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Reproduced with permission of 13 Vindobona Journal of International Commercial Law & Arbitration (1/2009) 43-70

The Global Jurisconsultorium of the CISG Revisited

Camilla Andersen [*]

  1. The CISG and Uniform Application: The Need for a Global Jurisconsultorium
    1.1     Understanding uniformity
    1.2     Textual uniformity v. applied uniformity
    1.3     Uniformity and the CISG
  2. The Global Jurisconsultorium of the CISG: The "Legal" Arguments
  3. The Global Jurisconsultorium of the CISG: The "Policy" Arguments
  4. The Cases of the Practical Global Jurisconsultorium of the CISG
  5. The Problem of Foreign Precedents
  6. The Nature of a Precedent in Shared International Law
    6.1     Terminological caution
    6.2     Definitely not binding: And do not even hint this!
    6.3     Probably not persuasive: Definitely inspirational!
                        6.3.1     Criteria for CISG precedents
                        6.3.2     "Shared uniform caselaw": A comfortable label?
                        6.3.3     The scholarly jurisconsultorium: Welcome developments
  7. Conclusion: The Future of the Jurisconsultorium of the CISG
  8. Appendix
    8.1     Practical jurisconsultorium: Cases by country [America, Australia, Denmark,
              France, Germany, Italy, Netherlands. Poland, Serbia, Spain, Switzerland]
    8.2     Practical jurisconsultorium: Cases from arbitration venues [American Arbitration
              Association, International Chamber of Commerce, Stockholm Chamber of Commerce]

This paper is written in honour of the late, great Professor Peter Schlechtriem, for the conference held in his memory. It is an updated continuation of a paper published in 2005 in the Journal of Law and Commerce of which he was very supportive. Peter Schlechtriem's scholarship and his academic significance to the CISG community speak for themselves. But for those who did not know him, I would like to take a moment to remember the man who was more than just a CISG scholar and leader; he was kind and unassuming, and demonstrated just how friendly an academic atmosphere can be, regardless of the presence of giants. I am grateful to have known him.

1. THE CISG AND UNIFORM APPLICATION: THE NEED FOR A GLOBAL JURISCONSULTORIUM

It stands to reason that uniformity in law cannot be defined by a dictionary definition of 'uniformity', as no laws are ever applied 'always the same'.[1] Previous writing has attempted to define the nature of uniformity in law as follows: [page 43]

We can define 'uniformity' as the varying degree of similar effects on a legal phenomenon across boundaries of different jurisdictions resulting from the application of deliberate efforts to create specific shared rules in some form.[2]

These contributions have highlighted the need to distinguish between textual uniformity and uniform application, as well as the need to determine basic interpretive rules that will promote autonomy of the CISG by ensuring a degree of uniformity in application.

1.1 Understanding Uniformity

The major promulgators of legal uniformity suggest that the concept of unification of law rests on the bringing together of legal systems,[3] and the establishment of similar rules across divides of legal cultures. Modern uniform law is a relatively new form of lawmaking, with a different origin and a different focus to conventional domestic lawmaking.[4] It is a voluntary process whereby different jurisdictions elect to share a set of rules.

This process is to be contrasted with historical legal uniformity such as Roman law,[5] Common Law,[6] and other colonial laws which imposed laws. In other words, modern uniform laws are laws which are created with the deliberate aim of establishing shared law between multiple jurisdictions.

But while the creation of such laws is often the crowning achievement of efforts of comparative and harmonised law, it is submitted that it is not in the creation of texts which call themselves 'uniform' that any actual uniformity in law is created, but rather in the successful uniform application of such texts.

The degree of uniformity obtained in application is the true indicator of the success of a uniform law. This means that rules or laws labelled 'uniform' are not necessarily uniform at all -- it is only where they have been applied cross-jurisdictionally on the intended legal phenomenon and created the intended degree of similarity that the label 'uniform' fits. [page 44]

1.2 Textual Uniformity v. Applied Uniformity

At this point, it is necessary to draw a distinction between applied uniformity, which is the true goal of unification efforts, and the apparent uniformity of texts. Professor Schlechtriem distinguished between 'unity achieved at a verbal level' (in the rules as provided by the drafters) and 'uniform understanding and uniform interpretation' (in the commentary and application of these rules).[7] Building on this distinction, we can label the former textual uniformity [8] and the latter applied uniformity. Textual uniformity, like applied uniformity, is a question of degrees of similarity, and not an absolute.

The textual uniformity of legal instruments can vary immensely depending on the quality of translation and style of promulgation (i.e. Model Law vs. Convention, etc.). For instance, where different translations of the same document exist, nuances of differences in meaning are bound to exist. Language is, after all, not a precise science. Flechtner labels this 'textual non-uniformity', using the term 'uniformity' as an absolute in this context.[9] Such differences may, naturally, have an effect on the way scholars and practitioners working in these different languages interpret and use given provisions, so the degree of textual uniformity directly affects the degree of actual uniformity.

While it is thus true that textual uniformity has a profound effect on applied uniformity, even the most diligently created piece of textually uniform legislation will not necessarily enjoy uniformity of application. As pointed out by Honnold, 'uniform words do not create uniform results'.[10] Textual uniformity is the means to the end of actual uniformity; only the application of the textually uniform instrument will reveal whether the goal of actual or applied uniformity is reached. [page 45]

1.3 Uniformity and the CISG

The CISG is a modern piece of uniform sales legislation, currently shared by 73 different countries across the world.[11] However, studies of the CISG show that whilst it is textually uniform, at least to some extent, different contracting states read and apply its text in different ways. For instance, in the determination of what constitutes 'reasonable time' for notice under Art. 39 CISG, interpretations range from four days (being untimely) to four months (being timely).[12] Given that failure to comply with this notice requirement will, with few exceptions,[13] wholly deprive the buyer of remedies for non-conformity of goods, such divergence is highly undesirable. The lack of uniformity in the interpretation of key provisions such as this, conflicts with the goal of creating a predictable legal environment for transnational business. So the question is: is this divergence acceptable, or does it step outside the realm of nuance? Will these divergences contradict the objective of applied uniformity?

The CISG finds its basis for uniformity in its preamble, and in Art. 7(1) CISG, which provides:

In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application [...].

The question of 'how uniform is uniform?' in the context of uniform CISG application is not easily answered. A detailed analysis of the CISG, its travaux préparatoires (including the Secretariat's Commentary and antecedents) and its current practice would seem to indicate that different provisions aspire to different degrees of applied uniformity as some articles are drafted in more flexible terms than others. However, given the genesis of the Convention, and the professed aim of its drafters to create a level playing field in commercial law and remove barriers to international trade, desire for a certain minimum level of applied uniformity must be assumed.[14] With regard to the above example of Art. 39 and the determination of 'reasonable time', the domestic variations observed in case law are too great.[15] They are also based on a 'homeward trend' of interpretation which reflects domestic law and has nothing to do with the shared law of the CISG.[16] [page 46]

It seems there is a significant problem with the practice of applied uniformity here, and this problem would appear to be caused by an absence of uniform interpretation. If these homeward trends are left to run unchecked, there is a real risk that the CISG will become a deceptive semblance of uniform international law; seeming uniform but in reality holding significant pitfalls for international trade.[17]

So what can be done? How can Courts be influenced to move away from homeward trends in interpretation and embrace a more uniform and transnational shared approach to the application of the CISG?

2. THE GLOBAL JURISCONSULTORIUM OF THE CISG: THE 'LEGAL' ARGUMENTS

Over the last decade, the notion that shared global law needs shared global doctrine and jurisprudence has gained support in domestic courts and in international CISG scholarship. Collectively, these contributors and contributions can be described as the global jurisconsultorium of the CISG.[18] It can be defined as a process of consultation which takes place across borders and legal systems with the aim of producing autonomous and uniform interpretations and applications of a given rule of a uniform law.

We can label this tool a shared interpretational sphere -- or jurisconsultorium -- because jurists from around the globe consult with one another, either in scholarly contexts or by referring to each other's decisions and opinions across jurisdictional boundaries. This jurisconsultorium can be divided into two major groups: the scholarly jurisconsultorium (the sphere of cooperation and consultation between transnational scholars rather than scholarship from and within a single jurisdiction); and the practical jurisconsultorium (the sphere in which transnational shared case law is used to resolve disputes before domestic courts). An example of the latter group can be found in the United States, where shared doctrines and precedents are used to make decisions under the Uniform Commercial Code (UCC) in forty nine states. The practical jurisconsultorium can also be observed in the Commonwealth, where a [page 47] shared body of persuasive precedents from the various superior courts of the Anglo-Common Law world is used to decide cases in a wide range of jurisdictions.

