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A Study of the Interplay between the Conventions Governing International Contracts of Sale

Analysis of the 1955 Hague Convention on the Law Applicable to Contracts of International Sales of Movable Goods; the 1980 Rome Convention on the Law Applicable to Contractual Obligations; and the 1980 United Nations Convention on Contracts for the International Sale of Goods

Carolina Saf
Queen Mary and Westfield College
September 1999


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2.4 The Primacy of the Conventions inter se

2.4.1 The Hague Convention

Apart from the doctrine of exclusion of renvoi, there are no guidelines as to the relationship with other conventions within the Convention.

2.4.2 The Rome Convention

Article 20 - Precedence of Community law

This Convention shall not affect the application of provisions which, in relation to particular matters, lay down choice of law rules relating to contractual obligations and which are or will be contained in acts of the institutions of the European Communities or in national laws harmonised in implementation of such acts.

The Rome Convention is subordinate to all other Community acts already in force or later adopted which contain rules of private international law with regard to contractual obligations. This is to avoid conflicts between these acts and the Convention and to allow further development within this field of law regarding particular types of contractual obligations.[45]

The Community provisions contemplated by Article 20 are Regulations, Directives and Conventions concluded by the institutions of the European Community and national laws harmonised in implementation of such acts.[46]

Article 21 - Relationship with other conventions

This Convention shall not prejudice the application of international conventions to which a Contracting State is, or becomes, a party.

Once ratified, the Rome Convention will completely replace all national conflict rules in force in a Contracting State which are of purely national origin and not part of any convention to which the Contracting State is a Party.[47] These "international" conflict rules will not be replaced and according to the provision the Convention will not prejudice their application.

However, the Article does not provide any uniform procedure, so the difficulties arising from the combined application of the Convention and another concurrent convention are not eliminated and the different Contracting States must seek their own solutions.[48] If the other concurrent convention contains a similar provision on subsidiarity, the issue could be solved by applying general principles of interpretation, in particular the principle of lex specialis derogat generalis, though it is recommendable that the issue is properly settled within the implementation process of the conventions.[49] Where the concurrent convention does not have such a provision, e.g. the Hague Convention, that convention will prevail, though see Plender's suggestion described below in section 2.4.4.

2.4.3 The Vienna Convention

Article 90

This Convention does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement.

This Article regulates the relation between the Vienna Convention and other international agreements concerning the same matters, i.e. substantive rules on international sales of goods. Since reference is made to `international agreements´, situations falling under Article 94 [50] will not be within the meaning of this provision. The effect of Article 90 is to displace the application of the Convention, but in order not to weaken the universal character of the Convention the provision will only apply where both parties have their relevant places of business in States Parties to another agreement concerning matters governed by the Convention.[51]

Article 90 will not regulate the relationship between the Convention on the one hand and the Hague and Rome Conventions on the other, since the latter two are concerned with the choice of law and do not contain any substantive rules. The fact that the Convention contains a unilateral conflict rule [Anwendungsbestimmende Kollisionsnorm], i.e. Article 1(1)(a), does not mean that its subject matter is conflict of laws. [52]

Article 90 is a rule of priority, therefore it is not necessary for a Contracting State to make a declaration under the provision in order for it to have effect. Despite this, Hungary has made an interpretative declaration, in which it is stated that Hungary regards COMECON General Conditions of Supply to fall under the Article. This declaration has not been contested by any Contracting States and it should state the law as it stands. The provision should cover any international agreement regardless of whether it is bilateral or multilateral.[53]

Herber has suggested that the law of the European Community would be able to claim priority under this provision.[54] He argues that the secondary EC law by way of analogy, since it is a sui generis legal system and not international law, should be given priority because of its basis in the Treaties of Rome and the fact that it, due to this basis, "objectively forms part of a set of rules governed by an international agreement."[55]

