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CISG
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LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the Second Committee

9th meeting

Tuesday, 1 April 1980, at 10 a.m.

Chairman:Mr. MANTILLA-MOLINA (Mexico)

The meeting was called to order at 10.05 a.m.

CONSIDERATION OF THE DRAFT PROVISIONS PREPARED BY THE SECRETARY-GENERAL CONCERNING IMPLEMENTATION, DECLARATIONS, RESERVATIONS AND OTHER FINAL CLAUSES AND OF THE DRAFT PROTOCOL TO THE CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS PREPARED BY THE SECRETARY-GENERAL (agenda item 3) (A/CONF.97/6) (continued)

Draft Protocol to the Convention on the Limitation Period in the International Sale of Goods (A/CONF.97/C.2/L.26/Add.2, L.27, L.28) (continued)

New article VI bis (A/CONF.97/C.2/L.27)

1. Mr. PIRC (Czechoslovakia) said that countries such as his own, which had specific legal systems governing the sphere of application or conclusion of agreements regarding international trade and which had ratified the 1974 Prescription Convention, might have considerable difficulty -- for reasons of national legislation -- in accepting the amended version of article 3 of that instrument. For that reason, his delegation proposed (A/CONF.97/C.2/L.27) the inclusion in the draft Protocol of a provision that any State might declare, at the time of the deposit of its instrument of accession, that it would apply the Protocol only to contracts of sale of goods between parties having their places of business in different Contracting States.

2. The CHAIRMAN suggested that, in order to expedite the work of the Committee, its members might agree that, during the discussion of the Czechoslovak proposal and of any further proposal concerning the draft Protocol, rule 24 of the rules of procedure would be deemed to apply. In other words, in addition to the proposer of the motion, two representatives might speak in favour of, and two against, the motion, after which it would be put to the vote immediately.

3. It was so agreed.

4. Mr. TARKO (Austria) said he did not think that the Committee had a mandate to consider the Czechoslovak proposal. Recalling that a similar proposal by the same delegation (A/CONF.97/C.2/L.7) concerning article C of the draft Contracts Convention had been rejected by a substantial majority [see A/CONF.97/C.2/SR.2, paras. 7-18], he said that the Committee's task was merely to ensure, by means of the provisions of the draft Protocol, that the texts of the Prescription Convention and the draft Contracts Convention were in harmony; it was not empowered to modify the substantial decisions which had already been taken in respect of the latter, although those decisions might, of course, be contested in a plenary meeting of the Conference.

5. Article I of the draft Protocol (A/CONF.97/C.2/L.28) reflecting, inter alia, the Committee's earlier decision that the Contracts Convention should apply if the rules of private international law made the law of a Contracting State applicable to the contract of sales, carried that provision over into the Prescription Convention, whose sphere of application would thereby be extended. The Protocol as such was, however, merely a working instrument for the harmonization of the two Conventions and had no sphere of application per se.

6. Moreover, the reservation which the Czechoslovak delegation was proposing would be of no assistance to States which had difficulty in accepting the sphere of application of the draft Contracts Convention. States which had ratified the 1974 Prescription Convention would be free to accept, or not to accept, the Protocol thereto; their attitude to the sphere of application of the Contracts Convention was quite a different matter.

7. Mr. WAGNER (German Democratic Republic) said that, as his delegation had pointed out on numerous occasions, the possibility of reservations concerning relations with parties in non-Contracting States was of particular interest to countries such as his own and Czechoslovakia, which had special legislation with regard to foreign trade contracts.

8. That was particularly true as far as the Prescription Convention was concerned, in that the relatively long prescription periods could be applied only on a basis of reciprocity.

9. With those considerations in mind, he supported the Czechoslovak proposal.

10. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that the interests of a party with his place of business in a Contracting State would not be impaired, as far as prescription was concerned, by the fact that the other party's place of business was in a State which had lodged a reservation of the type proposed by Czechoslovakia. Moreover, the interests of a party with his place of business in a non-Contracting State would not suffer from such a situation either, since the rules of private international law rather than the provisions of the Convention would apply.

