Interpretation and gap‐filling in the CISG and in the CESL

• Pages: 266-280
• Published date: 07 September 2012
• Date: 07 September 2012
• DOI: https://doi.org/10.1108/14770021211267379
• Author: Ulrich Magnus
• Subject Matter: Economics

Interpretation and gap-f‌illing

in the CISG and in the CESL

Ulrich Magnus

University of Hamburg, Hamburg, Germany and

Max-Planck Institute, Hamburg, Germany

Abstract

Purpose – The purpose of this article is to compare the methods of interpretation and gap f‌illing in

the United Nations Sales Convention (CISG) and in the Draft Common European Sales Law (CESL). In

particular, it aims to examine whether the established interpretation and gap f‌illing method of the

CISG can and should be used for the CESL.

Design/methodology/approach – The article looks at the method by which international case law

and doctrine interpret the CISG and f‌ill its gaps. The article compares this method with the method

that is provided for in the CESL instrument but has to be implemented.

Findings – It is suggested that despite its nature as European community law, CESL should be

interpreted in a broad international way since it does not only cover internal EU sales, but also

transactions involving parties from outside the EU. For this reason its interpretation and gap f‌illing

should follow the method of the CISG so as to interpret similar provisions in a similar way in order to

harmonize law within and outside the EU.

Research limitations/implications – Both the CISG and CESL intend to unify legal traditions or

different legal systems; the CISG tries to harmonize globally what CESL tries to harmonize regionally.

It is important that these two instruments complement one another by the avoidance of divergent

interpretations of similar provisions. It would helpful for further research to assess whether and

how two decades of experience with the CISG can be used in the interpretation and application of

CESL.

Practical implications – CESL’sinterpretation provision, if it is enacted, is unlikely to change from

the current version. The way CESL is interpreted and how its gaps f‌illed will determine its practical

signif‌icance as a viable opt-in national law. It is therefore necessary to develop in advance the right

interpretive methodology if CESL is to become a meaningful alternative instrument.

Originality/value – The article suggests that the CESL should not be interpreted in the traditional

way European community law is interpreted, but, instead, be interpreted under a broad international

perspective. It also advances the idea of interconventional interpretation by which the CISG would

guide the interpretation of similar provisions found in CESL.

Keywords United Nations SalesConvention (CISG), Common EuropeanSales Law (CESL),

Interpretation,Gap f‌illing, Uniform law, Uniform methodologyof interpretation,

Interconventionalinterpretation, Sales, Regulation, Law

Paper type Research paper

The current issue and full text archive of this journal is available at

www.emeraldinsight.com/1477-0024.htm

The followingworks are merely cited by the name of the author(s) or editor(s): Janssen/Meyer (eds.),

CISG Methodology(2009); Kro

¨ll/Mistelis/PeralesViscasillas (eds.), UN Convention on Contractsfor

the International Sale of Goods (CISG) (2011); Magnus, in: von Staudinger, Kommentar zum

Bu

¨rgerlichen Gesetzbuch mit Einfu

¨hrungsgesetz und Nebengesetzen – CISG (2005);

Remien/Herrler/Limmer (eds.), Gemeinsames Europa

¨isches Kaufrecht fu

¨r die EU? (2012);

Schlechtriem/Schwenzer(eds.), Kommentar zum EinheitlichenUN-Kaufrecht – CISG (5th ed. 2008).

JITLP

11,3

266

Journal of International Trade Law

and Policy

Vol. 11 No. 3, 2012

pp. 266-280

qEmerald Group Publishing Limited

1477-0024

DOI 10.1108/14770021211267379