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2012 UNCITRAL Digest of case law on the United Nations Convention on the International Sale of Goods

Digest of Article 6 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
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.

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. Thus, even if the Convention would otherwise be applicable, courts must determine that the parties have not excluded the Convention nor derogated from its provisions,[1] thus elevating the lack of an exclusion to an applicability requirement of the Convention.

2. According to several courts, opting-out requires a clear,[2] unequivocal[3] and affirmative[4] agreement of the parties.[5] According to one court, however, for the Convention not to apply it suffices that the "contract contains a choice-of-law provision."[6] A different court even stated that for the Convention not to apply it suffices that "there is an objection to the application of the Convention" by one party.[7]

3. By allowing the parties to exclude the Convention or derogate from its provisions, the drafters affirmed the principle that the primary source of rules for international sales contracts is party autonomy.[8] Thus the drafters clearly acknowledged the Convention's non-mandatory nature[9] and the central role that party autonomy plays in international commerce -- specifically, in international sales.[10]

Derogation

4. Article 6 distinguishes between excluding application of the Convention entirely and derogating from some of its provisions.[11] The former is not subject to any express limitations in the Convention, but the latter is. Where one party to a contract governed by the Convention has its place of business in a State that has made a reservation under article 96,[12] the parties may not derogate from or vary the effect of article 12.[13] In such cases, therefore, 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" (article 12). Otherwise, the Convention does not expressly limit the parties' right to derogate from any provision of the Convention.

5. Although the Convention does not expressly so state, the parties cannot derogate from the public international law provisions of the Convention (i.e. articles 89-101) because those provisions address issues relevant to Contracting States rather than private parties.[14] One court also stated that article 28 of the Convention cannot be derogated from.[15]

6. One court acknowledged, for instance, that parties can derogate from the "reasonable time" period for notice set forth in article 39(1) by stating, for example, that notice must be given "within five working days from the delivery."[16] One arbitral tribunal stated that the parties can derogate from the two-year cut-off period provided in article 39(2).[17] A different tribunal stated that the parties are allowed to derogate from the concept of "delivery" as found in the Convention.[18] Yet another court affirmed that article 55, relating to open-price contracts, is only applicable where the parties have not agreed to the contrary.[19] The Austrian Supreme Court[20] concluded that article 57 also can be derogated from. An arbitral tribunal stated that article 6 of the Convention allows parties to derogate from the Convention's rules on liability.[21]

Express exclusion

7. The parties can expressly exclude application of the Convention[22] through, inter alia, the incorporation of standard contract terms containing a clause expressly excluding the Convention.[23] Express exclusions come in two varieties: exclusion with and exclusion without indication by the parties of the law applicable to their contract. Where the parties expressly exclude the Convention and specify the applicable law, which in some countries can occur in the course of legal proceedings,[24] the law applicable will be that designated by the rules of private international law of the forum,[25] resulting (in most countries)[26] in application of the law chosen by the parties.[27] Where the parties expressly exclude the Convention but do not designate the applicable law, the governing law is to be identified by means of the private international law rules of the forum.

8. One court stated that the Convention was applicable, despite the express exclusion in the applicable standard contract terms, of the Convention's antecedents -- namely, the Uniform Law on the Formation of Contracts for the International Sale of Goods and the Convention relating to a Uniform Law on the International Sale of Goods.[28]

Implicit exclusion

9. A number of decisions have considered whether application of the Convention can be excluded implicitly. Many tribunals expressly admit the possibility of an implicit exclusion,[29] as long as the parties' intent to exclude the Convention is clear[30] and real.[31] Although there is no express support for this view in the language of the Convention, a majority of delegations were opposed to a proposal advanced during the diplomatic conference which would have permitted total or partial exclusion of the Convention only if done "expressly".[32] An express reference to the possibility of an implicit exclusion was eliminated from the text of the Convention merely "lest the special reference to 'implied' exclusion might encourage courts to conclude, on insufficient grounds, that the Convention had been wholly excluded".[33] According to some court decisions[34] and an arbitral award,[35] however, the Convention cannot be excluded implicitly, based on the fact that the Convention does not expressly provide for that possibility.

