Reproduced with permission of the author
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
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4.4.3 The Vienna Convention
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Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1)(b) of article 1 of this Convention.
The rule of Article 1(1)(b) that the Convention will apply when the rules of private international law lead to the application of the law of a Contracting State proved controversial and consequently a reservation was introduced. China, the Czech Republic, Singapore, Slovakia and the United States, have made reservations accordingly.
There are two possible interpretations of the reservation: first it could be that a court in a Contracting State that has taken the reservation can never apply the Convention rules in this context; or secondly that the reservation simply refers to cases where the law of such a Contracting State is identified as the applicable law of the contract.
The latter interpretation would be the appropriate one, since Article 1(1)(b) simply is intended to permit a wider application of the Convention but not to change the rules of conflict of laws. Accordingly, the applicable law will be identified by the conflict rules of the lex fori, where the Convention is not included since it does not deal with this issue. Once the applicable law is identified, the court will determine the precise rules governing the contract, that is to say interpreting and applying this law. Within the field of conflict of laws the concept of "law" means the law in force in a State other than its choice-of-laws rules, i.e. its national substantive law. As has already been explained, the Convention, including Article 1(1)(b), is a set of substantive rules for international sales of goods and thus forms part of this "law". Consequently, any reservation will only affect the contents of the national substantive law of the Contracting State taken the reservation. This is also in line with the legitimate interest of a declaring Contracting State in having a uniform application of its law also before a foreign court. In other words, a court of a declaring Contracting State is not bound by Article 1(1)(b) as the provision no longer forms part of its law, i.e. the lex fori, but it may still have to apply the provision as part of the lex contractus as identified by its conflict rules.
Hence, a reservation under Article 95 is only relevant where the law of a declaring Contracting State is identified as the applicable law. Where a court in such a Contracting State identifies the law of a Contracting State not taken the reservation, it will still have to apply the rules of the Convention.
The German government declared when ratifying the Convention, that it would not apply Article 1(1)(b) in respect of any State that had made an Article 95 declaration. According to Schlechtriem, the German declaration merely restates the legal situation as it exists ipso iure.
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236. Bernstein, p. 142; and Herber, in Schlechtriem, Article 95, paras. 1 et seq.
237. The former is the view of Winship, see Winship, p. 535. For a mixed approach, see Ferrari, para. III.3, which seems to be based on a misconception of what really constitutes the substantive part of the applicable law as identified by the conflict rules of the lex fori.
238. Article 1(1)(b) is discussed supra, sections 2.1; 2.2; and 2.3.2. Article 90 is discussed supra, section 2.4.3.
239. Flechtner, II.A.2; and Herber, in Schlechtriem, Article 1, para. 44.
240. JT 1991/92 p.1, pp. 6 - 7.
241. UN Depository Notification C.N. 365.1989, Treaties -3, dated March 16, 1990.
242. Schlechtriem, Int. UN-Kaufrecht Rd.Nr. 18, Bernstein, p. 142 including footnote 37. For criticism of this declaration and the German legislation implementing it, see Ferrari, para. III.3.B.
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