Should the United States Withdraw Its CISG Article 95 Declaration?

• Author: Peter Winship
• Position: James Cleo Thompson Sr. Trustee Professor of Law, SMU Dedman School of Law, Dallas, Texas. Comments, queries and complaints should be sent to pwinship@mail.smu.edu.
• Pages: 217-229

Should the United States Withdraw Its CISG

Article 95 Declaration?

P

ETER

W

INSHIP

*

As a benefit of membership in the ABA’s Section of International Law, The

International Lawyer ends up in the hands of thousands of practicing lawyers

worldwide. As a consequence, The International Lawyer is an ideal place to solicit

answers to questions like “Should the United States withdraw its Article 95

‘declaration’ to the United Nations Convention on Contracts for the International

Sale of Goods?” The following paper asks this very question. It does so in the hope

that readers with practical experience with the CISG will respond. When

considering an appropriate way to celebrate, the author wished to highlight the

practical value of the most widely-circulated international law journal in the world

today.**

Twenty-five years ago the United States ratified the U.N. Sales

Convention (“CISG”).

1

At that time it declared that it would not be bound

by subparagraph (1)(b) of article 1—a provision that makes the Convention

applicable when choice-of-law rules lead to the law of a State party to the

Convention. Article 95 authorized the United States to do so.

2

Should the

United States now withdraw this declaration?

3

* James Cleo Thompson Sr. Trustee Professor of Law, SMU Dedman School of Law,

Dallas, Texas. Comments, queries and complaints should be sent to pwinship@mail.smu.edu.

** The paper was presented several years ago to a meeting of the U.S. Secretary of State’s

Advisory Committee on Private International Law. The text is reproduced as written but the

footnotes have been modified to conform to standard citation form. The author has prepared a

more elaborate analysis that, with the permission of the editors of The International Lawyer, will

be published with appropriate acknowledgments.

1. United Nations Conference on Contracts for the International Sale of Goods, Vienna,

Austria, Mar. 10-Apr. 11, 1980, Documents of the Conference and Summary Records of the Plenary

Meetings and the Meetings of the Main Committees, U.N. Doc. A/CONF.97/18 (Apr. 11, 1980)

[hereinafter CISG]. The United States signed the Convention on August 31, 1981, and it

deposited its instrument of ratification on December 11, 1986. Both the ratification and

declaration entered into force on January 1, 1988, when the Convention itself entered into

force. Id. arts. 97(3) & 99(1), at 189.

2. Id. art. 95, at 189 (“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”).

3. Although the question is asked only about the CISG, the same question arises with respect

to the Limitation Convention to which the United States is also a party. United Nations

Conference on Prescription (Limitation) in the International Sale of Goods, New York, May

20-June 14, 1974, Documents of the Conference and Summary Records of the Plenary Meetings and of

the Meetings of the Main Committees, U.N. Doc. A/CONF.63/15, as amended by the Protocol of

Apr. 10, 1980. CISG, supra note 1, Annex II, at 191-92 [hereinafter Protocol]. As amended, the

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