Most CISG scholars would agree that Art. 7(1) CISG provides the legal basis for a duty to aim for a uniform, transnational interpretation. Professor Lookofsky uses the terms of Art. 7 CISG to institute that duty in the Convention itself, his view being that 'Article 7(1) commands national courts also to have (some measure of) "regard" to the international view'.[19] This is a logical conclusion based on the wording of Art. 7(1) CISG and its requirement of 'regard' toward internationality and uniformity. However, it does not support a duty for uniform application -- merely a uniform interpretation. As has been observed, uniformity of interpretation does not guarantee uniformity of application.

It is no great leap to imagine a system where the sources of a uniform law are shared. In the words of Honnold '[ ... ] tribunals construing an international convention will appreciate that they are colleagues of a world-wide body of jurists with a common goal'.[20] The judges and legal counsel who apply an international uniform convention must recognise that they are sharing it with colleagues in other jurisdictions, and that the development of its jurisprudence is a communal evolution requiring a unique approach which is very different from the one that they take when they apply domestic law. The jurisconsultorium requires that the sources be shared.

There is also a basic argument of comity here. In undertaking to share a uniform legal text like the CISG, contracting States are also undertaking to pursue the goal of uniformity in unison. The legal basis for this duty to share sources of a uniform law when sharing the law itself is derived from comity, and from an understanding that shared international laws are unique, and that their interpretive sources are as diverse as the legal systems which share them.

In short, there can be no questioning the duty to consider foreign sources or precedents. This cannot lead to anything other than a duty to refer to and consider foreign sources -- there will never be an international doctrine of binding precedent in CISG cases, but there must be a duty to take relevant foreign judgments into account. This duty has long been supported by numerous other CISG experts, including Di Matteo,[21] Ferrari,[22] Zeller,[23] Flechtner [24] and -- last but not least -- Professor [page 48] Schlechtriem himself.[25]

3. THE GLOBAL JURISCONSULTORLUM OF THE CISG: THE 'POLICY' ARGUMENTS

The notion of a global jurisconsultorium is not unique to the CISG. The decision of the House of Lords in Fothergill v. Monarch Airlines -- concerning the interpretation of the Warsaw Convention on the Liability of Air Carriers (1929) -- illustrates this: the Lords clearly stated that uniform international aviation law is unique and must be treated uniquely.[26] And on the other side of the Atlantic, the U.S. Supreme Court decided in the Air France v. Saks case -- a case concerning the meaning of the term 'accident' under the Warsaw Convention -- that judicial decisions from other countries interpreting a treaty term are 'entitled to considerable weight'.[27] This premise was restated more recently by the U.S. Supreme Court in the El Al case,[28] another case on the Warsaw Convention.

International commercial law is especially reliant upon the efforts of a global jurisconsultorium, firstly because the harmonisation of commercial law gives immediate economic benefits to the community of states by removing barriers to international trade; and secondly because there is no one body charged with the task of monitoring international commercial laws. Despite suggestions dating back to 1911, there is no International Commercial Court competent to monitor the application of shared global instruments like the CISG.[29] So, in the application of uniform international commercial law, the community of states depends upon Judges to - [page 49] firstly -- realise that the law being applied is a shared multi-jurisdictional law which should be applied with a high degree of uniformity, and to -- secondly -- treat this uniform law as a unique phenomenon, and not follow the path of domestic law. Using a jurisconsultorium -- whether practical or scholarly -- can help ensure a common approach to similar problems, and to ensure that the shared uniform law evolves as it was meant to.

Moreover, it is directly in the interest of legal counsel and their clients to 'shop' for precedents and scholarship as widely as possible. What legal counsel would not welcome a wide array of possible cases or scholars that may support his or her client's position? And why should a case or authority not be cited, merely because the scholar or commercial court deciding a dispute does not come from the same domestic judicial system? If Courts share common commercial values, as we seem to assume in international commercial law,[30] and also share one uniform legal text, then it would seem eminently sensible -- and in line with the duty set out above -- to provide the judge with all available transnational sources and let him or her determine the persuasive weight of each source. The benefits of having a wealth of potentially persuasive case law and scholarly authority should be apparent to the commercial lawyer. The breadth of doctrine should also be apparent to judges -- as Koch puts it: 'Only a fool would refuse to seek guidance in the work of other judges confronted with similar problems'.[31]

4. THE CASES OF THE PRACTICAL GLOBAL JURISCONSULTORIUM OF THE CISG

Over the past thirteen years, there have been a growing number of soundly argued cases from many jurisdictions which have made use of the practical global jurisconsultorium, and have referenced cases from other jurisdictions as persuasive or inspirational precedents.

The first reported example was in 1996, when an Italian District Court judge in Cuneo looked at German and Swiss case law in the determination of Arts. 38 and 39 CISG.[32] Later that year, a French court in Grenoble followed suit, using reasoning from a German decision on Art. 57 CISG to determine that the place of payment constituted [page 50] the seller's place of business.[33] Subsequently, other jurisconsultorium cases began to trickle in from other jurisdictions, including Switzerland, Spain, Austria, Germany and the USA. These cases, reported before 2005, are set out in the appendix to this paper, as they have been analysed in previous writing.[34] Here, it is sufficient to make two observations: firstly, numerically and statistically these cases were the exception rather than the rule (comprising just under 1.1% of reported CISG cases [35]); secondly, Italian courts are overwhelmingly very well represented.

The success of Italian courts in applying the practical jurisconsultorium is threefold, and continues to lead the way forward. Firstly, not only did an Italian court report the first CISG case applying a foreign judgment (the Cuneo case); but -- secondly -- nine years later the majority of jurisconsultorium cases were from Italy; and thirdly -- and equally impressively -- some of the most comprehensive examples of the use of international CISG sources and precedents are Italian. Worth mentioning here is the acclaimed Vigevano case, citing American, Austrian, Dutch, French, German, Italian, and Swiss CISG cases as well as arbitral awards on point.[36] The Italian success is an interesting phenomenon, and it seems to prove an interesting point: Italian judges are relatively young when they take office, and when they do so they bring their modern understanding of the role of uniform shared laws and shared sources with them to the bench.[37] This certainly accords with Roy Goode's point that legal development in this field is dependent on a re-education of the judiciary.[38]

The way Italian courts are applying foreign precedents is also very interesting, and shows the progress of the jurisconsultorium. In the first reported case, a lengthy justification is provided for why the foreign cases are consulted, and reference is made to a duty to look at foreign precedents under Art. 7(1) CISG. Significantly, the court in Cuneo was careful to stress that it was not bound by the foreign judgments it cited. In [page 51] the 1999 case from Padova -- which refers to a Swiss case in determining rate of interest -- the judge stated that the foreign case 'although not binding, is however to be taken into consideration as required by Art 7(1)'.[39] More recently, however, the foreign cases are listed alongside the Italian precedents as if they are of equal standing. See, for example, the recent decision from Forli, in which the court cited a range of decisions from Switzerland, Austria, Germany, France and the Netherlands on a variety of issues connected with the conformity of goods, notification and remedies under the CISG.[40] In this case from Forli, all CISG jurisprudence -- Italian and foreign -- is intermingled and referred to as 'the jurisprudence'. Perhaps more than anything else, the Forli case is a remarkable example of the equality of foreign and domestic precedents in an international commercial environment; it is a decision sharing one commercial sales law in the spirit of a global jurisconsultorium.

The developments and improvements in the use of the global jurisconsultorium of the CISG are not limited to the trailblazing courts of Italy, however. Since 2005, more CISG cases referring to foreign precedents have been reported. Most importantly, there is a wider variety of countries contributing to the body of reported jurisconsultorium cases. A full list of the found reported examples is appended to this article, and it is worth noting the variety of Courts which are now utilising the practical jurisconsultorium. Examples are found in Australia, the USA, France, Germany, Italy, Serbia, Poland, Spain, and Switzerland.[41] This is a welcome expansion of the circle of countries acknowledging the duty to utilise the practical jurisconsultorium, and possibly an indication of the wider acceptability of allowing cases from foreign jurisdictions to seep into legal reasoning as persuasive sources.

We can also -- to a certain extent -- include the Netherlands in this select circle of jurisdictions. In the 2005 Gran Canaria Tomatoes case, the Supreme Court referred to the UNCITRAL Digest and commentary, but not to any specific foreign decision.[42] Regardless of whether this is labelled scholarly or practical, it is clearly an instance of the jurisconsultorium being used, and as close as a Court can come to utilising the practical jurisconsultorium without actually referring to a case.

