given the problematic nature of contemporary electronic communications, fairness and efficiency, should the CISG default rule be interpreted in light of the broad UNIDROIT standard, which would make essentially all electronic communications that could be reduced to a tangible form into CISG "writing", or should some middle ground be struck?

VI. Interpretation in light of UNIDROIT Principles, by CISG-Advisory Council Opinion no. 1, addresses the challenges of flexibility, fairness and efficiency

It is not necessary to take the influence of the Principles on interpretation of the CISG as a blunt instrument.

a. Private organization, interpretive, not authoritative

A private, collaborative, scholarly initiative has produced an interpretive commentary on just the issue of what constitutes "writing", and related issues, under the CISG. The CISG-Advisory Council, a private group of CISG scholars from around the world, has produced Opinion no. 1 regarding Electronic Communications.[67] The CISG-AC "is a private initiative supported by the Institute of International Commercial Law at Pace University School of Law and the Centre for Commercial Law Studies, Queen Mary, University of London."[68]

Although the text was prepared as a private initiative from partly pragmatic reasons,[69] a theoretical argument underpins the work. As a commentary that is not authoritative, it is ultimately flexible. It has the freedom of detailed interpretation that can be relied on without becoming ossified.[70] There is no governmental body of any type that must acknowledge change if a new interpretation is needed.

Thus, the benefit of detailed default rules can be had without the drawbacks of either having to spawn ever more detailed rules in order to change the law or having to rely on great discretion in the hands of judges, with a lack of predictability for parties and potential for manipulability.[71]

Some have called for an authoritative commentary and body like the United States Permanent Editorial Board of the Uniform Commercial Code, but sponsored by UNCITRAL for the CISG.[72] Given the pragmatic issues of international agreements, and the theoretically sound reasons for having a private commentary, the CISG-AC work is of great benefit to the CISG community. The CISG-AC is profound evidence of an international community of scholars. Communication among such a group is greatly facilitated by e-mail, one of the very subjects of Opinion no. 1.[73]

The choice of "writing" as a topic for the Advisory Council's Opinion no. 1 shows the benefit of a private, scholarly undertaking. There is little case law and little scholarship on Article 13 of the CISG,[74] yet a huge need to advance the law, given the rapid advance of technology beyond what was contemplated at the adoption of the CISG, as acknowledged by the International Chamber of Commerce.[75] The Advisory Council has thus filled a vacuum in the development of the law. This type of forward movement in the law can best be achieved by an independent group, free from the types of constituencies that surround a governmental or quasi-governmental body.

b. The commentary builds on the Principles approach to "writing"

The commentary builds on the Principles approach to the definition of "writing" and consists of two types of remarks regarding each affected section, Opinions and Commentaries.[76] The Opinion on Article 13 is built around the language of "retrievable in perceivable form" and thus uses the Principles approach to interpreting the CISG, where the Principles use the language "preserves a record" and is "capable of being reproduced in tangible form".[77]

The Opinion is not limited to this language. Two other features of the Opinion are critically important. There are three Comments to Article 13 and additional Opinions and Comments on related sections of the CISG text.[78] The related sections are treated in other chapters of this volume. Thus, the monolithic definition of "writing" has been separated into terms better suited for the particular uses to which the term is put.

The three Comments on Article 13 refer to the uses of the term "writing" and exclude the issue of Article 96 reservations by states that wish to require writings under Article 12 for policy reasons.[79] Finally, the second Comment introduces the middle ground of a presumption into the interpretation of Article 13 "writing", another means of tailoring the monolith to the particular transaction.

c. A presumption, related to Article 9 trade usages

The middle ground traced by Comment 13.2, the second Comment under Article 13, is a presumption:

"Unless the parties have limited the notion of writing, there should be a presumption that electronic communications are included in the term 'writing'. This presumption could be strengthened or weakened in accordance to the parties' prior conduct or common usages (CISG Art. 9(1) and (2)."[80]

Thus, the presumption builds on trade usages,[81] for flexibility.

A default rule that has the flexibility of a presumption and the benefit of trade usages is thus an efficient default rule, one that requires a minimum of "planning around" the rule and a minimum of results contrary to what the parties would have agreed.[82]

This efficiency is not gained at the expense of fairness, as a court or arbitral tribunal is free to decide against the presumption, as well, if that is warranted, particularly based on the history of dealings between the parties. Having a presumption in favor of the contemporary means of electronic communication allows deciding tribunals to avoid the pitfalls of prior litigation over the Statute of Frauds, where the writing requirement became used for deleterious purposes.[83]

Having a presumption allows a default rule that is not overly rigid and does not create the problem of "ossification" of a trade statute.[84] Referring to Article 9 on trade usages further draws the tradition of agreed upon trade norms into the growing law of electronic commerce.

VII. Conclusion

CISG-AC Opinion no. 1 regarding Article 13 is thus an example of the CISG and trade norms closing circle in the hands of an institutional system of scholars, in a manner which tailors the "writing" definition to the transaction and achieves legal and policy objectives by preventing the definition from appearing monolithic.

The definition of "writing" has become a comparative law project. Not only has the definition from the Principles been used to interpret the older definition from the CISG, in addition, scholarship has amplified it and generated more functional default rules through the use of presumption and trade usage. This process has allowed filling a gap by reference within the CISG, for flexible rules, related to the trade history of the parties. Fairness and efficiency are not at odds, but operating consistently through the use of the presumption in favor of electronic commerce. Where parties have not contracted with each other regarding written terms, a presumption informed by Article 9 is the default rule they would want, in order to achieve flexibility and fit to their transaction.

This presumption should be in favor of electronic commerce, both based on the history of "writing" definitions across multiple laws and interpretations and on the prevalence of electronic commerce. It is not necessary to select examples of electronic commerce, which would inevitably create a presumption against those forms not listed. The details of these results thus again show how the scholarship has filled an internal gap in the CISG, using communication facilitated by the very media which are subject to the analysis of Article 13.

Providing a pathway for the traders the International Chamber of Commerce is serving thus advances scholarship in a practical, as well as theoretical, way that is aimed at allowing international trade to flourish, taking advantage of contemporary electronic communications media.


