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THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS:
A PROPOSAL FOR NIGERIA

Uche Anyamele
University of Durham

TABLE OF CONTENTS
Abstract
Chapter One
1.0   Introduction
1.1   Background
1.2   Overview of the CISG
        1.2.1   Unification and International trade
        1.2.2   A Brief history
        1.2.3   Scope Structure and Interpretation of the CISG
1.3   The Nigerian Situation
        1.3.1   The Current Status of International Trade in Nigeria
        1.3.2   Laws and texts governing International Trade in Nigeria
1.4 Structure of Dissertation
Chapter Two
2.0   The CISG: A Successful Convention?
2.1   Why the reluctance to Accede to the CISG?
2.2   Measuring the Success of the Convention
        2.2.1   Success in terms of Uniform Application and Interpretation?
        2.2.2   Ability to Opt Out
        2.2.3   Vague Default Standards/ Ambiguous language and Language Barrier
        2.2.4   Any Impact on National Legal System?
        2.2.5   The CISG and Interconventional Interpretation
2.3   Conclusion
Chapter Three
3.0   Challenges to the Ratification of the CISG
3.1   Why the Paucity of cases in Common Law Jurisdictions?
3.2   Case Against Adoption
        3.2.1   The Static nature of the CISG
        3.2.2   National Preferences/fear of National laws being Supplanted
        3.2.3   Legal uncertainty and the Application of Foreign Solution
        3.2.4   Legislative Lethargy and Bureaucracy
        3.2.5   Existent trade Usages and Standard Contracts in Nigeria
3.3 Conclusion
Chapter Four
4.0   The Need for the ratification of the CISG in Nigeria
4.1   Why Has Nigeria Not Ratified the Convention?
4.2   The CISG: A Necessary Tool for International Trade in Nigeria
        4.2.1   Reduction of Costs and Legal Certainty
        4.2.2   Simplification of Choice of Law Conflict and Neutrality
        4.2.3   Consistency, Accessibility and Intelligibility
4.3   The CISG: A Catalyst for Reforming the Nigerian Sales Law
4.4   Policy Concerns
4.5   Promotion of Globalisation and Uniformity
4.6   The Success of the CISG and its Impact on Scholars
4.7   Lessons for Nigeria- A Comparative analysis of the CISG with German and UK Sales Law
        4.7.1   Price Reduction
        4.7.2   The right to Cure
        4.7.3   Granting of Additional time Period
4.8   Conclusion
Chapter Five
5.0   Conclusion
5.1   Recommendation
Bibliography
List of Abbreviations
Table of Cases
Table of Legislation
Acknowledgments


ABSTRACT

The United Nations Convention on Contracts for the International Sale of Goods has proved to be an effective instrument in promoting uniformity and globalization in international sales law. In this era of globalization and with the volume of cross border transactions it is perplexing that Nigeria has not seen the need to accede to this Convention. The case is even more interesting considering the nature of the legal framework governing commercial law in Nigeria.

This dissertation makes a case for the ratification of the Convention in Nigeria. The dissertation considers cases of the alleged success of the Convention drawing analogy from jurisdictions that have ratified the Convention and the ones that haven't. The paper discusses the criticisms of its application and also analyzes the possible obstacles to accession, suggesting ways of surmounting them.

It is concluded that ratification of the Convention is essential especially in light of meeting global international trends in cross-border trade transactions.


CHAPTER ONE: 1.0 INTRODUCTION

With ratification by 77 states [1] and accounting for two thirds of all world trade,[2] the United Nations Convention on Contracts for International Sale of Goods (CISG)[3] is generally considered one of the most successful conventions in the area of international trade law.[4] The CISG provides a comprehensive set of default legal rules governing international commercial transactions. Its coherent and straightforward structure offers parties an easier option, at least when compared to the complex body of contract sales law found in most national laws, for working through the cumbersome legal and practical issues involved in sales law.[5] Today, international sales law is harmonised to a very significant extent because of the CISG. This is a result of the Convention's rules aimed at reducing transaction costs [6] as well as its accessibility and intelligibility to business people and legal professionals.[7]

1.1 Background

Arguably, the single most noticeable development in the last forty years in economic terms is globalisation. This has increased the importance of cross-border trade,[8] contributing greatly to the internationalization of trade. For most countries, international trade represents a significant share of their gross domestic product (GDP); consequently, increasing international trade is central to the continuance of globalization. This is especially true for developing countries for which the improved international economic environment is particularly beneficial. A key factor in the development of international trade laws is globalisation [9] and uniform laws represent a part of that phenomenon [10]

Amongst the Next-Eleven (N-11)[11] economies and with a projected 8 percent growth,[12] the Nigerian economy is considered one of the fastest growing in the world.[13] Nigeria is a country where international trade is vital. Evidencing this is the total result of merchandise trade in Nigeria in 2010 which amounted to N19,658.0 billion.[14] Understanding that the commercial strength of a country is necessary in making it one of the world's best economies, there is a need to have a sturdy commercial legal framework encouraging globalisation and harmonisation. However, the law governing trade in Nigeria is the Sale of Goods Act 1893 [15] and the Sale of Goods Law 1959.[16] These laws considered obsolete have been nominated for review by the Nigerian Law Commission.[17]

Considering the volume of trade in Nigeria, it is unfortunate that these laws are still operative. In light of the above, there exists the need for a uniform law which ensures certainty and predictability in international transactions. The CISG which offers the right regulatory framework to deal with globalisation and a credible incentive to foster international trade would be the right policy for Nigeria.

