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

Digest of Article 7 case law [reproduced with permission of UNCITRAL] [*]

[Text of article
Overview
Interpretation of the Convention in general
The Convention's international character
Promoting uniform application
Observance of good faith in international trade
Gap-filling
General principles of the Convention
-    Party autonomy
-    Good faith
-    Estoppel
-    Place of payment of monetary obligations
-    Currency of payment
-    Burden of proof
-    Full compensation
-    Informality
-    Dispatch of communication
-    Mitigation of damages
-    Binding usages
-    Set-off
-    Right to withhold performance and the principle of simultaneous exchange of performances
-    Right to interest
-    Costs of one's own obligations
-    Changed circumstances and right to renegotiate
-    Favor contractus
UNIDROIT Principles and Principles of European Contract Law]

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.

2. Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.

Overview

1. Article 7, which "constitutes already a standard reflecting the present tendency in international commercial law",[1] is divided into two subparts: article 7(1) specifies several considerations to be taken into account in interpreting the Convention; article 7(2) describes the methodology for dealing with the Convention's "gaps" -- i.e., "matters governed by this Convention which are not expressly settled in it".

Interpretation of the Convention in general

2. Because national rules on sales diverge sharply in conception and approach, in interpreting the Convention it is important for a forum to avoid being influenced by its own domestic sales law.[2] Article 7, paragraph 1 therefore provides that, in the interpretation of the Convention, "regard is to be had to its international character and to the need to promote uniformity in its application".[3]

3. One court pointed out that the "[Convention] was drafted in Arabic, English, French, Spanish, Russian and Chinese. It was also translated into German, among other languages. In the case of ambiguity in the wording, reference is to be made to the original versions, whereby the English version, and, secondarily, the French version are given a higher significance as English and French were the official languages of the Conference and the negotiations were predominantly conducted in English".[4]

The Convention's international character

4. According to a number of courts, article 7(1)'s reference to the Convention's international character forbids fora from interpreting the Convention on the basis of national law;[5] instead, courts must interpret the Convention "autonomously".[6] According to one court, this requires that "[m]aterial for interpretation of the Convention unless [the Convention] expressly provides otherwise, must be taken from the Convention itself".[7] According to a different court, this makes it necessary for courts to free themselves from "any ethnocentric approaches [...] and of methods that usually follow for the interpretation of domestic provisions, since otherwise that may result in the application of institutions and provisions of domestic laws and furthermore, in undesired lack of uniformity in its application."[8] According to a different court, interpreting the Convention autonomously "means [that] the Convention must be applied and interpreted exclusively on its own terms, having regard to the principles of the Convention and Convention-related decisions in overseas jurisdictions. Recourse to domestic case law is to be avoided."[9] Some courts even expressly state that their domestic solutions are to be disregarded, as they differ from those of the Convention.[10]

5. According to some courts, however, not all expressions used in the Convention have to be interpreted autonomously. While, for instance, the expressions "sale",[11] "goods",[12] "place of business"[13] and "habitual residence"[14] are to be interpreted autonomously, the expression "private international law" used in articles 1(1)(b) and 7(2) is not; rather, that expression is to be understood as referring to the forum's understanding of "private international law."[15]

6. Nevertheless, some courts have stated that case law interpreting domestic sales law, although "not per se applicable,"[16] may inform a court's approach to the Convention where the language of the relevant articles of the Convention tracks that of the domestic law.[17] According to case law, reference to the Convention's legislative history,[18] as well as to international scholarly writing, is admissible in interpreting the treaty.[19] Also, "[i]n deciding issues under the treaty, courts generally look to its language."[20]

Promoting uniform application

7. The mandate imposed by article 7(1) to have regard to the need to promote uniform application of the Convention has been construed by some tribunals[21] to require fora interpreting the CISG to take into account foreign decisions that have applied the Convention.[22] More and more courts refer to foreign court decisions.[23]

8. Several courts have expressly stated that foreign court decisions have merely persuasive, non binding authority.[24]

Observance of good faith in international trade

9. Article 7(1) also requires that the Convention be interpreted in a manner that promotes the observance of good faith in international trade.[25] It has been held that requiring notice of avoidance where a seller has "unambiguously and definitely" declared that it will not perform its obligations would be contrary to this mandate.[26] Although good faith is expressly referred to only in article 7(1), insofar as it relates to the Convention's interpretation, there are numerous rules in the Convention that reflect the good faith principle. The following provisions are among those that manifest the principle:

Gap-filling

10. Under article 7(2),[28] gaps in the Convention -- i.e. questions the Convention governs but for which it does not expressly provide answers (which some courts consider to be "internal gaps")[29] -- are filled, if possible, without resorting to domestic law, but rather in conformity with the Convention's general principles,[30] so as to ensure uniformity in the application of the Convention.[31] Only where no such general principles can be identified does article 7(2) permit reference to the applicable national law to solve those questions,[32] an approach to be resorted to "only as a last resort".[33] Thus, the Convention "imposes first an intro-interpretation with respect to interpretation issues or gaps (i.e. solutions are first to be sought within the [Convention] system itself)."[34] Matters the Convention does not govern at all, which some courts label "external gaps",[35] are resolved on the basis of the domestic law applicable pursuant to the rules of private international law of the forum,[36] or, where applicable, other uniform law conventions.[37] Such matters are discussed in the Digest for article 4.

11. A court has stated that the internal gaps of the Convention can also be filled through analogy.[38] A different court stated expressly that, general principles of domestic law cannot be used to fill the internal gaps of the Convention, as this would go against a uniform application of the Convention.[39]

GENERAL PRINCIPLES OF THE CONVENTION

Party autonomy

12. According to several courts, one of the general principles upon which the Convention is based is party autonomy.[40] According to one court, "the fundamental principle of private autonomy is confirmed [in article 6;] it allows the parties to agree upon provisions which derogate from the provisions of the Convention or even to completely exclude its application with express and/or tacit agreement".[41]

Good faith

13. Good faith has also been found to be a general principle of the Convention.[42] That general principle has led a court to state that a buyer need not explicitly declare a contract avoided if the seller has refused to perform its obligations, and that to insist on an explicit declaration in such circumstance would violate the principle of good faith, even though the Convention expressly requires a declaration of avoidance.[43] In another case, a court required a party to pay damages because the party's conduct was "contrary to the principle of good faith in international trade laid down in article 7 CISG"; the court also stated that abuse of process violates the good faith principle.[44] In a different case, a court stated that in light of the general principle of good faith set forth in the Convention, "it is not sufficient for the applicability of general terms and conditions to refer to the general terms and conditions in the offer to conclude a contract, without providing the text of the general terms and conditions preceding or during the closing of the agreement."[45] In yet another case, one court stated that "the jurisdictional clause is invalid pursuant to the principle of good faith contained in article 7 of The United Nations Convention on Contracts for the International Sale of Goods. This principle indicates that a contract shall provide for its content in a manner the parties would reasonably expect. In this sense, the principle of good faith would be violated if this Court were to give validity to the jurisdictional clause on the backside of the contract, to which the [Seller] did not consent."[46] Similarly, one court "referred to the principle of good faith, pointing out that the Convention ascribed considerable importance to that principle 'in that the content of a contract should be as anticipated by the parties, in accordance with the principle of reasonable expectation, which would be gravely undermined if, as the defendant claims, the clause on referral to arbitration contained in the contract of guarantee should be applied.'"[47]

