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ANNOTATED TEXT OF CISG
Article 91

(1) This Convention is open for signature at the concluding meeting of the United Nations Conference on Contracts for the International Sale of Goods and will remain open for signature by all States at the Headquarters of the United Nations, New York until 30 September 1981.

(2) This Convention is subject to ratification, acceptance or approval by the signatory States.

(3) This Convention is open for accession by all States which are not signatory States as from the date it is open for signature.

(4) Instruments of ratification, acceptance, approval and accession are to be deposited with the Secretary-General of the United Nations.


Case law


Scholarly writings on this article

The cisgw3 bibliography contains over 8,000 citations. It is therefore likely that, in addition to case law, you will find scholarly literature - often a wealth of such literature - on virtually every aspect of the CISG you research.


Adapted excerpt from Vladimir Pavic and Milena Djordjevic, "Some issues regarding application and interpretation of the CISG in Serbian arbitral practice: Looking back at the latest 100 cases (21 July 2009)

Effects of dissolution of former Yugoslavia to application of the CISG

The CISG entered into force on the territory of former Yugoslavia (SFRY) on 1 January 1988.[1] However, the dissolution of former Yugoslavia in the 90-s raises the question of application of the CISG by state succession in now six independent countries - former federal units (republics) of the SFRY.[2] Namely, were the newly independent ex-Yugoslav republics to be regarded as CISG Contracting States automatically upon dissolution of SFRY or not?

      The answer to this question is simple if we accept position of Art. 34 of the 1978 Vienna Convention on Succession of States in respect of Treaties. This article provides, in case of disolution of a state, for automatic continuation of application of the multilateral treaties signed by the predecessor state at the territory of the successor state.[3] This view can also be supported by the fact that many of the former Yugoslav republics have together with their declarations of independence made 'firm commitments' that the treaties entered into by the SFRY will remain in force in their territories.[4] With respect to the CISG, this 'promise' was further formalized by filing notifications of successions with retroactive application covering the period from the date of state succession to the date of filing of notification.[5] However, these actions were not made with the same expeditiousness, thus creating legal unceratinty to private parties as to the status of the CISG in the legal systems concerned. While Montenegro waited only four and a half months from the date of its independence to file a notification of succession to the CISG, it took Bosnia little less than two years, Croatia six and a half years and over 15 years in case of Macedonia. Consequently, it is necessary to reopen a controversial and unsettled issue of international public law regarding effects of the notifications of successions to treaties (whether they are of declaratory or constitutive character).[6] These effects, especially in the case of Macedonia, might have important consequences on the application of the CISG in the region.

      Namely, should Macedonian parties to contracts concluded in the period between the date of state succession (17 November 1991) and the date of notification of succession to the Convention (22 November 2006) be considered as coming from CISG Contracting States for the purposes of Art. 1(1)(a) CISG? And whether Macedonian law is to be considered as to include the CISG if the rules of private international law lead to its application under Art. 1(1)(b) CISG while the underlying contract is concluded in the abovementioned period? These questions are not purely academic, since some of them have already been addressed in practice before the Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce (hereinafter referred to as the FTCA). However, the approach of the FTCA tribunals with respect to this issue has not been unanimous.

      We have identified fourteen FTCA awards in the matter of international sales where one of the parties appearing before the arbitration was Macedonian.[7] In some of these cases, the contract contained a choice of law clause calling for application of Serbian (Yugoslav) law and the tribunals have reached different results - deciding on some occasions to apply the CISG, while in some cases they resorted to the application of the Serbian Law on Contracts and Torts (hereinafter referred to as the LCT).[8] Where there was no choice of law, tribunals did not address the issue of Macedonia's contracting status to CISG at all and instead chose Serbian rules as the most appropriate, pursuant to Art. 46(2) of the FTCA Rules.[9] There is one case where the tribunal, without addressing the issue of applicable law, went straightforward to applying the Serbian LCT.[10] Finally, in one-third of these cases the arbitrators addressed the issue of whether Macedonia was to be considered a CISG Contracting State prior to filing of notification of succession. We will focus our attention on this last group of cases.

      In the two cases decided prior to Macedonia's notification of succession, the sole arbitrator started with examining Art. 46(2) of the FTCA Rules and found that the Serbian law, as the law of the seller, should be deemed as the most appropriate law to apply to the case at hand. This led to application of the CISG, as part of Serbian law. However, in elaborating the reasons for CISG application, the arbitrator stated the following: "Since the seller is a Serbian company the applicable law should be the law of Serbia, i.e. the Law on Contracts and Torts. However, since both states on whose territory the parties have places of business were constituents of former SFRY, and since the SFRY has signed the UNCITRAL Convention on Contracts for International Sale of Goods and the contract at hand is a contract for international sale of goods, the arbitrator considers the Vienna (UNCITRAL) Convention as also applicable for reasons of automatic succession to multilateral treaties."[11] Although the final application of the Convention was in our view correct, it is notable that the arbitrator implicitly invoked Art. 1(1)(a) as the basis for application of the CISG, and not Art. 1(1)(b). Any justification of such an approach would prove to be controversial since the position of international law on state succession to treaties is not that clear[12] and Macedonia was not listed on the UNCITRAL web site as a CISG contracting state at the time when the award was made.