1.2 Overview of the Convention

1.2.1 Unification and International Trade

The need for a uniform sales law comes from the realisation that the undue restrictions of national legal systems governing cross-border transactions had become limiting for the international trade community.[18] Thus, proponents of harmonisation sought to accomplish certainty and predictability in international trade transactions especially with the explosive growth of international trade in twentieth century.[19]

1.2.2 Brief History

The notion of a uniform code formed by the lex mercatoria coupled with the dramatic increase in international trade,[20] which emphasised the inadequacies of national sales law, led to the first modern attempt to codify a uniform international sales law.[21] In 1926, under the aegis of the League of Nations, the International Institute for the Unification of Private Law (UNIDROIT) requested that a draft of uniform law for the international sale of goods be prepared.[22] Rabel submitted a report which was accepted by the UNIDROIT. The unification effort with an interruption between 1939 and 1951 due to the Second World War, carried on into the early 1960's and resulted in the convening of a diplomatic conference in the Hague in 1964.[23] In April 1964, the conference finalized and adopted the two conventions; the Uniform Law on the International Sale of Goods ("ULIS")[24] and the Uniform Law on the Formation of Contracts for the International Sale of Goods ("ULF").[25] Neither of these two Conventions attracted adoption in more than nine states.[26]

In 1966,[27] the UN General Assembly established the United Nations Commission on International Trade Law (UNCITRAL), responsible for the codification and drafting of the CISG, to promote "the progressive harmonization and unification of the law of international trade,[28] and to lead the global efforts on the unification front.[29] A draft Convention presented by the Committee in 1978, incorporating the best features from all modern sales regime including common, civil and socialist law traditions was approved by the UNCITRAL.[30] In 1980, a conference with a total of 62 representatives,[31] held in Vienna, considered and adopted the CISG.

1.2.3 Scope, Structure and Interpretation of the Convention

The CISG consists of 101 articles divided into four parts: Part I deals with the statute's sphere of application and general provisions.[32] Part II concerns the formation of contracts. Part III deals with substantive provisions of a contract and part IV deals with the procedural issues.[33] The Convention is for business not consumer transactions and excludes certain aspects of sales.[34] There is no specific methodology laid down by the CISG regarding interpretation.[35] However, Article (7) and the preamble of the Convention provide guidance; to "promote friendly relations among states" and to resolve matters in accordance with the "general principles".[36] The CISG once ratified becomes the domestic law of the contracting State.[37]

1.3 The Nigerian Situation

1.3.1 The Current Status of International trade law in Nigeria

The status of uniform international trade law in Nigeria and Africa in general is not satisfactory. In fact, the rate of adoption of the most fundamental texts on uniform international trade law in Africa is reticent.[38] Castellani suggests this is because of political instability, legislative priorities being set in other fields and a failure of political and economic integration.[39] This curbed any need for the adoption of a uniform commercial law. He further suggests that the instability experienced after the cold war led to prioritization of issues such as African governance and law reform agenda. Moreover, Africa's major trading and partners focused on legal reforms in the field of good governance and human rights, ignoring the trade sector. The CISG has been ratified by only 10 African States out of the 77 States [40] excluding Nigeria.

1.3.2 Laws and Texts Governing International Trade in Nigeria

Nigerian commercial, business and trade laws are derived from statutes, common law and equity; Nigerian legislation, court decisions and customary laws. English law as received into Nigeria via regional state statutes allow for the application of the common law and equity in Nigerian commercial law.[41] International trade law in Nigeria is governed by the Nigerian Law of sale of goods.[42] The Nigerian law on sale of goods consists primarily of the old United Kingdom Sale of Goods Act 1893. The law became applicable to Nigeria as a pre-1900 English Statute of General Application and regulates transactions conducted in most states making up the Nigerian Federation other than the states that formerly composed the now defunct Western Region.[43] In those Western States commercial transactions and contracts are subject to the Sale of Goods Law 1958.[44]

International trade in Nigeria may also be governed through trade terms and practices. These terms are employed in international sales contracts in order to determine specific responsibilities of parties. Such terms include the International Rules for Interpretation of Trade Terms (INCOTERMS).[45] Sadly, these laws cannot be used to conduct modern international trade transactions as their provisions are antiquated.

