Comments on Singapore by Gary F Bell

Comments on the papers on the CISG in Singapore

By Assoc. Prof. Gary F. Bell

Comments on Singapore by Gary F Bell

1. The CISG is almost never applied in Singapore.

2. Why it is never applied?a. Singapore lawyers exclude it. b. England has not adopted the CISG.c. Singapore’s reservation under article 95.

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1. The CISG is almost never applied in Singapore. Country Number of court

cases

Germany 530China 432Russian Federation 305Netherlands 262Switzerland 210United States 169France 162Austria 145Belgium 144Spain 107Slovakia 75Serbia 71Italy 61United Kingdom 7 (Not even a party to

the CISG!)…Singapore 2

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1. The CISG is almost never applied in Singapore. Examples of Small countries Cases

Netherlands (16.8 M) 262Switzerland (8 M) 210Austria (8.4 M) 145Belgium (11 M) 144Slovak Republic (5.4 M) 75Serbia (7.1 M) 71Denmark (5.6) 28Hungary (9.8) 22New Zealand (4.5 M) 12…Singapore (5 M) 2

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1. The CISG is almost never applied in Singapore.

Common Law Countries Cases

United States (mixed) 169Australia 26Canada (mixed) 20New Zealand 12Singapore 2

Source: Albert H. Kritzer CISG Database, Pace Law School, http://www.cisg.law.pace.edu

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1. The CISG is almost never applied in Singapore. • There are only 3 cases in Singapore in 19 years, and in

fact, none are on the CISG.• One case is not about the CISG at all (the court

generally mentions the CISG).• The other two cases are arbitration, not CISG, cases.• In those cases, the High Court decided that the

arbitrator’s decision to apply or not to apply the CISG was not reviewable by the courts.

• The two cases did not involve any Singapore party.

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2. Why it is never applied?a. Singapore lawyers exclude it.

• There is no hard evidence but it seems that SG lawyers systematically recommend the exclusion of the CISG.

• Asked why they systematically exclude the CISG and they often tell me that it is because they do not know it.

• [Is my teaching of the CISG at NUS for 19 years a failure?!]• But remember: The CISG is part of Singapore law.• A lawyer who advises against the CISG without knowing it

is doing an incompetent job.• Lawyers should know Singapore law including the CISG

before advising against it – otherwise they commit professional misconduct.

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2. Why it is never applied?b. England has not adopted the CISG.

• As we saw: there are not many cases on the CISG in common law countries.

• Most common-law and Singapore lawyers seem to exclude the CISG.

• I have heard often that “there are no cases on the CISG”, “the CISG is uncertain compared to the Sale of Goods Act”

• This is simply not true. At Pace Law School database:• 2,500 CISG cases translated in English, • 1,652 full-text law review articles on the CISG and • 10,245 citations to books and articles on the CISG

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2. Why it is never applied?b. England has not adopted the CISG.

• What they are saying: almost no case in SG and England.• Unfortunately our lawyers are used to looking only at

England and the Commonwealth for cases and doctrine.• Because England has not adopted the CISG, they find

nothing.• They should look at the right places and would find plenty.• USA and civil law countries are where they should look.• The are freely available databases on the CISG (Pace

University database, Unilex database and CLOUT database, for example).

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2. Why it is never applied?c. Singapore’s reservation under article 95.

• As mentioned, Singapore made a reservation under art. 95.• Therefore, reciprocity is required.• The SG courts can apply the CISG only if both contracting

parties are from countries that are parties to the CISG.• I will explain tomorrow in more detail why Singapore should

withdraw this reservation.• Let me explain why having this reservation means many

CISG cases do not come to Singapore• I will give you only the two of many reasons:

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2. Why it is never applied?c. Singapore’s reservation under article 95.

• First, if parties from Indonesia and China want the CISG to apply, they cannot come to Singapore as our courts will have to refuse to apply the CISG (Indonesia is not a party).

• Therefore such cases go to more CISG-friendly jurisdictions.

• This is really bad for the newly created Singapore International Commercial Court: many CISG cases won’t come to it as long as this reservation is still there.

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2. Why it is never applied?c. Singapore’s reservation under article 95.

•Second, Singapore based companies want to use one standard form contract for their sales.

•Because of the reservation, they cannot have the standard form contract governed by the CISG for all their sales – the CISG cannot apply if a party is from Indonesia or another country that is not party to the CISG.

•Therefore standard form contracts in SG always exclude the CISG.

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2. Why it is never applied?c. Singapore’s reservation under article 95.

• Thus far, in ASEAN, only Singapore is a party to the CISG.

• Therefore, because of the reservation, the CISG can never be used by Singapore parties for trade within ASEAN.

• This does not help our drive for harmonisation within ASEAN.

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Thank you for your attention!