11. As many States as possible should be encouraged and assisted to accede to the Protocol, and thus the Czechoslovak proposal should be adopted.

12. Mr. SAM (Ghana) said he agreed with the arguments of the representative of Austria. It seemed to him, moreover, that the "only . . . or" proviso in the text which the Committee had adopted for article I of the draft Protocol made the Czechoslovak proposal unnecessary.

13. The Czechoslovak proposal for a new article VI bis (A/CONF.97/C.2/L.27) was rejected by 11 votes to 5, with 3 abstentions.

The revised draft Protocol (A/CONF.97/C.2/L.28, L.26, L.26/Add.2)

14. Mr. ENDERLEIN (Secretary of the Committee), introducing document A/CONF.97/C.2/L.28, which had been submitted by the Secretariat in compliance with a request made by the Committee at its 8th meeting, said that the annex to that document contained the text of the draft Protocol amending the 1974 Prescription Convention as revised to take account of the Committee's decisions at its 6th, 7th and 8th meetings.

15. Mr. KAI (Japan) said that, although the text of the amended provisions of article 37 of the 1974 Prescription Convention, as contained in article V of the draft Protocol (A/CONF.97/C.2/L.28), reflected a decision taken by the Committee at its 8th meeting [see A/CONF.97/C.2/SR.8, paras. 61-70], his delegation proposed in effect (A/CONF.97/C.2/L.26/Add.2) the deletion from that text of the phrase "or which may be entered into". It did not, however, insist on that proposal.

16. After Mr. PLANTARD (France), Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) and Mr. SAM (Ghana) had queried the authenticity of the various language versions of the text contained in article V, Mr. ENDERLEIN (Secretary of the Committee) recalled that the Committee's earlier decision had been to align the text of article 37 of the Prescription Convention with that of article D of the draft Contracts Convention. More specifically, it had been decided to replace the words "conventions" and "convention" in the first and last lines of the former by the term "international agreement" and the word "agreement".

17. The Secretariat had based itself on the English texts of those articles when preparing document A/CONF.97/C.2/L.28.

18. The CHAIRMAN, noting that the representative of Japan did not insist on his proposal, suggested that the Committee should endorse the text of article 37, as contained in the English text of article V (A/CONF.97/C.2/L.28), on the understanding that the other language versions would be aligned accordingly.

19. It was so decided.

20. Mr. KAI (Japan) said, with reference to article XIII (3) which stated that a Contracting State that had denounced the Protocol should continue to be bound by the provisions of article XII of the same instrument, that, while article XII as a whole reflected general international law, the provisions of the Protocol itself would cease to have effect under such circumstances. If his view of the position was correct, the phrase "and with article XII of this Protocol" might be deleted.

21. Mr. SAM (Ghana) and Mr. PLANTARD (France) agreed with the previous speaker.

22. The phrase referred to by the representative of Japan was deleted.

23. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that, when the Committee had adopted the Austrian proposal that was reflected in the current wording of article XI [see A/CONF.97/C.2/SR.6, paras. 78-85], it had been understood that the article should be interpreted as meaning that the Protocol would be open for accession by any State.

24. In the light of that decision, however, it was necessary to amend the first paragraph of article VIII (A/CONF.97/C.2/L.28) by deleting the second part of the sentence, after the words "all States". That amendment would not only convey the real meaning of the Austrian proposal but would also be in accordance with article 40 of the Vienna Convention on the Law of Treaties, paragraph 3 of which read: "Every State entitled to become a party to the treaty shall also be entitled to become a party to the treaty as amended".

25. He wondered furthermore whether the words "which is not a Contracting Party to the Convention" in article XI were really necessary. Accession to the Protocol was open to any State, regardless of whether it was a party to the 1974 Convention or not, accession by a non-Contracting Party having the effect of accession to the Convention as amended by the Protocol. He also felt that the article should be moved, and should either become a subparagraph of article VIII or appear as a separate article immediately after it.