1.4 Structure of the Dissertation

This dissertation makes a case for the accession of the CISG in Nigeria.[46] The author argues that the ratification of the CISG is necessary for Nigeria, considering her economic position. This is not only in order to promote modernisation and harmonisation of international trade but also to revamp the obsolete domestic sales law.

The thesis discusses the CISG and the laws governing international sales in Nigeria in chapter 1. Subsequently, the thesis questions the acclaimed success of the Convention, analysing the reasons for non adoption of the Convention in some jurisdictions. Chapter 3 considers the obstacles to the ratification of the Convention in Nigeria and suggests practical ways by which they can be surmounted.

Chapter four makes a case for the ratification of the Convention in Nigeria, drawing from the experience of other countries which have ratified it and comparing the specific provisions of the Convention.

The thesis concludes in Chapter 5 deals with recommendations and conclusions

CHAPTER TWO: 2.0 THE CISG: A SUCCESSFUL CONVENTION?

To make a case for the ratification of the Convention, it is imperative to question its acclaimed success. Albeit criticisms,[47] scholars consider the Convention successful, regarding it as "arguably the greatest legislative achievement aimed at harmonizing private commercial law"[48] and "a monumental achievement".[49] However, doubts have been expressed concerning the criteria used in measuring this success.[50] Ferrari argues that criteria such as: the number of ratifications, the increased application by arbitral tribunals and the percentage of world trade which it governs are not sufficient to justify the conclusion that it is successful. He hints that these criteria only bear witness to the CISG's political acceptability.[51]

Gillette and Scott suggest that the normative goals of a uniform international sales law should be to provide the substantive solution to particular contracting problems.[52] Parties want a commercial law statute to minimize both the costs of embodying contractual solutions in written agreements and solving contracting problems.[53] Therefore the question arises, 'does the CISG do for the parties what they "cannot as easily do for themselves"?[54] Another issue to be considered in measuring the success of the CISG is its impact on national legal systems.[55]

2.1 Why the Reluctance to Ratify the Convention?

The CISG has not been ratified in more than 130 countries.[56] However, this is not enough to draw a negative conclusion as there are divergent reasons for this situation.[57] Some countries seem to favour regional approach than the Convention's global approach.[58] In Africa, although there is a modest rate of adoption of uniform texts on international sales law,[59] it seems there is preference for regional unification in the area of sales law. This is seen in the Organisation pour l'harmonisation en Afrique du Droit des Affaires (OHADA) Uniform Act relating to General Commercial Law [60] with the mandate of drafting uniform texts in the commercial field. Out of sixteen countries, only three are signatories to the CISG.[61] Although the OHADA's attempt at unification is commendable, it still faces challenges making it unsuitable especially for Nigeria.[62] It is suggested that unification of trade law at a global level is to be preferred. This is to ensure the elimination of obstacles arising from differences in the world's legal systems.[63]

For instance, many OHADA member States have strong commercial relations with Ghana and Nigeria, two common law countries that do not participate in OHADA. The ratification of the CISG which is a global trade law text would ensure trade and economic exchange is carried out effectively amongst these States.[64]

In the former Soviet Regions, while countries such as Azerbaijan and Kazakhstan have not acceded to the CISG, others such as Georgia, Kyrgyzstan and Uzbekistan have.[65] Knieper suggests this is not a result of systematic or ideological resistance but just sheer neglect.[66] This is evident in the steps taken by some of these countries towards membership. In Azerbaijan, the Convention is still with the Ministry of Economic Development.[67] In Kazakhstan, the Ministry of Industry and Trade and the Ministry of Justice are presently working on the matter and have approved it as representatives of the governments.[68]

For these countries, it seems logical to make the accession because with respect to compatibility, the Convention fits into the context of respective national civil litigation of post-Soviet countries.[69] Furthermore, accession to the CISG will provide stability where the legislative frame for doing business is still quite volatile and subject to frequent and sometimes erratic changes.

The case of the UK and the CISG is interesting. Despite playing an active role in drafting and negotiating the CISG, the country has not ratified it.[70] Steps towards ratification have been taken a couple of times yet, till date, accession has not been made.[71] It seems that this is simply due to lack of political momentum. The general perception is that Ministers do not see ratification as a legislative priority because there seems to be little interest in the country to ratify it.[72]

Some concerns raised include; the preference for English Law over CISG with respect to commodity sales,[73] the vagueness of the provisions of the CISG, the danger that London would lose its edge in international arbitration and litigation, the fear that implementation would involve a greater number of disputes [74] and the fear that many commercial traders would simply opt out of the application of the Convention, thus negating the effectiveness of the CISG.

