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

Digest of Article 92 case law [reproduced with permission of UNCITRAL] [*]

Article 92

(1) A Contracting State may declare at the time of signature, ratification, acceptance, approval or accession that it will not be bound by Part II of this Convention or that it will not be bound by Part III of this Convention.

(2) A Contracting State which makes a declaration in accordance with the preceding paragraph in respect of Part II or Part III of this Convention is not to be considered a Contracting State within paragraph (1) of article 1 of this Convention in respect of matters governed by the Part to which the declaration applies.

OVERVIEW

1. Article 92(1) of the Convention permits a State to make a declaration at the time of signature, ratification, acceptance, approval or accession that it will not be bound by Part II (formation of the contract) or Part III (obligations under the contract) of the Convention.

2. Sweden made an article 92 declaration providing that, "[w]ith reference to article 92, Sweden will not be bound by Part II of the Convention (Formation of the Contract)." (15 December 1987).[1] In October 2009, the Ministry of Justice of Sweden announced it would adopt Part II by withdrawing this article 92 declaration.[2]

3. Norway made an article 92 declaration providing that, "[i]n accordance with article 92, paragraph (1) Norway will not be bound by Part II of this Convention (Formation of the Contract)." (20 July 1988).[3] At the time this is written, Norway is considering withdrawing its article 92 declaration.[4]

4. Finland made an article 92 declaration providing that, "Finland will not be bound by Part II of the Convention." (15 December 1987).[5] In October 2009 the Ministry of Justice of Finland announced that Finland would adopt Part II by withdrawing its article 92 declaration.[6]

5. Denmark made an article 92 declaration providing that, "Denmark will not be bound by Part II of the Convention." (14 February 1989).[7] In October 2009 the Ministry of Justice of Denmark announced that Denmark would adopt Part II and withdraw its article 92 declaration.[8]

6. See article 97 regarding the withdrawal of declarations of reservations, and the effective date of such withdrawals.

7. Article 92(2) modifies the notion of what constitutes a Contracting State by providing that a State that has made a declaration under article 92(1) is not a Contracting State as regards the Part which it has excluded by its declaration. Accordingly, as regards the excluded Part the Convention is not applicable via article 1(1)(a) since both parties are not from Contracting States with regard to the excluded Part.[9] Rather, whether the Part of the Convention subject to the declaration applies can be determined by article 1(1)(b) — i.e., by applying the rules of private international law of the forum (assuming that the forum State has not made an article 95 declaration).[10] It is generally held that if the rules of private international law lead to the law of the Contracting State that has not made an article 92 declaration, the Part of the Convention subject to the other State's declaration is applicable by virtue of article 1(1)(b).[11] However, the possible application of article 1(1)(b) has sometimes been overlooked.

8. In one case, in which one party was from a State that had made an article 92 declaration excluding the applicability of Part II of the Convention (and the other party came from a Contracting State without such a declaration), a Court applied the domestic law of the forum because the parties did not raise the Convention's possible applicability.[12]

9. One case held that even if a party is from a Contracting State that has taken a declaration not to be bound by Part II, a contract may still be concluded if mutual consensus is reached by other means, even if it not "geared to the applicable domestic law."[13] In other words, "[a] contract may thus be validly concluded, provided that the conduct by the parties sufficiently demonstrates a consensus and thus the intention to enter into a binding contract and that the content of their agreement is similar to contracts concluded under article 14 et seq. CISG."[14] Thus the court relied on the Convention's articles in Part I to determine whether a contract was concluded.

10. In one case, the Court faced the issue of whether the United States parol evidence rule was applicable when domestic law (the law of the state of Illinois) governed contract formation issues, and the Convention was otherwise applicable (one party was from a Contracting State that excluded Part II of the Convention via article 92; the other party was from a Contracting State that had not made an article 92 declaration).[15] The Court held that issues of parol evidence are addressed by article 8 of the Convention and not by the contract formation provisions in Part II. As neither Contracting State had declared they were not bound by Part I, the Court held that the Convention — and not domestic law — governed the parol evidence issue in the case.


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.

1. United Nations Convention on Contracts for the International Sale of Goods, 11 April, 1980, 1489 U.N.T.S. 3, available at <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=X-10&chapter=10&lang=en>. See also CLOUT case No. 121 [GERMANY Appellate Court, Frankfurt, 4 March 1994] (over looking the article 92 declaration made by Sweden and applying the Convention to contract formation issues).