In a case from 2007,[43] the Supreme Court of Poland cited an Austrian Supreme Court decision in its analysis of the right to withhold performance under Art. 71 CISG. The Polish court did so with the greatest of ease, stating: 'This view has been shared by [page 52] some Contracting States' courts. For example, the Austrian Supreme Court [...].' The Polish court clearly did not feel the need to justify why the views of other Contracting States' courts are relevant. Like the judgements of the Padova and Forli courts referred to above, this shows an almost 'natural' recourse to an international precedent which is very encouraging. Nevertheless, despite the increasing variety of jurisdictions contributing, and the rise in the number of CISG jurisconsultorium cases overall, decisions that can be said to truly make use of the jurisconsultorium are still few and far between. In fact, when comparing the statistical figures from 2005, when the jurisconsultorium cases comprised just under 1.1% of reported CISG cases, the proportion today is 1.5%.[44] While this does represent an overall growth in numbers proportionately, it still confirms the position that judicial resort to the jurisconsultorium is the exception rather than the rule.

5. THE PROBLEM OF FOREIGN PRECEDENTS

The relative scarcity of CISG cases employing a truly uniform, transnational approach to foreign sources is, on one reading, puzzling given the legal-economic policy considerations outlined above. Certainly, most practical barriers to the use of foreign sources are now all but removed. Efficient access to multi-jurisdictional sources is now facilitated by the internet, where CISG databases can easily be found, along with full text translations of CISG cases.[45] So there is today no good basis for claiming that it is too difficult to find or translate foreign CISG cases.

So why does legal counsel not make use of the rich opportunities for persuasive influences presented by foreign sources, and why are the vast majority of judges not using them when they decide CISG cases?

One reason may be that many jurisdictions and arbitral institutions simply do not have a tradition of, or even a procedural framework which permits, citation of cases, let alone foreign cases. But many jurisdictions -- and not just Common Law states -- do have a tradition of using case law, yet they still limit themselves to decisions made in respect of their own national law. To the modern CISG lawyers, this practice goes against logic: in practical terms, it is difficult to see why any judge or practitioner [page 53] would not make use of foreign precedents when they are so readily available. It must be assumed that Judges are reluctant to consider foreign precedents; the best guess is that this reluctance stems from very traditional juridical values. Counsels suffer from another kind of homeward trend, in that they are born into domestic traditions of case citation and reference. Judges are affected by similar restrictions, formed out of habit and tradition, when they cite foreign sources in their judgements. Put simply, judges and lawyers are uncomfortable with the notion of using a foreign precedent.

An example which may illustrate this is the Danish Wholly Mackerel case.[46] This case involved the sale of so-called 'whole' mackerel from Russia to Denmark. The fish were frozen, and the buyer did not discover that the fish suffered from any deficiency in quality because he did not thaw and sample it. Counsel for the buyer brought in specialist consultation and cited the well-known Dutch Maggots in Mozzarella case (a decision of the Dutch District Court of Roermond [47]) to support the fact that the examination duty under Art. 38 CISG operates to require the buyer to defrost goods in order to examine them properly. The Dutch case clearly influenced the Danish judge in Wholly Mackerel, who paraphrased it in his decision. But, significantly, the Danish judge did not expressly refer to the Dutch case in his decision -- in the case transcript, Maggots in Mozzarella appears as a supporting authority cited by counsel. Although the Danish judge does not cite Maggots in Mozzarella in the case reasons, he does -- almost verbatim -- reproduce the Dutch court's reasoning. The Danish judge's reluctance to refer directly to the Dutch case is, it is submitted, symptomatic of a larger problem.

It is tempting to assume that the jurisprudential traditions and values of Danish judges are the reasons why the judge in Wholly Mackerel was happy to borrow reasoning from the Dutch case, but not to refer to it as influential or persuasive. Indeed, the failure of judges to identify legal sources and authorities in their decisions is well known problem in Denmark, where decisions are traditionally short and unsupported. Although the reasoning of the court in Wholly Mackerel does not cite any authority, it does seem strange that the Danish judge paraphrases the Maggots in Mozzarella clearly, and adopts its reasoning, but still does not refer to it directly.

Many jurisdictions cannot comfortably accommodate foreign precedents in their courts. So, to counter this resistance, it seems necessary to clarify the nature of these foreign cases in order to facilitate their use by judges (who, as seen in Wholly Mackerel, may well be influenced by foreign reasoning even if they do not say so in their judgment), and also to persuade counsel that it is worth researching and using foreign precedents in their arguments before domestic courts. Ideally, we would do away with the stigmatised label 'precedent' in this context. But can there be another [page 54] word for 'precedent'? This is unlikely. Moreover, even if someone were to come up with a carefully constructed neutral term for a CISG precedent, it can safely be assumed that this carefully constructed concept would remain equated with its real meaning and be thought of as a 'precedent' by state court judges. So, in the absence of a new brand for this ostensibly unpopular product, we must endeavour to clarify the precise nature of the product -- to define the non-binding nature of the CISG precedent.

6. THE NATURE OF A PRECEDENT IN SHARED INTERNATIONAL LAW

The analysis of judicial precedent is a complex affair in any legal jurisdiction, especially in Common Law systems, where precedents are at the core of the lawmaking process.[48] And if we attempt to analyse the concept across the boundaries of CISG states, we engage in a comparative legal exercise of gargantuan proportions, involving studies of judicial hierarchies, domestic attitudes to precedent, and complex issues such as the separation of 'law' from 'fact'.

Simply put, there is no global definition of what constitutes a judicial precedent, and local definitions vary tremendously.

6.1 Terminological Caution

Generally speaking, in traditional Common Law systems, the Doctrine of Precedent is the central to the process of curial lawmaking, and case law is the primary source of legal rules, in Equity as well as the judge-made Common Law:

Our common-law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedent; and for the sake of attaining uniformity, consistency and certainty, we must apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised.[49]

The terminology employed in England and other Common Law jurisdictions is important to all participants in the jurisconsultorium, and we Civil lawyers need to be very careful when we use the term 'precedent' in discussions with Common Law practitioners. Indeed, there is considerable variation even amongst lawyers trained in the tradition of English law: the study of precedents in jurisdictions labelled 'Common Law' [page 55] will not yield the same results. In South Africa, a mixed jurisdiction, the term 'precedent' connotes persuasive authority, whereas English lawyers use the term to refer to binding authorities.[50]

In Civil Law systems, where rules are derived from statutes and corresponding legal theories, judicial decisions are not technically a source of legal rules. However, the extent to which Civil Law judges form judicial doctrines varies considerably between the jurisdictions, and precedent can hold considerable persuasive value and therefore great significance in the development of law.[51]

Consequently, because there is no consensus on terminology in this area, any attempt to define the nature of a CISG precedent must aspire to terminological neutrality. Acknowledging that the juridical discipline of uniform law -- and the study of precedents in the context of the CISG -- is unique, we can ask scholars and practitioners to divorce themselves from domestic or regional notions of law. But we cannot expect them to emancipate themselves from notions of fundamental importance to the practice of law in their home states. This understanding drove thirteen years of diplomatic drafting and negotiation, one of the results of which was the terminological neutrality of the CISG. As part of this shared experience, we Civil Law practitioners must accept that Common Law lawyers attach particular importance to the study of the Doctrine of Precedent.

If we look at scholarly contributions to CISG precedent, we find some notable attempts to clarify the extent to which domestic courts and arbitral tribunals should consider case law from other jurisdictions.

6.2 Definitely Not Binding: And Do Not Even Hint This!

The idea of binding CISG precedents has been rejected by municipal courts [52] and (most) scholars [53] for good reason: it would be impossible to impose a Doctrine of Precedent across borders without a hierarchy of international commercial courts [54] and [page 56] tribunals, and the creation of such a structure is a political task which would require mandates from parliaments, constitutional courts and similar institutions in all CISG States.[55] This is a generally accepted position. But the use of selected terms to describe CISG precedents can cloud the issue. For instance, and although following criticism by other scholars he explained the context of the quote in his subsequent book, a phrase used by Professor DiMatteo illustrates the care which must be taken: Professor DiMatteo labelled CISG precedents 'informal supranational stare decisis'.[56] To lawyers and scholars from the European Union, there is an obvious problem with the term 'supranational' in this context, regardless of it being softened by the prefacing term 'informal'. The term 'supranational' does not fit into the CISG discourse, informally or not.[57] The fact that this term may be a faux ami, and that it is used by American academics as a synonym for 'trans-national', explains why a distinguished colleague like Professor DiMatteo uses it. It is clear from DiMatteo's experience that the use of this term solicits a strong reaction from EU scholars,[58] not dissimilar to the way that Common Law academics react when European lawyers describe foreign CISG cases as 'precedents'.