These fears are unfounded because the Convention not only aims to preserve contracts in the face of breach but fills in the gaps to facilitate commerce.[75] Instead of London losing its edge in arbitration, ratification will positively impact the number of parties who want to have their dispute there and the expense of litigating in unfamiliar territory will also be avoided. Additionally, there are similarities between the CISG and the SOGA.[76]

"With no actual opposition," thus eliminating the need for any fight or persuasion,[77] it is suggested that the UK ratify the Convention because most states belonging to the European Union as well as leading world traders have ratified it.[78] It is inevitable that the English Courts will apply the Convention even without ratification because most parties in commercial transactions opt for the CISG as the applicable law. By the UK's ratification, the Convention stands to benefit from the expertise of English lawyers and Commercial Courts, thus promoting certainty and consistency in interpretation. This would enhance globalisation and consequently improve international trade law.[79]

For some other countries, the arguments against ratification have not been clearly made out. For instance, the Brazilian Ministry of Foreign Affairs has stated that "there are no substantial reasons that justify Brazil's non adhesion to the CISG".[80] Scholars suggest reasons for South Africa's reluctance are the immutability of the Convention and the adaptation of South Africa to the reigning customs of international trade that have already taken place. However the case for ratification supersedes the case against it.[81] For Venezuela, there appears to be no valid reason for non ratification since the Convention is perfectly in line with the Venezuelan domestic law.[82]

From the above, it can be conclusively said that there is no outright rejection or bias against the Convention. It is surmised that with time, these countries will finally get around to ratifying the Convention as seen with the case of Japan.

2.2 Measuring the Success of the CISG

2.2.1 Success in terms of Uniform Application?

Scholars have criticized the efforts at unification and the consequent result which is the CISG.[83] The Convention is criticized by realists for being swamped with unclear provisions thus offering "formal uniformity without substantive uniformity",[84] indeterminate results and constituting "an obstacle to uniformity in international sales law".[85]

Kotz questioned the selective and fragmentary nature of the results achieved so far, asserting that it seems to overshadow the effort, time and resources that went into production.[86]

The Convention's interpretational problems particularly its imprecision and vague terms [87] has been criticised especially by lawyers from common law jurisdictions, used to the English style where statutory texts are usually interpreted strictly according to the language used and meticulous interpretation often provided as result of the delicate relationship between the judiciary and legislature.[88] While this is a valid criticism, the problem exists even in national laws.[89]

The CISG mandates that in interpretation, "regard is to be had to its international character and the need to promote uniformity in its application and the observance of good faith in international trade".[90] This implies an obligation on courts and arbitration tribunals to apply the CISG "autonomously" not "nationalistically",[91] in a manner consistent with its goal of creating a uniform sales law. However, not all courts have heeded this mandate.[92] While we have at one extreme, courts that have largely ignored this mandate,[93] we have at the other extreme courts committed to applying it and attempting to seek out the common values within the CISG, which provides for functional uniformity.

In MCCMarble Ceramic Center v Ceramica Nuova D'Agnostino, the court cited foreign jurisprudence on the CISG, and refers to academic commentary,[94] noting:

The CISG was to provide parties to international contracts for the sale of goods with some degree of certainty as to the principles of law that would govern potential disputes.... Courts applying the CISG cannot, therefore, upset the parties' reliance on the Convention by substituting familiar principles of domestic law.[95]

European courts in trying to promote uniformity have also recognised the need for uniform interpretation in their decisions. In Germany, while there are some courts that simply referred to the need to interpret the CISG by having regard to its international character and to the need to promote its uniform application, others have gone further. The Bundesgerichtshof held that "the CISG is different from German domestic law, whose provisions and special principles are, as a matter of principle, inapplicable for the interpretation of the CISG".[96] More recently, in 2005, the German Supreme Court stated that:

Insofar as the Court of Appeals refers to [various German] judgments [...] in analyzing the question whether, at the time the risk passed, the delivered meat conformed with the contract within the meaning of Arts. 35, 36 CISG, it ignored the fact that these decisions were issued before the CISG went into effect in Germany and refer to § 459 BGB [...].[97]

Incidentally, the number of decisions complying with the obligation to have regard to the CISG's international character by not resorting to domestic concepts outweighs that of the aforementioned kind.[98] This demonstrates the concerted efforts being made by courts towards applying the Convention in a uniform manner.

Another challenge to the success of the Convention is the nonexistent court of ultimate resort unlike many other conventions.[99] While this is a valid criticism, the Convention safeguards uniformity by the provision of articles 7(1) and 8 which require that the Convention be interpreted in a uniform manner.[100]

Furthermore, the UNCITRAL has made accessible a wealth of resources which provides access to such decisions from jurisdictions around the world via the internet.[101] These resources have created a new and effective method of legal research with a useful body of knowledge.[102] The growing number of cases also ensures that courts can familiarize themselves with the necessary information regarding a similar matter before making their decision.[103] The functionality and accessibility created by these innovations makes the CISG a model for what must be developed in order to make global uniformity in other subject areas possible.[104]

Certainly, perfection was never the goal of the CISG. Rather, the Convention seeks the objective of functional or relative uniformity in both the interpretation and application of the CISG across a common set of commercial norms. Thus, scholars like Mazzacano maintain that "the CISG is an attempt to harmonize not so much the law of international sales transactions, but more precisely, the norms and values regarding the conduct of international trade of goods".[105] He also argues that like the Neo-Realists, there be an abandonment of the quest for strict uniformity in international sales law and instead a focus on the harmonization of values and norms in place of the unfruitful search for a predictable, homogenous legal text for the international sale of goods.[106]

