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Citations to Summary Records of the Vienna Diplomatic Conference
Background information: The Official Text of the CISG was created at the 1980 Vienna Diplomatic Conference.
Article 38 citations contained in the Official Records of the Vienna Conference: Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna 10 March-11 April 1980, (hereinafter Official Records) A/CONF. 97/19 pp. 106-107, 208, 310-312, 318-320, 427. These documents are reprinted in Honnold, Documentary History of the Uniform Law for International Sales (Kluwer 1989) (hereinafter Documentary History) pp. 678-679, 743, 531-533, 539-541, 648. For electronic access to this material, go to Chronology of development of Article 38 at the 1980 Vienna Diplomatic Conference.
Data on the Secretariat Commentary
Background information: When the delegates to the Vienna Diplomatic Conference met in 1980 to adopt the CISG, they considered a 1978 Draft accompanied by a Secretariat Commentary on it. Much of that Commentary remains relevant.
Priority of attention: The segment of the CISG W3 database that presents citations to scholarly writings (the CISG W3 bibliography) contains the equivalent of over 250 single-spaced pages of citations to such writings on the CISG. Faced with such a mass of material, priority of attention is imperative.
The reasons for priority of attention to the Secretariat Commentary are:
(I) it summarizes and explains relevant conclusions derived from the legislative history of the Convention prior to the Vienna Conference;
(ii) it was used extensively by the delegates to this Conference as a guide to the meaning of the provisions of the 1978 Draft they considered;
(iii) based on this Secretariat Commentary and their further deliberations, in most cases the delegates approved these provisions of the 1978 Draft either verbatim or substantially as written;
(iv) as an official document prepared pursuant to a resolution of the United Nations General Assembly, the Secretariat Commentary is the closest available equivalent of an Official Commentary on the Convention;
(v) also, like the Convention, it is obvious from its source and contents that the Secretariat Commentary is not designed to favor legal interpretations prevalent in any one legal system versus another.
Because of its credentials, when the Secretariat Commentary fits the Official Text as well as the 1978 Draft, it is perhaps the most persuasive citation that one can present to a tribunal called upon to interpret the Convention in any of the many nations in which proceedings may be held.
Text of relevant Secretariat Commentary and caveats associated with its use: The Secretariat Commentary is on the 1978 Draft of the CISG, not the Official Text of this Convention. Prior to citing it, one should verify that the article of the 1978 Draft considered by the UNCITRAL Secretariat is substantively the same as its CISG counterpart. This is generally the case but it is not always so. See Article 38: 1978 Draft/Official Text, for a match-up of this article of the 1978 Draft with the Official Text of the CISG. The match-up is accompanied by editorial comments prepared for this presentation.
Accessing the Secretariat Commentary: The text of the Secretariat Commentary is presented in the Official Records of the Vienna Diplomatic Conference at Official Records, pp. 14-66. A photo-offset copy of this text is contained in Honnolds Documentary History, pp. 404-456. For electronic access to the Secretariat Commentary applicable to this article, see Legislative history of CISG article 38: Secretariat Commentary.
Frame-of-reference problem: There is a frame-of-reference problem associated with the official presentation of the Secretariat Commentary. The numbering sequence of the articles cited in this Commentary is generally not the same as the numbering sequence of the articles of the Official Text. This can confuse researchers properly concerned with the CISGs frame of reference.
Solution: The electronic access to the Secretariat Commentary contains an added feature.
The CISG counterpart to each article of the 1978 Draft cited in the Secretariat Commentary is identified in [brackets]. The basis for the comparative article number in [brackets] is the Comparative table of the numbering of the articles of the Convention contained in the Official Records of the Vienna Diplomatic Conference. Section one of the electronic presentation of the Secretariat Commentary contains a guide to the use of the Secretariat Commentary; section two, the text of the Commentary accompanied by editorial comments prepared for this presentation, where such comments appear appropriate. This material is also in [brackets].
Additional legislative history data provided: About 85% of the time, the delegates to the Vienna Conference approved verbatim (or substantially as written) the provisions interpreted by the Secretariat Commentary. In the other cases, the delegates often provided their own interpretation of the modification made, i.e., an equivalent to a Secretariat Commentary on these modifications. These delegate commentaries are quoted in editorial comments that accompany the match-up of 1978 Draft article 36 with CISG article 38.
