Reproduced with permission from the Cornell Review of the Convention on Contracts for the International Sale of Goods (1995) 51-94
Martin Karollus [*]
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If a contract contains a choice of law clause referring to the law of a CISG Member State, it is not clear whether the CISG is applicable. On one hand, the parties may have intended application of the CISG as part of the chosen national law. On the other hand, they may have intended to apply only the designated national law, excluding the CISG. While the parties' intent should prevail, in most cases such intent cannot be proven. Courts, therefore, are bound to develop general rules for the interpretation of choice of law provisions. The German courts, in accord with most authors, favor CISG application. In their view, the mere choice of a national law does not indicate an intent to exclude the CISG [OLG Koblenz 17 September 1993; OLG Düsseldorf 2 July 1993; OLG Köln 22 February 1994]. While this favors CISG application, it may not favor parties who did not intend CISG application. However, contracting parties can avoid this ambiguity by expressly excluding the CISG.
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* Professor of Law at the University of Bonn, Germany, from 1992 to February 1995. Currently, Professor of Law at the University of Linz, Austria. Address: Institut für Handels-und Wertpapierrecht, Universität Linz, A-4040 Linz-Auhof, Austria, Europe.
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98. See Rolf Herber, Art. 6: Ausschluß, Abweichung oder Änderung durch Parteiabrede, in Kommentar zum Einheitlichen UN-Kaufrecht 13 (Ernst von Caemmerer & Peter Schlechtriem eds., 2d ed. 1995).
99. Judgment of Sept. 17, 1993, OLG Koblenz, 1993 RIW at 934-36 (the parties chose "French law," and the court applied the CISG as part of French law); Judgment of July 2, 1993, OLG Düsseldorf, 1993 RIW at 845 (the parties did not indicate a choice of law, but the court noted that if they had chosen German law, the CISG would not apply because it was not in force in Germany when the contract was formed); Judgment of Feb. 22, 1994, OLG Köln, 1994 RIW at 972. The leading decision of the Bundesgerichtshof as to ULIS and choice of law provisions is Judgment of Dec. 4, 1985, BGH, 96 Entscheidungen des Bundesgerichtshofs in Zivilsachen [BGHZ] 313 (1986).
100. See Karollus, supra note 20, at 38-39.
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