      There are three FTCA cases decided after Macedonia filed a notification of succession and was listed on the UNCITRAL web site as a CISG Contracting State. In award No. T-23/06 of 15 September 2008, in a dispute between a Serbian seller and a Macedonian buyer, the CISG was applied as part of the Serbian law on the basis of conflict-of-laws (COL) analyses. The sole arbitrator explicitly noted in the obiter dictum that the analysis of CISG application on the basis of Art. 1(1)(a) was purposefully omitted although Macedonia was a party to the Convention at the time of the making of the award, since this was not the case at the time of the contract conclusion. The opposite conclusion was reached in award No. T-8/07 of 9 May 2008 and award No. T-1/08 of 17 November 2008, where the CISG was applied on the basis of Art. 1(1)(a) since both countries of the parties' place of business were deemed parties to the CISG, despite the fact that the underlying contract was concluded prior to Macedonia's filing of notification of succession to the CISG.

      It appears that the conditions for application of the CISG on the basis of Art. 1(1)(a) were met in all of these cases regardless of the nature and legal effects of Macedonian notification of succession. On one hand, if such notification is of a declaratory character,[13] there are no reasons for denying application of the CISG in these cases since the Convention was in fact in force at the time of the contract conclusion. On the other hand, if it is of a constitutive character,[14] the text of the notification specifying the date of CISG's entry into force in Macedonia as the date of state succession (17 November 1991)[15] justifies the application of the CISG to contracts concluded after the date of succession, where the disputes arising out of these contracts were decided after the date of notification. Consequently, the phrasing of Macedonian notification of succession suggests that once Macedonia filed notification of succession all the obstacles were removed in finding Convention applicable. This would be either by virtue of Art. 1(1)(a), whenever the Macedonian party concluded the contract with another party based in a Contracting State, or pursuant to Art. 1(1)(b), whenever the rules of private international law point to Macedonian law as applicable, irrespective of the date on which the contract was concluded. However, we note that such outcome does not fit neatly with the idea expressed in Art. 100 CISG in all cases, especially if the notification is regarded to be of the constitutive character.

      The tension between Art. 100 CISG and the potentially constitutive nature of notification would be particularly strong in the cases where Macedonian law was explicitly chosen as the proper law of the contract and the contract was concluded after the Macedonian declaration of independence but prior to Macedonian notification of succession to the CISG. It could be argued that by opting for Macedonian law in that case the parties did not intend to be bound by the CISG since it did not form part of the Macedonian law at the time of contract conclusion. The CISG has a built-in mechanism to protect parties' legitimate expectations. One is contained in Art. 100(2), which insulates the parties from subsequent CISG incorporation into national law(s). Without such provision, parties who contract after CISG enters into force in the relevant jurisdiction(s) would be given greater freedom, as they could always exclude application of the CISG via Art. 6, while the parties who contracted before CISG entry into force would be deprived of such opportunity. Consequently, the ambiguity surrounding successions and the status of membership of Macedonia to the CISG (after all, Macedonia was not listed among Contracting States of the CISG at the UNCITRAL website for fifteen years![16]) and in particular notifications of succession which in effect confirm that a state was bound by the CISG for the past decade and a half seems to run contrary to the spirit of Art. 100 and the need for legal certainty. Article 100 would in that context be powerless to protect the legitimate expectations of the parties. Therefore, in the light of these circumstances, it may be justified to interpret parties' choice of Macedonian law in the contracts concluded between 17 November 1991 and 22 November 2006 as the choice of Macedonian internal law (LCT) and not the CISG.

      Since 14% of the cases we analyzed involved a Macedonian party, this issue is not purely academic even for FCTA practice, as one can reasonably expect more disputes between Serbian and Macedonian parties to be filed.[17] Given that the court decisions are subject to appeal, inter alia, on the questions of law, one is less likely to expect court decisions where considerations of legitimate expectations would trump strictly technical application of the Macedonian law. However, given that arbitral tribunals receive no scrutiny on the merits, protection of parties' legitimate expectations might take priority in the years to come before the FTCA tribunals.