10. Although the Convention's exclusion is to be evaluated on a case-by-case basis,[36] a variety of ways in which the parties can implicitly exclude the Convention -- for example, by choosing the law[37] of a non-Contracting State as the law applicable to their contract[38] -- have been recognized.

11. More difficult problems are posed if the parties choose the law of a Contracting State to govern their contract. Some arbitral awards[39] and several court decisions[40] suggest that such a choice amounts to an implicit exclusion of the Convention, at least when the parties refer to the "exclusive" applicability of the law of a Contracting State.[41] Most court decisions[42] and arbitral awards,[43] however, take a different view. They mainly reason that the Convention is part of the law of the Contracting State whose law the parties chose;[44] and that the parties' choice remains meaningful because it identifies the national law to be used for filling gaps in the Convention.[45] 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 exclude the Convention's applicability,[46] not even where the law chosen is that of a State within a Federal State,[47] at least not according to some courts.[48] Of course, if the parties clearly chose the domestic law of a Contracting State, the Convention must be deemed excluded.[49] According to one court, for the Convention to be considered implicitly excluded, it suffices that the Contract contains a clause making "Australian law applicable under exclusion of UNCITRAL law".[50]

12. According to some courts, the Convention is implicitly excluded by the parties' choice of "the law of a contracting state insofar as it differs from the law of the national law of another Contracting State."[51]

13. The choice of a forum may also lead to the implicit exclusion of the Convention's applicability.[52] However, an exclusion of the application of the Convention cannot be inferred solely from the fact that the standard terms provided for the jurisdiction of the courts of a "Contracting State."[53]

14. The question has arisen whether the Convention's application is excluded if the parties litigate a dispute solely on the basis of domestic law, despite the fact that all requirements for applying the Convention are satisfied. Pursuant to various decisions, the mere fact that the parties based their arguments on domestic law does not by itself lead to the exclusion of the Convention.[54] According to different courts, if the parties are not aware of the Convention's applicability and argue on the basis of a domestic law merely because they wrongly believe that law applies, judges should apply the Convention.[55] According to yet other courts, the Convention is excluded where the parties argued their case solely under the domestic law of the forum.[56] Similarly, some arbitral tribunals disregarded the Convention where the parties had based their pleadings solely on domestic law.[57] Where the parties each base their pleadings on their respective domestic law, the Convention cannot be considered to have been excluded by the parties.[58]

15. According to some courts, the fact that the parties incorporated an Incoterm into their agreement does not constitute an implicit exclusion of the Convention.[59] According to a different court, the Convention can be excluded if the parties agree on terms that are incompatible with the Convention.[60]

16. One arbitral tribunal expressly stated that "[w]hen a contractual clause governing a particular matter is in contradiction with the Convention, the presumption is that the parties intended to derogate from the Convention on that particular question. It does not affect the applicability of the Convention in general. The parties' specific agreement to reduce, to 12 months, the two-year time limit provided for in article 39 [of the Convention] does not lead the Arbitral Tribunal to another finding."[61]

17. The party alleging exclusion of the Convention bears the burden of proof regarding the existence of an agreement on the exclusion of the Convention.[62]

Opting-in

18. Although the Convention expressly empowers the parties to exclude its application in whole or in part, it does not declare whether the parties may designate the Convention as the law governing their contract when it would not otherwise apply. This issue was expressly addressed in 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 gave the parties the power to "opt in". The fact that the Convention contains no comparable provision does not necessarily mean that the parties are prohibited from "opting in". A proposal by the former German Democratic Republic during the diplomatic conference[63] that the Convention should apply even where the preconditions for its application were not met, provided the parties wanted it to be applicable, was rejected; it was noted during the discussion, however, 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.


