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The Personal and Territorial Scope of the Vienna Convention on Contracts for the International Sale of Goods (Article 1)

Published online by Cambridge University Press:  21 May 2009

Christophe Bernasconi
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On April 1999, the United Nations Convention on Contracts for the International Sale of Goods (hereinafter: the Vienna Convention, CISG or the Convention)2 celebrated its 19th anniversary. The Convention has been praised throughout the world as a skillful and effective tool for governing international sales transactions. Hence, after more than fifty years of arduous work, the efforts undertaken to unify the law for international sales at a global scale seem, at last, to have reached success. As frequet referrals to former efforts undertaken will be made, it seems appropriate to set forth, at least summarily, the history of the Vienna Convention.

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Netherlands International Law Review , Volume 46 , Issue 2 , August 1999 , pp. 137 - 170
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Copyright © T.M.C. Asser Press 1999

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References

2. ‘Final Act of the UN Conference on Contracts for the International Sale of Goods’, A/CONF.97/18, in 34 Yearbook of the United Nations (1980)Google Scholar Part 3, ch. I., section A. An unofficial version of the text of the Convention is reproduced in 19 ILM (1980) pp. 668–699.Google Scholar

3. See, e.g., Loewe, R., ‘Anwendungsgebiet, Auslegung, Lücken, Handelsbräuche’, in The 1980 Vienna Convention on the International Sale of Goods, Lausanne Colloquium of November 19–20, 1984 (Zurich, Schulthess 1985) p. 11 at pp. 12–13Google Scholar; Ndulo, M., ‘The Vienna Sales Convention 1980 and the Hague Uniform Laws on International Sale of Goods 1964: A Comparative Analysis’, 38 ICLQ (1989) p. 1 at pp. 2 et seq.CrossRefGoogle Scholar; Sono, K., ‘The Vienna Convention: History and Perspective’, in Šarcevic, P. and Volken, P., eds., International Sale of Goods, Dubrovnik Lectures (New York, Oceana Publications 1986) pp. 1 et seq.Google Scholar; Winship, P., ‘The Scope of the Vienna Convention on International Sales of Contracts’, in Galston, N. and Smit, H., eds., International Sales: The United Nations Convention on Contracts for the International Sale of Goods (New York, Matthew Bender 1984) p. 1–1 at pp. 1–3 et seq., with further references.Google Scholar

4. This decision was certainly affected by the confidence gained following the adoption of the Geneva Conventions of 1930 and 1931 on negotiable instruments, both of which had also been elaborated under the auspices of the League of Nations.

5. Ernst Rabel, then Director of the Kaiser-Wilhelm-Institut für ausländisches und internationals Privatrecht in Berlin, had submitted a report to UNIDROIT: ‘Observations sur l'utilité d'une unification du droit de la vente au point de vue des besoins du commerce international’, (1929); reprinted in 22 RabelsZ (1957) p. 117Google Scholar. These observations were accompanied by a comparative study that Rabel had prepared in collaboration with the members of his institute. This latter study formed the basis of Rebel's classic comparative analysis of the law of sales: Das Recht des Warenkaufes, published in 1936 (Vol. I) and in 1958 (Vol. II) (Berlin, W. de Gruyter).Google Scholar

6. The ULIS and the ULF are reprinted in 3 ILM (1964) p. 855 respectively p. 864Google Scholar. For more details on the history of the 1964 uniform sales law, see Winship, P., ‘Private International Law and the U.N. Sales Convention’, 21 Cornell ILJ (1988) p. 487 at pp. 491–500Google Scholar; see also Honnold, J.O., ‘The Draft Convention on Contracts for the International Sale of Goods: An Overview’, 27 AJIL (1979) p. 223 at p. 224.Google Scholar

7. Only Belgium, the Federal Republic of Germany, Gambia, Italy, Luxembourg, the Netherlands, San Marino, and the United Kingdom have ratified, or acceded to, both the ULIS and the ULF; Israel ratified only the ULIS. The ULIS had some important practical impacts in Germany and Italy in particular (some 180 court decisions of the five original Member States of the EEC have been reported). There is, however, not one single reported case of English or Scottish courts involving the Hague Uniform Laws, see Nicholas, B., ‘The Vienna Convention on International Sales Law’, 105 LQR (1989) p. 201 at p. 202. Overall, it seems fair to state that the 1964 Conventions did not have the expected impact on the practical conduct of international trade.Google Scholar

8. The uniform laws are intended to be applied by a court of a contracting state to international sales transactions even when the parties involved are from non-contracting states and the transaction had little or no connection either with the forum or another contracting state. Despite the possibility for a state to make one or more reservations (and in particular limit the Convention's application to parties whose places of business are in different contracting states), it soon became apparent that the ULIS and the ULF would not be widely adopted; for more details, see Winship, loc. cit. n. 6, at pp. 491–503, and, idem, op. cit. n. 3, at p. I–11, fn. 20 and accompanying text.