FOOTNOTES

1. The Socialist Federative Republic of Yugoslavia (SFRY) signed the CISG on 11 April 1980 and ratified it on 27 December 1984. The Law on Ratification of the Convention was published in the Official Gazette of the SFRY, MU 10/84.

2. Slovenia, Croatia, Bosnia and Herzegovina, Serbia, Montenegro and Macedonia.

3. This Convention applies, pursuant to its Article 7, only to the successions which have occurred after the Convention has entered into force (this occurred on 6 November 1996, see <http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXIII-2&chapter=23&lang=en>), unless the concerned states agree otherwise. Given that the dissolution of SFRY was held completed in 1992, it can be argued that the 1978 Vienna Convention is inapplicable to this issue. Furthermore, it has often been said in the legal doctrine that the formulation of Article 34 of the 1978 Vienna Convention cannot be taken as reflective of international customary law. Even the automatic state succession to humanitarian treaties is highly controversial and is not supported by much state practice. Moreover, the International Court of Justice never expressed an opinion to the question whether or not the automatic succession reflects international customary law. Consequently, the area of state succession is still deemed as 'an area of great uncertainty and controversy', even amongst the international public law scholars. See A. Cassese, International Law, Oxford University Press 2001, p. 53; M. Shaw, International Law, 6th edition, Cambridge University Press, 2008, pp. 976-977; I. Brownlie, Principles of Public International Law, 5th edition, Oxford University Press, 1998, pp. 650, 663-664; M. Tamke, Succession of States to Multilateral Treaties, 2001, available at: <http://www.hausarbeiten.de/faecher/vorschau/104018.html>; A. Rasulov, "Revisiting State Succession to Humanitarian Treaties: Is There a Case for Automaticity?", European Journal of International Law (2003), Vol. 14 No. 1, pp 141-170; 2002 ILA Rapport final sur la succession en matière de traités, available at: <http://www.ila-hq.org>.

4. See 2002 ILA Rapport final sur la succession en matière de traités, p. 14, available at: <http://www.ila-hq.org>.

5. See <http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html>.

6. On one hand, the practice of making notifications by the successor states and the acceptance by the depositories could be interpreted as a statement against automatic succession, since had it been otherwise, the status of a Contracting State to the multilateral treaty would be established ipso facto from the date when such state declares independence. On the other, the practice of filing notifications of successions should be interpreted as concerned state's assistance to the depository for clarifying the situation and enabling the depository to modify the list of the Contracting States, thus preventing the risk of annulling their acts in the future. See M. Tamke, supra note 3.

7. Only award No. T-16/07 of 18 June 2008 deals with the dispute arising out of a contract concluded after Macedonia's filing of notification of succession to the CISG.

8. The tribunal applied Serbian LCT instead of CISG in awards Nos. T-11/99 of 11 July 2000, T-10/99 of 16 October 2000 and T-8/99 of 25 December 2000.

9. The CISG was applied in awards Nos. T-37/03 of 27 May 2004 and T-25/06 of 13 November 2007. The CISG was not applied in award No. T-5/01 of 29 November 2001. It is not clear which law arbitrator had in mind in the award No. T-28/03 of 26 April 2004 when granting seller's request for payment of the price.

10. Award No. T-11/05-12 of 16 December 2005.

11. Awards Nos. T-14/04 and T-15/04 of 21 February 2005. It is worth noting that both awards were decided by the same arbitrator.

12. See supra note 3.

13. See U. Schroeter, "Backbone or Backyard of the Convention? The CISG's Final Provisions" in A. Andersen, U. Schroeter (eds.), Sharing International Commercial Law across National Boundaries, Festschrift for Albert H Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill Publishing, 2008, p. 460.

14. This view can, inter alia, be supported by the fact that the FYR Macedonia contracting status to the CISG was confirmed on the UNCITRAL web site only upon filing of such notification.

15. Available at: <http://treaties.un.org/doc/Treaties/1998/12/19981208%2003-03%20AM/Related%20Documents/CN.1103.2006-Eng.pdf>

16. The controversies regarding legal character of notification of succession are also relevant with respect to the 1974 Convention on the Limitation Period in the International Sale of Goods. Former Yugoslavia acceded to this Convention on 27 November 1978. Yet, only those former Yugoslav republics who have filed notifications of succession are listed on the UNCITRAL web-site as Contracting States. Neither Croatia nor FYR Macedonia, which are undisputedly successor states to the SFRY, are, at this moment, listed as Contracting States. See: <http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1974Convention_status.html>.

17. As already pointed out, the significance of this issue is limited to disputes arising out of contracts concluded prior to 22 November 2006.


Pace Law School Institute of International Commercial Law - Last updated January 15, 2014
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