2. Sweden, in CISG: Table of Contracting States, available on the Internet at <www.cisg.law.pace.edu/cisg/countries/cntries-Sweden.html>.

3. United Nations Convention on Contracts for the International Sale of Goods, 11 April, 1980, 1489 U.N.T.S. 3, available at <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=X-10&chapter=10&lang=en>

4. Norway, in CISG: Table of Contracting States, available on the Internet at <www.cisg.law.pace.edu/cisg/countries/cntries-Norway.html>.

5. United Nations Convention on Contracts for the International Sale of Goods, 11 April, 1980, 1489 U.N.T.S. 3, available at <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=X-10&chapter=10&lang=en>.

6. Finland, in CISG: Table of Contracting States, available on the Internet at <www.cisg.law.pace.edu/cisg/countries/cntries-Finland.html>.

7. United Nations Convention on Contracts for the International Sale of Goods, 11 April, 1980, 1489 U.N.T.S. 3, available at <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=X-10&chapter=10&lang=en>. See also CLOUT case No. 362 [GERMANY Oberlandesgericht Naumburg 27 April 1999] (overlooking the article 92 reservation made by Denmark and applying the Convention to contract formation issues).

8. Denmark, in CISG: Table of Contracting States, available on the Internet at <http://www.cisg.law.pace.edu/cisg/countries/cntries-Denmark.html>.

9. [ICC Arbitration Court of the International Chamber of Commerce, 1999 (Arbitral award No. 10274) (Poultry feed case)] ("with regard to the issue of the formation of the alleged contracts (and only with regard to this issue), Danish law (without incorporation of the CISG applies"; "The obligations under the alleged contracts and the contract remedies are generally governed by the CISG [as no Part III reservation was made by either Contracting State]"); CLOUT case No. 997 [DENMARK Sø og Handelsretten 31 January 2002] ("[Seller] stated that the question of which contract the parties had made was to be decided by the general rules of Danish law, as Denmark has made a declaration under Article 92 reserving out of the contract formation provisions of the CISG. Otherwise it is agreed that the CISG applies."); [GERMANY Landgericht Flensburg 19 January 2001] (court held the Convention was the applicable law, as the dispute did not concern Part II of the Convention); [ITALY Corte de Appello di Milano 23 January 2001]; CLOUT case No. 201, [SWITZERLAND Richteramt Laufen des Kantons Berne 7 May 1993]; [UNITED STATES U.S. District Court, New Jersey, 15 June 2005 (Valero Marketing v. Greeni Oy)] ("[t]he CISG doesn't govern in this matter with respect to contract formation and thus with respect to the effect to be given to [Buyer's] confirmation designating New York law"; "[B]ecause Finland is not a signatory to Part II of the CISG, the CISG does not govern the effect of the choice of law provision contained in [Buyer's] written confirmation."); [GERMANY Landgericht Bielefeld 12 December 2003].

10. CLOUT case No. 228 [GERMANY Oberlandesgericht Rostock 27 July 1995], ("...Denmark had made a reservation under article 92(2) CISG such that it was not bound by Part II (Formation) of the CISG. Therefore, under the German rules of private international law, the formation of the parties' contract was governed by Danish law…"); CLOUT case no. 143 [HUNGARY Fovarosi Birosag Budapest 21 May 1996].

11. [ICC Court of Arbitration of the International Chamber of Commerce, 1992 (Arbitral award No. 7585)] ("Finland has made a reservation upon ratification, declaring that it would not be bound by Part II of the Convention. The conflict of laws rules expressed in the 1955 Hague Convention on the Law Applicable to Contracts for the International Sale of Goods (which both States are signatories) led to the application of Italian law, i.e., the Convention, including Part II"); CLOUT case No 309 [DENMARK Østre Landsret 23 April 1998 (Elinette Konfektion Trading ApS v. Elodie S.A.)].

12. CLOUT case No. 612 [UNITED STATES U.S. Court of Appeals for the Third Circuit, United States, 20 June 2003 (Standard Bent Glass Corp v. Glassrobots Oy)] ("Because the parties have not raised the CISG's applicability to this dispute, we decline to address it here" (footnote 7)).

13. CLOUT case No. 134 [GERMANY Bundesgerichtshof 8 March 1995].

14. Ibid.

15. CLOUT case No. 419 [UNITED STATES U.S. District Court, Northern District of Illinois, 27 October 1998 (Mitchell Aircraft Spares v. European Aircraft Service)].


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