14. In other cases, courts stated that the general principle of good faith requires the parties to cooperate with each other and to exchange information relevant for the performance of their respective obligations.[48]

15. Several courts stated that the prohibition of venire contra factum proprium must be considered an established principle of good faith.[49]

Estoppel

16. According to some decisions, estoppel is also one of the general principles upon which the Convention is based -- specifically, a manifestation of the principle of good faith.[50] According to one court, however, the Convention is not concerned with estoppel.[51]

Place of payment of monetary obligations

17. A significant number of decisions hold that the Convention includes a general principle relating to the place of performance of monetary obligations. Thus in determining the place for paying compensation for non-conforming goods, one court stated that "if the purchase price is payable at the place of business of the seller," as provided by article 57 of the Convention, then "this indicates a general principle valid for other monetary claims as well."[52] In an action for restitution of excess payments made to a seller, a court stated that there was a general principle that "payment is to be made at the creditor's domicile, a principle that is to be extended to other international trade contracts under article 6.1.6 of the UNIDROIT Principles."[53] Other courts identified a general principle of the Convention under which, upon avoidance of a contract, "the place for performance of restitution obligations should be determined by transposing the primary obligations -- through a mirror effect -- into restitution obligations".[54] One court reached the same result by resorting to analogy.[55] One decision, however, denies the existence of a Convention general principle for determining the place for performance of all monetary obligations.[56]

Currency of payment

18. One court has observed that the question of the currency of payment is governed by, although not expressly settled in, the Convention.[57] The court noted that according to one view, a general principle underlying the CISG is that, except where the parties have agreed otherwise, the seller's place of business controls all questions relating to payment, including the question of currency. However, the court also noted that there is a view pursuant to which no pertinent general principle is to be found in the Convention, and thus applicable domestic law has to govern the matter. The court did not choose which alternative was the correct approach because, on the facts of the case, each led to the same the result (payment was due in the currency of the seller's place of business). Other courts held that the issue of the currency is not at all governed by the Convention and, therefore, is governed by the applicable domestic law.[58]

Burden of proof

19. According to many decisions,[59] the question of which party bears the burden of proof is a matter governed by, albeit not explicitly settled in, the Convention. The issue is therefore to be settled in conformity with the general principles on which the Convention is based, provided pertinent general principles underlie the Convention.[60] According to various decisions, article 79(1)[61] and (according to one court decision) article 2 (a) evidence such general principles, which have been summarized as follows: a party attempting to derive beneficial legal consequences from a provision has the burden of proving the existence of the factual prerequisites required to invoke the provision;[62] a party claiming an exception has to prove the factual prerequisites of that exception.[63] According to some tribunals, for the allocation of the burden of proof, "it must be taken into account how close each party is to the relevant facts at issue, i.e., a party's ability to gather and submit evidence for that point."[64] According to some courts, however, burden of proof is a matter not at all governed by the Convention, and is instead left to domestic law.[65]

Full compensation

20. According to some decisions the Convention is also based upon a principle of full compensation for losses in the event of breach.[66] One court restricted this general principle to cases in which, as a result of a breach, a contract is avoided.[67] One court stated that the limitation of damages to foreseeable ones constitutes a general principle of the Convention.[68]

Informality

21. Several tribunals have stated that the principle of informality, evidenced in article 11, constitutes a general principle upon which the Convention is based;[69] from this principle it follows, inter alia, that the parties are free to modify or terminate their contract orally, in writing, or in any other form. An implied termination of the contract has been held possible,[70] and it has been held that a written contract may be modified orally.[71] Also, according to various courts, the principle of informality allows one to state that "a notice [of non-conformity] need not be evidenced in writing and can thus be given orally or via telephone".[72] One court, however, reached the opposite result when it stated that "the [Convention] does not specify the form of the notice of non-conformity, but the fact that the notice has to be sent, as well as the provisions on its content logically suggest that the notice should be in the written form."[73] Thus, according to that court, "a notice specifying the nature of the lack of conformity should be sent by registered mail, by telegram or by other reliable means."[74]

Dispatch of communications

22. The dispatch rule in article 27 applies to communications between the parties after they have concluded a contract. Under this rule, a notice, request or other communication becomes effective as soon as the declaring party releases it from its own sphere of control using an appropriate means of communication. This rule applies to a notice of non conformity or of third-party claims (articles 39, 43); to demands for specific performance (article 46), price reduction (article 50), damages (article 45, paragraph 1(b)) or interest (article 78); to a declaration of avoidance (articles 49, 64, 72, 73); to a notice fixing an additional period for performance (articles 47, 63); and to other notices provided for in the Convention, such as those described in article 32(1), article 67(2), and article 88. Case law states that the dispatch principle is a general principle underlying Part III of the Convention,[75] and thus also applies to any other communication the parties may have provided for in their contract unless they have agreed that the communication must be received to be effective.[76]

Mitigation of damages

23. Article 77 contains a rule under which a damage award can be reduced by the amount of losses that the aggrieved party could have mitigated by taking measures that were reasonable in the circumstances. The mitigation of damages principle has also been considered a general principle upon which the Convention is based.[77]

Binding usages

24. Another general principle, recognized by case law, is the one informing article 9(2), under which the parties are bound, unless otherwise agreed, by a usage of which they knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.[78]

Set-off

25. One court has suggested that the issue of set-off is governed by, although not expressly settled in, the Convention; and that the Convention contains a general principle within the meaning of article 7(2) that permits reciprocal claims arising under the Convention (in the case at issue, the buyer's claims for damages and the seller's claim for the balance of the sale proceeds) to be offset.[79] According to other courts, however, the issue of set-off is not governed by the Convention at all and is, thus, left to the applicable domestic law.[80]

Right to withhold performance and the principle of simultaneous exchange of performances

26. According to some courts, the Convention provides for a general right of the buyer to withhold performance of its payment obligation where the seller does not perform its obligation.[81] According to some courts, "the principle of simultaneous exchange of performances also underlies the Convention.[82]

Right to interest

27. Some tribunals stated that entitlement to interest on all sums in arrears (see article 78) also constitutes a general principle of the Convention.[83] According to some tribunals, the Convention is based upon a general principle under which entitlement to interest does not require a formal notice to the debtor in default.[84] Other decisions, however, state that interest on sums in arrears is due only if a formal notice has been given to the debtor.[85]

28. According to some courts, the determination of the rate of interest, a matter not specifically addressed in the Convention, is to be solved through resort to the general principles of the Convention. According to the majority of the opinions, however, the interest rate is not governed by the Convention at all; thus, its determination is left to the law applicable to be identified by means of the rules of private international law of the forum, as per article 7(2).[86]