FOOTNOTES

1a Adjunct Professor, Washington University School of Law, St. Louis, Missouri, U.S.A.; J.D. Harvard Law School, M.S.W. Washington University, A.B. Yale University.

1. United Nations Convention, adopted 1980, available at <http://cisgw3.law.pace.edu/cisg/text/treaty.html>.

2. CISG Article 13 (emphasis added).

3. On the generally held view that "includes" requires an expansive reading, see Ulrich G. Schroeter, "Interpretation of "writing": Comparison between provisions of CISG (Article 13) and counterpart provisions of the Principles of European Contract Law", 6 Vindobona J. Int'l Commercial L. and Arbitration (2002-1) 267-274, at Section 1, also available at <http://cisgw3.law.pace.edu/cisg/biblio/schroeter3.html>.

4. Adopted 1994 by UNIDROIT, available at <http://cisgw3.law.pace.edu/cisg/principles.html>.

5. Id. at Article 1.10 (emphasis added).

6. Principles Article 1.10, first definition (emphasis added). Other definitions include "place of business", "obligor" and "oblige" and use forms of the verb "to be" or "to refer" in simple declarative statements.

7. See generally, Benjamin Wright, The Law of Electronic Commerce, 2d ed. (1995) (a loose leaf service, the second volume of which became available not long after the Principles were adopted, this treatise discusses the types of electronic commerce, their function, needed business cautions in working with them, and developing law in the area).

8. See John O. Honnold regarding the CISG in Uniform Law for International Sales Under the 1980 United Nations Convention (3d ed. 1999) [hereafter "Honnold, 1999 Treatise"] at 222, where the author states: "Consequently, courts and codifiers have had to describe, in general terms, those understandings that would have been written into the contract if the parties had drafted a contract provision to deal specifically with the question that led to dispute." (Citations omitted.)

9. See Wright, supra note 7 at Chapters 2-3 (describing products, interactions of products and players, such as lawyers and accountants); see also infra note 43 and sources cited therein for further indication of movement in the email field.

10. Cf. Principles of European Contract Law (PECL) Article 1:301(6), which lists four examples, telegram, telex, telefax and electronic mail, and also "other means of communication capable of providing a readable record of the statement on both sides", available at <http://cisg3.law.pace.edu/cisg/text/peclcomp13.html>. See also, Schroeter, supra note 3 at Section 4 (describing current day use of facsimile, electronic mail, electronic data interchange, the Internet and World Wide Web).

11. CISG-AC Opinion no. 1, Electronic Communications under CISG, 15 August 2003. Rapporteur: Professor Christina Ramberg, Gothenburg, Sweden [hereafter "CISG-AC Opinion no. 1"], available at <http://cisgw3.law.pace.edu/cisg/CISG-AC-op1.html>.

12. Id., at CISG Art. 13 Opinion no. 1 (emphasis added).

13. Legislative History, Data on the Secretariat Commentary, and Data on the pre-UNCITRAL legislative history of the CISG, available at <http://cisgw3.law.pace.edu/cisg/text/roadmap/intro-13.html>.

14. See Legislative History, 1980 Vienna Diplomatic Conference, Chronological Record of Proceedings, CISG article 13, development of, available at <http://cisgw3.law.pace.edu/cisg/chronology/chrono13.html>.

15. See infra Section III.a (discussing addition of telegram and telex and emphasis on placement as a definition).

16. See Chapter 2.9, General Provisions, in N. M. Galston & H. Smit, International Sales: The United Nations Convention on Contracts for the International Sale of Goods (1984). (This was perhaps a reference for the CISG scholar to the legislative history, which tailored the introduction of these two forms to prior Soviet legislation. See infra note 35).

17. Formation of International Contracts Under the Vienna Convention: A Shift Above the Comparative Law, in P. Sarcevic and P. Volken, eds., International Sale of Goods, Dubrovnik Lectures (1986), at 129-130 (Professor Sono stated the importance of written contracts for some States that "consider the requirement that contracts for the international sale of goods be in writing to be a matter of important public policy even in the context of the relation between the parties", at 129).

18. C. Bianca and M.J. Bonell, Commentary on the International Sales Law (CISG) (1987) at 128.

19. Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods, (July 1981), at Article 13 Comment, available at <http://cisgw3.law.pace.edu/cisg/text/ziegel13.html>; see infra Section III.a (legislative history).

20. Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, at 46 (1986) (citations omitted), available at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem-13.html>.

21. As a participant observer in both fields, much information retrieval, as well as communication, has been obtained via these forms. Even five years ago, e-mail and the Internet were in their infancy. The growth rate of the electronic forms is staggering.

22. See generally, Wright, supra note 7 (compound forms and technological development); D. Reiter, E. Blumenfeld and M. Boulding, eds., Internet Law for the Business Lawyer (Section of Business Law, American Bar Association) (2001) (discussing regulation, taxation and jurisdiction, among other matters).

23. Siegfried Eiselen, Electronic commerce and the UN Convention on Contracts for the International Sale of Goods (CISG) 1980, 6 EDI Law Review (1999) at 21, also available at <http://cisgw3.law.pace.edu/cisg/biblio/eiselen1.html>.

24. See Uniform Sales Law - The Experience with Uniform Sales Laws in the Federal Republic of Germany, [at Article 13] reprinted with permission from Juridisk Tidskrift 1991/92, available at <http://cisgw3.law.pace.edu/cisg/text/schlechtriem13.html>; see also Peter Schlechtriem, Article 13, in Peter Schlechtriem, ed., Commentary on the UN Convention on the International Sale of Goods (CISG) 94-95 (1998) (trans. Geoffrey Thomas) [hereafter Schlechtriem, Article 13].

25. Id. and infra, subsection "d". "Internal gaps" are to be filled with reference to the CISG and its sources, rather than with regard to domestic law, as discussed in Franco Ferrari, Interpretation of the Convention and gap-filling: Article 7, in Franco Ferrari, Harry Flechtner and Ronald A. Brand, ed., The Draft UNCITRAL Digest and Beyond: Cases, Analyses and Unresolved Issues in the U.N. Sales Convention, at 138-171 (2004) [hereafter Draft UNCITRAL Digest].