9. In fact, the UNCITRAL Working Group submitted two draft Conventions. The first was the 1976 Draft Convention on Sales; a second Draft Convention on Formation of the Sales Contract was completed in 1977. Later on, the Commission decided to consolidate these two texts into a single Convention, the 1978 Draft Convention on Contracts for the International Sale of Goods (referred to as the 1978 Draft). For more details, see, e.g., Honnold, J.O., ‘The Draft Convention on Contracts for the International Sale of Goods: An Overview’, 27 AJCL (1979) p. 223 at p. 226.CrossRefGoogle Scholar

10. The Diplomatic Conference in Vienna was attended by 22 European and other developed Western states, 11 Socialist, 11 South American, 7 African, and 11 Asian countries, see Eörsi, G., ‘A propos the 1980 Vienna Convention on Contracts for the International Sale of Goods’, 31 AJCL (1983) p. 333 at p. 335 (fn. 5). Furthermore, several international organizations took part as observers, among them the World Bank, the European Community, the Hague Conference on Private International Law, and the International Chamber of Commerce.CrossRefGoogle Scholar

11. See generally Honnold, J.O., Documentary History of the Uniform Law for International Sales: The Studies, Deliberations and Decisions that Led to the 1980 United Nations Convention with Introductions and Explanations (Deventer, Kluwer 1989) pp. 1 et seq., 381 et seq. (Part C).Google Scholar

12. As of January 1999, the following 54 states were party to the CISG: Argentina (one of the eleven initial contracting states (i)), Australia, Austria, Belarus, Belgium, Bosnia-Herzegovina, Bulgaria, Burundi (effective as of 1 October 1999), Canada, Chile, China (PRC; (i)), Croatia, Cuba, Czech Republic, Denmark, Ecuador, Egypt (i), Estonia, Finland, France (i), Georgia, Germany, Greece, Guinea, Hungary (i), Iraq, Italy (i), Latvia, Lesotho (i), Lithuania, Luxembourg, Mexico, Moldova, Mongolia, Netherlands, New Zealand, Norway, Poland, Romania, Russian Federation, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, Syria (i), Uganda, Ukraine, United States of America (i), Uruguay (1 February 2000), Uzbekistan, Yugoslavia (i), and Zambia (i).

It is worthy to note that Norm America is the only major trade block whose member states have all subscribed to die CISG. As far as the European Union is concerned, the countries not parties are Portugal and die United Kingdom. Regarding the Middle and South American continent, countries such as Brazil, Columbia, Peru, and Venezuela have not joined the CISG. Concerning the APEC-region, it should be emphasized that neither Japan, Indonesia, nor Taiwan has yet become a party to the CISG. Finally, with some notable exceptions (principally Egypt), the very large majority of the African states has also still not ratified Vienna Convention.

Finally, one should note that the ULIS and ULF have not been totally abandoned. They may still be applied between contracting states if the CISG does not apply. For an example, see the decision of the Oberlandesgericht München dated 9 August 1995 [7 U 7143/92]: as the CISG did not apply by virtue of Art 100 (the contract was drawn up before the entry into force of the Convention in Italy or Germany), the Court applied the ULIS to a contract between an Italian buyer and a German seller. According to Art 99(3) CISG, a state which is party to either or both the ULIS and the ULF and which wants to ratify, accept, approve or accede to the Vienna Convention shall at the same time denounce either or both the ULIS and the ULF.

13. Randall, K. and Norris, J., ‘A New Paradigm for International Business Transactions’, 71 Wash. ULQ (1993) p. 599 at p. 613.Google Scholar

14. Both ULIS and ULF raised the same questions in die first years of their applicability.

15. In this context, an analogy may be made with the Brussels Convention of 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and, consequently, with the Lugano Convention which was adopted in 1988 and which extends the rules and principles embodied in the Brussels Convention to the Member States of the European Free Trade Association: more than thirty years after the adoption of the Brussels Convention, European scholars and judges are still debating the personal and territorial scope of application of the treaty. See, e.g., Bernasconi, C. and Gerber, A., ‘Der räumlich-persönliche Anwendungsbereich des Lugano-Übereinkommens’, 3 SZIER/RSDIE (1993) pp. 39 et seq., with many references.Google Scholar

16. See, e.g., Volken, P., ‘The Vienna Convention: Scope, Interpretation, and Gap-Filling’, in Šarcevic, P. and Volken, P., eds., International Sale of Goods. Dubrovnik Lectures (New York, Oceana Publications 1986) p. 19 at p. 23.Google Scholar

17. The temporal scope of the Convention is regulated in the Arts. 99–101. The basic principle is that the Convention does not apply retroactively (Art 100); see also n. 12 in fine.