26. In connection with article XIV, he felt that it would be desirable for certified copies of the Protocol to be transmitted to as wide a range of States as possible. He suggested, therefore, that copies should be sent not merely to the Contracting Parties and signatories in respect of the 1974 Convention but to all the States that had been invited to attend the Conference.

27. The CHAIRMAN invited the Committee to consider the first proposal by the representative of the Soviet Union, that article XI should be incorporated in or placed after article VIII.

28. Mr. PIRC (Czechoslovakia) said he thought that the Soviet amendment to article XI would enable the greatest possible number of States to accede to the Protocol or to the 1974 Convention, and would thus improve the Convention. He was also in favour of placing the amended article XI after article VIII.

29. Miss O'FLYNN (United Kingdom) said she agreed with the representative of the Soviet Union that there was a discrepancy between article VIII and article XI. Under article XI, accession to the Protocol was open to States that were not Contracting Parties to the main Convention. The statement in article VIII, therefore, that the Protocol was open for accession by States that were Contracting Parties or signatories in respect of the 1974 Convention, was not appropriate. Accordingly, she supported the Soviet representative's proposal to delete the last part of paragraph 1 of article VIII.

30. On the other hand, she could not support that representative's suggestion with regard to article XI. If the words "which is not a Contracting Party to the Convention" were deleted, it would mean that accession to the Protocol by any State, including a State which had already acceded to the 1974 Convention, would have the effect of accession to the Convention, a completely absurd situation.

31. Mr. TARKO (Austria) said that the Committee had taken a formal decision on the wording of article XI, as proposed by his delegation, and it was thus not open to amendment.

32. However, he endorsed the proposal that paragraph 1 of article VIII should end with the words "by all States", and that article XI should follow immediately after article VIII.

33. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that, in view of the doubts expressed by the representatives of United Kingdom and Austria regarding his proposed deletion from article XI, he would not press the proposal.

34. Mr. PLANTARD (France) said that the Soviet representative had drawn the Committee's attention to a genuine anomaly, namely a contradiction between the terms of article VIII (1) and those of article Xl. The simplest way of rectifying it would be to incorporate article XI into article VIII, either as a second sentence, following immediately after "this Protocol should be opened for accession by all States", or as a separate paragraph.

35. Mr. SAM (Ghana) said that he had, at an earlier stage, pointed out the inconsistency between the Austrian proposal and the tenor of article VIII. He therefore supported the proposal by the representative of France as making the whole procedure more logical.

36. Mr. SAMI (Iraq) said he agreed with the observations of the representative of the Soviet Union and with the proposal by the representative of France to make article XI a part of article VIII.

37. The CHAIRMAN said that the general feeling in the Committee seemed to be that article XI should be transferred to article VIII as a second paragraph. He took it that the Secretariat should note the proposal and see to it that the change was made.

38. It was so agreed.

39. Miss O'FLYNN (United Kingdom) said that there was a discrepancy between article XI and article XII which was perhaps of slightly more than a drafting nature. Article XI contained the unqualified statement that a State acceding to the Protocol would thereby accede to the Convention as amended. In article XII -- which admittedly dealt with an unusual situation -- that statement was qualified by the provision that a State which became a Contracting Party to the amended Convention also became a Contracting Party to the unamended Convention in relation to any Contracting Party to the latter which was not yet a Contracting Party to the Protocol. It might be advisable, therefore, to preface article XI by a form of words such as "Subject to the provisions of article XII".

40. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that the United Kingdom representative had proposed a logical link between article XI, which stated that accession to the Protocol would have the effect of accession to the amended Convention, and article XII, which provided that accession to the Convention as amended would indicate accession to the unamended Convention also, provided there was no notification of a contrary intention. It would be useful to introduce a clarification along the lines that she had suggested in order to ensure that the two articles were properly understood.