Based on the cases heard to date, it seems the CISG has achieved a considerable level of success in terms of interpretation. This is because both civil and common law states are producing conforming decisions despite their differing legal approaches.[107]

2.2.2 The Ability to Opt-Out

Critics consider the Convention's provisions offering Contracting States and parties the choice to opt out a limitation on the scope of uniformity.[108] For instance, Article 4 excludes from coverage any rules dealing with contract validity. This results in a "contraction of the sphere in which the CISG could possibly promote formal or substantive uniformity. States have widely exercised the option to opt out.[109] Article 95 permits a state to adopt the CISG, but to avoid being bound by the jurisdictional provision that makes the treaty applicable in contracts between businesses in Contracting States and businesses in non-Contracting States. This option has been exercised by China, the United States, St Vincent and Grenadines and Singapore.[110] Several countries have made declarations with respect to Article 96.[111] The Scandinavian countries [112] have declared they would not be bound by Part II which has to do with contract formation.

Additionally, Article 6 gives parties to an international sales contract, the right to 'contract out' of the CISG - in whole or in part, thus preventing the automatic application of the Convention pursuant to Article 1(1).[113] Critics have suggested that since a substantial number of Contracting States and parties exercise these options, it must mean that the substantive provisions of the Convention fail to provide solutions to common contracting problems.[114] However, this is not necessarily the case especially for attorneys. Legal attorneys have incentives to avoid learning new laws.[115] Besides, the author believes this option actually exemplifies the Convention's success with respect to balancing the interest of buyers and sellers. It gives either party the option of opting out where non CISG-domestic provisions would favour the opposing party.[116]

Realistically, the CISG was drafted to ensure some level of harmonisation, tailored to suit the needs of various countries and maximize adoption and that is what the flexibility of opting out offers. It is suggested that it is not in the interest of parties to exercise the option of opting out because this only encourages continued unfamiliarity of the Convention.[117] Thus resulting in a vicious cycle where unfamiliarity feeds back into choice of law options.[118]

Additionally, opting out may be unethical where lawyers avoid learning how the CISG works thereby depriving clients a choice of law suitable for international sales transactions when the need arises.[119]

2.2.3 Vague Default standards, Ambiguous Language and language barrier

Commentators argue that as a result of the open-textured wording of the Convention there exists a real possibility of failure.[120] For instance, the Convention fails to resolve basic issues such as what constitutes a "sale" or a "good".[121] The vagueness of the Convention

[C]an be seen in the 31 instances where the Convention "variously measures the parties" conduct from the perspective of a 'reasonable person,' defines rights or obligations with reference to what is 'reasonable' or 'unreasonable' or requires certain actions or notices within a 'reasonable' time.[122]

Critics further suggest that the use of ambiguous language may have different meanings in different cultures leading to different interpretations.[123] That the Convention exists in six official language versions is seen as a source of "textual non-conformity".[124] This is because the translations of the text from one language to another will never be "perfectly transparent"[125] and this imperfection is multiplied when one considers translations from the six diverse languages of the CISG. Consequently, no matter how much care is taken, there are bound to be differences in the meaning attached to certain terms posing problems to any attempt to apply the provisions uniformly.[126]

Although Zeller proffers that precedence be given to English and French texts since the meetings were conducted in those languages and hence they represent the true intention of the representatives.[127] This fails to solve the underlying problem since it presupposes that the intentions of the diplomats at the Conferences are readily discernible from the legislative history, but the individual statements of position about the meaning of an end-product compromise are actually misleading.[128] Additionally, it does not eliminate the fundamental problem of language translation.[129] The unofficial languages of the CISG are also criticized because they have not received any official vetting from the UNCITRAL therefore increasing the risk of deviations.[130]

Are these criticisms enough to discount the success of the CISG? Certainly not. Graveson argues that the problem of textual non-conformity has been greatly exaggerated and that variances are the only problem if one adopts a literal approach to interpretation, emphasizing the words as opposed to their meaning.[131] Thus, it cannot be concluded that the CISG has failed as a result of language problems since judges and arbitrators have understood the language and concepts of the Convention. This view is also shared by Allen, who observes that "the operation of a statute is not automatic, and can never be so. Like all legal rules, it has to take effect through the interpretation of the courts".[132]

The author concurs with the latter authors and although it is agreed that the Convention is not perfect, the predictions regarding its collapse have failed.