18. See especially Honnold, J.O., Uniform Law for the International Sales under the 1980 United Nations Convention, 2nd edn. (Deventer, Kluwer 1991) para. 39.Google Scholar

19. See Ferrari, F., ‘CISG Article 1(1)(B) and Related Matters: Brief Remarks on the Occasion of a Recent Dutch Court Decision’, 13 Nederlands Internationaal Privaatrecht (1995) p. 317 at pp. 319–20, with further references.Google Scholar

20. See, e.g., Jayme, E., ‘Article 1’, in Bianca, C.M. and Bonell, M.J., eds., Commentary on the International Sales Law: The 1980 Vienna Sales Convention (Milan, Giuffrè 1987) p.27 at p. 28Google Scholar; Schlechtriem, P., ‘Anwendungsvoraussetzungen und Anwendungsbereich des UN-Übereinkommens üiber Verträge üiber den internationalen Warenkauf (CISG)’, 1 Aktuelle Juristische Praxis / Pratique Juridique Actuelle (1992) p. 339 at p. 342Google Scholar; Vékás, L., ‘Zum persönlkhen und räumlichen Anwendungsbereich des UN-Einheitskaufrechts’, 7 IP Rax (1987) p. 342; Volken, op. cit n. 16, at pp. 26–28; Winship, op. cit n. 3, at pp. 1–20 et seq.Google Scholar

According to its Art 1, the ULIS is applicable to contracts of sale of goods entered into by parties whose places of business are in the territories of different states, in each of die following cases: ‘(a) where the contract involves the sale of goods which are at the time of conclusion of the contract in the course of carriage or will be carried from the territory of one State to the territory of another; (b) where the acts of constituting the offer and the acceptance haven been effected in the territories of different States; (c) where delivery of goods is to be made in the territory of a State other than that within whose territory the acts constituting the offer and the acceptance have been effected.’

21. Schlechtriem, P., Uniform Sales Law: The UN-Convention on Contracts for the International Sale of Goods (Vienna, Manzsche Verlags- und Universit/00E4;tsbuchhandlung 1986) p. 27.Google Scholar

22. ‘Commentary on the Draft Convention on Contracts for the International Sale of Goods, prepared by the Secretariat’, UN Doc. A/CONF.97/5, reprinted in J.O. Honnold, Documentary History, op. cit n. 11, at p. 405, para. 4 (hereinafter Secretariat Commentary). CISG Art 1 and 1978 Draft Art 1 are identical except for the phrase ‘in determining the application of this Convention’ mat has been added to para. (3) of CISG Art. 1. Consequently, the Secretariat Commentary on 1978 Draft Art 1 can legitimately be regarded as relevant to the interpretation of CISG Art. 1. In fact, the Secretariat Commentary is the closest available equivalent of an Official Commentary on the Convention.

23. See the references in Winship, op. cit n. 3, at p. 1–11, fn. 19.

24. Volken, op. cit n. 16, at p. 28; idem, ‘Champ d'application, interprétation, lacunes, usages’, in The 1980 Vienna Convention on the International Sale of Goods, Lausanne Colloquium of November 19–20, 1984, Vol. 3 (Zurich, Schulthess 1985) p. 21 at pp. 29–30; see also Nicholas, loc. cit n. 7, at p. 205.Google Scholar

25. Volken (1985), op. cit n. 24, at p 30, where he proposes that the applicability of the CISG should at least request an international carriage; see also Wang, P. Jen-Huong, ‘Das Wiener Übereinkommen über internationale Warenkaufverträge vom 11. April 1980’, 87 Zeitschrift für vergleichende Rechtswissenschqft (1988) p. 184 at p. 187.Google Scholar

26. Volken, op. cit n. 16, at pp. 23–24.

27. See, e.g., Jayme, op. cit n. 20, at p. 32; see also Secretariat Commentary, supra n. 22, at p. 405, para. 11. In fact, the question whether nationality should be introduced as an (additional) prerequisite for the application of the Convention was raised during the negotiations. However, the idea was not pursued given the difficulties in determining the ‘nationality’ of legal persons. See Schlechtriem, op. cit n. 21, at p. 27 (with further references in fn. 59); this seems to be overlooked by Randall and Norris, loc. cit. n. 13, at p. 614 (fn. 56). See also infra n. 36 and accompanying text.

28. Both negative criteria were already rooted in ULIS, see its Arts. 1(3) and 7.

29. See, e.g., E. Jayme, op. cit n. 20, at p. 32; Schlechtriem, op. cit n. 21, at p. 27. However, Art 2 excludes from the Convention's scope certain contracts which are likely to be classified as civil contracts by some legal system, such as sales ‘of goods bought for personal, family or household use.’ This step enormously simplified drafting by avoiding fears of collision between the Convention and various domestic legislations designed to protect consumers, see Honnold, loc, cit. n. 9, at p. 227. Furthermore, the civil or commercial character of the transaction can be taken into consideration for the purposes of determining matters such as the reasonable period of time provided for in Arts. 39(1), 43(1) or 63(1), see Secretariat Commentary, supra n. 22, at p. 405, para. 14.