Costs of one's own obligations

29. According to one court, the Convention is based upon the principle pursuant to which "each party has to bear the costs of its obligation."[87]

Changed circumstances and right to renegotiate

30. According to one court, pursuant to the general principles upon which the Convention is based, "the party who invokes changed circumstances that fundamentally disturb the contractual balance [...] is also entitled to claim the renegotiation of the contract."[88]

Favor contractus

31. Commentators have also suggested that the Convention is based upon the favor contractus principle, pursuant to which one should adopt approaches that favor finding that a contract continues to bind the parties rather than that it has been avoided. This view has also been adopted in case law. One court expressly referred to the principle of favor contractus,[89] while one stated that the Convention's general principles "provide a preference for performance".[90] A different court merely stated that avoidance of the contract constitutes an "ultima ratio" remedy.[91]

32. Several decisions have identified article 40 as embodying a general principle of the Convention applicable to resolve unsettled issues under the Convention.[92] According to an arbitration panel, "article 40 is an expression of the principles of fair trading that underlie also many other provisions of the Convention, and it is by its very nature a codification of a general principle".[93] Thus, the decision asserted, even if article 40 did not apply directly where goods failed to conform to a contractual warranty clause, the general principle underlying article 40 would be indirectly applicable to the situation by way of article 7(2). In another decision, a court derived from article 40 a general principle that even a very negligent buyer deserves more protection than a fraudulent seller; it then applied the principle to hold that a seller that had misrepresented the age and mileage of a car could not escape liability under article 35(3)[94] even if the buyer could not have been unaware of the lack of conformity at the time of the conclusion of the contract.[95]

UNIDROIT Principles and Principles of European Contract Law

33. According to one court, the general principles of the Convention are incorporated, inter alia, in the UNIDROIT Principles of International Commercial Contracts.[96] According to one arbitral tribunal, the UNIDROIT "Principles are principles in the sense of article 7(2) CISG".[97]

34. One arbitral tribunal,[98] in deciding the rate of interest to apply to payment of sums in arrears, applied the rate specified in both article 7.4.9 of the UNIDROIT Principles of International Commercial Contracts and in article 4.507 of the former Principles of European Contract Law, arguing that such rules had to be considered general principles upon which the Convention is based. In other cases,[99] arbitral tribunals referred to the UNIDROIT Principles of International Commercial Contracts to corroborate results under rules of the Convention; one court also referred to the UNIDROIT Principles of International Commercial Contracts in support of a solution reached on the basis of the Convention.[100] According to another court, the UNIDROIT Principles can help determine the precise meaning of general principles upon which the CISG is based.[101]

35. In a decision relating to article 76 of the Convention, an arbitral tribunal stated that the equivalent provision to be found in the "UNIDROIT Principles uses simpler language and condenses parts of CISG article 76 into a more readable form. It can be argued therefore that it would be advantageous if the Principle were read before the counterpart provision of the CISG is applied. It would allow the court or arbitral tribunal to get a 'feeling' of what the CISG attempts to achieve."[102]


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:

   -    To enhance access to contents by computer search engines, we present in html rather than pdf;
 
   -    To facilitate direct focus on aspects of the Digests of most immediate interest, we inserted linked tables of contents at the outset of most presentations;
 
   -    To support UNCITRAL's recommendation to read more on the cases reported in the Digests, we provide mouse-click access to (i) CLOUT abstracts published by UNCITRAL (and to UNILEX case abstracts and other case abstracts); and also (ii) to full-text English translations of cases with links to original texts of cases, where available, in [bracketed citations] that we have added to UNCITRAL's footnotes; and
 
   -    To enable researchers to themselves keep the case citations provided in the Digests constantly current, we have created a series of tandem documents, UNCITRAL Digest Cases + Added Cases. The new cases and other cases that are cited in these updates are coded in accordance with UNCITRAL's Thesaurus.

In addition, this presentation introduces each section of the UNCITRAL Digest with a Google search button. This is to help you access doctrine (relevant material from the over 1,400 commentaries, monographs and books on the CISG and related subjects that we present on this database) as well as the texts of the cases that UNCITRAL cites in its Digests and that we present in our updates to UNCITRAL's Digests.

1. CLOUT case No. 549 [SPAIN Audiencia Provincial de Valencia 7 June 2003] (see full text of the decision).

2. See United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, p. 17.

3. For references in case law to the need to take the Convention's international character into account in the interpretation of the Convention, see [UNITED STATES Court of Appeals (3rd Circuit) 21 July 2010]; [BELGIUM Hof van Cassatie 19 June 2009]; [NETHERLANDS Rechtbank Breda 27 February 2008]; CLOUT case No. 946 [SLOVAKIA Regional Court in Bratislava 11 October 2005]; CLOUT case No. 774 [GERMANY 2Bundesgerichtshof 2 March 2005] (see full text of the decision); [UNITED STATES District Court, Northern District of Illinois 21 May 2004] (citing seven foreign court decisions); CLOUT case No. 720 [NETHERLANDS Netherlands Arbitration Institute 15 October 2002] (see full text of the decision); CLOUT case No. 418 [UNITED STATES District Court, Eastern District of Louisiana 17 May 1999] (see full text of the decision); CLOUT case No. 138 [UNITED STATES Court of Appeals (2nd Circuit) 6 December 1995] (see full text of the decision); CLOUT case No. 84 [GERMANY Oberlandesgericht Frankfurt am Main 20 April 1994] (see full text of the decision); CLOUT case No. 201 [SWITZERLAND Richteramt Laufen des Kantons Berne 7 May 1993] (see full text of the decision).

4. CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision).

5. See CLOUT case No. 222 [UNITED STATES Court of Appeals (11th Circuit) 29 June 1998] (see full text of the decision); CLOUT case No. 413 [UNITED STATES District Court, Southern District of New York 6 April 1998] (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. 171 [GERMANY Bundesgerichtshof 3 April 1996] (see full text of the decision); CLOUT case No. 201 [SWITZERLAND Richteramt Laufen des Kantons Berne 7 May 1993] (see full text of the decision).

6. [NEW ZEALAND High Court of New Zealand 30 July 2010]; [ITALY Tribunale di Forlì 16 February 2009]; [GREECE Polimeles Protodikio Athinon 2009 (docket No. 4505/2009)]; CLOUT case No. 842 [ITALY Tribunale di Modena 9 December 2005] (see full text of the decision); CLOUT case No. 747 [AUSTRIA Oberster Gerichtshof 23 May 2005] (see full text of the decision); CLOUT case No. 774 [GERMANY Bundesgerichtshof 2 March 2005] (see full text of the decision); CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005] (see full text of the decision); CLOUT case No. 595 [GERMANY Oberlandesgericht München 15 September 2004]; [ITALY Tribunale di Padova 25 February 2004]; CLOUT case No. 892 [SWITZERLAND Kantonsgericht Schaffhausen 27 January 2004]; CLOUT case No. 333 [SWITZERLAND Handelsgericht des Kantons Aargau 11 June 1999]; CLOUT case No. 271 [GERMANY Bundesgerichtshof 24 March 1999] (see full text of the decision); CLOUT case No. 217 [SWITZERLAND Handelsgericht des Kantons Aargau 26 September 1997] (see full text of the decision).