But Professor DiMatteo's term carries an even greater problem in using the term stare decisis. Here, he is not alone: René Henschel has joined Professor DiMatteo in this inadvertently unfortunate use of the term.[59] According to Henschel, certain CISG cases attain 'ipso facto stare decisis' status by virtue of their being repeatedly referred to and considered by municipal judges. Henschel offers the (in) famous New Zealand Mussels case as an example.[60] Whilst it may be correct that certain cases have gained highly persuasive precedential status by being widely used, this 'stare decisis' status is not, in actual fact, ipso facto everywhere

To a Common Law practitioner, the term stare decisis means that the decision must stand. The notion of an informal stare decisis is oxymoronic. If we are to achieve [page 57] terminological neutrality, and include England and the Commonwealth jurisdictions in the community that shares international sales law, we would be wise to avoid this Latin expression completely.[61]

6.3 Probably Not Persuasive: Definitely Inspirational!

The concept of a 'precedent', especially in legal regimes shaped by stare decisis, is not a narrow description of decisions that are binding, but also encompasses precedents which carry persuasive weight. For the purposes of the CISG, we can bend the notion of precedent even further, to a precedent which is inspirational. In a cross-jurisdictional setting, there is no need to fear the use of the term 'precedent' because it cannot mean binding precedent. Nonetheless, misgivings as to the use of the word 'precedent' are often based on the misunderstanding that it connotes only decisions that are binding and cannot be departed from. An example can be found in the work of Franco Ferrari, one of the leading advocates for promoting the use of foreign case law in the CISG realm, where he recants on his use of the word:

In my opinion, which, I have to admit, has changed since the CISG case law has begun to arise, foreign case law should always be considered as having merely persuasive value [...]. Foreign case law should be used as a source from which to draw either arguments or counter-arguments.[62]

Consider his earlier statement:

The interpreter must consider 'what others have already done', i.e. he must consider the decisions rendered by judicial bodies of other Contracting States, since it is possible that the same or analogous question has already been examined by other States' courts, in which case such decisions can have either [page 58] the value of precedent -- "[i]f there is already a body of international case law", or a persuasive value.[63]

Ferrari's retreat demonstrates a broader trend of reluctance to use the word 'precedent' in the context of the CISG. However, regardless of the sensitivity associated with the term, it is a fact that some CISG cases do show that courts now consider case law from other CISG jurisdictions and do appear to feel bound by a duty to apply principles of uniform law. At least in the Civil Law lexicon, this would seem to be consistent with the definition of a persuasive precedent. But, while I do not share Professor Ferrari's reluctance to use the term 'precedent' -- simply for want of a viable alternative -- I believe we must be wary of using the term 'persuasive'. My caution stems from the fact that the doctrine of persuasive precedent also has an element of faux ami for the Common Law practitioner. The Common Law Doctrine of Precedent encompasses both binding and persuasive decisions, primarily as a means of handling decisions from other Common Law countries.[64] Whilst as a Civil Law lawyer I see no problem with defining CISG precedents as 'persuasive', and approaching them in a similar way to the way in which Common Law lawyers approach decisions from other Common Law states, it will not necessarily be palatable to Common Law lawyers, who give a specific status to persuasive decisions. Even though I am of the opinion that CISG cases should have the same status amongst the courts of its Contracting States as decisions of Commonwealth courts have amongst Common Law countries, Common Law jurists will likely see this as overreaching. In the interest of striking a balance, I would suggest that we adopt a concept of 'inspirational precedent' where CISG cases are concerned.

6.3.1 Criteria for CISG Precedents

Flechtner makes the point that those in pursuit of uniformity should beware not to pursue it at any price. The principal goal is sound judgment, and we must establish a set of criteria for determining the inspirational weight of a foreign precedent:[65] According to Flechtner, these criteria should include:

1.      the authority of the court rendering the decision;
2.      the extent of agreement on the issue amongst other courts and tribunals; [page 59]
3.      the level of experience the court has with international trade; and
4.      the extent to which the foreign precedent complies with the interpretational guidelines of the CISG (i.e. internationally, good faith and uniformity).

Given that the primary goals of UNCITRAL are 'modernity', 'flexibility', 'clarity' and 'fairness', there is more than a common-sense basis for prioritising sound judgments over uniform application, and in this sense Professor Flechtner is absolutely right.[66] But while his criteria are sound and simple, I nevertheless see no reason why a court should not take into account foreign judgments even if they do not fulfil them; either because there are few cases on point, or because others have already been considered and discarded. As long as we establish that municipal courts are only looking at these cases for inspiration, and in the interests of the creation of an autonomous approach to a given Convention issue, and in the interests of a fair result, where is the harm?

Speaking more generally on the use of foreign judgements by judges, Sir Basil Markesinis recently drew an interesting biblical parallel, saying that the task of the comparative lawyer is to 'probe everything and keep the best';[67] to find cases which can lend inspiration to a given problem.[68] This kind of general freedom to explore case law, find analogous foreign decisions and apply them in the interests of justice is apt in the CISG context as well, and it should be done without fixed criteria like those proposed by Flechtner. Whilst explaining the role of the European Court of Justice (ECJ), Jürgen Schwartze suggested another way to screen precedents -- similarly broad and based on individual applicability -- by reference to the 'reasoning which the decisions [...] bring to bear on the problem at hand'.[69]

On that note, I think we should refrain from laying down even the simplest criteria for screening CISG precedents, and instead leave this to the lawyers and judges to settle case-by-case, much like Schwartze suggests for the ECJ. Judges will apply their own common sense in determining how inspirational a precedent is, and where there is a congruent decision from a different jurisdiction, common sense will dictate the inspirational weight this decision should be given.

Another interesting field of inquiry lies in the different procedural approaches to foreign precedents. Judges in states where a jura noscit curia ('the judge knows the law') [page 60] principle prevails (for example, Denmark) are sometimes under an ex officio duty to search for the correct precedent; in other countries judges are subject to a more limited obligation to review case law, based firmly on the pleadings of the parties (for example Australia). At the other end of the scale are courts that follow a tradition that prohibits the consideration of precedents. Interestingly, some arbitral institutions have adopted procedures forbidding references to precedents (as is the case under the arbitration rules of the China International and Economic Trade Arbitration Commission). While this does not change the theory of the CISG precedent, it very firmly includes legal counsel in the practical jurisconsultorium. The reality is, of course, that even in jura noscit curia regimes, for practical reasons the judges often limit themselves to the material presented by counsel. But the inclusion of lawyers, solicitors and barristers in the 'practitioners' category of the practical jurisconsultorium means that although counsel is, understandably, a subjective force (as he or she is presenting an argument), the duty is also on him or her to look to international case law. This is true in all jurisdictions, especially those where the responsibility for making arguments for the application of foreign law lies solely with the parties.

Filip De Ly very cleverly distinguishes between foreign law and uniform law in the discussion of precedents, and makes the point that 'uniform law is the law of the land' where it is applied through Art. 1(1)(a) or it is a CISG state applying its own international sales law via Art. 1(1)(b).[70] However, procedurally, courts are likely to consider the foreign judicial interpretations of uniform law to be foreign law, regardless of the fact that Professor De Ly's reading is correct.

6.3.2 'Shared Uniform Caselaw': A Comforable Label?

Personally, I am very happy with de Ly's label 'uniform case law', as the distinction from 'foreign law' may make domestic courts more willing to consider cases from abroad. Moreover, by not using the label 'precedent', the idea of using foreign case law may be easier to sell to traditional Commonwealth benches. If emphasis is placed on the notion of this case law being shared, it may even further accentuate the need to consider it at the level of the domestic court. So, for want of anything better, giving the name 'shared uniform case law' to the body of CISG cases from 73 states may present a nice solution.

But, at the end of the day, the mere substitution of one uncomfortable label for another is not likely to make much headway.

Until uniform law is acknowledged universally as a separate discipline, and this idea is earthed as a duty to look to uniform precedents, will we ever really be making progress in this field? A theoretical need to use CISG precedents is one thing; what domestic courts, tribunals and lawyers actually do is another. This article has argued [page 61] that the jurisconsultorium is a tool which is in everyone's interest to apply -- only time will tell whether this notion takes a widespread practical form.

6.3.3 The Scholarly Jurisconsultorium: Welcome Developments

It is not just in the practical jurisconsultorium where developments have taken place in recent years. The scholarly jurisconsultorium has also grown.

Proof of the scholarly jurisconsultorium's growth can be found in the success of the 'CISGW3 Database' at Pace University. This database has become a source of law in its own right, and has helped unify the interpretations of the CISG.[71] Judicial confirmation of this phenomenon can be found in the 2005 case Isocab France S.A. v. Indus Projektbouw B.V, where the Dutch Supreme Court identified the CISGW3 Database as a source of CISG commentary.[72]

Other unifying aspects of the global jurisconsultorium include the study groups and panels that are composed to promote the uniformity of the CISG, amongst which the CISG Advisory Council certainly ranks highly.[73] Others at the conference upon which this paper is based have opined that the CISG Advisory Council has 'come of age'.[74] I will not dwell on this, I will merely stress what a wonderful opportunity the meetings of the Advisory Council present for those engaged in the project of applied uniformity, and what a welcome development it is to see courts in the US, Poland and Germany cite the Advisory Council opinions as a source of law.