Citations to UNCITRAL Yearbooks
Background information: The 1978 Draft and the Secretariat Commentary that accompanied it were preceded by ten years of UNCITRAL deliberations. They are recorded in UNCITRAL Yearbooks.
Problem: The UNCITRAL Yearbooks are not user-friendly because they are not indexed. Also, the article numbering system changed many times prior to the Vienna Diplomatic Conference. Absent a guide, locating relevant segments of this legislative history can be difficult. Searching the Yearbooks for material on this segment of the legislative history of the CISG is like looking for a needle in a haystack (actually nine haystacks). Also, some of the Yearbooks have at times been out of print.
Solution: Honnolds Documentary History makes most of this material much more accessible. The Documentary History contains indexed and cross-referenced photo-offset pages of the Yearbooks. The Documentary History is the best path to this segment of the legislative history. Citations to it, rather than the Yearbooks themselves, are presented below.
Article 38 citations to the UNCITRAL legislative history prior to the Vienna Conference: UNCITRAL Yearbooks I (1968-70), IV (1973), VI (1975), and VIII (1977); see Honnold, Documentary History, pp. 23-24, 35, 124, 144, 224, 246, 332. For libraries that have the Yearbooks but not the Documentary History, see cross reference to the applicable Yearbook citations.
New Development: UNCITRAL has entered on the Internet all of the cited Yearbooks. Go to <http://www.uncitral.org/uncitral/en/publications/yearbook.html>
Caveat: There is, of course, a caveat associated with the use of this element of the legislative history as well as any other element of the legislative history of this or any other convention or statutory text. The caveat is illustrated by a U.S. Supreme Court decision (on another subject) in which the majority and the dissenting opinion quote from the same legislative history to support opposing points of view. See Volkswagenwerk A.G. v. Schlunk, 486 U.S. 694 (1988). Any legislative history must be used with care. When so used, elements of the CISGs legislative history can at times be quite helpful.
Additional data provided: Report on the manner in which over a ten-year period (results summarized in the Secretariat Commentary), UNCITRAL matured the text considered by the delegates to the 1980 Vienna Diplomatic Conference. See UNCITRAL legislative history for a general explanation of the progression of events recorded in the Yearbooks and the roles assigned to the UNCITRAL Working Groups and Committees during the deliberations that led to the 1978 Draft of the CISG.
Data on the pre-UNCITRAL legislative history of the CISG
Background information: Certain concepts contained in the Hague Formation and Sales Conventions of 1964 (ULF and ULIS) influenced the CISG. The UNCITRAL Yearbook deliberations on the CISG commenced with the texts of these conventions. Some CISG articles are similar to their ULIS-ULF antecedents; some were changed. Where a Hague Convention concept was carried forward, ULF and ULIS deliberations, commentaries, and case law can be relevant to the proper interpretation of CISG provisions: hundreds of court decisions were handed down on the ULF and ULIS Conventions and many commentaries were written on those antecedents to the CISG.
An aid to determining whether interpretations of antecedents to the CISG can be relevant to the interpretation of this article: See Article 38: ULIS-ULF/CISG, for a match-up of ULF and ULIS provisions with this article of the CISG. Citations to antecedents contained in the Secretariat Commentary are the primary guide to this match-up of antecedents. European commentators, particularly from Germany and the Netherlands, frequently refer to such ULIS and ULF antecedents of the CISG.
Paths: The current paths to ULIS and ULF case law are primarily in German or Dutch texts among the best of which is Internationale Rechtsprechung zu EKG und EAG [International case law on ULIS and ULF -- in German], Schlechtriem & Magnus, eds. (Nomos, Baden-Baden 1987). Over time, English translations of selected ULIS and ULF cases will be presented in the CISG W3 database.
Caveat: Even where counterpart provisions appear similar or virtually identical, a further verification is necessary prior to applying ULIS/ULF concepts to the CISG. Each provision of each uniform law must be evaluated in its own context, in the setting of the uniform law in which it is contained. For this purpose, see full text of CISG, full text of ULIS and full text of ULF.