NOTES

* This presentation of the UNCITRAL Digest is a slightly modified version of the original UNCITRAL text at <http://www.uncitral.org/pdf/english/clout/CISG-digest-2012-e.pdf>. The following modifications were made by the Institute of International Commercial Law of the Pace University School of Law:

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1. For this approach see, e.g., [NETHERLANDS Gerechtshof Arnhem 9 March 2010 (docket No. 104.002.936)]; [SWITZERLAND Kantonsgericht St. Gallen 15 June 2010]; [GERMANY Oberlandesgericht Hamm 2 April 2009]; [ITALY Tribunale di Forlì 16 February 2009]; [NETHERLANDS Rechtbank Breda 16 January 2009]; [GREECE Polymeles Protodikio Athinon 2009 (docket No. 2282/2009)]; [GREECE Polimeles Protodikio Athinon 2009 (docket No. 4505/2009)]; CLOUT case No. 867 [ITALY Tribunale di Forlì 11 December 2008]; [SWITZERLAND Kantonsgericht Zug 27 November 2008]; [BELGIUM Hof van Beroep Ghent 14 November 2008]; [UNITED STATES District Court, New Jersey 7 October 2008]; [UNITED STATES District Court, Southern District of Florida 19 May 2008]; [AUSTRIA Oberlandesgericht Innsbruck 18 December 2007]; [AUSTRIA Oberlandesgericht Linz 24 September 2007]; [SWITZERLAND Handelsgericht Kanton Aargau 20 September 2007]; [SPAIN Audiencia Provincial de Valencia, sección 1 13 March 2007]; CLOUT case No. 933 [SWITZERLAND Bundesgericht 20 December 2006]; CLOUT case No. 824 [GERMANY Oberlandesgericht Köln 24 May 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 April 2006]; [GERMANY Oberlandesgericht Köln 3 April 2006]; CLOUT case No. 749 [AUSTRIA 21 June 2005 Oberster Gerichtshof]; CLOUT case No. 748 [AUSTRIA 24 May 2005 Oberster Gerichtshof]; CLOUT case No. 905 [SWITZERLAND Tribunal cantonal du Valais 21 February 2005]; CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005]; [AUSTRIA Oberster Gerichtshof 21 April 2004]; [ITALY Tribunale di Padova 25 February 2004]; [SWITZERLAND Bundesgericht 19 February 2004]; CLOUT case No. 596 [GERMANY Oberlandesgericht Zweibrücken 2 February 2004] (see full text of the decision); CLOUT case No. 534 [AUSTRIA Oberster Gerichtshof 17 December 2003] (see full text of the decision); [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 10 December 2003]; CLOUT case No. 889 [SWITZERLAND Handelsgericht Zürich 24 October 2003]; [SWITZERLAND Obergericht Thurgau 11 September 2003]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 15 August 2003]; [GERMANY Landgericht Köln 25 March 2003]; [SWITZERLAND Kantonsgericht Schaffhausen 23 April 2002]; CLOUT case No. 880 [SWITZERLAND Tribunal cantonal du Vaud 11 April 2002] (see the full text of the decision); [BELGIUM Rechtbank van Koophandel Veurne 25 April 2001]; [DENMARK Højesteret 15 February 2001]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; CLOUT case No. 338 [GERMANY Oberlandesgericht Hamm 23 June 1998]; CLOUT case No. 223 [FRANCE Cour d'appel de Paris 15 October 1997] (see full text of the decision); CLOUT case No. 230 [GERMANY Oberlandesgericht Karlsruhe 25 June 1997] (see full text of the decision); CLOUT case No. 190 [AUSTRIA Oberster Gerichtshof 11 February 1997] (see full text of the decision); CLOUT case No. 311 [GERMANY Oberlandesgericht Köln 8 January 1997] (see full text of the decision); CLOUT case No. 211 [SWITZERLAND Tribunal Cantonal de Vaud 11 March 1996] (see full text of the decision); CLOUT case No. 170 [GERMANY Landgericht Trier 12 October 1995] (see full text of the decision); CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof 10 November 1994] (see full text of the decision); CLOUT case No. 199 [SWITZERLAND Tribunal Cantonal Valais 29 June 1994] (see full text of the decision); CLOUT case No. 317 [GERMANY Oberlandesgericht Karlsruhe 20 November 1992] (see full text of the decision).