The UNCITRAL Digest has also greatly advanced international research and understanding of the CISG. It is a well-known fact that 'UNPC' (United Nations Political Correctness, which prohibits the criticism of domestic cases) is a serious obstacle to the production of meaningful commentary by the CISG experts panel that produces the Digest. Nevertheless, the Digest continues to support practitioners as they navigate through the murky waters of CISG jurisprudence. The status of the Digest has been strongly reinforced by its official UNICTRAL sanctioning. [page 62]

On a more general scholarly front, it has been noted that international cross-referencing of sources is occurring with more and more frequency, as scholars include more languages and international cases in their comments on the CISG.

7. CONCLUSION: THE FUTURE OF THE JURISCONSULTORIUM OF THE CISG

On the whole -- and concluding on an optimistic note -- the CISG seems to be enjoying an international perspective in most domestic courts today. It is fitting to note that one successful book series that used to adopt a domestic vantage point ('Understanding the CISG in Scandinavia', 'Understanding the CISG in the USA' and 'Understanding the CISG in Europe'[75]) is now being produced in a global edition.[76] Seeing the CISG as a global instrument rather than a curious domestic law, which only purports to be uniform, is undoubtedly the way forward.

It can only be hoped that we are approaching an era where the notion of the CISG as a shared global law is more fully embraced. If this understanding develops, it will provide fertile ground for the global jurisconsultorium to contribute to the autonomous uniform interpretation of the CISG. [page 63]

8. APPENDIX

8.1 Practical Jurisconsultorium: Cases by Country

The cases set out below represent my 'collection' of decisions where the practical jurisconsultorium has been used. This list does not purport to be complete, due to limitations in case translations and reporting, and human error. The author welcomes additions, and asks that they be sent to her at Camilla.Andersen@le.ac.uk.

8.1.1 America

            1. Federal Appellate Court [11th Circuit] (MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino) 29 June 1998, available at: <http://cisgw3.law.pace.edu/cases/980629u1.html>.

            Although the Court did not cite foreign case law, it clearly searched for it: 'the parties have not cited us to any persuasive authority from the courts of other States Party to the CISG. Our own research uncovered a promising source for such decisions at <http://www.cisg.law.pace.edu>, but produced no cases that address the issue of parol evidence' (n 14).

            2. Federal District Court [Louisiana] (Medical Marketing v. Internazionale Medico Scientifica) 17 May 1999, available at: <http://cisgw3.law.pace.edu/cases/990517u1.html>.

            Citing a German Supreme Court decision as authority for the proposition that Art. 35 CISG does not require the seller to supply goods that conform to laws and regulations in effect in the buyer's country.

            3. Federal District Court [Illinois] (Usinor Industeel v. Leeco Steel Products) 28 March 2002 available at: <http://cisgw3.law.pace.edu/cases/020328u1.html>.

            Citing an Australian case to support reference to domestic law in a CISG case when the issue was the validity of a retention of title clause.

            4. US District Court (Chicago Prime Packers, Inc. v. Northam Food Trading Co., et al) 21 May 2004, available at: <http://cisgw3.law.pace.edu/cases/040521u1.html>.

            Citing cases from Italy, Germany and the Netherlands (as well as international scholarship) in its analysis of conformity of goods and burden of proof. This decision was affirmed in Federal Court 7th Circuit (23 May 2005, available at: <http://cisgw3.law.pace.edu/cases/050523u1.html>), but sadly without mention of foreign precedent or scholarship. [page 64]

8.1.2 Australia

            1. Supreme Court of Queensland (Downs Investments v. Perwaja Steel), 17 November 2000 available at: <http://cisgw3.law.pace.edu/cases/001117a2.html>.

            Citing US authority as support for the proposition that failure to open a timely letter of credit is a fundamental breach under Art. 25 and Art. 64(1)(a) of the CISG.

            2. Supreme Court of Queensland, Court of Appeal (Downs Investments v Perwaja Steel), 12 October 2001 (affirming case above), available at: <http://cisgw3.law.pace.edu/cases/011012a2.html>.

            Citing reported and unreported American CISG authority for damage calculation and the interpretation of Art. 75 CISG.

            3. Federal Court [South Australia] (Hannaford v Australian Farmlink Pty Ltd) 24 October 2008, available at: <http://cisgw3.law.pace.edu/cases/081024a2.html>.

            Citing French case law as support for the CISG's non-applicability in Hong Kong.

8.1.3 Denmark

            1. Copenhagen Maritime Commercial Court (Sergueev Handelsagentur v. DAT-SCHAUB A/S), 31 January 2002, available at: <http://cisgw3.law.pace.edu/cases/02013ld1.html>.

            Although the Court did not cite any foreign case directly in its reasoning, it supported the position of counsel for seller who relied on a Dutch case concerning the extent of the buyer's duty to examine under Art. 38 (this case is reproduced in the judgement). The Court was clearly persuaded by the Dutch case.

8.1.4 France

            1. Court of Appeal of Grenoble, (Scea. Gaec des Beauches B. Bruno v. Société Teso Ten Elsen GmbH & Co KG) France 23 Oct. 1996, available at: <http://cisgw3.law.pace.edu/cases/961023f1.html>.

            The Court cited a German case in support of the principle that payment is fulfilled at the place of business of the creditor, and that this is the place of performance.

8.1.5 Germany

            1. Supreme Court [Bundesgerichtshof] (Vine Wax Case), 24 Mar. 1999, available at: <http://cisgw3.law.pace.edu/cases/990324g1.html>.

            The Court did not refer to international case law on Art. 79, but did cite the views of scholars from France, Germany, England, Switzerland, and the United States to reach a properly international view. [page 65]

            2. District Court Trier, (Synthetic Window Parts Case), 8 Jan. 2004, available at: <http://cisgw3.law.pace.edu/cases/040108g1.html>.

            Citing a US case in support of the proposition that it is a 'generally accepted opinion' that the question of whether standard terms are incorporated into the contract is to be determined according to Arts. 14-24 CISC

            3. Supreme Court [Bundesgerichtshof] (Paprika Case), 30 June 2004, available at: <http://cisgw3.law.pace.edu/cases/040630g1.html>.

            Citing cases from the ICC and Stockholm arbitration institutes, The Netherlands, and Canada in examining burden of proof within the framework of Art. 40 CISG.

            4. Higher District Court Stuttgart, (Automobile Case), 31 March 2008, available at: <http://cisgw3.law.pace.edu/cases/080331g1.html>.

            Cites cases from Denmark, Finland and the Netherlands in analysing the time period for notifying of intention to avoid the contract.

8.1.6 Italy

            1. Tribunale Civile of Cuneo, 31 Jan 1996 (Sport d'Hiver di Genevieve Culet v. Ets. Louys et Fils), available at: <http://cisgw3.law.pace.edu/cases/960131i3.html>.

            The very first reported case to refer to foreign CISG precedents; citing Swiss and German cases in analysing 'reasonable time' under Art. 39 CISG.

            2. District Court of Pavia (Tessile v. Ixela), 29 December 1999, available at: <http://cisgw3.law.pace.edu/cases/991229i3.html>.

            The court referred to a Swiss case in answering the question of what interest rate was applicable, stating that the foreign case 'although not binding, is however to be taken into consideration as required'.

            3. District Court of Vigevano, (Rheinland Versicherungen v. Atlarex), 12 July 2000, available at: <http://cisgw3.law.pace.edu/cases/000712i3.html>.

             Citing cases from America, Austria, The Netherlands, France, Germany, and Switzerland, as well as arbitral awards from the ICC, in determining issues on the applicability of the CISG and the timeliness of notice.

            4. District Court of Rimini, (Al Palazzo S.r.l. v. Bernardaud di Limoges S.A.), 26 Nov. 2002, available at: <http://cisgw3.law.pace.edu/cases/021126i3.html>.

            Citing cases from Austria, Belgium, France, Germany, Hungary, Netherlands, Switzerland, and America in deciding issues of scope and interpretation, as well as examination and notification under the CISG.

            5. District Court of Padova, (Pizza Boxes Case), 31 March 2004, available at: <http://cisgw3.law.pace.edu/cases/040331i3.html>.

            Citing cases from Switzerland, Germany, France, Austria and arbitral awards from the ICC in support of various CISG issues of validity, payment and interest. [page 66]

            6. District Court of Padova, (Agricultural Products Case), 25 Feb. 2004, available at: <http://cisgw3.law.pace.edu/cases/040225i3.html>.

            Citing cases from Austria, Switzerland, Germany, France, and ICC arbitration in deciding issues on payment and scope.

            7. District Court of Padova (Ostroznik Savo v. La Faraona soc. coop. a.r.l.) 11 January 2005, available at: <http://cisgw3.law.pace.edu/cases/05011li3.html>.