26. International Sales Law, at Article 13 Commentary (1992), available at <http://cisg3.law.pace.edu/cisg/biblio/enderlein-art13.html>; see also UNIDROIT Convention on International Factoring (Ottawa, 28 May 1988), available at <http://www.unidroit.org/english/conventions/c-fact.htm>.

27. See PECL, supra note 10. Enumerating certain examples has the advantage of clarity but the disadvantage of creating a bias against any new technology.

28. See supra, note 3 (discussing these forms of contemporary contract media).

29. Supra note 10.

30. Honnold, 1999 Treatise, supra note 8 at 141; see also E. Allen Farnsworth, Farnsworth on Contracts, 3d ed., at Sections 1.7, 1.8a and 1.9 (2004) (reviewing electronic communications forms and laws, CISG and Principles).

31. Article 6, available at <http://www.uncitral.org/english/texts/electcom/ml-ecomm.htm>.

32. See PECL, supra note 10.

33. See supra Section I for comparison of CISG-AC Opinion no. 1 and Principles.

34. See supra note 31, Article 2.

35. Summary Records of Meetings of the First Committee, 7th meeting, Friday, 14 March 1980, paras 71-77, available at <http://cisgw3.law.pace.edu/cisg/firstcommittee/Meeting7.html> (in response to Soviet legislation that made these forms qualify as "writing"). The Draft UNCITRAL Digest notes the parallel in this provision to a provision in the 1974 UNCITRAL Convention on the Limitation Period in the International Sale of Goods. Draft UNCITRAL Digest, supra note 25 at 571. Peter Schlechtriem notes that the presence of such a provision in the Convention on Limitation facilitated the incorporation of telegram and telex into CISG Article 13. See Schlechtriem, Article 13, supra note 24.

36. Summary Records of Meetings of the First Committee, 35th meeting, Friday, 4 April 1980, para 63-67, available at <http://cisgw3.law.pace.edu/cisg/firstcommittee/Meeting7.html>.

37. See Michael Bridge, A Commentary on Articles 1-13 and 78, in Draft UNCITRAL Digest, supra note 25 at 256 ("It is well-known in those countries that have Statute of Frauds provisions that the objection raised by a party to the lack of formality is usually made, not for purist reasons, but rather to shroud the true, often, but by no means always, unmeritorious, reason for escaping from the contract.")

38. See Finland 26 October 2000 Helsinki Court of Appeals [Helsingin hoviokeus], Case presentation and English translation available at <http://cisgw3.law.pace.edu/cases/001026f5.html> (5th paragraph under "Law" heading) (also addressed the "principle of loyalty" to the contractual relationship, "widely recognized in scholarly writings" -- a principle which was also addressed in a Pace case commentary excerpt from Larry A. DiMatteo et al, 34 Northwestern J. Int'l L. & Bus. (Winter 2004) 299-440 at 316-317 and 326).

39. See Draft UNCITRAL Digest, supra note 25 at 571-572, citing two decisions of the Austrian Supreme Court [Oberster Gerichtshof]:

- Austria 2 July 1993 Supreme Court, case presentation available at <http://cisgw3.law.pace.edu/cases/930702a3.html> and

- Austria 26 April 1997 Supreme Court, case presentation available at <http://cisgw3.law.pace.edu/cases/970426a3.html>.

40. See Russia 28 April 1995 Arbitration proceeding 400/1993, case presentation and English translation available at <http://cisgw3.law.pace.edu/cases/950428r1.html>, at 3.4 (buyer lost claim of lack of authority of its representative; interest was applied).

41. See Russia 10 June 1999 Arbitration proceeding 55/1998, case presentation and English translation available at <http://cisgw3.law.pace.edu/cases990610r1.html>, at 3.5 (another claim by a buyer of failures by its representative; buyer lost the claim).

42. See Djakhongir Saidov, Cases on CISG Decided in the Russian Federation, 7 Vindobona J. Int'l Comm. L. & Arbitration 1 at 11-12 (2003) (citations omitted) (canvassing Russian arbitrations), available at <http://cisgw3.law.pace.edu/cisg/biblio/saidov1.html>.

43. See, e.g., the colorful advertisements on the Internet that humorously describe the common problems most of us have experienced. The titles capture the themes of the advertisements. Postal Service Offers Certified E-mail, May 18, 2000 ("Fact is, the e-mail simply does not always go through. The recent 'Love Bug' virus resulted in the loss of untold thousands of email messages around the world."), available at <http://usgovinfo.about.com/library/egov/aa051800a.htm> [last visited 10/12/2004]; Combatting Spam using Certificates of Approval - Draft v1.0 of 03/14/03, available at <http://www.madoverlord.com/Projects/SPAMIDEA.t> [last visited 10/12/2004]; Email tracing basic seminar, <http://www.pimall.com/nais/emailtracing.html> [last visited 10/12/2004]; IzyDelivers Certified eMail[TM], available at <http://izymail.com/id_default.aspx?> [last visited 10/12/2004].

44. See supra Sections I and II.d.

45. Cf. E. Allen Farnsworth, Farnsworth on Contracts, 3rd ed., at Section 6.1 (2004) (history and functions of the Statute of Frauds).

46. See Albert H. Kritzer, ed., Reasonableness, January 23, 2001, available at <http://cisgw3.law.pace.edu/cisg/text/reason.html> ("reasonableness" specifically mentioned in 37 CISG provisions and clearly alluded to in others).

47. Cf. Wright, supra note 7, at Section 4.7 (people have long tolerated imperfect controls and record-keeping with paper and telexes).

48. See Id. at Section 4.2 (citations omitted) (policy control omissions contributed to $13.5 million fraud on Chase Manhattan Bank).

49. See supra note 43 citations as examples of products claiming superior email performance, including "certified" email, which provides a receipt indicating whether email has been "opened."

50. Cf. William F. Fox, Jr., International Commercial Agreements: A Primer on Drafting, Negotiating and Resolving Disputes, 2d ed. at 48 (1992) ("In international trade, parties to an agreement almost always execute a writing of some sort to establish a contract enforceable at law to remove uncertainty and to reduce risk.")

