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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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4.4.3 The Vienna Convention

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Article 94(1) - (2)

(1) Two or more Contracting States which have the same or closely related legal rules on matters governed by this Convention may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States. Such declarations may be made jointly or by reciprocal unilateral declarations.

(2) A Contracting State which has the same or closely related legal rules on matters governed by this Convention as one or more non-Contracting States may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States.

The purpose of this reservation is to encourage States which have already achieved a regional uniform legal order to become parties of the Convention without throwing that achievement away, by enabling them to apply inter se their own uniform rules rather than those of the Convention. The effect is that neither Article 1(1)(a) (under paragraph 1) nor Article 1(1)(b) (under paragraph 2) are to be applied. Article 94 complements Article 90 in that harmonisation which is not based on a treaty also will be respected and given precedence. However, an exclusion of the Convention under Article 94 would be more complete, since Article 90 only gives priority to divergent rules. The extent of the declaration is not clear, but the wording seems to allow even smaller subject areas.

Since the Convention is not to apply where the parties' places of business are located in such declaring States, the contract will instead be governed by a domestic law including any other special rules for international sales. This domestic law will be identified by the conflict rules of the lex fori, which means that the regional uniform law does not necessarily apply. Where the parties have their places of business in such States as referred to in paragraph 2, the unilateral declaration under that provision will have the same effect where conflict rules identify the law of that declaring Contracting State as the governing law, that is to say, the Convention rules will not be applicable.[230]

It is argued that the expression `the Convention is not to apply' in Article 94(1) means that a reservation under this provision is universal.[231] That is to say, a reservation under Article 94 should be respected by any court in any country, not just a court in a declaring Contracting State [232] (subject to the suggestion below). This is so, because the rules of the Convention form an integral part of the national substantive laws of the respective Contracting States. Consequently, a reservation will affect the contents of the national substantive law of the particular Contracting State which has made the declaration. Where this law is identified as the governing law of the contract, its rules, which regarding international sales of goods consist of the Convention rules including the reservation, will be applied to the contract. Hence, the reservation should be respected by any court in any country.

A literal reading of the Article would suggest that a court will not apply the Convention in a situation where the parties' places of business are in such declaring States and the law of a third Contracting State is identified as the applicable law. However, the policy aim of the Article, i.e. application of the regional uniform law, is not as paramount in such cases,[233] since the identification of the law of a third [Contracting] State as the governing law would normally indicate either that the parties have made a choice of law or that this law, and not the regional uniform law, according to the conflict rules of the lex fori is the proper law to govern the contract in question.[234] It is therefore suggested that the rules of the Convention should apply unless the parties have made a valid reference to the domestic law of this third Contracting State. This is further supported by the fact that the Convention is not concerned with conflict of laws issues. Accordingly, a reservation under Article 94 would not be universal in so far as the law of a third Contracting State is identified as the applicable law.

Denmark, Finland, Norway and Sweden have made such a declaration, which means that their essentially uniform domestic sales acts will be applied to "inter-Scandinavian" sales, in-stead of the Convention.[235]

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FOOTNOTES

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230. Evans, in Bianca & Bonell, p. 652; and Herber in Schlechtriem, Article 95, paras. 2 et seq. Article 94(2) will in this respect have the same effect as a reservation under Article 95 against the application Article 1(1)(b), but to a geographically limited area and with the difference that it should be upheld by any court in any country, see infra.

231. Articles 92 and 93 both state that a declaring State shall be regarded as a non-Contracting State for the purpose of the subject matter of the reservation, so that is clearly settled within the Convention. This is not the case with neither of Articles 94 and 95. However, although these Articles use different wordings (`the Conven-tion is not to apply' and `[the declaring State] will not be bound', respectively), they are not distinguishable and a reservation under any of the four Articles should have universal application in the sense that they should be respected and upheld by courts of other Contracting States. For further analysis of Article 95, see infra.

232. For further support of this view, see Herber, in Schlechtriem, Article 94, para. 9, where he refers to `practical considerations', such as the parties' intentions and expectations, and to deter from forum shopping between Contracting States, which "militate in favour of [this] view".

233. Reczei, pp. 518 et seq.; Evans, in Bianca & Bonell, p. 653; and Herber, in Schlechtriem, Article 94, para. 9.

234. E.g. the Hague and Rome Conventions. Infra, sections 5.2 - 5.3.

235. Bernstein, p. 141; For critic due to the legislative changes within this (no longer) homogenous group, see f.ns. 32 et seq.

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