            Citing cases from France and Germany on issues of scope of the CISG and fundamentality of breach, noting that foreign jurisprudence 'has to be taken into account'.

            8. District Court of Padova (Merry-go-rounds Case), 10 January 2006, available at: <http://cisgw3.law.pace.edu/cases/060110i3.html>.

             This case uses the CISG as a benchmark for defining a contract for the sale of goods, and refers to cases from Germany, America, Switzerland and Belgium to substantiate the nature of the CISG. It also cites a German CISG case in connection with the issue of jurisdiction in connection with the Brussels Convention.

            9. District Court of Forli, 11 December 2008, (Mitias v. Solidea S.r.l.), available at: <http://cisgw3.law.pace.edu/cases/081211i3.html>.

             Citing many cases from Switzerland, Austria, Germany, France and the Netherlands on a variety of issues connected with application of the CISG and Conformity of goods, notification and remedies. In this case, foreign precedents are used directly as authority.

            10. District Court of Forli, (Cisterns and accessories case), 16 February 2009, available at: <http://cisgw3.law.pace.edu/cases/090216i3.html>.

            Cites numerous cases from Spain, Switzerland, France, Germany, Belgium, Austria and the Netherlands on issues concerning application of the CISG, time of delivery, conformity of goods and notification. Again, foreign precedents are used directly as authority.

8.1.7 The Netherlands

            1. Supreme Court (B.V.B.A. Vergo Kwekerijen v. Defendant), 28 January 2005, available at: <http://cisgw3.law.pace.edu/cases/050128n1.html>.

            The Supreme Court refers to the UNCITRAL Digest, but not to a specific case, in determining the nature of a gap under the CISG. It also refers to the scholarship of Professor Ferrari. [page 67]

            2. Supreme Court (Isocab France S.A. v. Indus Projektbouw B.V.), 4 Feb. 2005, available at: <http://cisgw3.law.pace.edu/cases/050204n1.html>.

            Although the Court does refer to a Belgian case from Kortrijk concerning a question of notification of non-conformity, the Belgian case directly related to the dispute at hand. There is a nice utilisation of the scholarly jurisconsultorium, however, in the use of the Secretariat's Commentary, the CISG W3 database, and Professor Sono's contribution in the Bianca & Bonell Commentary.

8.1.8 Serbia

            1. Foreign Trade Court attached to the Serbian Chamber of Commerce (Mineral Water and Wooden Pallets Case), 13 November 2007, available at: <http://cisgw3.law.pace.edu/cases/071113sb.html>.

            Refers to a German case in deciding that the CISG does not apply to distribution contracts.

            2. Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce (Milk Packaging Equipment Case), 15 July 2008, available at: <http://cisgw3.law.pace.edu/cases/080715sb.html>.

            Cites an Australian case in deciding the scope and application of the CISG.

            3. Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce (Medicaments Case), 28 January 2009, available at: <http://cisgw3.law.pace.edu/cases/090128sb.html>.

            Refers to German, Russian, Hungarian and Austrian cases in its analysis of CISG issues relating to application and scope of the CISG, as well as interest rates.

8.1.9 Spain

            1. Audiencia Provincial de Valencia, (Cherubino Valsangiacomo, S.A. v. American Juice Import Inc) 7 June 2003, available at: <http://cisgw3.law.pace.edu/cases/030607s4.html>.

            In citing cases from the Netherlands and Germany on the issue of reasonable time under Art. 39 CISG, the court stated that 'the only way to assure uniformity of interpretation of the Convention is to take into account that which other tribunals have held when applying the Convention.'

8.1.10 Switzerland

            1. Higher District Court Kanton Luzern, (Blood Infusion Devices Case), 8 Jan. 1997, available at: <http://cisgw3.law.pace.edu/cases/970108s1.html>.

             Although the CLOUT abstract (CLOUT 92) indicates that this case analyses foreign case law, this is not true, and this case should -- strictly speaking -- not be included here. Para 4(e) of the judgement is a direct paraphrasing of Schwenzer's reasoning for the noble month in the original German Schlechtriem Commentary. [page 68] There is no actual foreign precedent used in this case; nevertheless, the proper use of a scholar who has done her comparative groundwork is the next best thing.

            2. Supreme Court [Bundesgericht], 13 Nov. 2001, available at: <http://cisgw3.law.pace.edu/cases/031113s1.html>.

            Citing cases from Germany and Belgium to support the position that acceptance under Art. 60(b) CISG means 'the physical taking over of the goods'.

8.1.11 Poland

            1. Supreme Court of Poland (Shoe Leather Case), 11 May 2007, available at: <http://cisgw3.law.pace.edu/cases/07051lp1.html>.

            Citing an Austrian Supreme Court case as authority for the right to withhold performance under Art. 71 CISG.

8.2 Practical Jurisconsultorium: Cases from Arbitration Venues

Below is a small collection of arbitral awards where the arbitrator(s) cite a range of trans-national case law. Of course, in arbitration everything is 'international', as the venue is theoretically stateless, so only those where case law from more than one state has been cited have been included.

Note that because the vast majority of arbitral awards are confidential and private, it is impossible to know how many more cases like these exist. It is also worth noting that some Arbitral Tribunals, such as CIETAC in China, prohibit reference to cases in their awards -- this does not prohibit international reasoning, as many of the excellent Chinese cases show.

8.2.1 American Arbitration Association

            1. Macromex S.r.l. v. Globex International Inc., 23 October 2007, available at: <http://cisgw3.law.pace.edu/cases/071023a5.html>.

             Refers to cases from Germany, Hungary and Bulgaria in analysing exemption for liability under Art. 79 CISG, but note that it also -- wrongly -- applies the UCC by analogy in attempting to interpret the CISG with 'outside sources'. (Final award 12 December 2007, award confirmed in Federal District Court [New York], 16 April 2008 available at: <http://cisgw3.law.pace.edu/cases/080416u1.html> -- Court further elaborates the UCC mistake, but does not refer to foreign case law).

8.2.2 International Chamber of Commerce

            1. Case No. 11333 of 2002 (Machine Case), available at: <http://cisgw3.law.pace.edu/cases/021333i1.html>.

            Cites a 1998 German Supreme Court decision in determining that a reference to national law in a choice of law clause does not exclude the CISG, rejecting older French and Italian cases as well as a Swiss arbitral decision, which find otherwise. [page 69]

8.2.3 Stockholm Chamber of Commerce

            1. Arbitration Award of 5 April 2007 (Pressure Sensors Case), available at: <http://cisgw3.law.pace.edu/cases/070405s5.html>.

            Cites Swiss and German Supreme Court cases in support of a narrow construction of fundamental breach under Art. 25 CISG. [page 70]


FOOTNOTES

* Dr Camilla Andersen, University of Leicester.

1. According to the American Heritage Dictionary of the English Language, New College Edition, 'uniform' is defined as: (1.a.) Always the same; unchanging; unvarying. (b.) Without fluctuation or variation; consistent; regular (2.) Being the same as another; identical; consonant.

2. Andersen, C. B., "Defining Uniformity in Law" (2007) XII Uniform Law Review 5.

3. UNCITRAL defines uniformity as that which removes barriers in international trade (see the preamble to the CISG: '[...]contribute to the removal of legal barriers in international trade and promote the development of international trade [...]'); UNIDROIT is an institute for unification of law, seeking to coordinate national private laws (taken from the descriptor of the <http://www.unidroit.org> homepage: 'Unidroit seeks to harmonize and co-ordinate national private laws and to prepare for int'l adoption of uniform rules of private law.').

4. See Niklas Luhmann, who defines the process of law in globalisation as a process of law where: '[...] functional criteria increasingly replace geographic ones, with nation-states' traditional law-generating organs diminishing in importance in determining legal significance, regulation and evolution [...].', in Luhmann, N., Das Recht der Cesellschaft, 1993, (translated by Vivian Curran).

5. See Cicero, De Republica, 3.22.33: '[T]here shall not be one law at Rome, another at Athens, one now, another hereafter, but one everlasting and unalterable law shall govern all nations for all time [...].'

6. De Cruz argues that James the First, King of England and Scotland, introduced uniformity to England and Scotland when proposing to unify them under a single legal system in the early 16th century, see De Cruz, P., Comparative Law in a Changing World, 1999, Cavendish Publishing, at p. 23.

7. Schlechtriem, P. and Schwenzer, I. (eds), Commentary on the UN Convention on the International Sale of Goods (CISG), 2005, Oxford University Press, at p. 6.