51. See Wright, supra note 7 at Section 4.7 (not just the contract itself, but these other business systems are critical for securing electronic information, or any other information).

52. See supra note 43 and accompanying text.

53. See John P. McMahon, Guide for Managers and Counsel: Drafting CISG Contracts and Documents and Compliance Tips for Traders, January 2004, available at <http://cisgw3.law.pace.edu/cisg/contracts.html> and sources cited therein.

54. CISG, supra note 1, at Article 6 ("the parties may … derogate from or vary the effect of any of [the Convention's] provisions.").

55. United States 29 June 1998 Federal Appellate Court [11th Circuit] (MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino), case presentation available at <http://cisgw3.law.pace.edu/cases/980629u1.html> (holding that traditional notions of parol evidence did not apply under the CISG per its terms, even where an American business person signed a document claiming not to have read the reverse side terms, which were in a language he did not understand, and affidavits stated that there had never been any contractual intent on either side to abide by the reverse side terms).

56. See id.

57. In contrast to the model Uniform Commercial Code $500 limit for transactions without a statute of frauds, the CISG provides in Article 11 that: "A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses." The UCC provision is found at Section 2-201(1) of the American Bar Association, The Portable UCC, 3d ed. (2000): "Except as otherwise provided in this Section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made . …"

58. I take myself as a participant observer on this point.

59. Id.

60. International Chamber of Commerce, The ICC Electronic Commerce Project (ECP), available at <http://www.iccwbo.org/home/electronic_commerce/electronic_commerce_project.asp>, [last visited 10/17/2004].

61. Id.

62. Pace Law School Institute, CISG by State, CISG Database, (2002) at <http://cisgw3.law.pace.edu/cisg/cisgintro.html>.

63. CISG, supra note 1, Article 7(1): "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."

64. Pace CISG Database, Taming the Dragons of Uniform Law Case Law: Sharing the reasoning of courts and arbitral tribunals, available at <http://cisgw3.law.pace.edu/cisg/text/schedule.html>.

(The editor invites translators to "tame the dragons" of disparate languages in the world's cases, in addition to making a theoretical and practical argument. Contacts are Albert H. Kritzer, Executive Secretary of the Pace CISG Database and Loukas A. Mistelis, Secretary of the CISG-AC, at email addresses listed on this web page.)

65. The International Chamber of Commerce website cries out for the CISG-AC development of law on electronic commerce: "Today, buyers and [sic] sellers in different parts of the world have no legal framework . …" Supra note 60.

66. See David Charny, "Hypothetical Bargains: The Normative Structure of Contract Interpretation", 89 Mich. L. Rev. 1815 , 1820-1821 (1991) (setting forth a four space matrix for determining what forms of market analysis should be used for various types of cases); Clayton P. Gillette, "The Law Merchant in the Modern Age: Institutional Design and International Usages under the CISG", 5 Chicago J. Int'l L. 157 (2004) (putting a premium on efficient adjudication); and Avery Wiener Katz, "The Relative Costs of Incorporating Trade Usage into Domestic Versus International Sales Contracts: Comments on Clayton Gillette 'Institutional Design and International usages under the CISG'." 5 Chicago J. Int'l L. 181 (2004) (Commenting on the former).

67. Supra, note 11. Members conferring on Opinion no. 1 were: Peter Schlechtriem, Chair; Eric E. Bergsten; Michael Joachim Bonell; Alejandro M. Garro; Roy M. Goode; Sergei N. Lebedev; Pilar Perales Viscasillas; Jan Ramberg; Ingeborg Schwenzer; Hiroo Sono; Claude Witz; Loukas A. Mistelis, Secretary; and Christina Ramberg, Rapporteur. Albert H. Kritzer, Executive Secretary of the Pace CISG Database, was also present. Loukas Mistelis, CISG-AC Publishes First Opinions (2004), available at <http://cisgw3.law.pace.edu/cisg/CISG-AC.html> [last visited 10/17/04].

68. Id. at note 1.

69. E-mail exchange between myself and the Secretary of the CISG-AC, Dr. Loukas Mistelis, 10/13/04-10/15/04 (perhaps ironically, paper copy on file with the author).

70. Harold J. Berman has written in favor of common customary practices for international trade, and the avoidance of codification. See, e.g., Harold J. Berman, "The Law of International Commercial Transactions (Lex Mercatoria)", 2 Emory J. Int'l Disp. Resol. 235, 235 (1988) (such practices are widespread); Peter B. Maggs, "International Trade and Commerce, A Conference on the Work of Harold J. Berman", Essay, 42 Emory L.J. 449, 466 (1993) (codification can freeze the law); James E. Bailey, "Facing the Truth: Seeing the Convention on Contracts for the International Sale of Goods as an Obstacle to a Uniform Law of International Sales", 32 Cornell Int'l L.J. 273, 275 (1999) (the title conveys the conclusion of the argument).

71. The points made in this paragraph are both subjects of vast literatures in the United States and also to common conversation. For a look into this literature and more detailed analyses of these issues, see generally a classic article, Duncan Kennedy, Form and Substance in Private Law Adjudication, L. R, 89 Harv. L. Rev. 1685 (1976).

72. John E. Murray, Jr., "The Neglect of CISG: A Workable Solution", 17 J. L. & Com. 365, 375 (1998) (calling for such a body, following the suggestion of Michael Joachim Bonell in 1987, and extending the work of the body to interpretations and illustrations of the CISG, with non-binding comments).

73. One can e-mail the Secretary of the CISG-AC, Loukas A. Mistelis, or Albert H. Kritzer, the Executive Secretary of the Pace Law School CISG Database at the addresses given on the CISG web pages, for example.

74. See supra Sections II and III.a.

75. See supra notes 60 to 61 and accompanying text.

76. Opinion no. 1, supra note 11.

77. See supra notes 4 to 12 and accompanying text.

78. Opinion no. 1, Article 13, supra note 11.

79. See supra notes 35-36 and accompanying text. (Such reasons apply primarily to Socialist states in which economic actors have strong government ties.).