41. The CHAIRMAN invited the Committee to vote on the proposal that the words "Subject to the provisions of article XII," should be inserted before the words "accession to this Protocol by any State" in the second paragraph of the amended article VIII.

42. The proposal was adopted by 8 votes to 1, with 13 abstentions.

43. Mr. PLANTARD (France) said that a large number of delegations had abstained, his own delegation being among them. It had abstained from voting because, while article XII, which was based upon a similar article in the Vienna Convention on the Law of Treaties, obviously had a meaning in a classic convention of international public law, it was not altogether appropriate in the Protocol, which was concerned with the position of Contracting States in respect of contracts of private law. His own impression, which had been accentuated by the discussion and subsequent vote, was that article XII as drafted was a pointless, if not actually confusing, provision which could well be deleted. He reserved the right, therefore, after discussion with like-minded delegations, to propose its deletion in a plenary meeting.

44. The CHAIRMAN asked the representative of the Soviet Union to clarify his proposal that the words "the Contracting Parties and signatories in respect of the Convention of 12 June 1974", in the first paragraph of article XIV should be replaced by a form of words that would ensure that copies of the Protocol were transmitted to a greater number of States.

45. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that, since article XIV appeared too narrow, he had proposed that all the States invited to the Conference should receive certified true copies of the Protocol.

46. Mr. ENDERLEIN (Secretary of the Committee) said that the Secretariat regarded the USSR proposal as a useful one and suggested that there should be a wide distribution in respect of paragraph 1 of article XIV and a more restricted distribution in respect of paragraph 2 of that article. He suggested that the text might be changed to read:

"(1) The depositary shall transmit certified true copies of this Protocol to all States.

"(2) When this Protocol enters into force in accordance with article IX, the depositary shall prepare a text of the Convention of 12 June 1974 as amended by this Protocol and shall submit certified true copies to all States Parties to the said Convention as amended by this Protocol. "

47. The CHAIRMAN said that, if there were no objection, he would take it that the Committee wished to amend the text of article XIV as suggested by the Secretariat.

48. It was so decided.

49. Mr. DABIN (Belgium) said that his delegation had been convinced by the French arguments in favour of deleting article XII and would wish to invite delegations, perhaps in a plenary meeting, to consider whether article XII should be retained in the Protocol.

50. The CHAIRMAN said that the Committee had taken note thereof.

Titles and order of draft articles concerning implementation, declarations, reservations and other final clauses (A/CONF.97/C.2/L.24)

51. Mr. ENDERLEIN (Secretary of the Committee), introducing the statement by the Secretary-General concerning the titles and order of the draft articles (A/CONF.97/C.2/L.24), said that, although some delegations might think that the matter was not one of substance, it had not yet been decided whether or not the articles were to have titles. Consequently, it was a question not of approving the titles as such but merely of taking note of the manner in which the Secretariat had arranged the final provisions and of the order in which the articles would appear in the report of the Committee to the plenary Conference.

52. Mr. TARKO (Austria) said that, in order to avoid any confusion, the first foot-note to the Secretary General's statement should be deleted, since article Y had already been adopted by the Committee.

53. The CHAIRMAN said that the Committee had taken note of the document and that the foot-note in question would be deleted.

The meeting was suspended at 11.30 a.m. and resumed at 11.55 a.m.

CONSIDERATION OF THE REPORT OF THE DRAFTING COMMITTEE TO THE COMMITTEE (agenda Item 4)

Drafting Committee was not yet available and the Second Committee was to hold no further meetings, he suggested that the Drafting Committee should submit its report direct to the plenary Conference.

55. It was so decided.

CONSIDERATION OF THE REPORT OF THE COMMITTEE TO THE PLENARY CONFERENCE (agenda item 5) (A/CONF.97/C.2/L.25 and Add.1-3)

56. Mr. KUCHIBHOTLA (India), Rapporteur, introduced the Committee's draft report (A/CONF.97/C.2/L.25 and Add.l-3).

57. Mr. ROSENBERG (Union of Soviet Socialist Republics) said that his delegation was perfectly satisfied with the draft report, which correctly reflected the course of the discussion and its results.