8. This term also accords with the way in which Harry Flechtner talks of 'textual non-uniformity' when comparing the different texts of the six official languages of the CISG and their meanings, but Flechtner uses it to indicate the level of similarity between the texts in question. By inference, if they did have the same meanings linguistically then these texts would (together) represent a textual uniformity. An instrument with only one official text will thus, by definition, always represent a single textual uniformity. See Flechtner, H., "The Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and other Challenges to the Uniformity Principle in Article 7(1)" (1998) 17 Journal of Law and Commerce 187, available at: <http://cisgw3.law.pace.edu/cisg/biblio/flecht1.html>.

9. Ibid.

10. Honnold, J. O., "Uniform Words and Uniform Application. The 1980 Sales Convention and International Juridical Practice", in Schlechtriem, P. (ed.), Einheitliches Kaufrecht und Nationales Obligationenrecht, Nomos, 1987, at pp. 146-7.

11. As of 25 February 2009, the United Nations reports that 73 States have adopted the CISG. See <http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html>.

12. See the CISG Advisory opinion no. 2, with case annex, available at: <http://www.cisg.law.pace.edu/cisg/CISG-AC-op2.html> and for an earlier study, see Andersen, CB., "Reasonable time in the CISG" in Pace (ed) 1998 Review of the CISG, 1998, Kluwer, at pp. 63-177.

13. Exceptions are found in Art. 40 (for the seller in bad faith or quasi-bad faith) and Art. 44 (for the buyer who has a reasonable excuse). For more on these exceptions, see Andersen, C. B., "Exceptions to the Notification Rule -- are they uniformly interpreted?" (2005) 9 Vindobona Journal 17.

14. For an in depth analysis of the uniformity of the CISG, see Andersen, C. B., Uniform Application of the International Sales Law, 2007, Kluwer.

15. Andersen, C. B., supra fn 13, at pp. 63-177; and for recent support of this see Girsberger, D., "The Time Limits of Article 39 CISG" (2005-06) 25 Journal of Law and Commerce 241.

16. For more on the homeward trend and how it undermines uniformity, see Ferrari, F., "Have the Dragons of Uniform Sales Law Been Tamed?", in Andersen, C. B. and Schroeter, U. G., Sharing International Commercial Law across National Boundaries -- Festschrift for Albert H. Kritzer on the Occasion of his 80th Birthday, 2008, Wildy & Hill, at pp. 134-67.

17. See some of the points made by in Bailey, J., "Facing the truth: Seeing the Convention on Contracts for the International Sale of Goods as an Obstacle to a Uniform Law of International Sales" (1999) 32 Cornell International Law Journal 273-317 at p. 282.

18. In the context of the CISG, this term was first employed by Rogers and Kritzer: 'A global jurisconsultorium on uniform international sales law is the proper setting for the analysis of foreign jurisprudence on terminology of international sales', see Rogers, V. and Kritzer, A., "A Uniform International Sales Law Terminology" in Schwenzer, I. and Hager, G. (eds) Festschrift für Peter Schlechtriem zum 70. Geburtstag, 2003, J.B.C. Mohr / Paul Siebeck, Tubingen, at pp. 223-53. The term has since been used in various scholarship. For more information on the global jurisconsultorium of the CISG, see Andersen, C.B., "Uniform Application", supra fn 14, and Andersen, C. B., "The Uniform International Sales Law and the Global Jurisconsultorium" (2005) 24 Journal of Law and Commerce 159.

19. Lookofsky, J., Understanding the CISG, 2008, Kluwer, at pp. 34, 35; Lookofsky also points out the problematic issue of just how much 'regard' must be had.

20. Honnold, J. O., "Uniform Laws for International Trade: Early 'Care and Feeding' for Uniform Growth" in (2005) 1 International Trade and Business Law Journal 1.

21. DiMatteo, L. "The CISG and the Presumption of Enforceability: Unintended Contractual Liability in International Business Dealings" (1997) 22 Yale Int. Law Journal at p. 111; and DiMatteo, L., "The Interpretive Turn in International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence" (2004) Northwestern Journal of International Law and Business 299.

22. Ferrari, F., "CISG Case Law: A New Challenge for Interpreters?" (1999) 17 Journal of Law and Commerce, at p. 246: 'As many legal writers have pointed out, this means, above all, that one should not read the Convention through the lenses of domestic law, but rather in an autonomous manner'.

23. Zeller, B., "Traversing international waters: With the growth of international trade, lawyers must become familiar with the terms of the Convention on Contracts for the International Sale of Goods" (2004) 78(9) Law Institute Journal 52.

24. See generally Flechtner, H., supra fn 8.

25. Schlechtriem, P., "Uniform Sales Law -- The Experience with Uniform Sales Laws in the Federal Republic of Germany" (1991-92) 2 Juridisk Tidskrift 1 available at: <http://cisgw3.law.pace.edu/cisg/biblio/schlech2.html>; where he explains how consideration and critique of case law in other jurisdictions, as well as help from scholars and comparative law centres, smooth any divergent interpretations of uniform law.

26. Fothergill v. Monarch Airlines [1980] 2 All E.R. 696.

27. Air France v. Saks, 470 U.S. 392, 404 (1985).

28. El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999).

29. Hans Wehberg seems to have been the first to suggest such a tribunal; see Wehberg, H., Ein Internationaler Gerichtshof für Privatklagen, 1911, at p. 23. Another suggestion was made in 1992: see also Sohn, L., "Uniform Laws Require Uniform Application: Proposals for an International Tribunal to Interpret Uniform Legal Texts", Uniform Commercial Law in the Twenty-First Century: Proceedings of the Congress of the United Nations Commission on International Trade Law, 18-22 May 1992, at pp. 50-4; the latest official suggestion seems to have been made by Filip de Ly: see de Ly, F., "Uniform Interpretation: What is Being Done? Official Efforts" in Ferrari, F., (Ed.) The 1980 Uniform Sales Law, 2003, Sellier, at p. 346.

30. This view has prevailed since 1974 when Otto Kahn-Freund, the noted comparativist, first dared to state his point that commercial law is comparatively culture-free, see Freund, O., "On Uses and Misuses of Comparative Law" (1974) 37 Modern Law Review 1.

31. Koch, C, "Envisioning a Global Legal Culture" (2003) 25 Michigan Journal of International Law, at p. 51.

32. See, District Court of Cuneo, Italy, 31 January 1996 (Sport d'Hiver di Genevieve Culet v. Ets. Louys et Fits), available at: <http://cisgw3.law.pace.edu/cases/960131i3.html>. Ten years ago, Ferrari reported that the decision from Cuneo was the only one of 300 cases reported by Michael Will to comply with the duty to look to foreign case law: see Ferrari, F., "Remarks on the Autonomy and the Uniform Application of the CISG on the Occasion of its Tenth Anniversary", International Contract Advisor, 1998, Kluwer.

33. Court of Appeal of Grenoble, France, 23 October. 1996 (Scea. Gaec des Beauches B. Bruno v. Société Teso Ten Elsen GmbH & Co KG), available at: <http://cisgw3.law.pace.edu/cases/961023f1.html>.

34. Andersen, C. B., "The Uniform International Sales Law", supra fn 18. For a complete list of all the cases found, see the case list appended to the end of this paper.

35. In 2005, there were 12 reported jurisconsultorium cases found, out of a total of around 1100 reported cases on the CISG W3 database.

36. District Court Vigevano, Italy, 12 July 2000, (Rheinland Versicherungen v. Atlarex), available at: <http://cisgw3.law.pace.edu/cases/000712i3.html>. Although criticised by Sant 'Elia for not containing references to commentaries in the online case commentary found at the above link, it should be remembered that the Italian Code of Civil Procedure prohibits references to such academic work in case law. Thus, the references to the CISG websites and UNILEX contained in the case become all the more remarkable.

37. As an interesting aside, according to Professor Franco Ferrari, the judges in all the reported Italian jurisconsultorium cases are his recently graduated students. This is heartening news for the crusading academic, trying to make a difference in a practical world of law.

38. Goode, R., "Reflections on the Harmonization of Commercial Law" in Cranston, R. and Goode, R., (eds) Commercial and Consumer Law -- National and International Dimensions, 1993, Oxford University Press, at pp. 24-7: 'It is primarily by the spreading of awareness of foreign legal systems among our students that we can hope to accelerate the process of harmonization and to produce practitioners and judges of the future prepared to look beyond the horizon of their own legal system'.

39. District Court Pavia, Italy, 29 December 1999 (Tessile v. Ixela), available at: <http://cisgw3.law.pace.edu/cases/99l229i3.html>

40. District Court of Forli, Italy, 11 December 2008 (Mitias v. Solidea S.r.l.), available at: <http://cisgw3.law.pace.edu/cases/081211i3.html>.

41. Examples can also be argued to be found in Denmark: see for example the Holy Mackerel case discussed below.

42. Supreme Court of The Netherlands, 28 January 2005 (B.V.B.A. Vergo Kwekerijen v. Defendant), available at: <http://cisgw3.law.pace.edu/cases/050128n1.html>.