2. CLOUT case No. 1025 [FRANCE Cour de Cassation 3 November 2009]]; [AUSTRIA Oberlandesgericht Linz 23 January 2006]; CLOUT case No. 904 [SWITZERLAND Tribunal Cantonal du Jura 3 November 2004]; CLOUT case No. 575 [UNITED STATES Court of Appeals (5th Circuit) 11 June 2003, corrected on 7 July 2003] (see full text of the decision); CLOUT case No. 433 [UNITED STATES District Court, Northern District of California 27 July 2001 (Asante Technologies v. PMC-Sierra)]; [BELGIUM Tribunal de Commerce Namur 15 January 2002].

3. U.S. District Court, Southern District of New York, United States, 11 January 2011, unpublished; [AUSTRIA Oberster Gerichtshof 4 July 2007]; [AUSTRIA Oberlandesgericht Linz 23 January 2006].

4. [UNITED STATES District Court, Middle District of Pennsylvania 16 August 2005].

5. CLOUT case No. 828 [NETHERLANDS Hof's-Hertogenbosch 2 January 2007].

6. [UNITED STATES District Court, Eastern District of California 21 January 2010].

7. [CHINA Shanghai High People's Court, People's Republic of China, 17 May 2007].

8. For a reference to this principle, see CLOUT case No. 229 [GERMANY Bundesgerichtshof 4 December 1996] (see full text of the decision).

9. For an express reference to the Convention's non-mandatory nature, see [SWITZERLAND Obergericht Kanton Bern 19 May 2008]; [CHINA Shanghai High People's Court, People's Republic of China, 17 May 2007]; [SWITZERLAND Tribunal cantonal de Vaud 24 November 2004]; CLOUT case No. 904 [SWITZERLAND Tribunal Cantonal du Jura 3 November 2004]; CLOUT case No. 880 [SWITZERLAND Tribunal cantonal du Vaud 11 April 2002] (see the text of the decision); CLOUT case No. 647 [ITALY Cassazione civile 19 June 2000]; see CLOUT case No. 425 [AUSTRIA Oberster Gerichtshof 21 March 2000]; CLOUT case No. 240 [AUSTRIA Oberster Gerichtshof 15 October 1998] (see full text of the decision); [AUSTRIA Handelsgericht Wien 4 March 1997]; CLOUT case No. 199 [SWITZERLAND Tribunal Cantonal Valais 29 June 1994].

10. CLOUT case No. 432 [GERMANY Landgericht Stendal 12 October 2000].

11. For decisions referring to the fact that parties may exclude the application of the Convention or derogate from or vary the effect of most of its provisions, see [SWITZERLAND Zivilgericht Basel-Stadt 8 November 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 30 June 2006]; [AUSTRIA Oberlandesgericht Linz 23 January 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 16 March 2005]; [SWITZERLAND Handelsgericht St. Gallen 11 February 2003]; CLOUT case No. 574 [UNITED STATES District Court, Northern District of Illinois 29 January 2003]; CLOUT case No. 880 [SWITZERLAND Tribunal cantonal du Vaud 11 April 2002] (see the full text of the decision).

12. 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."

13. For an express reference in case law to the fact that the parties are not allowed to exclude article 12, see [AUSTRIA Oberlandesgericht Linz 23 January 2006].

14. CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005].

15. Ibid.

16. [NETHERLANDS Rechtbank Arnhem 11 February 2009]; see also [GERMANY Landgericht Gießen 5 July 1994].

17. [ICC Court of Arbitration of the International Chamber of Commerce, France, 2002 (Arbitral award No. 11333)].

18. [SWITZERLAND Zivilgericht Basel-Stadt 8 November 2006].

19. CLOUT case No. 151 [FRANCE Cour d'appel de Grenoble 26 April 1995].

20. CLOUT case No. 106 [AUSTRIA Oberster Gerichtshof 10 November 1994].

21. [UKRAINE Tribunal of International Commercial Arbitration at the Ukraine Chamber of Commerce and Trade 2005 (Arbitral award No. 48)].

22. For cases in which the Convention was expressly excluded, see Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce [SERBIA 17 August 2009]; [NETHERLANDS Rechtbank Utrecht 15 April 2009]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 5 November 2004]. For cases in which reference was made to the parties' undisputed possibility of excluding the Convention expressly, see, e.g., CLOUT case No. 1057 [AUSTRIA Oberster Gerichtshof 2 April 2009]; [GERMANY Oberlandesgericht Hamm 2 April 2009]; CLOUT case No. 867 [ITALY Tribunale di Forlì 11 December 2008].