However, it is here argued that, first, the correct interpretation of Article 90 should be according to its wording, i.e. analogies are not appropriate. This is even more emphasised by the provisions in Article 94, under which Contracting States can make reservation against the application of the Convention inter se, if their substantive law constitutes a regional uniform legal order.[56] So far there has been no such reservation referring to EC law. Secondly, the secondary EC law is not uniform enough. It consists of de minimis rules, which will be implemented in due course (and sometimes later) by the Member States of the European Community, so how will the contents of the EC law be established? Should all Member States have implemented the Directive; should it be according to the actual Directive, i.e. the de minimis rules; the implementation [of stricter rules] in an individual Member State; or in any other way? Furthermore, even though an unimplemented Directive may have so called direct effect, i.e. that individuals can seek its enforcement it even though it is not yet implemented, this right is usually only against the Member State in question and not against other individuals.[57] All taken together, and apart from the fact that there is no EC contract law, let alone any EC law on international sales of goods, it is arguable that EC law should not even qualify for a declaration under Article 94.[58]

Article 99(3)

(3) A State which ratifies, accepts, approves, or accedes to this Convention and is a party to either or both the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Formation Convention) and the Convention relating to a Uniform Law on the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Sales Convention) shall at the same time denounce, as the case may be, either or both the 1964 Hague Sales Convention and the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect.

Article 99 concerns the transition from the 1964 Hague Sales Conventions to the new regime established in the Vienna Convention. The essence of the provision is that the rules of the Vienna Convention will replace those of the others.

2.4.4 Conclusion

It is clear that formally the Hague Convention will always prevail in regard to the other two Conventions in case of a collision. The probability of such a collision between the Vienna Convention on the one hand and the Hague and Rome Conventions on the other, is however minute, since they concern different matters, i.e. uniform conflict law and uniform substantive law, respectively.

In this context it must be emphasised, that even though Article 1(1)(a) of the Vienna Convention is a conflict rule, it is not a universal conflict rule, but a unilateral conflict one. As was explained above, the provision in Article 1(1)(a) will identify the specific situation in which the Vienna Convention is applicable, unlike the traditional universal conflict rules which are capable of identifying one, or more national legal systems out of an indefinite number as the governing law. Accordingly, since the unilateral conflict rule in Article 1(1)(a) constitutes lex specialis, it will prevail over the lex generalis contained in the traditional [universal] conflict rules. Therefore, apart from the fact that Article 90 strictly is concerned only with the subject-matter of the Vienna Convention, it is arguable that the provision will not be applicable to the relation between Article 1(1)(a) and any universal conflict rule, since it is aimed only at the principle of lex posterior derogat priori rather than the principle of lex specialis derogat generalis. Be that as it may, it is well settled that international sales of goods between parties who have have their relevant places of business in different Contracting States to the Vienna Convention will fall under its Article 1(1)(a), regardless of whether these places of business are in States parties to international agreements on private international law, such as the Hague and Rome Conventions.[59]

As between the Hague Convention and the Rome Convention, a collision is however quite likely to appear before courts of the nine States parties to both Conventions, since they are both universally applicable. For instance, the Hague and Rome Conventions have similar but inconsistent provisions concerning consumer sales of tangible goods. According to Article 21 of the Rome Convention, the Hague Convention should prevail, which would deprive the consumer of the protection afforded to him by the former. This is not a satisfactory solution and it is likely to jeopardise the observance by the Contracting States of the obligations under the Rome Convention.[60]

However, regarding this particular problem, the Contracting States to the Hague Convention are now by virtue of the 1980 Déclaration[61] allowed to make specific conflict of laws rules regarding consumer sales without committing a breach of their Convention obligations. Accordingly, consumer sales can be excluded altogether from its scope, thus making the Rome Convention exclusively applicable to these transactions.[62]

Regarding the problem in general [63] there are several alternatives: First, the Contracting States of both Conventions could make an additional agreement in which they agreed not to apply the rules of the Hague Convention inter se, but exclusively those of the Rome Convention. Secondly, the Contracting States could revoke the Hague Convention. However, that is likely to create even greater ambiguity and is therefore not really an option.[64]