7. [AMERICAN ARBITRATION ASSOCIATION United States, 23 October 2007].

8. [GREECE Polimeles Protodikio Athinon 2009 (docket No. 4505/2009)].

9. [NEW ZEALAND High Court of New Zealand 30 July 2010]; see also [ITALY Tribunale di Forlì 16 February 2009]; CLOUT case No. 842 [ITALY Tribunale di Modena 9 December 2005] (see full text of the decision); CLOUT case No. 774 [GERMANY Bundesgerichtshof 2 March 2005] (see full text of the decision); see also CLOUT case No. 720 [NETHERLANDS Netherlands Arbitration Institute 15 October 2002] (see full text of the decision).

10. [GERMANY Oberlandesgericht München 14 January 2009]; CLOUT case No. 747 [AUSTRIA Oberster Gerichtshof 23 May 2005] (see full text of the decision); CLOUT case No. 774 [GERMANY Bundesgerichtshof 2 March 2005] (see full text of the decision); [GERMANY Oberlandesgericht Düsseldorf 25 July 2003]; CLOUT case No. 434 [UNITED STATES District Court, Northern District of Illinois 28 August 2001].

11. See [ITALY Tribunale di Forlì 16 February 2009]; CLOUT case No. 867 [ITALY Tribunale di Forlì 11 December 2008]; CLOUT case No. 774 [GERMANY Bundesgerichtshof 2 March 2005] (see full text of the decision); CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005] (see full text of the decision); [ITALY Tribunale di Padova 25 February 2004].

12. CLOUT case No. 867 [ITALY Tribunale di Forlì 11 December 2008]; CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005] (see full text of the decision); [ITALY Tribunale di Padova 25 February 2004].

13. CLOUT case No. 867 [ITALY Tribunale di Forlì 11 December 2008]; CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005] (see full text of the decision); [ITALY Tribunale di Padova 25 February 2004].

14. CLOUT case No. 867 [ITALY Tribunale di Forlì 11 December 2008]; CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005] (see full text of the decision); [ITALY Tribunale di Padova 25 February 2004].

15. CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005] (see full text of the decision); [ITALY Tribunale di Padova 25 February 2004].

16. [UNITED STATES District Court, Southern District of New York 20 August 2008]; [UNITED STATES District Court, Southern District of New York 16 April 2008]; [UNITED STATES Court of Appeals (7th Circuit) 23 May 2005]; CLOUT case No. 699 [UNITED STATES District Court, Eastern District Court of New York 19 March 2005] (see full text of the decision); [UNITED STATES District Court, Northern District of Illinois 21 May 2004] (citing seven foreign court decisions); CLOUT case No. 579 [UNITED STATES District Court, Southern District of New York 10 May 2002].

17. [UNITED STATES District Court, Southern District of New York 20 August 2008]; [UNITED STATES District Court, Southern District of New York 16 April 2008]; [AMERICAN ARBITRATION ASSOCIATION United States, 23 October 2007]; CLOUT case No. 699 [UNITED STATES District Court, Eastern District Court of New York 19 March 2005] (see full text of the decision); [UNITED STATES District Court, Northern District of Illinois 21 May 2004] (citing seven foreign court decisions); CLOUT Case No. 580 [UNITED STATES Court of Appeals (4th Circuit) 21 June 2002]; CLOUT case No. 138 [UNITED STATES Court of Appeals (2nd Circuit) 6 December 1995] (see full text of the decision).

18. See CLOUT case No. 720 [NETHERLANDS Netherlands Arbitration Institute 15 October 2002] (see full text of the decision); [GERMANY Landgericht Aachen 20 July 1995] (referring to the legislative history of article 78); CLOUT case No. 84 [GERMANY Oberlandesgericht Frankfurt am Main 20 April 1994] (see full text of the decision).

19. CLOUT case No. 426 [AUSTRIA Oberster Gerichtshof 13 April 2000].

20. CLOUT case No. 699 [UNITED STATES District Court, Eastern District Court of New York 19 March 2005] (see full text of the decision); see also CLOUT case No. 580 [UNITED STATES Circuit Court of Appeals (4th Circuit) 21 June 2002]; CLOUT case No. 434 [UNITED STATES District Court, Northern District of Illinois 28 August 2001].

21. [SERBIA Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce 15 July 2008] (expressly stating that "foreign judicial practice [...] should be taken into consideration for the purpose of achieving uniform application of the Convention, pursuant to article 7(1) of the Convention").

22. See, for example, CLOUT case No. 1029 [SERBIA Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce 28 January 2009]; [ITALY Tribunale di Padova 25 February 2004]; CLOUT case No. 549 [SPAIN Audiencia Provincial de Valencia 7 June 2003]; CLOUT case No. 608 [ITALY Tribunale di Rimini 26 November 2002] (see full text of the decision); CLOUT case No. 613 [UNITED STATES District Court for the Northern District of Illinois 28 March 2002] (see full text of the decision).