23. [GERMANY Oberlandesgericht Oldenburg 20 December 2007]; [AUSTRIA Oberster Gerichtshof 4 July 2007]. For a simple reference to the possibility of excluding the Convention expressly by resorting to standard contract terms, see CLOUT case No. 904 [SWITZERLAND Tribunal Cantonal du Jura 3 November 2004].

24. This is true for instance in Germany, as pointed out in case law; see, for example, CLOUT case No. 122 [GERMANY Oberlandesgericht Köln 26 August 1994]; CLOUT case No. 292 [GERMANY Oberlandesgericht Saarbrücken 13 January 1993] (see full text of the decision); this is also true in Switzerland, see CLOUT case No. 331 [SWITZERLAND Handelsgericht Kanton Zürich 10 February 1999].

25. See CLOUT case No. 231 [GERMANY Bundesgerichtshof 23 July 1997] (see full text of the decision); [GERMANY Oberlandesgericht Frankfurt 15 March 1996].

26. 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), in the Rome I Regulation, 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.

27. [SERBIA Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce 17 August 2009].

28. CLOUT case No. 826 [GERMANY Oberlandesgericht München 19 October 2006].

29. See CLOUT case No. 1057 [AUSTRIA Oberster Gerichtshof 2 April 2009]; [GERMANY Oberlandesgericht Hamm 2 April 2009]; [SWITZERLAND Obergericht des Kantons Aargau 3 March 2009]; [ITALY Tribunale di Forlì 16 February 2009]; CLOUT case No. 1020 [SERBIA Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce 28 January 2009]; [GREECE Polimeles Protodikio Athinon 2009 (docket No. 4505/2009)]; CLOUT case No. 867 [ITALY Tribunale di Forlì 11 December 2008]; [SWITZERLAND Obergericht Kanton Bern 19 May 2008]; [AUSTRIA Oberster Gerichtshof 4 July 2007]; [AUSTRIA Oberlandesgericht Linz 23 January 2006]; CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005]; [ITALY Tribunale di Padova 25 February 2004]; CLOUT case No. 534 [AUSTRIA Oberster Gerichtshof 17 December 2003] (see full text of the decision); CLOUT case No. 886 [SWITZERLAND Handelsgericht St. Gallen 3 December 2002]; CLOUT case No. 880 [SWITZERLAND Tribunal cantonal du Vaud 11 April 2002] (see the text of the decision); [ICC Court of Arbitration of the International Chamber of Commerce, France, 2002 (Arbitral award No. 11333)]; CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001]; [FRANCE Cour de Cassation 26 June 2001]; CLOUT case No. 483 [BELGIUM Rechtbank van Koophandel Kortrijk 19 April 2001]; CLOUT case No. 483 [SPAIN Audiencia Provincial de Alicante 16 November 2000]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; [GERMANY Oberlandesgericht Dresden 27 December 1999]; CLOUT case No. 273 [GERMANY Oberlandesgericht München 9 July 1997] (see full text of the decision); [GERMANY Landgericht München 29 May 1995]; CLOUT case No. 136 [GERMANY Oberlandesgericht Celle 24 May 1995] (see full text of the decision). See also the decisions cited in the following notes.

30. [AUSTRIA Oberlandesgericht Linz 23 January 2006]; CLOUT case No. 904 [SWITZERLAND Tribunal Cantonal du Jura 3 November 2004]; CLOUT case No. 575 [UNITED STATES Court of Appeals (5th Circuit) 11 June 2003, corrected on 7 July 2003] (see full text of the decision); CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001].

31. CLOUT case No. 904 [SWITZERLAND Tribunal Cantonal du Jura 3 November 2004].

32. 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.