2.2.4 Successful impact on National Legal Systems?

In accessing the success of the Convention in national legal systems, Ferrari suggests a look at the Convention's impact on lawyers. Although there are certain countries where it can be considered that the Convention has little or no impact because practicing lawyers are unaware of it, there are other countries where it has been ratified and lawyers are aware of it.[133] It seems the Convention does not have any impact on the practicing lawyers because they do not model their standard contract forms in a way that allow their clients to benefit from the advantages of the CISG.[134] It has been suggested that this is for "fear of the unknown."[135] Lawyers assume that the substance of the Convention cannot easily be grasped because of its sporadic application resulting in legal uncertainty or the fact that parties can exclude leading to more uncertainty.[136]

However, these fears are unconvincing and misleading because the exclusion of the CISG does not necessarily lead to the application of the domestic laws which the lawyers claim they are more familiar with rather, they apply foreign laws even less familiar to themselves and more disadvantageous to their clients.[137] This implies that the exclusion of the CISG may not be advisable since in some cases it could lead to malpractice liability.[138]

Even with these exclusions, there are countries where the lawyers are familiar with the CISG and yet do not exclude it.[139] This may be a reaction to the domestic law which tends to be less acceptable to the other party than the CISG, which is considered a neutral set of laws.[140]

2.2.5 The CISG and "Interconventional Interpretation"[141]

One of the measures of success of the CISG is how much it has been used by scholars to interpret other international uniform law instruments. The concept of "Interconventional interpretation" is the systematic approach to the interpretation of international uniform law instruments which has the advantage of making the unification process easier.[142] Ferrari suggests the Convention may be used as a starting point for interconventional interpretation because the CISG is a paradigm for international unification efforts.[143] An instance is the Unidroit Convention on International Factoring in which the drafters used the CISG in discussing and elaborating the Convention. Furthermore, the UNIDROIT Convention on International Financial Leasing and the new UNCITRAL Convention on the Assignment of Receivables in International Trade have been influenced by the CISG because they have the same goals and their rules of interpretation are the same as the CISG.

Scholars have also sought to interpret instruments of different kind in light of the CISG such as the Regulation (EC) No 44/2001 [144] on Jurisdiction and the Recognition and Enforcements of Judgments in Civil and Commercial Matters.[145] By advocating that the CISG be resorted to in the interpretation of other uniform law instruments, scholars acknowledge the Convention's role as an "indispensable point of reference" thus, making it a "success beyond its scope".[146]

2.3 Conclusion

Although the Convention is not perfect, it goes a long way in providing a clear and coherent regulatory framework that can be easily applied in international trade transactions. Accordingly, the author suggests that an approach to be adopted in assessing the Convention's level of success is how much it has achieved so far and the effort being put in by the key players [147] towards improving the Convention. On this basis, one can conclusively ask "what is the CISG if not a success"[148]

CHAPTER THREE: 3.0 CHALLENGES TO THE ADOPTION OF THE CISG IN NIGERIA

As with all proposed policies, there are challenges which must be surmounted before it can be successfully implemented. Before considering these obstacles and suggesting practical ways of overcoming them, we shall examine the reason for the dearth of cases pertaining to the CISG in common law jurisdictions.

3.1 Why the Paucity of Cases in Common Law Jurisdictions?

Concerns regarding the number of case laws relating to the CISG in common law jurisdictions,[149] especially when compared to the number of cases in the civil law jurisdiction, have been raised. Presently, out of a total of 2675 cases and decisions, the common law jurisdictions like the United States,[150] Canada, Australia, New Zealand and Singapore boast of a total of 500 cases whereas, one civil law jurisdiction boasts of that number alone.[151]

Scholars have suggested that cultural factors such as the Convention being better known in the civil law jurisdiction play a big role.[152] The combined result of a survey conducted in the USA, Germany and China to determine the practical reasons for the exclusion of the CISG suggest that the most often stated reason is that the Convention is not widely known.[153]

Reinmann however argues that the above observation is not convincing. While in some cases, it may be "fundamental ignorance" in others ignorance plays a minor role.[154] Indeed, the author agrees with this view. There exists a plethora of decisions regarding the CISG and all its fundamental legal issues freely available via the internet. Additionally, the fact Convention's six official languages discards any reasons of unfamiliarity based on language problems. Additionally, in jurisdictions like the US, there is no shortage of American literature on the CISG and American scholars not only played leading roles in the drafting of the Convention but have some of the best commentaries on it.[155]

Some other suggested factors are economic in nature. For instance, lawyers in common law jurisdictions may not want to waste their client's resources and theirs, getting familiar with a different body of law.[156] Even where a lawyer feels obliged to plead the CISG, constraints of time and money may limit the research they are willing to do.[157] Legal factors internal to the Convention have been given as reasons for the dearth of cases. These include; failure of the Convention to govern the validity of contracts or the property effect of contracts, case laws pertaining to the CISG issues not being resolved adequately, some of the formational rules located in Part II being outdated, lack of mechanism for updating the Convention's provisions and the many reservations allowed by the Convention.[158]

Considering the above, one may be tempted to argue that the CISG may not work in Nigeria since it is a common law jurisdiction. It is the author's opinion that this is not a compelling argument because over the years, the number of CISG cases have grown considerably.

