Comments on the match-up
Setting aside the CISG reference to Article 12 (which is new), "by the second session of the UNCITRAL Working Group it had been agreed that the principle contained in article 3 ULIS should be maintained. . . . The amendment made, in particular the express reference to the fact that the parties may 'derogate from or vary the effect' of the CISG's provisions and the deletion of the second sentence in Article 3 ULIS, were intended purely as drafting changes." Herber in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Oxford 1998) 52.
Go to views on citing ULIS or ULF cases in CISG proceedings
ULIS case law referred to below comes from the chapter on CISG Article 6 in Commentary on the UN Convention on the International Sale of Goods, Peter Schlechtriem ed. (Claredon Press: Oxford 1998)
The author of this chapter is Rolf Herber, Emeritus Professor, University of Hamburg. ULIS case annotation provided are his. [Bracketed] material following each case citation identifies the page of his chapter and the footnote he provides. Click here for schedule of abbreviations contained in his case citations.
Interpretation and ULIS case support
The material we have excerpted pertains only to case law under the Uniform Law that preceded the CISG -- jurisprudence that parties have regarded as relevant because the CISG drafting process commenced with that Law. See the cited chapter of the Schlechtriem Commentary for a comprehensive analysis of CISG Article 6.
- The CISG may be excluded by agreement, in particular during legal proceedings.
- BGH RIW 1984, 151 [54 n.19]
- BGH NJW 1981, 1156, 1157 [54 n.19]
- OLG Koblenz, IPRax 1981, 20 [54 n.19]
- LG Braunschweig, RIW 1983, 371, 372 [54 n.19]
- But the CISG may be excluded only up to the conclusion of proceedings in a court of fact.
- BGH WM 1981, 169, 170 [54 n.19]
- The parties may exclude the Convention wholly or in part.
- OLG Celle, IPRax 1985, 284, 288 [54 n.20]
- OLG Hamburg, RIW 1981 262, 263 [54 n.20]
- OLG Hamm, IPRax 1983, 231, 232 [54 n.20]
- KG Berlin, RIW 1985, 76, 77 [54 n.20]
- Although the CISG does not refer expressly to the possibility of implicit derogation, as Article 3 ULIS did, such implicit derogation remains possible under the CISG. The reference was deleted merely in order to prevent the courts from being too ready to infer that the Convention had been excluded. That is understandable when one considers the extent to which attempts were made under ULIS to balance the parties' interest on an objective basis so as to find, without taking their actual intentions into account, that hypothetically they would have agreed to exclude the Convention. See:
- OLG Hamm, RIW 1980, 662, 663 (held the exclusion of ULIS to be implied, if the application of ULIS leads to wholly insufferable results for one party) [54 n.25]
- Just as under ULIS, a hypothetical intention by the parties to exclude the application of the Convention is insufficient.
- BGHZ 96, 313, 319 [54 n.26]
- The parties must indicate their actual intention, even though they have not done so expressly. What conditions must be satisfied in that respect should be decided without recourse to domestic law.
- BGHZ 74, 193, 197 [55 n.27]
- The choice by the parties of the law of a Contracting State without an express indication that they wish to have the non- uniform sales law of that state applied (e.g., "the contract is subject to German law") cannot, as a rule, be assumed to be an implicit exclusion of the CISG. That is because the CISG is part of the legal system of each Contracting State.
- BGHZ 96, 313, 323 = NJW 1986, 1429 = RIW 1996, 214 [55 n.30]
- OLG Celle, IPRax, 1983, 283, 284 [55 n.30]
- OLG Hamm, IPRax, 1983, 231 [55 n.30]
- OLG Koblenz, RIW 1981, 262, 263 [55 n.30]
[See as well:
- ICC Arbitration Case No. 6076 of 1989, 15 Yearbook of Commercial Arbitration (Kluwer: 1990) 83, 86-87 ("ULIS applies [because] the contracts provide for the application of the Dutch law [and t]he applicability of Dutch law implies the applicability of ULIS. . . . Legal writers and modern jurisprudence generally admit that if the parties designate the applicable law of a Contracting State, ULIS is applicable, failing obvious arguments in favour of the contrary.")]
Also on ULIS see:
- BGH EuZW 1992, 518, 520 (no exclusion by standard business terms aimed at the application of German law) [55 n.30]
- OLG Köln, RIW 1992, 1021, 1022 (no exclusion by the fact that the parties referred only to German law in the course of legal proceedings) [55 n.30]
- OLG Düsseldorf, IPRax 1993, 412, 413 [55 n.30]
- OLG Koblenz, IPRax 1982, 20 [55 n.30]
- OLG München, NJW 1978, 499 [55 n.30]
- Generalized approaches are mistaken (for example, that of Vékás [IPRax 1987, 342, 346], who wishes always to apply a "presumption of derogation" where the law of a Contracting State is chosen, even where the requirements of Article 1(a) are satisfied. This "presumption of derogation" infringes the (domestic and international) requirement that, in case of doubt, the CISG should be applied even though it is dispositive law.
- On the corresponding problem under ULIS, BGHZ 96, 313, 319 [55 n.31]
- In general it will not be possible to demand that the parties know that in the absence of their agreement the CISG would have applied or to draw conclusions from such knowledge.
- BGH NJW 1981, 1156, 1157 [55 n.32]
- BGHZ 96, 313, 319 [55 n.32]
- Agreement on a specific provision of domestic law may -- at least if it is a provision of central importance -- indicate an intention to exclude the CISG as a whole.
- BGH NJW 1981, 1156, 1167 [56 n.34]
- LG Bamber, IPRax 1984, 266, 267 [56 n.34]
- This also applies if reference is made to particular domestic statutes or codifications.
- LG Kleve, IPRax 1984, 41 [56 n. 35]
- The incorporation of standard business terms into the contract may give rise to problems if they are clearly drawn up on the basis of a particular domestic legal system. In case of doubt, exclusion must be assumed, even if there is no express reference to the fact that that legal system is to constitute a subsidiary source of rules. That may also apply with regard to an arbitration clause whose terms are clearly based on domestic law.
- Arbitration court of the Hamburg Freundschaftliche Arbitrage, RIW 1978, 338 [56 n.38]
- An agreement allocating jurisdiction to a particular court or arbitration tribunal may indicate an intention to derogate from the CISG where it can be deduced therefrom that the law applicable at the forum is to apply and that law is not the law of a Contracting State. On the other hand, if it is concluded therefrom that the parties have chosen the law of a Contracting State, the position is basically the same as if that law had been expressly chosen; the CISG applies.
- But see Arbitration court of the Hamburg Freudschaftliche Arbitrage, RIW 1978, 338 [56 n.41]
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- Last updated June 18, 1998