33. Ibid. article 17.

34. See [UNITED STATES District Court, New Jersey 7 October 2008]; CLOUT case No. 845 [UNITED STATES District Court, Eastern District Michigan 28 September 2007]; CLOUT case No. 847 [UNITED STATES District Court, Minnesota 31 January 2007]; [UNITED STATES District Court, Southern District of New York 23 August 2006]; [UNITED STATES District Court, Middle District of Pennsylvania 16 August 2005]; [UNITED STATES District Court, New Jersey 15 June 2005]; [SWITZERLAND Kantonsgericht Zug 11 December 2003]; [GERMANY Landgericht Landshut 5 April 1995]; [UNITED STATES Court of International Trade 24 October 1989, 726 Fed. Supp. 1344 (Orbisphere Corp. v. United States)].

35. See CLOUT case No. 474 [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 24 January 2000].

36. For this statement, see [AUSTRIA Oberlandesgericht Linz 23 January 2006]; CLOUT case No. 904 [SWITZERLAND Tribunal Cantonal du Jura 3 November 2004] (see full text of decision).

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

38. See [AUSTRIA Oberlandesgericht Linz 23 January 2006]; CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005] (see full text of the decision); CLOUT case No. 904 [SWITZERLAND Tribunal Cantonal du Jura 3 November 2004] (see full text of decision); CLOUT case No. 574 [UNITED STATES District Court, Northern District of Illinois 29 January 2003]; CLOUT case No. 49 [GERMANY Oberlandesgericht Düsseldorf 2 July 1993] (see full text of the decision); see also CLOUT case No. 483 [SPAIN Audiencia Provincial de Alicante 16 November 2000] (the parties implicitly excluded application of the Convention by providing that their contract should be interpreted in accordance with the law of a Non-contracting State and by submitting their petitions, statements of defense, and counterclaims in accordance with the domestic law of the forum (a Contracting State)).

39. See [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 16 March 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 12 April 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 11 October 2002]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 6 September 2002]; CLOUT case No. 92 [ITALY Ad Hoc Arbitration Tribunal 19 April 1994].

40. See [NETHERLANDS Hof 's-Hertogenbosch 13 November 2007]; CLOUT case No. 904 [SWITZERLAND Tribunal Cantonal du Jura 3 November 2004] (see full text of decision); [FRANCE Cour d'appel de Colmar 26 September 1995]; CLOUT case No. 326 [SWITZERLAND Kantonsgericht Zug 16 March 1995]; CLOUT case No. 54 [ITALY Tribunale Civile de Monza 14 January 1993].

41. [NETHERLANDS Hof's-Hertogenbosch 13 November 2007].