Table 1

Distribution of CISG cases and decisions by selected countries and their Growth Rates [159]

  1988 - 1998 2000 - 2011 Growth Rates

 Civil Law Jurisdictions
 
Germany 209 266 27.27%
Netherlands     91 112 23.08%
Switzerland 65 117 80%
Austria 39 89 128.20%
France 30 70 133.33%
Belgium 27 115 325%
Spain 8 75 837%

 Common Law Jurisdictions
 
USA 18 130 1400%
Australia 2 17 750%
Canada 1 14 1300%
New Zealand 0 11 100%

From the above table, although we find that the civil law jurisdictions record the most number of cases, the common law jurisdictions record astronomical increase of CISG cases and decisions. From 1988-1998, the number of cases recorded are minimal. However, from the year 2000 till date, the growth rate is impressive.

The author suggests this is an indication of more familiarity, acceptance and workability of the Convention in common law jurisdictions. Given more time, the Convention has the ability of being applied more. Besides, the Convention has proven its compatibility in common law jurisdictions.[160]

3.2 Case Against Adoption

3.2.1 The Static Nature of the CISG

A legitimate fear regarding the ratification of the CISG in Nigeria is the petrification of the Convention. Unlike parties under easily amended domestic laws, signatories to international Conventions are locked into an achieved harmonized instrument until a new instrument comes into force.[161] Rossett had warned that a major problem with the harmonisation of international trade law is the tendency for such instrument to become a "static monument" invariably losing touch with modern developments.[162] Scholars argue the Convention not only fails to represent a complete and workable resolution to today's entire problem, it contains no provisions or means provided by the UNCITRAL for ongoing revision and expansion.[163] This poses a problem because certain articles in the code may become redundant.[164] Acceding to such a Convention may stifle economic development in Nigeria.

However, this fear may be dispelled because the Convention's flexible terminology ensures that courts and tribunals can interpret it to suit modern times. For instance, since the text of the CISG was agreed to, the face of business communication has changed radically by the introduction of newer technologies and applications.[165] Eiselen's analyses to verify the Convention's hardiness or flexibility demonstrates that its underlying principles are sufficiently robust to deal with the changes and challenges posed by the new forms of communication, thus, practically eliminating the need for any change in the Convention.[166] He conclusively states that the "the fear that the CISG would become an unchanging and static monument of legal unification that would be unable to deal with circumstances in a fast changing world, has not yet been realised."[167]

A suggested way to overcome stagnation is by supplementing the Convention.[168] Under the leadership of Michael Bonnell, UNIDROIT has now promulgated an excellent set of General Principles for International Commercial Contracts that supplements expands and interprets the CISG in significant ways.[169]

From the above, it is evident that the CISG is a logical and coherent body of law able to survive and grow in the modern world and there is no need for such fears to hinder its ratification in Nigeria.

3.2.2 Legal Uncertainty and Foreign Solutions to known Problems

Critics argue that the Convention's flexibility in terminology and lack of precision in definition attracts some legal uncertainty. The infrequent application and choice of reservations offered by the Convention further encourages such uncertainty. However, the author suggests this claim may be prejudiced because for most questions which may arise under the CISG, there exists international case laws. Moreover, legal uncertainty is not an issue but the point at which the extent of the uncertainty negates the positive goal of flexibility.[170] Thus, if the legal uncertainty is within acceptable boundaries then it is fine.

There may be reluctance to ratify the Convention because States already employ domestic solutions to pre-existing problems therefore, any introduction of new rules would lead to complications.[171] The Convention recognises that parties may devise their solutions by retaining the principle of party autonomy, allowing parties the choice to opt out.

3.2.3 National Preferences / Fear of National Laws being Supplanted

A major fear for proponents of sovereignty is that the creation of international commercial law signals the vanishing point of sovereignty. Understandably, this fear could translate into reluctance by lawyers and the legal system to give up familiar laws. This may sometimes be due to a view that their own laws are superior or that their national laws may lose their preeminent position and this would translate into a reduction in business.[172] Although this may be a logical concern for countries such as the UK, because the English law is extensively relied on by parties in a commercial transaction, it is however unnecessary for Nigeria considering the obsolete nature of the sales law.

3.3.4 Legislative Lethargy / Bureaucracy

A foremost disadvantage of the democratic legislative system is the length of time it takes for any intended change in the law to go through all the different procedures and to be effectuated.[173] This may be an obstacle the ratification of the CISG especially considering that Nigeria is a developing country. To accede to a Convention in Nigeria, an instrument of accession is prepared by the ministry or agency which is taken to the Federal Executive Council praying that approval be given. Once the approval is granted, the AG is directed to print the instrument of which is subsequently signed by the president. A copy of the instrument is thereafter submitted to the depository of the Convention.[174]

While these procedures are legitimate, they are slow and thus may constitute a hindrance to ratification. The case of the UK comes to mind here. It has been suggested that the main reason for non ratification of the CISG in the UK is the delay in legislative process.[17]5 Since the CISG has to join the queue in a long list of other legislative priorities.[176]

However this is surmountable with the right amount of pressure on policy makers by business enterprises and the legal academia emphasizing the urgency of ratification especially in light of the archaic framework governing international trade in Nigeria.

