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

Digest of Article 96 case law [reproduced with permission of UNCITRAL] [*]

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.

INTRODUCTION

1. Some States consider it important that contracts and related matters — such as contract modifications, consensual contract terminations, and even communications that are part of the contract formation process — be in writing. Articles 12 and 96 of the Convention work together to permit a Contracting State to make a declaration that recognizes this policy: a reservation under article 96 operates, as provided in article 12,[1] to prevent the application of any provision of article 11, article 29 or Part II of the 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, where any party has his place of business in that Contracting State.[2] Article 96, however, limits the availability of the declaration to those Contracting States whose legislation requires contracts of sale to be concluded in or evidenced by writing. To date Argentina,[3] Armenia,[4] Belarus,[5] Chile,[6] People's Republic of China,[7] Hungary,[8] Latvia,[9] Lithuania,[10] Paraguay,[11] Russian Federation,[12] and Ukraine [13] have made article 96 declarations.[14]

Sphere of Application and Effects

2. Both the language and the drafting history of article 12 confirm that, under the provision, an article 96 declaration operates only against the informality effects of article 11, article 29, or Part II of this Convention; thus article 12 does not cover all notices or indications of intention under the Convention, but is confined to those that relate to the expression of the contract itself, or to its formation, modification or termination by agreement.[15]

3. Article 12 provides that the Convention's freedom from-form-requirements principle is not directly applicable where one party has its relevant place of business in a State that made a declaration under article 96,[16] but different views exist as to the further effects of such a declaration. According to one view, the mere fact that one party has its place of business in a State that made an article 96 declaration does not necessarily bring the form requirements of that State into play;[17] instead, the applicable form requirements — if any — will depend on the rules of private international law ("PIL") of the forum. Under this approach, if PIL rules lead to the law of a State that made an article 96 reservation, the form requirements of that State will apply; where, on the other hand, the law of a Contracting State that did not make an article 96 reservation is applicable, the freedom-from-form-requirements rule of article 11 governs.[18] Another view is that, if one party has its relevant place of business in an article 96 reservatory State, writing requirements apply.[19]


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. As provided in the second sentence of article 12 — and as confirmed by the drafting history of the provision, the text of article 6, and case law — article 12, unlike most provisions of the Convention, cannot be derogated from. See the Digest for article 12.

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

3. Effective 19 July 1983 upon accession.

4. Effective 2 December 2008 upon accession.

5. Effective 9 October 1989 upon accession.

6. Effective 7 February 1990 upon ratification.

7. Effective 11 December 1986 upon approval.

8. Effective 16 June 1983 upon ratification.

9. Effective 31 July 1997 upon accession.

10. Effective 18 January 1995 upon accession.

11. Effective 13 January 2006 upon accession.

13. Effective 3 January 1990 upon accession.

14. Estonia made an article 96 declaration upon ratification of the Convention on 20 September 1983; however, on 9 March 2004 Estonia withdrew the declaration.

15. See United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 20.

16. [BELGIUM Rechtbank van Koophandel Hasselt 2 May 1995]; CLOUT case No. 534 [AUSTRIA Oberster Gerichtshof 17 December 2003]; [CHINA International Economic & Trade Arbitration Commission, People's Republic of China, 6 September 1996 (Engines case)]; [CHINA International Economic & Trade Arbitration Commission, People's Republic of China, 31 December 1997]; CLOUT case No. 770 [CHINA Economic & Trade Arbitration Commission, People's Republic of China, 29 March 1999]; CLOUT case No. 52 [HUNGARY Fovárosi Biróság, Budapest 24 March 1992].

17. [NETHERLANDS 12 July 2001 Rechtbank Rotterdam]; [UNITED STATES U.S. Court of Appeals for the Third Circuit, 21 July 2010 (Forestal Guarani, S.A. v. Daros International, Inc.)].

18. [NETHERLANDS Rechtbank Rotterdam 12 July 2001]; [NETHERLANDS Hoge Raad 7 November 1997]; CLOUT case No. 52 [HUNGARY Fovárosi Biróság, Budapest 24 March 1992]; [MEXICO Comisión para la Protección del Comercio Exterior de México 29 April 1996 (Conservas La Costella S.A. de C.V. v. Lanín San Luis S.A. & Agroindustrial Santa Adela S.A.)]; [UNITED STATES U.S. Court of Appeals for the Third Circuit, 21 July 2010 (Forestal Guarani, S.A. v. Daros Inter national, Inc.)] (applying choice-of-law rules from forum state to determine which form requirements govern claim).

19. [RUSSIA The High Arbitration Court of the Russian Federation 16 February 1998]; [BELGIUM Rechtbank van Koophandel Hasselt 2 May 1995]; CLOUT case No. 534 [AUSTRIA Oberster Gerichtshof 17 December 2003]; [CHINA International Economic & Trade Arbitration Commission, People's Republic of China, 6 September 1996 (Engines case)]; [CHINA International Economic & Trade Arbitration Commission, People's Republic of China, 31 December 1997]; [RUSSIA Vysshi Arbitrazhnyi Sud Rossyiskoi Federatsii 25 March 1997]; [RUSSIA Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry 16 February 2004 (Arbitral award No. 107/2002)]; [UNITED STATES U.S. District Court, Southern District of Florida, 19 May 2008 (Zhejiang Shaoxing Yongli Pringing and Dyeing Co., Ltd v. Microflock Textile Group Corporation)] [RUSSIA Tribunal of International Commerical Arbitration at the Russian Federation Chamber of Commerce and Industry 9 June 2004].


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