23. [NEW ZEALAND High Court of New Zealand 30 July 2010] (citing decisions from three different foreign jurisdictions); [UNITED STATES District Court, Northern District of Georgia 17 December 2009] (citing a French and a Chinese decision); [NETHERLANDS Rechtbank Arnhem 29 July 2009] (citing an Austrian decision); [NETHERLANDS Rechtbank Amsterdam 3 June 2009 (docket No. 403763 / HA ZA 08-2073)] (citing a decision by the German Supreme Court); [GERMANY Oberlandesgericht Hamm 2 April 2009] (citing a decision rendered by a court from the United States); [NETHERLANDS Rechtbank Rotterdam 25 February 2009] (citing a decision rendered by the German Supreme Court); [ITALY Tribunale di Forlì 16 February 2009] (citing more than 30 foreign court decisions); [NETHERLANDS Rechtbank Utrecht 21 January 2009] (citing a German decision); CLOUT case No. 867 [ITALY Tribunale di Forlì 11 December 2008] (citing 47 foreign court decisions); CLOUT case No. 958 [AUSTRALIA Federal Court of Australia, South Australia District Registry 24 October 2008] (citing a French Supreme Court decision]; [UNITED STATES District Court, Northern District of Illinois 3 September 2008] (citing a French decision); [GERMANY Oberlandesgericht Stuttgart 31 March 2008] (citing a Finish and a Dutch decision); [ITALY Tribunale di Rovereto 21 November 2007], (citing two German decisions); [POLAND Supreme Court 11 May 2007] (citing an Austrian decision); [UNITED STATES District Court, Western District Washington 13 April 2006] (citing a Swiss court decision); CLOUT case No. 721 [GERMANY Oberlandesgericht Karlsruhe 8 February 2006] (see full text of the decision) (citing both a Swiss and a U.S. decision); [GERMANY Landgericht Neubrandenburg 3 August 2005] (citing a Russian arbitral award); CLOUT case No. 774 [GERMANY Bundesgerichtshof 2 March 2005] (see full text of the decision) (citing two Austrian Supreme Court decisions); CLOUT case No. 651 [ITALY Tribunale di Padova 11 January 2005] (see full text of the decision (citing 13 foreign court decisions); CLOUT case No. 773 [GERMANY Bundesgerichtshof 30 June 2004] (see full text of the decision) (citing two foreign court decisions as well as two arbitral awards); [UNITED STATES District Court, Northern District of Illinois 21 May 2004] (citing seven foreign court decisions); [ITALY Tribunale di Padova 31 March 2004] (citing 17 foreign court decisions); CLOUT case No. 695 [UNITED STATES District Court, Eastern District of Pennsylvania 29 March 2004] (see full text of the decision) (citing two German decisions); [ITALY Tribunale di Padova 25 February 2004] (citing 30 foreign decisions and arbitral awards); Landgericht Mannheim, Germany, 16 February 2004, IHR 2006, 106, 107 (citing a Swiss decision and U.S. decision); CLOUT case No. 819 [GERMANY Landgericht Tier 8 January 2004] (citing a decision rendered by a U.S. court); CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision) (citing a Belgium and a Swiss decision); CLOUT case No. 889 [SWITZERLAND Handelsgericht Kanton Zürich 24 October 2003] (see full text of the decision) (citing a decision of the German Supreme Court); CLOUT case No. 549 [SPAIN Audiencia Provincial Valencia 7 June 2003] (see full text of the decision) (citing three foreign decisions); CLOUT case No. 608 [ITALY Tribunale di Rimini 26 November 2002] (see full text of the decision) (citing 37 foreign cases and arbitral awards); CLOUT case No. 882 [SWITZERLAND Handelsgericht Aargau 5 November 2002] (see full text of the decision) (citing a German decision); CLOUT case No. 613 [UNITED STATES District Court, Northern District of Illinois 28 March 2002] (see full text of the decision) (citing an Australian decision); CLOUT case No. 447 [UNITED STATES District Court, Southern District of New York 26 March 2002] (see full text of the decision) (citing three German decisions); [BELGIUM Rechtbank van Koophandel Hasselt 6 March 2002] (citing a Swiss decision); CLOUT case No. 631 [AUSTRALIA Supreme Court of Queensland 17 November 2000] (see full text of the decision) (citing one foreign decision); CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000] (see full text of the decision) (citing 40 foreign cases and arbitral awards); CLOUT case No. 426 [AUSTRIA Oberster Gerichtshof 13 April 2000] (see full text of the decision) (citing one foreign decision); CLOUT case No. 380 [ITALY Tribunale di Pavia 29 December 1999] (see full text of the decision) (citing one foreign decision); CLOUT case No. 418 [UNITED STATES District Court, Eastern District of Louisiana 17 May 1999] (see full text of the decision) (citing one German case); [BELGIUM hRechtbank Koophandel Hasselt 2 December 1998] (citing two foreign decisions); CLOUT case No. 205 [FRANCE Cour d'appel de Grenoble 23 October 1996] (see full text of the decision) (citing one foreign decision); [ITALY Tribunale di Cuneo 31 January 1996] (citing two foreign decisions).

24. [UNITED STATES District Court, Northern District of Illinois 21 May 2004]; [ITALY Tribunale di Padova 25 February 2004]; CLOUT case No. 608 [ITALY Tribunale di Rimini 26 November 2002] (see full text of the decision); CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; CLOUT case No. 380 [ITALY Tribunale di Pavia 29 December 1999].

25. See United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, p. 18; for a reference in case law to the text of article 7(1) referred to in the text, see, e.g., [NETHERLANDS Rechtbank Breda 27 February 2008]; CLOUT case No. 802 [SPAIN Tribunal Supremo 17 January 2008] (see full text of the decision).

26. CLOUT case No. 595 [GERMANY Oberlandesgericht München 15 September 2004].

27. United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, p. 18.

28. For a recital of the text of article 7(2) by the courts, see, e.g., [SLOVAKIA District Court in Nitra 9 March 2007]; [GREECE Efetio Thessalonikis 2006 (docket No. 2923/2006)]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 29 September 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 27 October 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 18 October 2005]; CLOUT case No. 946 [SLOVAKIA Regional Court in Bratislava 11 October 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 18 July 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 3 September 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 28 May 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 11 November 2002]; [NETHERLANDS Rechtbank Rotterdam 12 July 2001].

29. [SWITZERLAND Amtgericht Sursee 12 September 2008]; [GERMANY Oberlandesgericht Frankfurt 6 October 2004].

30. See [NETHERLANDS Rechtbank Arnhem 29 July 2009 (docket No. 172927 / HA ZA 08-1230)]; [BELGIUM Hof van Cassatie 19 June 2009]; [NETHERLANDS Rechtbank Amsterdam 3 June 2009 (docket No. 403763 / HA ZA 08-2073)]; [UNITED STATES District Court, Southern District of New York 20 August 2008]; CLOUT case No. 961 [BELARUS Economic Court of the City of Minsk 10 April 2008]; [NETHERLANDS Rechtbank Breda 27 February 2008]; [SLOVAKIA District Court in Bardejov 29 October 2007]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 29 December 2006].

31. [SWITZERLAND Amtgericht Sursee 12 September 2008].

32. See CLOUT case No.961 [BELARUS Economic Court of the City of Minsk 10 April 2008]; CLOUT case No. 932 [SWITZERLAND Obergericht des Kantons Thurgau 12 December 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 28 June 2004]; [ARGENTINA Juzgado Comercial No. 26 Secretaria No. 51, Buenos Aires 2 July 2003]; [ICC Court of Arbitration of the International Chamber of Commerce, Paris, 23 January 1997 (Arbitral award in case No. 8611/HV/JK)].

33. [AMERICAN ARBITRATION ASSOCIATION United States, 23 October 2007]; see also [RUSSIA Federal Arbitration Court for the Moscow Region 25 June 2001].

34. CLOUT case No. 720 [NETHERLANDS Netherlands Arbitration Institute 15 October 2002] (see full text of the decision).

35. [SWITZERLAND Amtgericht Sursee 12 September 2008].