30. Arts. 1(1), 10, 12, 24, 31(c), 42(l)(b), 57(l)(a), 57(2), 69(2), 90, 93(3), 94(1), 94(2) and 96.

31. See, e.g., Neumayer and Ming, Convention de Vienne sur les controls de vente internationale de merchandises: Commentaire (Lausanne, CEDIDAC 1993) pp. 41 and 42.Google Scholar

32. Honnold, op. cit. n. 18, at para. 43. See also, e.g., Jayme, op. cit n. 20, at p. 30; Siehr, K., ‘Der intemationale Anwendungsbereich des UN-Kaufrechts’, 52 RabelsZ (1988) p. 587 at p. 590, fn. 10.Google Scholar

33. See, e.g., Ferrari, loc. cit n. 19, at pp. 323–324; Stoffel, W., ‘Le droit applicable aux contents de vente intemationale de marchandises’, in Dessemontet, F., ed., Les controls de vente internationale de merchandises (Lausanne, CEDIDAC 1991) p. 15 at p. 26.Google Scholar

34. Winship, op. cit n. 3, at p. 1–22. The same observation can be made with regard to the (unofficial) German text which uses the term Niederlassung.

35. For the following, see, e.g., Honnold, op. cit n. 18, at para. 42. A German court had already adopted this position under the ULIS, although the latter had no provision like Art 10(a) of the CISG, ibid., fn. 3. See also Secretariat Commentary, supra note 22 at p. 409, paras. 6 et seq.

36. There are two different concepts applied in PIL in order to determine the corporation's ‘nationality’: the Place of Incorporation Theory and the Seat Theory, see, e.g., Reymond, P., ‘Les personnes morales et les sociétés dans le nouveau droit international privé suisse’, in Dessemontet, F., ed., Le nouveau droit international privé Suisse (Lausanne, CEDIDAC 1988) p. 143Google Scholar; Tzouganatos, D., ‘Private International Law as a Means to Control the Multinational Enterprise’, 19 Vand. J Transnat'l L (1986) p.477.Google Scholar

37. See the subsequent comments under 2.2.

38. See also Secretariat Commentary, supra n. 22, at pp. 409–410, para. 9.

39. See, e.g., Audit, B., La vente Internationale de marchandise: Convention des Nations-Unies du ll avril 1980 (Paris, LGDJ 1990) pp. 19–20; Schlechtriem, loc. cit. n. 20, at p. 342; Volken, op. cit. n. 16, at p. 24.Google Scholar

40. Neumayer and Ming, op. cit. n. 31, at pp. 49–50 (with further references).

41. Schlechtriem, op. cit. n. 21, at p. 27.

42. Honnold, op. cit n. 18, at para. 41; Jayme, op. cit. n. 20, at p. 31; Schlechtriem, op. cit. n. 21, at p. 27 (fn. 57); see also Secretariat Commentary, supra n. 22, at p. 405, para. 9.

43. For the content of Art. 1 of the ULIS, see supra n. 20. During the Conference at The Hague, this ‘universalist’ approach had been criticized by many delegations, who characterized this technique as legal imperialism. However, a motion to reject this approach failed on a closely-divided vote. Finally, the Conference adopted a compromise that allowed the contracting states to amend, by reservation, the universalist definition. According to this more restrictive approach, the Convention is applicable to transactions between parties ‘whose places of business are in different Contracting States’. See, e.g., Honnold, loc. cit. n. 9, at p. 227; idem, op. cit n. 18, at para. 45.1 (with additional references). See also Winship, op. cit n. 3, at p. 1–17 (with additional references in fn. 33).

44. See, e.g., Honnold, loc. cit n. 9, at p. 227, who refers to ‘similar justifications for a slightly less greedy rule’ in the 1952 draft of the UCC.

45. Volken, op. cit n. 16, at p. 24.

46. Honnold, op. cit. n. 18, at para. 45.1.

47. See, e.g., Honnold, op. cit. n. 18, at para. 45.1.

48. These principles have been enacted, for example, in the Arts. 3111–3113 of the Civil Code of Quebec and in the Arts. 116 and 117 of the Swiss Statute on Private International Law. They are also embodied in the European Convention on the law applicable to contracts (the 1980 Rome Convention).

49. Which is, in general, the characteristic performance in a barter-deal, in a joint-venture's basic contractual agreement or in a foreign exchange deal that two banking computers have concluded automatically without the intervention of any human being? For the latter example, see Kleiner, B., ‘Ein vernachlässigtes “Detail”’, 60 Schweizerische Aktiengesellschaft (1988) p. 70 at p. 71.Google Scholar

50. Winship, loc. cit. n. 6, at pp. 518–520.

51. Belgium, Denmark, Finland, France, Italy, Niger, Norway, Sweden and Switzerland have ratified (or have acceded to) this Convention.

