Reimagining transnational validity under the CISG. A gateway to “homeward trend” interpretations

• Pages: 156-168
• DOI: https://doi.org/10.1108/JITLP-06-2017-0021
• Published date: 26 October 2018
• Date: 26 October 2018
• Author: Ndubuisi Nwafor,Collins Ajibo,Chidi Lloyd
• Subject Matter: International economics,Economics,International trade

Reimagining transnational

validity under the CISG

A gateway to “homeward trend”interpretations

Ndubuisi Nwafor,Collins Ajibo and Chidi Lloyd

Faculty of Law, University of Nigeria, Enugu Campus, Enugu, Nigeria

Abstract

Purpose –The aims and objectivesof the United Nations Convention on Contracts for the International Sale

of Goods (CISG) have been defeated by theintrusion of domestic laws of different contracting states in the

interpretation of the provisions of this Convention. One of the most abused channels of this un-uniform

interpretation is through art 4 of the CISG, which excludes the matters of validity and property from the

Convention’s jurisdiction. This paper, therefore, aims to critically analyze the dangers of unsystematic

reliance on the domestic laws in the interpretation of art 4 of the CISG on matters involving transnational

validityand property.

Design/methodology/approach –The paper willuse doctrinal methodology with criticaland analytical

approaches. The paper will incisively study the doctrines, theories and principles of law associated with

validityof commercial contracts and the implications of exclusionof the doctrine of “validity”under the CISG.

Findings –The f‌indings and contribution to knowledge will be by way of canvassing for a uniform

transnational validitydoctrine that will streamline and position the CISG to serve as a uniform international

commercialconvention.

Originality/value –This paper adopted a conceptual approach. Even though the paper ventilated the

views of many writers on the issue of application of the doctrine of validity under the CISG, the paper,

however, carved its own niche by making original recommendations on how to create a uniform validity

jurisprudenceunder the CISG.

Keywords Validity, Transnational, CISG, Commercial contract, UNIDROIT, Uniform convention

Paper type Conceptual paper

1. Introduction

The fundamental objective of any uniform supranational law lies with the necessity for the

propagation and promotion of one body of law that will oversee similar activities/

transactions in all contractingstates and to serve as a catalyst for law reform and revision in

an area where common ground has been found among contractingstates. This is the virtue

canvassed and entrenched in the United Nations Convention on the Contracts for the

International Sale of Goods (CISG)[1](Lookofsky, 1991). The CISG is not a holistic

Convention[2]–its uniformitymantra stops where its limitations of scope start; in addition

to providing rules that aid the homogenousapplication of the CISG, arts 1-6 of the CISG also

contain rules that decisively and without doubt manacled the scope of application of the

Convention.

These limitation rules are put in placebecause they preserve the sovereignty of domestic

laws of sale, which apply side by side withthe CISG[3](Observations of the Governmentof

Federal German Republic, 1956) in certaincontexts. It goes without saying then that certain

rules contained therein in the CISG have opened up a gateway to “homeward trend”(John,

1989) interpretations of the CISG in line with the autochthonousor home-grown ingredients

of the various domestic laws.

JITLP

17,3

156

Received24 June 2017

Revised29 November 2017

Accepted30 July 2018

Journalof International Trade

Lawand Policy

Vol.17 No. 3, 2018

pp. 156-168

© Emerald Publishing Limited

1477-0024

DOI 10.1108/JITLP-06-2017-0021

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