Uniform Interpretation of CISG
| Author | Herbert I. Lazerow |
| Position | Professor of Law, University of San Diego. A.B. Pennsylvania, J.D. Harvard, LL.M. George Washington, D.E.S.S. Paris I Panth´eon-Sorbonne. Thanks to my research assistant, Kelly Reis, USD Class of 2020, for her excellent editing, to the University of San Diego for a summer 2018 research grant to prepare this paper, and to Steven D. Walt of the ... |
| Pages | 369-391 |
Uniform Interpretation of CISG
H
ERBERT
I. L
AZEROW
*
interpretation of this Convention, regard is to be had to its international
character and to the need to promote uniformity in its application and the
observance of good faith in international trade”.
1
There are few cases in
which the international character of CISG or promoting the observance of
good faith influences interpretation.
2
For many cases, uniformity is the sole
criteria that is relevant. This paper argues that uniformity in application is
nearly impossible and certainly impractical—but is nonetheless a goal worth
seeking—and describes how a second judge should seek uniformity.
Part I argues that uniform interpretation is unlikely because the
convention has six official languages; decisions about it are rendered in a
variety of languages by a variety of courts and arbitral bodies; there is no way
to be certain that one has accessed all of the publicly available decisions, and
many decisions are not publicly available; sources of law under different legal
systems (common law, civil law, socialist law, Islamic law) are different,
making the evaluation of decisions difficult; there is no Supreme Court of
CISG available to resolve conflicts of interpretation; and there is a
continuing tension between interpreting CISG to be consistent with the
remaining body of domestic law and interpreting it on its own,
autonomously. Part II sets forth an example showing how a judge might
approach uniform interpretation.
* Professor of Law, University of San Diego. A.B. Pennsylvania, J.D. Harvard, LL.M.
George Washington, D.E.S.S. Paris I Panth´eon-Sorbonne. Thanks to my research assistant,
Kelly Reis, USD Class of 2020, for her excellent editing, to the University of San Diego for a
summer 2018 research grant to prepare this paper, and to Steven D. Walt of the University of
Virginia for his helpful comments on it.
1. U.N. C
OMM
’
NON
I
NT
’
L
T
RADE
L
AW
, U
NITED
N
ATIONS
C
ONVENTION ON
C
ONTRACTS
FOR THE
I
NTERNATIONAL
S
ALE OF
G
OODS
, art. 7(1), U.N. Sales No. E.10.V.14 (2010). The
problem is discussed generally at J
OHN
O. H
ONNOLD
, U
NIFORM
L
AW FOR
I
NTERNATIONAL
S
ALES
U
NDER THE
1980 U
NITED
N
ATIONS
C
ONVENTION
117 – 33 (Harry M. Fletchner ed.,
4th ed. 2009); P
ETER
S
CHLECHTREIM
& I
NGEBORG
S
CHWENZER
, C
OMMENTARY ON THE
UN
C
ONVENTION ON THE
I
NTERNATIONAL
S
ALE OF
G
OODS
(CISG) 121 – 26 (Ingeborg
Schwenzer ed., 4th ed. 2016); C
LAYTON
P. G
ILLETTE
& S
TEVEN
D. W
ALT
, T
HE
UN
C
ONVENTION ON
C
ONTRACTS FOR THE
I
NTERNATIONAL
S
ALE OF
G
OODS
: T
HEORY AND
P
RACTICE
10 – 19 (2d ed. 2016).
2. For a case that should have considered the internationality of the contract but did not, see
Landgericht Frankfurt am Main [LG] [District Court Frankfurt (Main)] Apr. 11, 2005, 12/26 O
264/04 (Ger.), http://cisgw3.law.pace.edu/cases050411g1.html (Ugandan buyer precluded from
remedy by strict German inspection standards when German seller shipped worthless shoes).
THE INTERNATIONAL LAWYER
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370 THE INTERNATIONAL LAWYER [VOL. 52, NO. 3
Part III argues that despite the difficulties, uniform interpretation is
nonetheless desirable because it reduces the incentive for forum shopping
for favorable substantive law and details recent restrictions on forum
shopping. Also, the very purpose of CISG was to create a uniform
international commercial law which would be undermined by non-uniform
interpretation.
I. Difficulties of Uniform Interpretation
A. S
IX
O
FFICIAL
L
ANGUAGES OF THE
C
ONVENTION
The convention is written in six different languages, each of which is
expressed to be official.
3
This creates two different problems.
A provision may actually be different in different languages. For example,
in the English version, a contract to make goods is considered the sale of
goods (and thus covered by CISG) “unless the party who orders the goods
undertakes to supply a substantial part of the materials necessary,” while the
French version changes the word “substantial” to “essential.”
4
This is clearly
a different standard, as “substantial” calls for a quantitative test, while
“essential” requires a qualitative test.
One might suggest a majoritarian solution: simply count how many of the
languages opt for one meaning or the other and adopt the majority
interpretation. But doing that would mean that each language is not equally
official.
Likewise, one Swiss court has suggested that, in case of doubt, one should
recur to the working languages of CISG’s negotiation, which were primarily
English and, secondarily, French.
5
A careful common lawyer, however,
would note that the entire linguistic discussion in the Swiss case was dictum,
as the language version that was urged on the court was German, which is
not one of the six official languages. As a result, the German version clearly
yields to any of the six official languages.
The second problem is summed by the Italian proverb “tradurre ´e tradire,”
which means “to translate is to betray.” It notes the difficulty of making a
perfect translation because words in different cultures have different shades
of meaning. In the Swiss case, the court points out that both the English
and the French versions could be translated into German as “precisely
describe” (as it was), but equally acceptable translations would be “describe”
or “indicate.”
6
This means that the French and English versions, which
3. The penultimate paragraph reads as follows: “DONE at Vienna . . . in a single original, of
which the Arabia, Chinese, English, French, Russian and Spanish texts are equally authentic.”
U.N. C
OMM
’
NON
I
NT
’
L
T
RADE
L
AW
, supra note 1, art. 101.
4. Id. art. 3(1).
5. Bundgesgericht [BGer] [Federal Supreme Court] Nov. 13, 2003, 130 E
NTSCHEIDUNGEN
DES SCHWEIZERISCHEN
B
UNDESGERICHTS
[BGE] III 258 (Switz.), http://cisgw3.law.pace.edu/
cases/031113s1.html, last visited 21 June 2018.
6. Id.
THE INTERNATIONAL LAWYER
A TRIANNUAL PUBLICATION OF THE ABA/SECTION OF INTERNATIONAL LAW
PUBLISHED IN COOPERATION WITH
SMU DEDMAN SCHOOL OF LAW
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