Professor emeritus, Member of the Study Group on a European Civil Code
Basic Structures and General Concepts of the CISG as Models for a Harmonisation of the Law of Obligations
The United Nations Convention on Contracts for the International Sale of Goods (CISG) has become a tremendous success story, unexpected even by its staunchest supporters. To date, 65 countries have ratified, accepted, or approved this convention1, among them most of the great trading nations of the world except Japan and England. Thousands of cases decided by state courts or arbitration tribunals are reported upon via electronic databases2 or in legal journals; voluminous commentaries in several languages, such as English, Swedish, Polish, and German, have analysed the provisions of the convention in light of cases considered, and the contributions by legal writers to law periodicals, journals, anthologies, etc. are so numerous that it is impossible to keep track. Tens of thousands of law students all around the world are instructed in international sales law, and many become experts on the CISG by participating in the annual Willem C. Vis moot competition.
This overwhelming success has many causes, not least among them the high quality of the CISG and the craftsmanship of its drafters, who over the long 'gestation period' of this Uniform International Sales Law worked on it and fine-tuned its provisions and solutions in consideration of extensive comparative analyses of domestic sales laws. In this process, they took into account many critical contributions of academics and practitioners as well as of governments and international organisations such as the International Chamber of Commerce, which were published or otherwise addressed to them in the course of the elaboration of the convention. Thus, they proved false the claims sometimes made that the convention was the product of theoreticians lacking contact with the reality of international trading3. And this - i.e., the high quality of the CISG - may also explain its success in an area additional to its direct application to cross-border sales: its indirect influence as a model for other international, regional, or domestic developments and reforms of sales laws and, more generally, the law of obligations. To this I would like to devote the following tentative observations.
The CISG has left its imprint on a number of international projects for the unification or harmonisation of rules in the field of commercial and general contract law. Basic concepts of the CISG have influenced the development of international or regional projects of unification and harmonisation on two levels. Firstly, the prerequisites for application in its Articles 1-7 have repeatedly been used as a model. Secondly, its substantive law provisions on the contractual relations of the parties to an exchange contract in general and its provisions concerning sales contracts in particular had a noticeable influence on such projects.
In international conventions, draft conventions, and model laws for certain cross-border contracts, the first threshold is always the prerequisites for application. While CISG predecessors ULIS and ULFIS4 had set up a rather complicated system of requirements for application of uniform law, the CISG in its Art. 1 (1) (a) uses very simple prerequisites - namely, that the parties have their places of business in different (contracting) states; in addition, Art. 1 (1) (b) of the CISG allows application if the conflict of law rules of the forum determine the law of a contracting state to be applicable law5. This has proved to be quite workable, and the basic prerequisite of 'internationality' that the parties have their places of business in different states as the main, if not the sole and decisive, 'trigger' for applying a uniform law has since been used frequently - e.g., in Art. 3 of the UN Convention on the Limitation Period in the International Sale of Goods (1974) as amended by the Protocol of 11 April 1980; in the 2001 Convention on the Assignment of Receivables in International Trade in its articles 1 (1), 3 in the drafts for an instrument on the carriage of goods, and 2 (place of receipt for carriage and place of delivery in different states); or Art. 1 (3) (a) of the Model Law on International Commercial Arbitration of 1985.
Uniform law provides at first only verbal uniformity, and there is always a great danger of, in the application and/or interpretation of a uniform law, practitioners and legal writers paying only lip service to the uniform law, reading and applying it in a manner in keeping with their domestic law6. Article 7 of the CISG offers several safeguards to prevent a 're-nationalization' of international uniform law by, firstly, stating directives for its interpretation7 and, secondly, providing for gap?filling8. These, too, have become almost standard clauses for international instruments - e.g., in Art. 7 of the Limitation Convention (supra), Art. 6 (1) of the 1983 (Geneva) draft Convention on Agency in the International Sale of Goods, Art. 4 (1) of the UNIDROIT Convention on International Factoring of 1988 (Ottawa), Art. 6 (1) of the UNIDROIT Convention on International Financial Leasing of 1988 (Ottawa), Art. 7 (1) of the 2001 UN Convention on the Assignment of Receivables in International Trade, and Art. 5 of the Convention on International Interests in Mobile Equipment (Cape Town Convention) of 2001.
In the context of my paper, the effects of the substantive law provisions of the CISG on projects of international or regional - in particular, European - projects of unification or harmonisation of the law are especially interesting, and I shall sketch out in brief but a few of them.
The UNIDROIT Principles of International Commercial Contracts, published in a second, enlarged edition in 2004 by the Rome Institute for the Unification of Private Law9, are closely interwoven with the development of a uniform sales law through its final form, for it was there in Rome at the UNIDROIT Institute that the idea was conceived in the 1920s10 to add to the then-ongoing endeavours to unify or harmonise the law of negotiable instruments and cross-border transport in a uniform law instrument for international sales, an idea that bore fruit in 1964 in the form of the so-called Hague Uniform Sales Law Conventions11, which, while in themselves not becoming a success, for only nine states ratified them, did become the basis for the later work of UNCITRAL and its final result, the CISG. So, both the UNIDROIT Principles and the Uniform Sales Law were drawn from the same well, and there was also some identity of drafters, for a number of experts who had worked on the CISG later joined UNIDROIT's working teams12. Thus, it is little wonder that the key solutions and central concepts of the CISG and the UNIDROIT Principles are closely related, and that they look very similar, particularly if compared with rules and codification of domestic sales laws.
The so-called Principles of European Contract Law, published in three parts - in 1995 (I), 1999 (I and II), and 2003 (III) - by a private group of scholars that grew from the small circle assembled around the founder of this project, Copenhagen's Professor of Commercial Law Ole Lando (and, therefore, was long known as the Lando Commission), to a group quite impressive in both scholarship and numbers13, also show similarities with the core solutions of the CISG, although, like the UNIDROIT Principles, they cover a wider area of the portion of law that Europeans tend to qualify as the law of obligations and tend to address more details, not always avoiding the risks of provisions that are too detailed. Nevertheless, the 'European Principles' have become a basis and framework for further attempts on the European level - in particular, the work of the Study Group on a European Civil Code, founded and chaired by Professor Christian von Bar of Osnabrück, Germany, and now entrusted by the EC Commission to draft a Common Frame of Reference for a European Contract Law14.
Regarding these European projects, it seems that the influence of the CISG is especially visible and strong in Europe, an impression that is further corroborated by the famous EC Directive 1999/44/EC of 1999 of the European Parliament and of the Council 'on certain aspects of the sale of consumer goods and associated guarantees', which in its definition of the 'conformity of goods' has taken its cues from the CISG15 and, thereby, introduced this key concept into the legal sales law systems of member states when they implemented the directive (see infra at 3).
But it must also be mentioned here that OHADA16, the Organisation of 27 African States, striving for a harmonisation of trade law equivalent to the EC's harmonisation, promulgated Uniform Rules for Contracts that obviously followed the model of the UNIDROIT Principles17 and, thusly, though indirectly, the CISG model.
The CISG has influenced the developments and reform of domestic laws through several channels, an obvious one being the implementation of EC directives - e.g., the Sale of Consumer Goods Directive mentioned in the preceding para. 2, which in its use of certain concepts, such as that of conformity, was given form by the CISG.
Some countries have enacted the CISG not only as their law for cross-border sales but also as their domestic sales law. The Scandinavian countries are the...