36. See, e.g., [NETHERLANDS Rechtbank Rotterdam 17 March 2010 (docket No. 306752 / HA ZA 08-1162)]; [NETHERLANDS Rechtbank Zwolle 9 December 2009 (docket No. 145652 / HA ZA 08-635)]; [GERMANY Landgericht München 18 May 2009]; [UNITED STATES District Court, New Jersey 15 April 2009]; [GREECE Polimeles Protodikio Athinon 2009 (docket No. 4505/2009)]; [SWITZERLAND Amtgericht Sursee 12 September 2008]; [GERMANY Landgericht Landshut 12 June 2008]; CLOUT case No. 849 [SPAIN Audiencia Provincial de Pontevedra 19 December 2007]; CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal du Valais 27 April 2007]; CLOUT case No. 828 [NETHERLANDS Gerechtshof 's-Hertogenbosch 2 January 2007]; CLOUT case No. 945 [SLOVAKIA District Court in Galanta 15 December 2006]; CLOUT case No. 932 [SWITZERLAND Obergericht des Kantons Thurgau 12 December 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 15 November 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 9 March 2006]; [NETHERLANDS Rechtbank Arnhem 1 March 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 February 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 26 January 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 13 January 2006]; CLOUT case No. 842 [ITALY Tribunale di Modena 9 December 2005] (see full text of the decision); [FRANCE Cour d'appel de Versailles 13 October 2005]; CLOUT case No. 944 [NETHERLANDS Hof 's-Hertogenbosch 11 October 2005]; [CROATIA High Commercial Court 26 July 2005]; CLOUT case No. 919 [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 27 April 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 24 January 2005]; [UKRAINE Tribunal of International Commercial Arbitration at the Ukraine Chamber of Commerce and Trade 2005 (Arbitral award in No. 48 of 2005)]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 2 November 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 19 May 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 12 March 2004]; [ITALY Tribunale di Padova 25 February 2004]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Russian Federation, 19 February 2004]; [GERMANY Oberlandesgericht Düsseldorf 25 July 2003]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 17 February 2003]; CLOUT case No. 574 [UNITED STATES District Court, Northern District of Illinois 29 January 2003] (see full text of the decision); [ICC Court of Arbitration of the International Chamber of Commerce, France, 2003 (Arbitral award in No. 11849)]; [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 27 December 2002]; CLOUT case No. 611 [UNITED STATES Circuit Court of Appeals (7th Circuit) 19 November 2002]; CLOUT case No. 636 [ARGENTINA Cámara Nacional de Apelaciones en lo Comercial de Buenos Aires 21 July 2002]; CLOUT case No. 580 [UNITED STATES Circuit Court of Appeals (4th Circuit) 21 June 2002] (see full text of the decision); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 22 March 2002]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 28 February 2002]; [RUSSIA Federal Arbitration Court for the Moscow Region 11 February 2002]; CLOUT case No. 482 [FRANCE Cour d'appel de Paris 6 November 2001]; CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001] (see full text of the decision); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 17 July 2001]; [BULGARIA Bulgarian Chamber of Commerce and Industry 12 March 2001]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 25 January 2001]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 10 January 2001]; [ICC Court of Arbitration of the International Chamber of Commerce, France, 2001 (Arbitral award in No. 9771)]; [ARGENTINA Cámara Nacional de Apelaciones en lo Comercial 24 April 2000 (stating the same); CLOUT case No. 333 [SWITZERLAND Handelsgericht des Kantons Aargau 11 June 1999]; [NETHERLANDS Rechtbank Zutphen 29 May 1997] (stating the same); [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 28 March 1997]; [GERMANY Amtsgericht Mayen 6 September 1994] (stating the same); CLOUT case No. 97 [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993] (stating the same) (see full text of the decision).

37. CLOUT case No. 932 [SWITZERLAND Obergericht des Kantons Thurgau 12 December 2006].

38. [POLAND Supreme Court 11 May 2007]; [AUSTRIA Oberster Gerichtshof 18 December 2002].

39. [GERMANY Amtsgericht Hamburg-Altona 14 December 2000].

40. See [GREECE Polimeles Protodikio Athinon 2009 (docket No. 4505/2009)]; [ITALY Tribunale di Padova 25 February 2004]; [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 9 December 2002]; CLOUT case No. 608 [ITALY Tribunale di Rimini 26 November 2002]; CLOUT case No. 1017 [BELGIUM Hof Beroep Ghent 15 May 2002]; [BELGIUM Rechtbank van Koophandel Ieper 18 February 2002]; [BELGIUM Rechtbank Koophandel Ieper 29 January 2001]; CLOUT case No. 432 [GERMANY Landgericht Stendal 12 October 2000].

41. [GREECE Polimeles Protodikio Athinon 2009 (docket No. 4505/2009)].

42. See [GERMANY Oberlandesgercht Celle 24 July 2009]; [NETHERLANDS Rechtbank Rotterdam 25 February 2009]; [GERMANY Oberlandesgericht München 14 January 2009]; [GERMANY Oberlandesgericht Brandenburg 18 November 2008]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 8 February 2008]; [SPAIN Audiencia Provincial de Navarra 27 December 2007]; [ITALY Tribunale di Rovereto 21 November 2007]; [AMERICAN ARBITRATION ASSOCIATION United States, 23 October 2007]; [GERMANY Oberlandesgericht Köln 21 December 2005]; [GERMANY Landgericht Neubrandenburg 3 August 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 2 June 2005]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 27 May 2005]; [MEXICO Primer Tribunal Colegiado en Materia Civil del Primer Circuito 10 March 2005]; [GREECE Single-Member Court of First Instance Larissa 2005 (docket No. 165/2005)]; [ITALY Tribunale di Padova 25 February 2004]; [NETHERLANDS Hof's-Gravenhage 23 April 2003]; [ICC Court of Arbitration of the International Chamber of Commerce, France, 2003 (Arbitral award in No. 11849)]; [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 9 December 2002]; CLOUT case No. 1017 [BELGIUM Hof van Beroep Ghent 15 May 2002]; [GERMANY Bundesgerichtshof 9 January 2002]; [GERMANY Oberlandesgericht Hamm 12 November 2001]; CLOUT case 445 [GERMANY Bundesgerichtshof 31 October 2001]; CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001]; CLOUT case No. 297 [GERMANY Oberlandesgericht München 21 January 1998] (see full text of the decision); CLOUT case No. 251 [SWITZERLAND Handelsgericht des Kantons Zürich 30 November 1998] (see full text of the decision); CLOUT case No. 645 [ITALY Corte d'Appello Milano 11 December 1998]; [MEXICO Compromex Arbitration 30 November 1998] ; CLOUT case No. 277 [GERMANY Oberlandesgericht Hamburg 28 February 1997]; [NETHERLANDS Rechtbank Arnhem, 17 July 1997]; [GERMANY Landgericht München 6 May 1997]; CLOUT case No. 337 [GERMANY Landgericht Saarbrücken 26 March 1996]; CLOUT case No. 166 [GERMANY Arbitration - Schiedsgericht der Handelskammer Hamburg, 21 March, 21 June 1996] (see full text of the decision); CLOUT case No. 136 [GERMANYOberlandesgericht Celle 24 May 1995] (see full text of the decision); [ICC Court of Arbitration of the International Chamber of Commerce, 1995 (Award No. 8128/1995)]; [HUNGARY Arbitration Court attached to the Hungarian Chamber of Commerce and Industry 17 November 1995 (award No. VB/94124)]; CLOUT case No. 154 [FRANCE Cour d'appel de Grenoble 22 February 1995]; [AUSTRALIA Court of Appeal, New South Wales 12 March 1992 (Renard Constructions v. Minister for Public Works)].