80. Comment 13.2, Opinion no. 1, supra note 11.

81. See generally Gillette, supra note 66 and Katz, supra note 66 for discussions of the literature and theory behind Article 9 and to the sources in note 70 for a discussion of the norms of international trade custom.

82. See generally Charny, supra note 66 and accompanying text.

83. See supra note 37 and accompanying text.

84. See supra note 70 and accompanying text.


PECL COMPARATIVE

Interpretation of "writing": Comparison between provisions of CISG (Article 13)
and counterpart provisions of the Principles of European Contract Law

Ulrich G. Schroeter [*]
July 2002

1. Introduction
2. Requirement of a "writing" or "written" statements in the CISG and PECL
3. Use of Article 1:301(6) PECL in interpreting Article 13 CISG
4. Modern means of communication under the CISG and PECL
    4.1 Telefax
    4.2 Electronic Data Interchange (EDI)
    4.3 Electronic Mail (e-mail)
    4.4 Internet and World Wide Web
5. Conclusion

1. Introduction

Article 13 CISG and its counterpart in Article 1:301(6) PECL both provide definitions of similar, albeit not identical terms: While Article 13 CISG deals with the term "writing", Article 1:301(6) PECL addresses "written" statements.

The systematic position of the two provisions in the respective texts makes clear that both are only concerned with formal aspects of the terms "writing" and "written."[1] Article 13 CISG and Article 1:301(6) PECL neither expressly nor implicitly deal with other questions of interpretation of declarations, statements and communications by the parties [2] (these are subject to Article 8 CISG and Articles 5:101 PECL et seq.), nor do they address the question if a written declaration was or must have been comprehensible to the recipient (which is to be resolved according to Articles 8 and 24 CISG).[3] [page 267]

2. Requirement of a "writing" or "written" statements in the CISG and the PECL

Both Article 1:301(6) PECL and Article 13 CISG limit the relevance of their definitions to writing requirements derived from the respective sets of rules ("[i]n these Principles" and [f]or the purposes of this Convention").[4]

Within the PECL, the provisions containing such requirements can be divided into two groups: The first group consists of provisions that require a written statement in order to be applicable (Article 1:304(1) defining the moment when a period of time set by a party in a written statement begins to run,[5] Article 2:207(2) addressing late acceptances contained in a writing, Article 2:210 governing professionals' written confirmations,[6] and Article 3:208 regulating the effect of the principal's silence to a third party's written confirmation including a request to ratify an act of the agent), while the provisions of the second group govern cases in which the contracting parties have provided for a writing requirement in their contract (Article 2.105(1) applying to "merger clauses" and Article 2:106(1) dealing with "no oral modifications" clauses in written contracts).

In the CISG, only few provisions specifically deal with declarations in writing: Article 21(2) CISG which, being identical to Article 2:207(2) PECL,[7] belongs to the first above mentioned group of provisions and is subject to Article 13 CISG,[8] and Articles 12, 96 CISG dealing with form requirements in national laws which may apply due to a declaration of a Contracting State - it is, however, doubtful if Article 13 CISG covers this case as well.[9] Additionally, the [page 268] definition in Article 13 CISG applies to Article 29(2) CISG:[10] This provision expressly addresses contractual "no oral modifications" clauses and is, according to one author,[11] also applicable to merger clauses.[12]

In practical terms, however, the primary importance of Article 13 CISG lies in the fact that its definition also applies to any other contractual "writing" requirement stipulated by the parties:[13] Apart from the clauses envisaged by Article 29(2) CISG, the parties may also subject other declarations in conjunction with the contract's execution to a form requirement, thereby derogating from the rule in Article 11 CISG. Possible contractual writing requirements, for instance, may concern the notice of non-conformity (Articles 39(1), 43(1) CISG),[14] the notice fixing an additional time for performance (Article 47(1) CISG), the buyer's specification of form, measurement or other features of the goods (Article 65(1) CISG), the declaration of avoidance (Article 26 CISG), the notice of the intention to declare the contract avoided because of a future fundamental breach of contract by the other party (Article 72(2) CISG) or the notice of the intention to sell the goods (Article 88(1), (2) CISG). In these cases, it is necessary to first look to Article 8 CISG in order to determine the parties' intent when agreeing on the writing requirement.[15] Whenever it is impossible to ascertain a particular intention, Article 13 CISG will apply.[16] [page 269]

3. Use of Article 1:301(6) PECL in interpreting Article 13 CISG

Article 13 CISG does not provide an exhaustive definition of the term "writing", but merely states that it "includes" telegram and telex. The provision which was incorporated only at the 1980 Vienna Diplomatic Conference [17] and has no direct predecessor in ULF, ULIS or any of the Convention's previous drafts thus reflects the technical standards of the year 1980. Since then, a number of other means of communication not explicitly addressed by Article 13 CISG have started to play an important role in international business transactions.[18] This poses the question if, and under which conditions, modern means of communication can be considered to fulfill writing requirements for the purposes of the CISG.

By stating that "writing" includes telegram and telex, the wording of CISG Article 13 makes clear that it does not fix the outer limits of this term.[19] As writing requirements in and arising in connection with contracts of sale are clearly within the scope of the Convention,[20] recourse is thus to be had to the Convention's general principles addressed by Article 7(2) CISG.[21] Unfortunately, the fact that the Convention itself does not impose any form requirements (see Article 11 CISG), that the legislative history of Article 13 CISG is brief and inconclusive, and that the primary role of Article 13 CISG lies in the interpretation of contractual form requirements, make it difficult to derive a general principle on writing requirements from the Convention.[22] The main purposes of a writing requirement under the CISG identified by some commentators – to establish the content of a declaration [23] and to permit the identification of its author [24] – accordingly seem to have been drawn from national legal systems, not the Convention itself. [page 270]

In this situation, it is preferable to look to Article 1:301(6) PECL as an aid for interpretation: This provision was drafted fifteen years after its counterpart in Article 13 CISG and therefore specifically takes into account the various modern means of communication that have been developed since. By drawing on a wide range of legal materials from within and outside Europe (including the CISG itself),[25] the drafters of Article 1:301(6) PECL have come up with a convincing solution in line with the trend in modern international trade legislation.