58. However, before the Committee began its detailed consideration of the draft report, he wished to remark that his delegation hoped that the Rapporteur, with the help of the Secretariat, would ensure that the texts reproduced in the report corresponded exactly to those which the Committee had forwarded to the Drafting Committee.

59. Moreover, the Russian text of the draft report required a number of corrections, which he would, with the Chairman's consent, transmit direct to the Secretariat so as not to take up the Committee's time.

60. The CHAIRMAN agreed that the first point made by the Soviet representative was well-founded. As for corrections to the translated versions of the draft report, he suggested that all those delegations which used working languages other than English should submit any comments they might have direct to the Secretariat.

61. He invited the Committee to examine the draft report paragraph by paragraph.

Document A/CONF.97/C.2/L.25

I. Introduction Paragraphs 1, 2 and 3

62. Paragraphs 1, 2 and 3 were approved.

Paragraph 4

63. The CHAIRMAN said that paragraph 4 should be completed to read:

"The Second Committee held nine meetings, between 17 March and 1 April 1980."

64. Paragraph 4, as completed, was approved.

Paragraphs 5, 6 and 7

II. Consideration by the Second Committee of the draft Convention on Contracts for the International Sale of Goods: draft articles concerning implementation, declarations, regulations and other final clauses

89
Paragraphs relating to article [A] [became CISG article 89 ]

66. The paragraphs relating to article [A] [became CISG article 89 ] were approved.

93
Paragraphs relating to article [B] [became CISG article 93 ]

67. The paragraphs relating to article [B] [became CISG article 93 ] were approved.

6
Paragraphs relating to article [C bis] [not adopted]

68. The paragraphs relating to article [C bis] [not adopted] were approved.

6
Paragraphs relating to article [C bis and C ter] [not adopted]

69. The paragraphs relating to article [C bis and C ter] [not adopted] were approved.

96
Paragraphs relating to article [X] [became CISG article 96 ]

70. Mr. ROSENBERG (Union of Soviet Socialist Republics) reminded the Committee that it had decided, at its 3rd meeting, that the language of article [X] [became CISG article 96 ] should be harmonized with the language employed in other parts of the draft Convention, and that the Drafting Committee should be entrusted with that task. He proposed that a paragraph 8 to that effect should be added to the relevant section of the draft report.

71. It was so decided.

72. The paragraphs relating to article [X] [became CISG article 96 ], as amended were approved.

90, 91, 92
Paragraphs relating to articles [D], [F] and [G] [became CISG article 90 , CISG article 91 and CISG article 92 ]

73. The paragraphs relating to articles [D], [F] and [G] [became CISG article 90 , CISG article 91 and CISG article 92 ] were approved.

Document A/CONF.97/C.2/L.25/Add.l

94
Paragraphs relating to article [C] [became CISG article 94 ]

74. The paragraphs relating to article [C] [became CISG article 94 ] were approved.

100
Paragraphs relating to article [E] [became CISG article 100 ]

75. Mrs. BELEVA (Bulgaria) reminded the Committee that, at its 4th meeting, her delegation had proposed that the order of paragraphs 1 and 2 of article [E] [became CISG article 100 ] should be reversed. A further drafting amendment in respect of article [E] (2) [became CISG article 100(2) ] had been submitted at the same meeting by the Netherlands delegation.

76. The CHAIRMAN said that the Secretariat would make the necessary changes in the section relating to article [E] [became CISG article 100 ].

77. On that understanding, the paragraphs relating to article [E] [became CISG article 100 ] were approved.

97, 99, 101
Paragraphs relating to articles [H], [J] and [K] [became CISG article 97 , CISG article 99 and CISG article 101 ]

78. The paragraphs relating to articles [H], [J] and [K] [became CISG article 97 , CISG article 99 and CISG article 101 ] were approved.

