uncitral united nations commission on international trade law 35 years of the cisg: an overview of...

UNCITRAL United Nations Commission on International Trade Law

35 years of the CISG: an overview of the CISG, its formulation and itsprogress in the past 35 years.

Luca Castellani

UNCITRAL Secretariat


Preparation

• Extensive preparatory studies• Based on ULF/ULIS

• Inclusive drafting process• Adoption at diplomatic conference

• Voting mechanism• Long preparation time• Limitation Convention as spin off

• Amending protocol• Actual relevance recently re-assessed


Part I – Scope and general provisions

• Clear mechanism of application– Effectively prevented the need for a uniform

conflict of laws text– May benefit from a uniform choice of law clause

• Exclusion of consumer transactions– Issue still difficult to harmonise globally

• New terminology– Sometimes seen as unclear, but drawback

intrinsic to any law reform


Uniform interpretation and application

• Opting out– Increasingly less common, especially for

specialised counsels– Highlights that the CISG is not “hegemonic”– Increasing awareness on professional liability

for opting out without full justification• Default application

– Parties may not be aware– CISG works as “safety net”– More useful in developing countries and for

SMEs


Uniform interpretation and application

• Duty of uniform interpretation– Thousands of reported cases available in

several languages often at no cost– Now available also in compact form as Digests– Increased awareness among the judiciary,

especially if specialized– Need to look at foreign cases facilitates

exchange of ideas


Part II – Formation of contract

• More “classic” part in comparative law– Less relevant in practice?

• Impact of the use of new technologies– Many solutions are contained in the Electronic

Communications Convention


Part III – Duties and obligations

• More “innovative” part• Rationalised system of remedies• Favor contractus

– Avoidance only for fundamental breach• Enhanced contract management

– Duty of cooperation in avoiding/mitigating non-performance

• Compensation of damages proportionate to actual loss


Part IV – Final clauses

• Ongoing review of declarations• Clear trend towards more uniform global scope of

application• Possibility that new declarations will arise for

regional purposes


To conclude and to go forward

• The CISG has delivered as a text for international trade

• At a minimum, it reinforces the application of the principle of freedom of contract, underpinning all commercial transactions

• When appropriate, it provides a modern and fair legal framework to cross-border sale of goods

• It seems best known and applied in those jurisdictions that have based domestic law on same or similar notions

• Unfortunately, the CISG is not well-known where it is needed most (developing countries, SMEs)


To conclude and to go forward

• The CISG has delivered as a model for national and regional law reform

• It has introduced new notions in line with business needs and practice

• Acknowledging this function will reinforce its application

uncitral united nations commission on international trade law 35 years of the cisg: an overview of...

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