4. Modern means of communication under the CISG and the PECL

No differences exist between the two instruments with respect to declarations made by telegram and telex which are explicitly covered by both Article 13 CISG and Article 1:301(6) PECL. Also, neither of the two provisions deals with form requirements demanding a signature, a document signed by both parties or an electronic signature:[26] Contractual stipulations of this kind [27] are subject to the general rule on interpretation in Article 8 PECL.

4.1 Telefax

The first new means of communication introduced to the business community after the Convention's adoption in 1980 was the telefax (telecopy). It is explicitly mentioned in PECL Article 1:301(6) and also in other international instruments containing provisions which have been modelled on CISG Article 13.[28]

Telefaxes are generally considered to be covered by the term "writing" in Article 13 CISG.[29] Some commentators, however, favor a restriction to faxes which have been printed out as opposed to a fax which is transferred from computer to computer and only appears on the [page 271] recipient's screen or is only retrievable,[30] while one author wants to apply Article 13 CISG to declarations which have been transmitted "by fax only", but not to those sent "by fax and post".[31] In the light of Article 1:301(6) PECL, it is not necessary that the telefax has been printed out by the recipient, as long as he had the option to obtain a "readable record" of the statement. This condition is certainly fulfilled if the fax is stored on the recipient's computer system, but also if the fax message merely appears on the recipient's screen and he chooses not to print it out.[32] Accordingly, it is submitted that only telefaxes transferred from computer to computer that merely appear on the recipient's screen without the option of producing a print-out or saving it as an electronic file cannot be considered to be in "writing" in the sense employed by Article 13 CISG.[33] All other telefaxes constitute a "writing" for the purposes of the Convention.

4.2 Electronic Data Interchange (EDI)

Where Electronic Data Interchange, defined as "the electronic interchange of machine processable structured data, which has been formatted according to agreed standards and which can be transmitted directly between different computer systems with the aid of telecommunication interfaces,"[34] is used in connection with a contract of sale, the parties usually have concluded an interchange agreement [35] prior to their first declaration by way of EDI. Such an agreement will often allow courts or arbitrators to determine if the parties had the intent to treat statements made through EDI as a "writing" in the sense employed in their sales contract.[36]

Whenever these indications are insufficient or inconclusive, Article 13 CISG provides the relevant guidelines. A number of commentators have argued that this provision has to be [page 272] read to include EDI.[37] This interpretation seems to be in line with Article 1:301(6) PECL, which makes no explicit mention of EDI, but covers any "means of communication capable of providing a readable record of the statement on both sides."[38] Accordingly, an EDI message suffices where writing is required for the purposes of the Convention.

4.3 Electronic Mail (e-mail)

Under Article 1:301(6) PECL, the term "written" statement explicitly includes declarations made by electronic mail. The main difference between e-mail and Electronic Data Interchange lies in the fact that within the latter system a number of different technical standards for data messages are used which, as they are not necessarily compatible with each other, thus usually require a prior agreement between sender and recipient (the interchange agreement), while the former uses "open" data connections and computer networks.[39] In cases where e-mails have been used, it will therefore not be possible to rely on interchange agreements in order to interpret contractual writing requirements.

As electronic mail is a means of communication capable of providing a readable electronic record of the messages sent (by storing the messages in the mailing systems of the sender and the recipient), it fulfills the standards of Article 13 CISG.[40] This rule applies to any e-mail and does neither require the message to be converted into paper-based form,[14] nor is it restricted to e-mails authenticated by an electronic signature.[42]

4.4 Internet and World Wide Web

The terms "Internet" and "World Wide Web" are often used interchangeably,[43] although they are not synonymous:

The Internet is a massive networking infrastructure connecting millions of computers globally, forming a network in which any computer can communicate with any other computer as long as they are both connected to the Internet. As far as communications via the Internet are concerned that merely use the Internet as a network of data connections through which electronic messages are transmitted between the mailing [page 273] systems of the sender and of the recipient, the situation under Article 13 CISG is identical to the one discussed above.

The World Wide Web, on the contrary, is a way of accessing information over the medium of the Internet. It is thus an information-sharing model that is built on top of the Internet and which is often used for purposes of electronic commerce. As the World Wide Web (the web) is in a number of ways different from e-mail,[44] declarations made over the web require special attention under Article 13 CISG: Frequently, companies' web sites on the web are organized in a way that allows statements to be made to the company by using a "form" provided on the web site. The web user types his message into the form and dispatches it by clicking on the relevant "button". As far as contracts of sale are concerned, this means of communication could e.g., be used to give notices of non-conformity according to Article 39(1) CISG to sellers providing the abovementioned option on their web site.

A declaration made through a web site form does, however, not fulfil the writing requirement as defined in Article 1:301(6) PECL, as it does not provide a readable record of the statement on both sides – once the declaration is dispatched, an electronic record remains on the recipient's side only, but not on the side of the sender (contrary to the use of e-mail, the sender’s mailing system is not involved). When accepting that the prerequisite of a record existing on both sides serves as a compensation for the lack of a paper-based documentation of the statement,[45] declarations over the World Wide Web of the kind described above cannot be considered to fulfil the requirements of Article 13 CISG.

5. Conclusion

As Article 13 CISG does not explicitly deal with the modern means of communication that have been introduced after 1980 and are nowadays frequently used in connection with the conclusion and performance of international sales contracts, the more recently adopted Article 1:301(6) PECL, which has an identical purpose and is based on the same philosophy, provides a useful aid in its interpretation. By looking to its PECL counterpart when applying Article 13 CISG to electronic communications, courts and arbitrators can keep the CISG from becoming a piece of petrified law [46] and, at the same time, allow the Convention to take its place as a part of the emerging global legal framework for electronic commerce.[47] [page 274]


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 (2002-1) 267-274. Pagination to that publication is provided to facilitate citation to the Vindobona text.

A match-up of CISG Article 13 and PECL Article 1:301(6) [Definitions: Written statements] is available at <http://cisgw3.law.pace.edu/cisg/text/peclcomp13.html>. The match-up is accompanied by:

-   Comments on PECL Article 1:301(6) authored by the European Commission describing and illustrating the manner in which it is to be applied; and
-   Notes that compare this PECL Article with continental and common law domestic rules, doctrine and jurisprudence.