98
Paragraphs relating to article Y [became CISG article 98 ]

79. The CHAIRMAN pointed out that paragraph 3, which had been accidentally omitted, would be inserted between the heading "(i) Meetings" and paragraph 4.

80. On that understanding, the paragraphs relating to article Y [became CISG article 98 ] were approved.

Authentic texts
Paragraphs relating to the Testimonium

81. The paragraphs relating to the Testimonium were approved.

82. Mr. ENDERLEIN (Secretary of the Committee) said that the draft articles would be submitted to the plenary Conference in the order in which they appeared in the annex to document A/CONF.97/C.2/L.24.

83. In reply to a question by Miss O'FLYNN (United Kingdom), he confirmed that the Committee had taken no decision regarding the advisability of assigning titles to the articles. The matter would be dealt with by the Drafting Committee.

Document A /CONF.97/C.2/L.25/Add.2

III. Consideration by the Second Committee of the draft Protocol to the Convention on the Limitation in the International Sale of Goods

Paragraphs relating to the Preamble and article IV

84. The paragraphs relating to the Preamble and article IV were approved.

Paragraphs relating to articles V, VI, VII, VII bis, VIII and IX

85. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that decisions taken earlier at the current meeting with regard to the draft Protocol should be reflected in the text of the draft report. He suggested that the Secretariat should be requested to make the necessary changes.

86. Miss O'FLYNN (United Kingdom) said that her delegation also would be happy to leave that task to the Secretariat.

87. The CHAIRMAN said he noted that the last two speakers appeared to express the general view of the Committee.

88. The paragraphs relating to articles V, VI, VII, VII bis, VIII and IX were approved, subject to changes in those articles made earlier in the meeting.

Paragraphs relating to the Testimonium

89. The paragraphs relating to the Testimonium were approved.

Document A/CONF.97/C.2/L.25/Add.3

Paragraphs relating to articles I and seq. of the draft Protocol

90. The paragraphs relating to articles I and seq. of the draft protocol were approved.

Paragraphs relating to article VIII bis

91. Mr. TARKO (Austria) suggested that paragraph 4 should be amended to include a reference to the proposal made by the Japanese delegation earlier in the meeting.

92. It was so decided.

93. The paragraphs relating to article VIII bis were approved, subject to that change.

Paragraphs relating to titles and order of draft articles concerning implementation, declarations, reservations and other final clauses

94. The CHAIRMAN said that paragraph 4 should be amended so as to indicate that the Committee had merely noted the titles proposed by the Secretary-general.

95. It was so decided.

96. The Paragraphs relating to titles and order of draft articles, as amended, were approved.

97. The draft report, as amended, was adopted.

Any Other Business (agenda item 6)

Statement by the representative of Japan

98. Mr. KAI (Japan) recalled that his delegation had indicated at an earlier meeting that certain clarifications were needed before article C was adopted. Since articles C and J had since been adopted by the Committee, his delegation wished to place on record the fact that its difficulties related to the effect of a declaration made under paragraph 2 of article C when the former non-Contracting State which was the object of that declaration itself became a Contracting State.

99. From the time that the former non-Contracting State deposited its instrument until the date of entry into force of the Convention in its respect, a 12 months' period of time would elapse under article J. It as unclear what the status would be during that interim period of the old unilateral declaration initially made by the first Contracting State under paragraph 2 of article C.

100. His delegation's interpretation was that, in such a case, the declaration initially made by the first Contracting State under paragraph 2 of article C would continue in effect until the Convention had entered into force for the new Contracting State. Otherwise there would be a 12 month's gap during which uncertainty prevail as to the regime applicable between the two States concerned.

101. The CHAIRMAN assured the Japanese representative that his statement would be duly noted.

The meeting rose at 12.45 p.m.


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