52. All states that have ratified the 1955 Hague Convention (see supra n. 51) have also ratified the Vienna Convention, with the exception of Niger.

53. For the following, see the developments in Honnold, op. cit. n. 18, at para. 45.2; Vékás, loc. cit n. 20, at p. 343; Winship, op. cit n. 3, at pp. 1–42 and 1–43.

54. In both cases Art. IV of the Convention.

55. Winship, op. cit. n. 3, at p. 1–43; idem, loc. cit. n. 6, at pp. 515–517 and 530–532.

56. Art. 90 does not cover the case of the relationship between the Vienna Convention and the 1964 uniform law treaties; that specific relationship is covered by Art. 99, see also supra n. 17.

57. See especially Vékäs, loc. cit. n. 20, at p. 343, and Pelichet, M., ‘La vente Internationale de marchandises et le conflit de lois’, 201 Recueil des Cours (1987) p. 9 at p. 37Google Scholar: ‘A la lettre a) [de l'Article premier], la Convention de Vienne fixe directement son champ d';application, rendant superflu le recours ä la règle de conflit.’ Pelichet accurately criticizes a statement in the first edition of Honnold's Uniform Law, according to which Art. l(l)(a) lays down a unified and authoritative rule of private international law on the applicability of the Convention (see ibid., at pp. 34 et seq.). This, in fact, would make no sense. Firstly, it would be quite a strange legislative technique to set down, in letter (a), the autonomous conditions of the Convention's applicability by adopting a rule on conflict of laws and then, in letter (b), to expressly refer to the rules on conflict of laws: which rules would letter (b) refer to? The ones that are contained in letter (a)? This would be a circulus vitiosus. Secondly, when a provision dealing with conflict of laws designates the applicable law, it refers to the legal order in general, not to a specific rule of substantive law (the determination of the applicable substantive rule within the lex causae is generally known as the secondary characterization). This, however, is not the effect of Art. 1(1)(a) of the Convention. Pelichet, ibid., at p. 36, rightly states: ‘lorsque les conditions de la lettre a) sont remplies, les dispositions de la Convention de Vienne vont s' appliquer indépendamment d'un ordre juridique national donné. (…) Ainsi, nous sommes de l'opinion que la lettre a) (…) ne saurait être regardée comme une règle de conflit, mais se présente commeune simple norme, objective et autolimitative, d'application de la convention.’ In the second edition of his book, Honnold has taken this critique into consideration and has corrected the relevant passage, which now makes clear that para. (l)(a) does not state a general rule on PIL, see op. cit. n. 18, at para. 45.2, text accompanying fn. 9.

58. These developments are applicable – mutatis mutandis – to the relationship between the Vienna Convention and the European Convention of 1980 on the Law Applicable to Contractual Obligations (Rome Convention).

59. The 1986 Hague PIL Convention also expressly refers to the Vienna Convention in its Preamble and in Art. 8(5). Furthermore, in Art. 23, the 1986 Hague Convention also concedes priority to the New York Convention of 1974 on the Limitation Period in the International Sale of Goods and to the Protocol amending that Convention and which has been adopted in Vienna on 11 April 1980.

60. Note, however, that according to Art. 99(2), the Convention enters into force only twelve months after a state has ratified, accepted, approved or acceded to the CISG. The CISG also specifies that a contracting state with different territorial units may declare that the Convention is to extend to all its territorial units or only to one or more of them (Art. 93 (1)).

61. The following developments are based on Schlechtriem, loc. cit. n. 20, at p. 343, and on the country reports on the CISG database of Pace University.

62. For the original German text of this provision, see Schlechtriem, loc. cit. n. 20, at p. 343.

63. See the references in Schlechtriem, loc. cit n. 20, at p. 343 (in fn. 15 and accompanying text).

64. For a discussion of this problem, see, e.g., Müller, J.P. and Wildhaber, L., Praxis des Völkerrechts, 2nd edn. (Bern, Stämpfli 1982) pp. 173 et seq.Google Scholar

65. The CISG had been in force in the former Soviet Republics of Estonia, Georgia, Latvia, Lithuania, Moldova and Uzbekistan since 1 September 1991. However, when these Republics became independent states, they all preferred to adopt the Convention by way of accession rather than by succession. The CISG became effective in Estonia on 1 October 1994, in Georgia on 1 September 1995, in Latvia on 1 August 1998, in Lithuania on 1 February 1996, in Moldova on 1 November 1995, and in Uzbekistan on 1 December 1997.