42. [GERMANY Bundesgerichtshof 11 May 2010]; CLOUT case No. 1057 [AUSTRIA Oberster Gerichtshof 2 April 2009]; [SWITZERLAND Obergericht des Kantons Aargau 3 March 2009]; [GREECE Polimeles Protodikio Athinon 2009 (docket No. 4505/2009)]; [NETHERLANDS Rechtbank Rotterdam 5 November 2008]; [GERMANY Oberlandesgericht Stuttgart 31 March 2008]; CLOUT case No. 845 [UNITED STATES District Court, Eastern District Michigan 28 September 2007]; [BELGIUM Hof van Beroep Antwerpen 24 April 2006]; [BELGIUM Rechtbank van Koophandel Hasselt 15 February 2006]; [AUSTRIA Oberlandesgericht Linz 23 January 2006]; [AUSTRIA Oberlandesgericht Linz 8 August 2005]; [AUSTRIA Oberster Gerichtshof 26 January 2005]; CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005] (see full text of the decision); [SWITZERLAND Tribunal cantonal de Vaud 24 November 2004]; [BELGIUM Hof van Beroep Ghent 20 October 2004]; [GERMANY Landgericht Kiel 27 July 2004]; CLOUT case No. 534 [AUSTRIA Oberster Gerichtshof 17 December 2003] (see full text of the decision); CLOUT case No. 575 [UNITED STATES Court of Appeals (5th Circuit) 11 June 2003, corrected on 7 July 2003]; CLOUT case No. 574 [UNITED STATES District Court, Northern District of Illinois 29 January 2003]; CLOUT case No. 886 [SWITZERLAND Handelsgericht St. Gallen 3 December 2002]; [GERMANY Oberlandesgericht Zweibrücken 26 July 2002]; CLOUT case No. 881 [SWITZERLAND Handelsgericht Zürich 9 July 2002] (see full text of the decision); [BELGIUM Hof van Beroep Ghent 15 May 2002]; CLOUT case No. 447 [UNITED STATES District Court, Southern District of New York 26 March 2002]; CLOUT case No. 541 [AUSTRIA Oberster Gerichtshof 14 January 2002] (see full text of the decision approving lower appeals court reasoning); CLOUT case No. 482 [FRANCE Cour d'appel de Paris 6 November 2001]; CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001]; CLOUT case No. 631 [AUSTRALIA Supreme Court of Queensland 17 November 2000]; CLOUT case No. 429 [GERMANY Oberlandesgericht Frankfurt 30 August 2000]; CLOUT case No. 630 [ICC Court of Arbitration of the International Chamber of Commerce, Zurich July 1999] (see full text of the decision); CLOUT case No. 270 [GERMANY Bundesgerichtshof 25 November 1998]; CLOUT case No. 297 [GERMANY Oberlandesgericht München 21 January 1998] (see full text of the decision); CLOUT case No. 220 [SWITZERLAND Kantonsgericht Nidwalden 3 December 1997]; CLOUT case No. 236 [GERMANY Bundesgerichtshof 23 July 1997]; CLOUT case No. 287 [GERMANY Oberlandesgericht München 9 July 1997]; CLOUT case No. 230 [GERMANY Oberlandesgericht Karlsruhe 25 June 1997] (see full text of the decision); CLOUT case No. 214 [SWITZERLANDHandelsgericht des Kantons Zürich 5 February 1997] (see full text of the decision); CLOUT case No. 206 [FRANCE Cour de Cassation 17 December 1996] (see full text of the decision); CLOUT case No. 409 [GERMANY Landgericht Kassel 15 February 1996]; CLOUT case No. 125 [GERMANY Oberlandesgericht Hamm 9 June 1995]; [NETHERLANDS Rechtbank s'Gravenhage 7 June 1995]; CLOUT case No. 167 [GERMANY Oberlandesgericht München 8 February 1995] (see full text of the decision); CLOUT case No. 120 [GERMANY Oberlandesgericht Köln 22 February 1994]; CLOUT case No. 281 [GERMANY Oberlandesgericht Koblenz 17 September 1993]; CLOUT case No. 48 [GERMANY Oberlandesgericht Düsseldorf 8 January 1993].

43. See [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 22 October 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 17 September 2003]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 25 June 2003]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 16 June 2003]; [ICC Court of Arbitration of the International Chamber of Commerce, France, 2002 (Arbitral award No. 11333)]; [ICC Court of Arbitration of the International Chamber of Commerce, 1999 (Arbitral award No. 9187)]; CLOUT case No. 166 [GERMANY Schiedsgericht der Handelskammer Hamburg 21 March, 21 June 1996]; [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 17 November 1995]; [ICC Court of Arbitration of the International Chamber of Commerce, France, 1995 (Arbitral award No. 8324)]; [ICC Court of Arbitration of the International Chamber of Commerce, France, 1994 (Arbitral award No. 7844)]; CLOUT case No. 302 [ICC Court of Arbitration of the International Chamber of Commerce, France, 1994 (Arbitral award No. 7660)]; CLOUT case No. 300 [ICC Court of Arbitration of the International Chamber of Commerce, France, 1994 (Arbitral award No. 7565)]; CLOUT case No. 103 [ICC Court of Arbitration of the International Chamber of Commerce, 1993 (Arbitral award No. 6653]; CLOUT case No. 93 [AUSTRIA Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft -- Wien 15 June 1994].

44. See, e.g., CLOUT case No. 1057 [AUSTRIA Oberster Gerichtshof 2 April 2009]; [AUSTRIA Oberster Gerichtshof 26 January 2005]; [AUSTRIA Oberster Gerichtshof 21 April 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 20 April 2004]; [GERMANY Oberlandesgericht Zweibrücken 26 July 2002]; [GERMANY Oberlandesgericht Rostock 10 October 2001].

45. CLOUT case No. 575 [UNITED STATES Court of Appeals (5th Circuit) 11 June 2003, corrected on 7 July 2003 (B.P. Petroleum International Ltd. v. Empresa Estatal Petroleos de Ecuador (Petroecuador)].