43. See CLOUT case No. 277 [GERMANY Oberlandesgericht Hamburg 28 February 1997].

44. CLOUT case No. 154 [FRANCE Cour d'appel de Grenoble 22 February 1995].

45. [NETHERLANDS Rechtbank Rotterdam 25 February 2009]; for similar statements, see [ITALY Tribunale di Rovereto 21 November 2007]; [GERMANY Oberlandesgericht Köln 21 December 2005]; [GERMANY Landgericht Neubrandenburg 3 August 2005]; CLOUT case No. 831 [NETHERLANDS Hooge Raad 28 January 2005].

46. [SPAIN Audiencia Provincial de Navarra 27 December 2007].

47. CLOUT case No. 547 [SPAIN Audiencia Provincial de Navarra 22 September 2003].

48. [GERMANY Oberlandesgercht Celle 24 July 2009]; [ITALY Tribunale di Rovereto 21 November 2007]; [GERMANY Oberlandesgericht Köln 21 December 2005]; [GERMANY Landgericht Neubrandenburg 3 August 2005]; [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 9 December 2002]; CLOUT case No. 445 [GERMANY Bundesgerichtshof 31 October 2001].

49. CLOUT case No. 595 [GERMANY Oberlandesgericht München 15 September 2004]; [ITALY Tribunale di Padova 31 March 2004]; [ITALY Tribunale di Padova 25 February 2004].

50. See [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 27 July 1999]; CLOUT case No. 230 [GERMANY Oberlandesgericht Karlsruhe 25 June 1997] (see full text of the decision); CLOUT case No. 94 [AUSTRIA Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft -- Wien 15 June 1994]; CLOUT case No. 93 [AUSTRIA Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft -- Wien 15 June 1994] (see full text of the decision); [NETHERLANDS Hof s'Hertogenbosch 26 February 1992].

51. [NETHERLANDS Rechtbank Amsterdam 5 October 1994].

52. CLOUT case No. 49 [GERMANY Oberlandesgericht Düsseldorf 2 July 1993].

53. CLOUT case No. 205 [FRANCE Cour d'appel de Grenoble 23 October 1996].

54. [SWITZERLAND Amtgericht Sursee 12 September 2008]; [AUSTRIA Oberster Gerichtshof 29 June 1999].

55. [AUSTRIA Oberster Gerichtshof 18 December 2002].

56. CLOUT case No. 312 [FRANCE Cour d'appel de Paris 14 January 1998].

57. [GERMANY Landgericht Berlin 24 March 1998].

58. [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal du Valais 27 April 2007]; [SWITZERLAND Tribunal Cantonal du Valais 27 October 2006]; [ARGENTINA Juzgado Comercial No. 26 Secretaria No. 51, Buenos Aires 2 July 2003].

59. See [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal du Valais 27 April 2007]; CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; CLOUT case No. 380 [ITALY Tribunale di Pavia 29 December 1999]; CLOUT case No. 196 [SWITZERLAND Handelsgericht des Kantons Zürich 26 April 1995] (see full text of the decision); CLOUT case No. 97 [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993].

60. See CLOUT case No. 97 [SWITZERLAND Handelsgericht des Kantons Zürich 9 September 1993].

61. CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; [GERMANY Bundesgerichtshof 9 January 2002]; CLOUT case No. 380 [ITALY Tribunale di Pavia 29 December 1999].

62. For references to this principle, see [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; CLOUT case No. 934 [SWITZERLAND Tribunal Cantonal du Valais 27 April 2007]; CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003]; [GERMANY Bundesgerichtshof 9 January 2002]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000]; [GERMANY Landgericht Frankfurt, 6 July 1994]; CLOUT case No. 107 [AUSTRIA Oberlandesgericht Innsbruck 1 July 1994] (see full text of the decision).

63. See [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; CLOUT case No. 885 [SWITZERLAND Bundesgericht 13 November 2003] (see full text of the decision); CLOUT case No. 378 [ITALYTribunale di Vigevano 12 July 2000].

64. CLOUT case No. 894 [SWITZERLANDBundesgericht 7 July 2004] (see full text of the decision); see also CLOUT case No. 885 [SWITZERLANDBundesgericht 13 November 2003] (see full text of the decision).

65. See CLOUT case No. 261 [SWITZERLAND Bezirksgericht der Sanne 20 February 1997]; CLOUT case No. 103 [ICC International Chamber of Commerce, 1993 (no. 6653)]. In one case, a state court referred to the problem of whether the Convention is based upon a particular general principle in respect of the issue of burden of proof or whether the issue is one not governed by the Convention, but left the issue open: see CLOUT case No. 253 [SWITZERLAND Cantone del Ticino Tribunale d'appello 15 January 1998].

66. [ITALY Tribunale di Padova 25 February 2004]; CLOUT case No. 424 [AUSTRIA Oberster Gerichtshof 9 March 2000]; CLOUT cases Nos. 93 [AUSTRIA Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft-Wien 15 June 1994] and 94 [AUSTRIA Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft-Wien 15 June 1994].

67. CLOUT case No. 424 [AUSTRIA Oberster Gerichtshof 9 March 2000].

68. [ITALY Tribunale di Padova 25 February 2004]; [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 9 December 2002].

69. See [NETHERLANDS Rechtbank Arnhem 17 January 2007]; [ITALY Tribunale di Padova 31 March 2004]; [NETHERLANDS Rechtbank Rotterdam 12 July 2001]; [SWITZERLAND Bundesgericht1 5 September 2000]; [MEXICO Compromex Arbitration 29 April 1996]; CLOUT case No.176 [AUSTRIA Oberster Gerichtshof 6 February 1996] (see full text of the decision).

70. [AUSTRIA Oberster Gerichtshof 29 June 1999].

71. CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof 6 February 1996] (see full text of the decision).

72. [AUSTRIA Handelsgericht Wien 3 May 2007].

73. [SERBIA Foreign Trade court of Arbitration attached to the Serbian Chamber of Commerce 6 November 2005]; see also [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 27 November 2002].

74. [SERBIA Foreign Trade court of Arbitration attached to the Serbian Chamber of Commerce 6 November 2005].

75. [ITALY Tribunale di Padova 25 February 2004].

76. [GERMANY Landgericht Stuttgart 13 August 1991] (according to the contract, the notice of non-conformity had to be by registered letter. The court held that that meant that the notice had to be received by the other party. Moreover, the declaring party had also to prove that the notice had been received by the other party). See also CLOUT case No. 305 [AUSTRIA Oberster Gerichtshof 30 June 1998].

77. [ITALY Tribunale di Padova 25 February 2004]; [GERMANY Landgericht Zwickau 19 March 1999]; [ICC Court of Arbitration of the International Chamber of Commerce, December 1997 (Arbitral award No. 8817); see also CLOUT case No. 608 [ITALY Tribunale di Rimini 26 November 2002].