66. Slovenia became a state on 25 June 1991; on 7 January 1994, Slovenia filed a declaration of succession making the CISG retroactively applicable to it effective the date mentioned. Bosnia-Herzegovina became a state on 6 March 1992; on 12 January 1994, Bosnia-Herzegovina filed a declaration making the CISG retroactively applicable to it effective the date mentioned. Croatia became a state in 1991; on 8 June 1998, Croatia filed a declaration of succession making the CISG retroactively applicable to it effective the date mentioned.

67. See also Schlechtriem, loc. cit. n. 20, at p. 344.

68. Vékás, loc. cit. n. 20, at p. 342. See also Ferrari, loc. cit. n. 19, at p. 321; Honnold, op. cit. n. 18, at para. 45.

69. The possibility of this reservation will be discussed at length in section 3.3.

70. For the following comments, see Audit, op. cit. n. 39, at p. 22.

71. See, e.g., Vékás, loc. cit. n. 20, at pp. 343–344; Volken, op. cit. n. 16, at pp. 28–29; Honnold, op. cit. n. 18, at para. 47.3.

72. Audit, op. cit. n. 39, at p. 22.

73. Of course, the relevant conflicts rule could also be embodied in a treaty. It is presumed that no such treaty has to be applied in Canada in this specific case.

74. The example presumes that the negotiations have taken place in Quebec, that the contract does not provide expressly that delivery has to be made in Japan, and finally, that there was no call for tenders (see Art. 3114 CCQ).

75. See, for example, Oberlandesgericht Hamburg, 1. Zivilabteilung, Decision of 28 February 1997, case no. 1 U 167/95, EWiR 1997, 791, also available on the Pace Database.

76. Another issue worth to be mentioned here is the puzzling renvoi question, see Neumayer and Ming, op. cit. n. 31, at pp. 44–45, with many additional references pro and contra.

77. For the following, see Winship, loc. cit. n. 6, at pp. 503–508, who also retraces the history of the work done by the UNCITRAL Working Group established in 1969.

78. For the following, see Honnold, op. cit. n. 11, at pp. 457–458, paras. 9–12, and at p. 655, para. 3; Schlechtriem, loc. cit. n. 20, at p. 345.

79. The Swedish representative agreed with his German colleague, see Honnold, op. cit. n. 11, at p. 458, para. 16.

80. This argument does not seem convincing. Indeed, a partial application, limited to the rights and obligations arising from the contract already formed, would not have introduced insurmountable obstacles as the Convention was drafted in such a way that Part III (substantive sales provisions) is at least compatible with domestic provisions on the formation of contracts, see Schlechtriem, op. cit. n. 21, at p. 26. In an alternative motion, the FRG tried to impose that Art. 1(1) (b) be restricted to conflict of law norms that deal with rights and obligations arising from an already formed contract. This motion was also rejected, ibid., at p. 26 (fn. 51); see also Honnold, op. cit. n. 11, at p. 655, para. 3.

81. This argument has also to be pondered. In fact, it is not unusual at all that PIL Conventions are designed to be applied to nationals of states which are not parties to the Convention, see, e.g., the Hague Convention of 1973 on the Law Applicable to Maintenance Obligations (Art. 3); the Hague Convention of 1955 on the Law Applicable to the International Sale of Goods; the Hague Convention of 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. All these Conventions are of so-called loi uniforme-character.

82. Honnold, op. cit n. 11, at p. 458, paras. 13–14. The representative of the German Democratic Republic stressed that deletion of para. l(b) would avoid the same internal problems in his country, ibid., at pp. 458–459, para. 24; one has to know, however, that the International Commercial Contracts Act of the former GDR contained an express reservation in favour of international conventions (para. 1(2)).

83. Honnold, op. cit. n. 11, at pp. 458–459, paras. 17 et seq.

84. ibid., at p. 459, paras. 28–29.

85. ibid, at p. 714.

86. ibid., at p. 735, paras. 8–10. Note that eventually, the German delegation has voted in favour of Art. 1, see Schlechtriem, loc. cit. n. 20, at p. 345.

87. The question of the appropriateness of Art. 1 and the possibility of an Art. 95 reservation has also been discussed extensively during the consultation procedure launched by the Swiss government before ratifying the CISG The Swiss Bar Association in particular sustained that Switzerland should also make an Art 95 declaration. The government did not share this opinion and ratified the CISG without any reservation; basically, the government observed that an Art 95 declaration would render the application of the CISG much more complicated. See the official message of the Swiss government, published in the Feuille fédérale of 1989, but cited here according to the separate (number 89.002), ‘Botschaft vom 11. Januar 1989 betreffend das Wiener Übereinkommen über Verträge über den internationalen Warenkauf, at p. 11.

88. For the case, however, in which the conflicts analysis designates the law of a contracting state which has not made the reservation, see the comments below, section 3.3.4.1.