43. Supreme Court of Poland, 11 May 2007 (Shoe leather Case), available at: <http://cisgw3.law.pace.edu/cases/070511p1.html>.

44. For the present paper, 32 cases form national courts, and 3 from arbitral tribunals utilising the jurisconsultorium have been identified, among the 2294 cases reported on the CISG database at <http://www.cisg.law.pace.edu>. This total of 35 cases represents 1.5%. It should be obvious that this statistic is empirically flawed, for several reasons. First of all, not all reported cases include full text translations which will allow the identification of foreign sources, if any are present. Secondly, not all such cases may have been identified. Thirdly, these cases will undermine the overall percentage since some jurisdictions and institutions do not encourage or even allow reference to case law (like Chinese CIETAC arbitration). The statistic is merely offered as an indicator. A current empirical case coding study, carried out in collaboration with Professor Di Matteo, will attempt to investigate CISG case reasoning and source in respective jurisdictions more carefully.

45. See the database at <http://www.cisg.law.pace.edu> and all the mirror sites in different languages and countries, as well as the work of UNILEX and UNCITRAL Digest.

46. Copenhagen Maritime Commercial Court, Denmark, 31 January 2002 (Dr. S. Sergueev Handelsagentur v. DAT-SCHAUB A/S), available at: <http://cisgw3.law.pace.edu/cases/020131d1.html>.

47. District Court Roermond, The Netherlands, 19 December 1991 (Fallini Stefano v. Foodik) available at: <http://cisgw3.law.pace.edu/cases/911219n1.html>.

48. For more information on the doctrine of precedent in common law, see the leading textbook on precedent Harris, R, and Cross, J.W., Precedent in English Law, Oxford University Press 1991.

49. Mirehouse v. Rennell (1833) 1 Cl. & F. 527, per Parke J at p. 546.

50. Dolezalek, G. R., Stare decisis: persuasive force of precedent and old authority (12th-20th century). Inaugural Lecturers, New Series No. 156, 1989, University of Capetown.

51. See David, R., and Brierly, D., Major Legal Systems of the World Today (3rd ed), 1985, Free Press, at pp. 133-149.

52. Tribunale di Vigevano, Italy, 12 July 2000, CLOUT 378; also available at: <http://cisgw3.law.pace.edu/cases/000712i3.html>; and Tribunale di Pavia, Italy, 29 December 1999, available at: <http://cisgw3.law.pace.edu/cases/991229i3.html>, where the court expressly states that 'foreign case law merely has persuasive value.'

53. See Erber, H., in Schlechtriem, P., Commentary on the UN Convention for the International Sale of Goods, 1998, Oxford University Press, at p. 63; see also Enderlein, F., and Maskow, D., International Sales Law, 1992, Oceana, at p. 348, available at: <http://cisgw3.law.pace.edu/cisg/biblio/enderlein.html>, where the authors emphasise that 'the only force foreign decisions have is their persuasive effect'.

54. Ferrari, F., "Applying the CISG in a Truly Uniform Manner: Tribunale di Vigevano (Italy), 12 July 2000" (2000-01) Uniform Law Review 203, at p. 209, available at: <http://cisgw3.1aw.pace.edu/cisg/biblio/ferrari4.html>: 'The court correctly rejected the minority view which attributes binding force to foreign case law [ ... ] this fails to take into account the rigid hierarchical structure of the court system presupposed by the "stare decisis" doctrine and which is lacking on an international level.'

55. The attempt to pursue such a mandate has been rejected by UNCITRAL on several occasions in the 1970s.

56. DiMatteo, L., "The CISG and the Presumption of Enforceability: Unintended Contractual Liability in International Business Dealings" (1997) 22 Yale Int. Law Journal 111, at p. 111, available at: <http://cisgw3.law.pace.edu/cisg/biblio/dimatteo.html>.

57. Andersen, C. B., "Uniform Application", supra fn 14.

58. For more on the faux ami status of this term 'supranational' and its non-application to the CISG, including the reaction to the use of the term in CISG contexts, see Andersen, C. B., "Uniform Application", supra fn 14, at pp. 23-26.

59. Henschel, R., "Conformity of Goods in International Sales Governed by CISG Article 35: Caveat venditor, caveat emptor and contract law as background law and as a competing set of rules" (2004) 1 Nordic Journal of Commercial Law, available at: <http://www.njcl.fi>.

60. German Supreme Court, 8 March 1995 [VIII ZR 159/94], available at: <http://cisgw3.law.pace.edu/cases/950308g3.html>.

61. The -- possibly -- imminent ratification of the CISG by the UK is now hoped to take place in 2010. The CISG and the UK have a turbulent history. The first consideration was in 1989; although there was a majority in favour of accession, the Department felt this majority to be too slight for it to be brought to the legislature. See Dep't of Trade and Indus., Doc. No. U.R.N. 97-875. With the arrival of a new Government in May 1997, however, the new Ministry of Trade felt -- in the light of the popularity of the Convention, especially amongst EU member States -- that the UK was out of step with international trade law, and new consultations for a UK accession to the CISG are currently in progress, after a long time on the back burner a committee has finally been formed in November of 2004. The work of the committee is, at the time of writing, delayed due to illness of one of its most prominent members. This trend regarding the Consultation Document leans slightly towards the favouring of ratification, but the proposal to the legislature is not (yet) a reality. The UK has never embraced uniform international sales law extensively -- it is worth noting that the UK has ratified the antecedents to the CISG (ULF and ULIS), but with reservations which render them almost inapplicable, as they require the active incorporation of the provisions by the parties in choice-of-law clauses for them to apply.

62. Ferrari, F., "CISG Case Law: A New Challenge for Interpreters?" (1999) 17 Journal of Law and Commerce 245 at p. 260, available at: <http://cisgw3.law.pace.edu/cisg/biblio/ferrari3.html>.

63. Ferrari, F., "Uniform Interpretation of The 1980 Uniform Sales Law" (1994-95) 24 Georgia Journal of International and Comparative Law 467, at pp. 204-205, available at: <http://cisgw3.law.pace.edu/cisg/biblio/franco.html>.

64. Darbyshire, P., Darbyshire on the English Legal System (8th ed), 2005, Sweet & Maxwell, at paras. 2-030 and 2-037.

65. Flechtner, H., "Recovering Attorneys' Fees as Damages under the U.N. Sales Convention: A Case Study on the New International Commercial Practice and the Role of Case Law in CISG Jurisprudence, with Comments on Zapata Hermanos Sucesores, S.A. v Hearthside Baking Co" (2002) 22 Northwestern Journal of International Law and Business 121 available at: <http://cisgw3.law.pace.edu/cisg/biblio/flechtner4.html#iv>.

66. Honnold, supra fn 10, Chapter 1 (at fn 3), referring to UNCITRAL goals.

67. In the words of Paul in his first letter to the Christians in Thessalonia.

68. See Markesinis, B., "Judicial Mentality: Mental Disposition or Outlook as a Factor Impeding Recourse to Foreign Law" (forthcoming, Tulane Law Review, Spring 2006).

69. Schwartze, J., "The Role of the European Court of Justice (ECJ) in the Interpretation of Uniform Law Among the Member States of the European Communities (EC)" in UNIDROIT (ed.), International Uniform Law in Practice/Le droit uniforme international dans la pratique [Acts and Proceedings of the 3rd Congress on Private Law held by the International Institute for the Unification of Private Law (Rome 7-10 September 1987)], 1988, Oceana, at pp. 193-227.

70. De Ly, F., supra fn 29 at p. 357.

71. For more on the CISGW3 database as a source of law, see Andersen, C. B., "The Internet: Tool of Law, Source of Law or Tool for Sources -- Use of the Internet in Legal Practice using Examples from Internationa] Sales" in Controlling Information on the Online Environment, 2003, 18 BILETA Conference, available at: <http://www.bileta.ac.uk/03papers/baasch.html>; see also Andersen, C. B., "Furthering the Uniform Application of the CISG: Sources of Law on the Internet" (1998) 10 Pace International Law Review 403.

72. Isocab France S.A. v. Indus Projektbouw B.V., 4 Feb. 2005, LJN: AR 6187; CO/007HR (Netherlands), available at: <http://cisgw3.law.pace.edu/cases/050204n1.html>.

73. For more information on the CISG AC, see the homepage at <http://www.cisgac.com/>

74. See Karton, J. D. H., and de Germiny, L., "Has the CISG Advisory Council Come of Age?" (2009) 2 Berkeley Journal of International Law 2.

75. These are all authored by Joseph Lookofsky (some co-authored by Bernstein) from the years 1995 to 2006, published by Transnational/DJOEF publishing in US and Denmark.

76. Lookofsky, J., supra fn 19.


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