1. For Article 13 CISG, see Peter Schlechtriem, Internationales UN-Kaufrecht (1996), no. 98. For PECL Article 1:301(6), see Note 6 to Article 1:301.

2. Rolf Herber & Beate Czerwenka, Internationales Kaufrecht: Kommentar zu dem Übereinkommen der Vereinten Nationen vom 11. April 1980 über Verträge über den internationalen Warenkauf (1980) (1991), Art. 13 no. 4; contra Fritz Enderlein & Dietrich Maskow, International Sales Law (1992), Art. 13 no. 1 [available on-line at <http://cisgw3.law.pace.edu/cisg/biblio/enderlein.html>].

3. See Peter Schlechtriem, Article 24, in Commentary on the UN Convention on the International Sale of Goods (Peter Schlechtriem ed., 1998), no. 15 (unintelligible declarations) and no. 16 (foreign languages).

4. In Oberster Gerichtshof [Supreme Court], Austria, 2 July 1993, Juristische Blätter (1994) 119, at 121 the court observed that the definition in Article 13 CISG applies only "for the purposes of this Convention" and may therefore not be extended to domestic lease contracts; case presentation also available in English at <http://cisgw3.law.pace.edu/cases/930702a3.html>.

5. See Comment B to Article 1:304 PECL which refers to the definition in Article 1:301(6) PECL.

6. See Comment B to Article 2:210 PECL referring to the definition in Article 1:301(6) PECL.

7. See Note 2 to Article 2:207.

8. Miguel Coca Payeras, Articulo 13, in La Compraventa Internacional de Mercaderias: Comentario de la Convencion de Viena, at 158 (Luis Díez-Picazo y Ponce de León ed., 1998); John O. Honnold, Uniform Law for International Sales, no. 130 (3rd ed. 1999); Ulrich Magnus, Artikel 13, in Julius von Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, Wiener UN-Kaufrecht (CISG) (1999), no. 6; Karl H. Neumayer & Catherine Ming, Convention de Vienne sur les Contrats de Vente internationale de Marchandises (1993), Art. 13 no. 2; Wolfgang Witz, Artikel 13, in International Einheitliches Kaufrecht: Praktiker-Kommentar und Vertragsgestaltung zum CISG, no. 1 (Wolfgang Witz, Hanns-Christian Salger & Manuel Lorenz eds., 2000).

9. It is subject to dispute if the opening phrase of Article 13 CISG ("For the purposes of this Convention") covers cases where the writing requirement itself is rooted in domestic law and CISG Article 96 merely allows its application; see, on the one hand, Enderlein & Maskow, supra note 2, Art. 13 no. 1; Herber & Czerwenka, supra note 2, Art. 13 no. 2; Schlechtriem, supra note 3, Article 13, no. 4 (arguing that CISG Article 13 should apply); and, on the other hand, Siegfried Eiselen, Electronic Commerce and the UN Convention on Contracts for the International Sale of Goods (CISG) 1980, 6 EDI Law Review (1999), at 36, also available on-line at <http://cisgw3.law.pace.edu/cisg/biblio/eiselen1.html; Honnold supra note 8, no. 130; Jerzy Rajski, Article 13, in Commentary on International Sales Law, no. 3.1 (Cesare Massimo Bianca & Michael Joachim Bonell eds., 1987) (stating that Article 13 CISG does not apply). As this dispute concerns the scope of Article 13 CISG, the PECL cannot insofar serve as an aid to interpretation.

10. Bernard Audit, La vente internationale de marchandises: Convention des Nations-Unies du 11 avril 1980 (1990), at 74; Coca Payeras, supra note 8, at 158; Enderlein & Maskow, supra note 2, Art. 13 no. 1; Honnold, supra note 8 no. 130; Magnus, supra note 8, no. 1; Neumayer & Ming, supra note 8, Art. 13 no. 2; Rajski, supra note 9, no. 1.1; Schlechtriem, supra note 9, no. 3.

11. Schlechtriem, supra note 3, Article 29 no. 6. See also ICC Arbitral Award, March 1998, No. 9117, where the arbitral tribunal remarked that "[t]he written modification clause [the significance of which was explained referring to Article 29(2) CISG] has the same effects as the merger clause with regard to any future negotiations, promises and any other extrinsic evidence which otherwise might be adduced for supplementing, altering or contradicting the written contract." [Case presentation available at http://cisgw3.law.pace.edu/cases/989117i1.html.]

12. The term "writing" is also used in Article 11 CISG. Its exact definition, however, is not necessary for the purposes of this provision as Article 11 CISG also rejects "any other requirement as to form."

13. Enderlein & Maskow, supra note 2, Art. 13 no. 1; Magnus, supra note 8, no. 6; Neumayer & Ming, supra note 8, Art. 13 no. 2; Rajski, supra note 9, no. 3.1; Witz, supra note 8, no. 1.

14. See Landgericht [District Court] Stuttgart, Germany, 13 August 1991, 16 S 40/91, [case presentation also available on-line at http://cisgw3.law.pace.edu/cases/910813g1.html], where the seller's standard terms required the buyer's notice of non-conformity to be given by registered letter (lettre recommandée).

15. Herber & Czerwenka, supra note 2, Art. 13 no. 5; Werner Melis, Artikel 13, in Kommentar zum UN-Kaufrecht, no. 6 (Heinrich Honsell ed., 1997); Neumayer & Ming, supra note 8, Art. 13 no. 2; Schlechtriem, supra note 1, no. 98.

16. See Schlechtriem, supra note 11, no. 7: If one party's use of the term "writing" was intended to impose stricter requirements than in Article 13 CISG (e.g., he intended it to have the sense it has in his own domestic law), that party bears the burden of proving that pursuant to Article 8 CISG his declaration was intended to derogate from Article 13 CISG and that the other party accepted it as such.

17. See U.N. Official Records (1981), at 74.

18. Cf. Eiselen, supra note 9, at 36; Franco Ferrari, Einige kurze Anmerkungen zur Anwendbarkeit des UN-Kaufrechts beim Vertragsschluss über das Internet, European Legal Forum (2000/01) 301, at 305.