89. See, however, Randall and Norris, loc. cit n. 13, at pp. 614–615; according to these authors’ opinion, the Convention does ‘;of course’ never apply — even not under subsection (b) of Art. 1 – if neither party has its place of business in a contracting state. This statement clearly looks too radical to me: yes indeed, the CISG may be applicable even though no party has its place of business in a contracting state; see the comments below under section 3.3.3.3.

90. Schlechtriem, op. cit. n. 21, at p. 25.

91. ibid.

92. Stoffel, op.cit.n.33, at p. 27.

93. ibid.; see, however, the following developments under section 3.3.3.3.

94. See the references in Schlechtriem, op. cit. n. 21, at p. 25 (fn. 46), and in Neumayer and Ming, op. cit. n. 31, at p. 44 (fn. 26).

95. Schlechtriem, loc. cit n. 20, at p. 345; Stoffel, op. cit. n. 33, at pp. 27–30.

96. Siehr, loc. cit. n. 32, at p. 599; Stoffel, op. cit. n. 33, at p. 30.

97. For the following comments, see generally Schlechtriem, loc. cit. n. 20, at p. 345; see also supra n. 89.

98. Such prorogation and choice-of-law clauses in favour of Swiss tribunals and Swiss law are very often used in commercial practice. In the example given, the validity of the prorogation of a Swiss tribunal ensues from Art 17(1) of the Lugano Convention: ‘If the parties, one or more of whom is domiciled in a Contracting State, have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes (…), that court or those courts shall have exclusive jurisdiction.’ Both the United Kingdom and Switzerland are party to the Lugano Convention. The validity of the choice of law provision in favour of Swiss law ensues from Art. 117 of the Swiss Statute on Private International Law which fixes the possibility for the parties to chose the law applicable to their contractual relation.

99. See generally Schlechtriem, loc. cit. n. 20, at p. 345.

100. For the following comments, see especially Stoffel, op. cit. n. 33, at pp. 31–32.

101. Schlechtriem, loc. cit. n. 20, at p. 345.

102. Stoffel, op.cit. n. 33, at p. 32.

103. This is the opinion that Stoffel has presented in an article published one year previous to the article referred to so far, see Stoffel, W., ‘Ein neues Recht des internationalen Warenkaufs in der Schweiz’, 86 SJZ (1990) p. 169 at p. 174. This particular question was also largely debated at the Lausanne Colloquium in 1984, see supra n. 24, at pp. 35–37; Prof, von Overbeck, Prof. Farnsworth, Prof, von Hoffmann, Prof. Schlechtriem and Prof. Volken were in favour of the application of the CISG in such cases, whereas Prof. Neumayer was in favour of the application of the domestic law. Prof. Neumayer underpins his opinion by referring to the jurisprudence of the Federal Court or Germany which has adopted the same point of view.Google Scholar

Even if one of the parties has his place of business in a contracting state and the parties choose the law of that particular state, it may still be possible to infer from the setting and the language of the contract that the parties intended the domestic law to govern the contract and not the Convention; see generally C. Witz, ‘L'exclusion de la Convention des Nations Unies sur les contrats de vente internationale de marchandises par la volonté des parties (Convention de Vienne du 11 avril 1980)’, Recueil Dalloz Sirey (1990) p. 107. See also Ferrari, loc. cit n. 19, at p. 325, fn. 79, critizing a decision dated 29 March 1993 of the Tribunale Civile di Monza (retrievable on the UNILEX database, CLOUT Nr. 540), where it was said that Art. l(l)(b) would only operate ‘in the absence of a choice of law of the parties.’ This statement seems indeed to be erroneous and cannot be shared. Ferrari's critic, however, seems to be excessive: as mentioned above, the mere fact that the parties have chosen ‘the law of [a contracting state]’ does not necessarily mean that the CSIG applies.

104. Reprinted from Galston, N. and Smit, H., eds., International Sales: The United Nations Convention on Contracts for the International Sale of Goods (New York, Matthew Bender 1984) App. 1–27 and 1–28; see also Nicholas, loc. cit. n. 7, at pp. 207–208, who adds that the reason set forth by the US would also apply to the United Kingdom.Google Scholar

105. Randall and Norris, loc. cit. n. 13, at p. 616, who state that the US may even view Art. 2 of the UCC as superior to the CISG as a sales law.

106. See the first reference in n. 104, at App. 1–28.

107. See, e.g., Audit, op. cit. n. 39, at p. 24; Honnold, op. cit. n. 18, at para. 47.1; Winship, op. cit. n. 3, at p. 1–32.

108. Randall and Norris, loc. cit. n. 13, at pp. 615–616.

109. ibid., at p. 616.

110. See Winship, op. cit. n. 3, at p. 1–27, who systematically examines 54 permutations in which the Convention's applicability is at stake.