Plender has suggested a third solution within Article 21 itself. The 1969 Vienna Convention on the Law of Treaties states namely that an earlier treaty will only be applied if it is compatible with later treaties.[65] This general principle of international law could be applied so as to prejudice the application of the Hague Convention, thus making the Rome Convention applicable where appropriate.[66] The wording of Article 21 seems to be able to harbour such a solution. Presuming that such a solution is possible, the crucial question is then whether this should be done rule versus rule, or Convention versus Convention - and here too the wording seems able to harbour both alternatives, since Article 21 refers to the actual application of other international conventions and not only to conventions.

Denmark, Finland and Sweden have, regarding consumer sales of tangible goods, chosen to exclude these from the scope of the Hague Convention. However, the suggested alternative interpretation under Article 21 might prove useful for other collisions between the two Conventions which are not as easily solved without revoking the Hague Convention.

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FOOTNOTES

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45. The Report, p. 39; Philip EU-IP, p. 131.

46. The Report, p. 39; Prop. 1997/98:14, pp. 53 - 54.

47. Philip EU-IP, p. 131.

48. The Report, p. 39.

49. Philip EU-IP, p. 132.

50. Infra, section 4.4.3.

51. Evans, in Bianca & Bonell, pp. 636 - 637.

52. Tribunal de Commerce de Bruxelles, 7eme ch., October 5, 1994, n.RG 1.205/93. This Belgian case concerned the interrelation between the Vienna Convention and the Rome Convention and it was held that there is no conflict between the two, since the former is concerned with substantive law and the latter with conflict of laws. See also Prop. 1986/87:128, p. 159; Honnold, §§ 464 - 464.3; and Bonell & Liguori, para. 3.1(a), incl. f.n. 46. Honnold explores in depth the effect of giving Article 90 such a broad interpretation as to include agreements on conflict of laws in `matters governed by the Convention.' I.e. if priority were given to Article 3 of the Hague Convention instead of Article 1(1)(a) of the Vienna Convention; and Article 4 of the Hague Convention instead of Articles 39 and 44; 49 and 81 - 84; and 85 - 88 of the Vienna Convention. He finds the result unacceptable and highly unlikely to have been intended. Thus both a teleological approach and a strict interpretation of its wording will lead to a narrow construction of Article 90. For a different view, see Herber, in Schlechtriem, Art. 90, paras. 3 et seq.

53. Herber, in Schlechtriem, Art. 90, paras. 10 and 13.

54. Herber, in Schlechtriem, Art. 90, para. 12.

55. Ibid.

56. Infra, section 4.4.3.

57. E.g. EC Law by Weatherill & Beaumont (2nd edition) (1995), chapter 11, and in particular pp. 345 et seq.

58. In support of this view: tutorials with Associate Professor David Fisher, Faculty of Law, Stockholm University and Dr. Mistelis, C.C.L.S., Queen Mary & Westfield College, University of London, respectively.

59. Supra, section 2.4.3.

60. The Report, p. 39.

61. La Quatorzième Session de la Conférence de la Haye de Droit International Privé, in 1980.

62. Prop. 1997/98, pp. 23 - 24 and 34; and infra section 5.6.

63. Discussed infra, Chapter 5.

64. Prop. 1997/98:14, p. 24.

65. Articles 30(3) and (4)(a) of the Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UNTS 331, SÖ 1975:1, Prop. 1974:158. However, in relation to States parties to the Hague Convention but not to the Rome Convention, the Hague Convention must prevail according to Article 30(4)(b) of the 1969 Convention. On the facts only, this is also the most appropriate solution, since application of the Rome Convention [rules] would harm the uniformity achieved between the Contracting States to the Hague Convention.

66. Plender, p. 9.

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Pace Law School Institute of International Commercial Law - Last updated January 18, 2000
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