19. Wilhelm-Albrecht Achilles, Kommentar zum UN-Kaufrechtsübereinkommen (CISG) (2000), Art. 13 no. 1; Enderlein & Maskow, supra note 2, Art. 13 no. 1; Honnold, supra note 8, no. 130; Magnus, supra note 8, no. 5; Neumayer & Ming, supra note 8, Art. 13 no. 1.

20. Eiselen, supra note 9, at 36. This of course only applies to matters of sales law – as far as writing requirements relating to matters which are often addressed in contracts of sale but are not governed by the CISG are concerned (e.g., arbitration clauses or guarantees of payments and performance), the writing requirement is subject to national law. See Schlechtriem, supra note 3, Article 11 no. 10.

21. Coca Payeras, supra note 8, at 159; Eiselen, supra note 9, at 29, 36.

22. Rolf Herber, Article 7, in Commentary on the UN Convention on the International Sale of Goods, no. 36 (Peter Schlechtriem ed., 1998), on the contrary, considers the principle that declarations may be made without observing requirements as to form to be a general principle of the Convention in accordance with CISG Article 7(2); accord Schlechtriem, supra note 1, no. 49.

23. Rajski, supra note 9, no. 2.2; see also Peter Schlechtriem, Artikel 13, in Kommentar zum Einheitlichen UN-Kaufrecht, no. 2 (Peter Schlechtriem ed., 3rd ed. 2000).

24. Coca Payeras, supra note 8, at 159; Magnus, supra note 8, no. 4; Rajski, supra note 9, no. 2.2.

25. See Note 6 to Article 1:301 stating that CISG Article 13 is "narrower".

26. Schlechtriem, supra note 23, no. 2.

27. The Convention itself does not require a signature in its Articles 21(2) and 29(2), see Honnold, supra note 8, no. 130. Such requirements can, however, frequently be found in contractual clauses; see U.S. District Court S.D.N.Y., 22 September 1994, 92 Civ. 3655 (JFK) – Graves Import Company Ltd. & Italian Trading Company v. Chilewich International Corp., where the contract stipulated that "[n]o amendments and additions to the present Contract shall be valid unless the same are in writing and signed by duly authorized representatives of both parties." [Case presentation available on-line, at http://cisgw3.law.pace.edu/cases/940922u1.html].

28. E.g., Uniform Act Relating to General Commercial Law of the Organization for the Harmonization of Business Law in Africa (OHADA) Article 209, see Ulrich G. Schroeter, Das einheitliche Kaufrecht der afrikanischen OHADA-Staaten im Vergleich zum UN-Kaufrecht, Recht in Afrika (2001) 163, at 167 [available on-line at http://cisgw3.law.pace.edu/cisg/biblio/schroeter.html].

29. Audit, supra note 10, at 73; Eiselen, supra note 9, at 29; Herber & Czerwenka, supra note 2, Art. 13 no. 4; Vincent Heuzé, La vente internationale de marchandises (1992), no. 205; Honnold, supra note 8, no. 130; Magnus, supra note 8, no. 5; Neumayer & Ming, supra note 8, Art. 13 no. 1.

30. Achilles, supra note 19, Art. 13 no. 1; Schlechtriem, supra note 23, no. 2; Witz, supra note 8, no. 2 (requiring that the fax is "directly" printed out by the recipient).

31. Melis, supra note 15, no. 4. This distinction, it is submitted, is hardly convincing.

32. The recipient's situation is comparable to that of a person receiving a (paper-based) letter: The declaration contained therein is beyond doubt "in writing", even if the recipient subsequently destroys the letter.

33. This interpretation also conforms to the definition contained in a recent UNCITRAL text: The Convention on the Assignment of Receivables in International Trade (2001), Article 5(c) defines "writing" as "any form of information that is accessible so as to be usable for subsequent reference."

34. Eiselen, supra note 9, at 23.

35. Eiselen, supra note 9, at 37 et seq. On standard interchange agreements, see Amelia H. Boss, Electronic Commerce and the Symbiotic Relationship Between International and Domestic Law Reform, 72 Tulane Law Review (1998) 1931, at 1949 et seq.

36. See Eiselen, supra note 9, at 27: "[i]f an Interchange Agreement specifically prescribes the methods of communications [...], that should be heeded." An interchange agreement may also be taken into account if the sales contract incorporating the form requirement was concluded prior to the interchange agreement, as under Article 8(3) CISG due consideration is to be given to "all circumstances of the case including [...] any subsequent conduct of the parties" when determining their intent.

37. Eiselen, supra note 9, at 36; Honnold, supra note 8, no. 130; Magnus, supra note 8, no. 5.

38. It is the present author's position that a readable record in electronic format suffices for the purposes of CISG Article 13; see supra, 4 a) (on telefaxes transmitted from computer to computer); contra Witz, supra note 8, no. 2.

39. The most important network system for the transmission of e-mails is the Internet; see the text infra, at 4 d) for a brief description.

40. Eiselen, supra note 9, at 36; Magnus, supra note 8, no. 5; Willibald Posch, Article 13, in Praxiskommentar zum ABGB samt Nebengesetzen, no. 3 (Michael Schwimann ed., 2nd ed. 1997); contra Witz, supra note 8, no. 2.

41. Magnus, supra note 8, no. 5; contra Achilles, supra note 19, Art. 13 no. 1; Schlechtriem, supra note 1, no. 68.

42. Magnus, supra note 8, no. 5; but see Schlechtriem, supra note 23, no. 2.

43. Cf. e.g. Schlechtriem, supra note 23, no. 2.

44. The main technical difference is that the World Wide Web and e-mail rely on different protocols to transmit data over the Internet: The web uses the HTTP protocol, whereas e-mail uses the SMTP protocol.

45. It has to be kept in mind that the traditional paper-based form of communication qualifying as a "writing" in the sense employed by Article 13 CISG – the letter – does, once received by the recipient, only provide a record of the statement on one side (the recipient's), but not on the side of the sender.

46. See Eiselen, supra note 9, at 21.

47. See Boss, supra note 35, at 1979.


Pace Law School Institute of International Commercial Law - Last updated November 3, 2008
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