111. See the proceeding example, section 3.3.1.

112. See Neumayer and Ming, op. cit. n. 31, at p. 46 (with additional references to writings supporting this view in fn. 35); are also supporting this view: Dore, I., ‘Choice of Law under the International Sales Convention: A U.S. Perspective’, 77 AJIL (1983) p. 521 at p. 535; Honnold, op. cit. n. 18, at para. 47.5 (example 1F); Pelichet, loc. cit. n. 57, at pp. 40–43CrossRefGoogle Scholar; Pünder, H., ‘Das Einheitliche UN-Kaufrecht – Anwendung kraft kollisionsrechtlicher Verweisung nach Art 1 Abs. 1 lit. b UN-Kaufrecht’, 36 RIW (1990) p. 869 at p. 872Google Scholar; Vékás, loc. cit. n. 20, at p. 345; see also ‘Rechtsprechung zum Wiener Kaufrecht’, 3 SZIER/RSDIE (1993) p. 653 at p. 656.Google Scholar

113. Pelichet (a member of the committee in charge of drafting Art. 95), loc. cit. n. 57, at p. 43; see also ibid, text accompanying fn. 55 (where the author makes a parallel with the Geneva Convention on agency; this Convention contains the same reservation clause as the one embodied in Art. 95 of the CISG; the legislative history of the Geneva Convention also makes clear that the countries which called for this provision wanted the reservation only to be effective when the conflicts rules point to their own domestic laws). According to Pelichet, however, the domestic law of a reservation state may only prevail over the Convention if the forum is located in the actual reservation state with the judge applying his own private international law. I respectfully disagree on this qualification; see the explanations below under section 3.3.4.2.

114. Thieffiy, P., ‘Sale of Goods Between French and U.S. Merchants: Choice of Law Considerations Under the U.N. Convention on Contracts for the International Sale of Goods’, 22 Int';l Lawyer (1988) p. 1017 at p. 1018 (fn. 3). For another opinion supporting this view, see the reference in Neumayer and Ming, op. cit. n. 31, at p. 46 (in fn. 35).Google Scholar

115. The application of the UCC in this case is supported by, for example, Neumayer and Ming, op. cit. n. 31, at p. 47 (with many additional references in fn. 37); Audit, op. cit. n. 39, at para. 23; Honnold, op. cit. n. 18, at para. 47.5 (example 1H); Erdem, E., La livraison des marchandises selon la Convention de Vienne: Convention des Nations Unies sur les controls de vente Internationale de marchandises du ll avril 1980 (Fribourg, Editions Universitaires 1990) para. 153; Pünder, loc. cit. n. 112, at pp. 871–872; Schlechtriem, op. cit. n. 21, at p. 27; idem, loc. cit. n. 20, at pp. 345–346; Vékás, loc. cit n. 20, at pp. 345–346; Volken, op. cit. 24, at p. 36; Winship, loc. cit n. 6, at pp. 524–525, and idem, op. cit n. 3, at p. 1–53.Google Scholar

On the other hand, the following authors would apply the CISG in this case: Siehr, loc. cit. n. 32, at pp. 601 et seq.; Stoffel, op. cit. n. 33, at pp. 28–29; idem, loc. cit. n. 103, at p. 173; additional references in Neumayer and Ming, op. cit. n. 31, at p. 47 (in fn. 37).

116. See, e.g., Neumayer and Ming, op. cit n. 31, at pp. 47–48 (with an additional supporting reference in fn. 39). See also Schlechtriem, loc. cit n. 20, at pp. 345–346.

117. See, e.g., Honnold, op. cit n. 18, at para. 47.5.

118. Bundesgesetzblatt (BGB1) 1989 II at p. 586; Honnold, op. cit n. 18, at para. 47.5 (fn. 14); Pünder, loc. cit n. 112, at p. 872; Witz, C., ‘L'adhésion de la RFA à la Convention des Nations Unies sur les contrats de vente internationale de marchandises (Convention de Vienne du 11 avril 1980)’, 6 RDAI/IBLJ (1990) p. 57. The German courts have to comply with this authentic interpretation.Google Scholar

119. See above section 3.2.

120. See, e.g., Dore, op. cit n. 112, at p. 538; Pünder, loc. cit n. 112, at p. 872 (with additional references in fn. 47).

121. The abbreviations used in the synopsis have the following meanings: F = forum; P1, and P2 = party 1 and party 2 to the contract; CS = contracting state (e.g., Netherlands, Switzerland); NS = non-contracting state (e.g., Japan, United Kingdom); CSR = contracting state with reservation according to Art. 95 (China, the Czech Republic, Slovakia, Singapore, and the United States); PIL = private international law.

122. Note that in all the following permutations, at least one party does not have his place of business in a CS; if both parties have their places in a CS or in CSR, the CISG applies under its Art. l(l)(a).