78. [ITALY Tribunale di Padova 25 February 2004]; [BELGIUM Rechtbank Koophandel Ieper 29 January 2001].

79. CLOUT case No. 348 [GERMANY Oberlandesgericht Hamburg 26 November 1999].

80. See [GERMANY Landgericht München 18 May 2009]; [GREECE Polimeles Protodikio Athinon 2009 (docket No. 4505/2009)]; [GREECE Monomeles Protodikio Thessalonikis 2007 (docket No. 43945/2007)]; CLOUT case No. 894 [SWITZERLAND Bundesgericht 7 July 2004] (see full text of the decision); [ITALY Tribunale di Padova 25 February 2004]; [GERMANY Oberlandesgericht Düsseldorf 25 July 2003]; [GERMANY Landgericht Mönchengladbach 15 July 2003]; CLOUT case No. 605 [AUSTRIA Oberster Gerichtshof 22 October 2001]; CLOUT case No. 378 [ITALY Tribunale di Vigevano 12 July 2000] (see full text of the decision); CLOUT case No. 360 [GERMANY Amtsgericht Duisburg 13 April 2000]; CLOUT case No. 232 [GERMANY Oberlandesgericht München 11 March 1998]; CLOUT case No. 259 [SWITZERLAND Kantonsgericht Freiburg 23 January 1998]; [GERMANY Landgericht Hagen 15 October 1997]; [GERMANY Landgericht München 6 May 1997]; CLOUT case No. 275 [GERMANY Oberlandesgericht Düsseldorf 24 April 1997] (see full text of the decision); CLOUT case No. 169 [GERMANY Oberlandesgericht Düsseldorf 11 July 1996] (see full text of the decision); [GERMANY Landgericht Duisburg 17 April 1996]; CLOUT case No. 289 [GERMANY Oberlandesgericht Stuttgart 21 August 1995]; [GERMANY Landgericht München 20 March 1995]; [NETHERLANDS Rechtbank Middelburg 25 January 1995]; [GERMANY Amtsgericht Mayen 6 September 1994]; CLOUT case No. 281 [GERMANY Oberlandesgericht Koblenz 17 September 1993]; CLOUT case No. 125 [GERMANY Oberlandesgericht Hamm 9 June 1995]; [NETHERLANDS Rechtbank Roermond 6 May 1993]; CLOUT case No. 99 [NETHERLANDS Rechtbank Arnhem 25 February 1993].

81. [POLAND Supreme Court 11 May 2007]; [AUSTRIA Oberster Gerichtshof 8 November 2005].

82. [AUSTRIA Oberster Gerichtshof 8 November 2005]; [ITALY Tribunale di Padova 25 February 2004].

83. [ITALY Tribunale di Padova 31 March 2004]; [ICC Court of Arbitration of the International Chamber of Commerce, December 1998 (Arbitral award No. 8908)].

84. CLOUT case No. 217 [SWITZERLAND Handelsgericht des Kantons Aargau 26 September 1997] (see full text of the decision); CLOUT case No. 80 [GERMANY Kammergericht Berlin 24 January 1994] (see full text of the decision); CLOUT case No. 56 [SWITZERLAND Canton of Ticino Pretore di Locarno Campagna 27 April 1992] (see full text of the decision).

85. [BULGARIA Arbitral Tribunal at the Bulgarian Chamber of Commerce and Industry 12 February 1998 (award No. 11/1996)]; [GERMANY Landgericht Zwickau 19 March 1999].

86. See, e.g., [UNITED STATES District Court, New Jersey 15 April 2009]; [SWITZERLAND Tribunal Cantonal du Valais 28 January 2009]; [NETHERLANDS Rechtbank Rotterdam 21 January 2009 (docket No. 277329 / HA ZA 97-272)]; [SWITZERLAND Handelsgericht Aargau 26 November 2008]; [GREECE 2007 Monomeles Protodikio Thessalonikis (docket No. 43945/2007)]; [SWITZERLAND Handelsgericht Aargau 19 June 2007]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 29 December 2006]; CLOUT case No. 945 [SLOVAKIA District Court in Galanta 15 December 2006]; CLOUT case No. 917 [CROATIA High Commercial Court 24 October 2006]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 14 December 2005]; CLOUT case No. 944 [NETHERLANDS Hof 's-Hertogenbosch 11 October 2005]; CLOUT case No. 919 [CROATIA High Commercial Court 26 July 2005]; [ITALY Tribunale di Padova 31 March 2004]; [SWITZERLAND Tribunal Cantonal du Valais 30 April 2003]; [SERBIA Foreign Trade Court of Arbitration attached to the Yugoslav Chamber of Commerce 9 December 2002]; [SWITZERLAND Kantonsgericht Schaffhausen 25 February 2002]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 30 July 2001]; [BULGARIA Bulgarian Chamber of Commerce and Industry 12 March 2001]; [BELGIUM Rechtbank van Koophandel Ieper 29 January 2001]; [ICC Court of Arbitration of the International Chamber of Commerce, France, 2001 (Arbitral award No. 9771)]. For a decision referring to this approach as well as the approach favoring resort to the general principles of the Convention (although, for procedural reasons, the decision did not have to decide which approach to favor), see [GERMANY Oberlandesgericht Köln 15 September 2004].

87. [SWITZERLAND Kantonsgericht Schaffhausen 25 February 2002].

88. [BELGIUM Hof van Cassatie 19 June 2009].

89. CLOUT case No. 248 [SWITZERLAND Bundesgericht 28 October 1998] (see full text of the decision).

90. [AMERICAN ARBITRATION ASSOCIATION United States, 23 October 2007].

91. CLOUT case No. 747 [AUSTRIA Oberster Gerichtshof 23 May 2005] (see full text of the decision); CLOUT case No. 428 [AUSTRIA Oberster Gerichtshof 7 September 2000].

92. See the Digest for article 40, paragraph 16.

93. CLOUT case No. 237 [SWEDEN Arbitration Institute of the Stockholm Chamber of Commerce 5 June 1998] (see full text of the decision).

94. Article 35(3) provides that a seller is not liable for a lack of conformity under article 35(2) "if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity".

95. CLOUT case No. 168 [GERMANY Oberlandesgericht Köln 21 March 1996].

96. [BELGIUM Hof van Cassatie 19 June 2009].

97. [NETHERLANDS Netherlands Arbitration Institute 10 February 2005].

98. See [ICC Court of Arbitration of the International Chamber of Commerce, 1995 (Arbitral award No. 8128)].

99. [ICC Court of Arbitration of the International Chamber of Commerce, March 1998 (Arbitral award No. 9117)]; [ICC Court of Arbitration of the International Chamber of Commerce, 1997 (Arbitral award No. 8817)].

100. CLOUT case No. 205 [FRANCE Cour d'appel de Grenoble 23 October 1996] (see full text of the decision).

101. See [NETHERLANDS Rechtbank Zwolle 5 March 1997].

102. [CHINA International Economic and Trade Arbitration Commission, People's Republic of China, 2004 (Arbitral award in No. CISG/2004/07)].


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