46. [GERMANY Oberlandesgericht Rostock 10 October 2001l]. One court stated that, even though the choice of the law of a Contracting State without any reference to its domestic law may not per se amount to an implicit exclusion of the Convention, it may be looked at as one factor from which to derive the parties' intention to exclude it, when the law chosen is that of a Contracting State different from those where the parties have their place of business; [SWITZERLAND Tribunal cantonal de Vaud 24 November 2004].

47. CLOUT case No. 847 [UNITED STATES District Court, Minnesota 31 January 2007]; [UNITED STATES District Court, Middle District of Pennsylvania 16 August 2005], [UNITED STATES District Court, New Jersey 15 June 2005]; CLOUT case No. 574 [UNITED STATES District Court, Northern District of Illinois 29 January 2003].

48. Contra [UNITED STATES District Court, Rhode Island 30 January 2006] (the choice of the law of Rhode Island excludes the applicability of the Convention).

49. [UNITED STATES District Court, Southern District of New York 29 May 2009]; [SWITZERLAND Obergericht des Kantons Aargau 3 March 2009]; [AUSTRIA Oberster Gerichtshof 4 July 2007]; [GERMANY Landgericht Kiel 27 July 2004]; CLOUT case No. 429 [GERMANY Oberlandesgericht Frankfurt 30 August 2000]; [GERMANY Oberlandesgericht Frankfurt 15 March 1996].

50. CLOUT case No. 956 [AUSTRALIA Federal Court of Australia 20 May 2009].

51. CLOUT case No. 1057 [AUSTRIA Oberster Gerichtshof 2 April 2009]; [AUSTRIA Oberlandesgericht Linz 23 January 2006].

52. [GERMANY Oberlandesgericht Stuttgart 31 March 2008]; [AUSTRIA Oberlandesgericht Linz 23 January 2006].

53. [GERMANY Oberlandesgericht Stuttgart 31 March 2008].

54. See [GERMANY Landgericht Bamberg 23 October 2006]; [GERMANY Landgericht Saarbrücken 2 July 2002]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; CLOUT case No. 125 [GERMANY Oberlandesgericht Hamm 9 June 1995]; [GERMANY Landgericht Landshut 5 April 1995].

55. See [AUSTRIA Oberlandesgericht Linz 23 January 2006]; [ITALY Tribunale di Padova 25 February 2004]; CLOUT case No. 596 [GERMANY Oberlandesgericht Zweibrücken 2 February 2004] (see full text of the decision); CLOUT case No. 136 [GERMANY Oberlandesgericht Celle 24 May 1995] (see full text of the decision).

56. [CHILE Corte Suprema 22 September 2008]; [SPAIN Tribunal Supremo 24 February 2006]; CLOUT case No. 837 [FRANCE Cour de Cassation 25 October 2005]; [SERBIA High Commercial Court 9 July 2004]; [FRANCE Cour de Cassation 26 June 2001]; [UNITED STATES Oregon [State] Court of Appeals 12 April 1995], 133 Or. App. 633.

57. [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2006 (Arbitral award No. CISG/2006/17)]; [ICC Court of Arbitration of the International Chamber of Commerce, October 1995 (Arbitral award No. 8453)], ICC Court of Arbitration Bulletin, 2000, 55.

58. CLOUT case No. 590 [GERMANY Landgericht Saarbrücken 1 June 2004] (see full text of the decision).

59. CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001]; [BELGIUM Rechtbank van Koophandel Kortrijk 19 April 2001].

60. [SWITZERLAND Obergericht Kanton Bern 19 May 2008].

61. [ICC Court of Arbitration of the International Chamber of Commerce, France, 2002 (Arbitral award No. 11333)]; see also CLOUT case No. 237 [STOCKHOLM CHAMBER OF COMMERCE Arbitration Institute of the Stockholm Chamber of Commerce 5 June 1998].

62. [AUSTRIA Oberlandesgericht Linz 23 January 2006]; CLOUT case No. 482 [FRANCE Cour d'appel de Paris 6 November 2001].

63. 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.


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