3.3.5 Existent trade usages and standard contracts in Nigeria

The existence of trade usages and standard contracts may make ratification of the Convention in Nigeria seem unnecessary. A major objection against unification of laws such as the CISG is that international trade already has standardized trade terms which parties are familiar with and which cover virtually all the areas dealt with by the CISG.[177] Sceptics further claimed unification was irrelevant because as time went on, traders would make the necessary reforms themselves as is the case with the INCOTERMS and the UCP.

These assertions fail because the CISG combines the legal principles of the UCP and INCOTERMS with general trade practices and usages.[178] Besides, efforts by some groups [179] to undertake a broader unification of total law of international sales have been restricted to distinct parts of the international transactions. This because such groups "do not have the necessary legislative powers to introduce such reforms"[180] therefore, they support the CISG.

The suggestion that trade usages and practices have long existed, making traders more conversant with them does not detract from the convention's significance. The CISG covers many situations where no standard form or terms are used or, where they are deficient. The author suggests that the CISG be seen for its complementary role to trade usages and standard contracts because neither the Convention nor the Standard contracts and trade practices necessarily cover all the areas in trade.[181] Going by the above therefore, one may argue that where the CISG is ratified, it could supplement the archaic sales laws currently in operation in Nigeria.

3.4 Conclusion

The criticisms against the Convention seem not to be concrete because the Convention keeps evolving and providing mechanisms to ensure uniformity. It has also been demonstrated that the possible challenges can be surmounted. In light of this, nothing should hinder nigeria from proceeding with this ratification.

CHAPTER FOUR: 4.0 THE NEED FOR THE CISG IN NIGERIA

Having discussed the antiquated state of the Nigerian Sales law,[182] the volume of international trade in Nigeria with the total results of merchandise trade for the year 2010 amounting to ($2.948.7)billion makes the Convention vital. This translates to an increase of 57.5% over that of year 2009 valued at ($1.872.36)billion.[183] This improved international economic environment is particularly beneficial for Nigeria as a developing country because international trade is both reflecting and contributory to the global economic recovery.[184] Nigeria's top three trading partners with respect to import have ratified the CISG and it is operative in their country.[185] Therefore, ratification will not only ensure smoother cross border transaction it will improve the economic environment.

4.1 Why Has Nigeria not Ratified the Convention?

Although the CISG is known internationally, it seems Nigeria is oblivious to its existence. The International and Comparative Law department of the Federal Ministry of Justice Nigeria advises the Nigerian Government on the vetting and ratification of International Conventions.[186] This seemed the best place to make enquiries regarding the Convention and its status in Nigeria. However, a visit to the department revealed a blatant ignorance of the existence of the CISG.[187] Interestingly, other Conventions by the UNCITRAL are well known.[188] This ignorance could be a major reason why the Convention has not been ratified. Of course, what the legislators are not aware of, they would not see as necessary.

4.2 The CISG: A Necessary Tool for International Trade in Nigeria

4.2.1 Reduction of Costs and Legal Certainty

The Convention seeks to promote international trade by reducing costs of transactions and ensuring legal certainty. This ensures a more efficient and competitive market for the maximisation of international trade. A common impediment faced by less experienced businesses in Nigeria and the world over is the foreign legal environment which the contract is entered.[189] This is because of the difficulty in assessing the foreign law and the distribution of bargaining power.[190] By providing a standard legal language and a method of categorizing and interpreting legal rules, the CISG invariably reduces legal knowledge costs for parties.

Usually, when contracts are drafted, parties discover in the event of dispute that supposedly detailed provisions turn out incomplete. This is because parties find it expensive to include all the necessary provisions which they might require, and where they do, the limit to human cognition may prevent the drafters from recognising all possible contingencies.[191] Where the CISG operates, the Nigerian businessman may redraft his standard terms and conditions to make provision for the requirement and stipulation of the Convention, knowing it will fit with the applicable legal system and mitigate monstrous drafting costs. The choice of opting out ensures parties are not constrained to keep themselves tied to the Convention but can have their own terms and conditions tailored to suit their needs. Thus, by providing a legal foundation with default terms familiar to parties while working to reduce transaction costs and ensuring certainty, the Convention proves to be a necessary tool for facilitation of trade.[192]

4.2.2 Simplification of Choice of Law Conflicts and Neutrality

In order to foster wealth redistribution and diversify economies, a developing economy like Nigeria needs to encourage its small and medium sized enterprises. This is important because these enterprises, which are the support for contemporary economies, in some ways address structural problems.[193] A major problem for medium sized businesses in international transactions is the conflicts of the choice of law. The ratification of the CISG in Nigeria will help simplify the choice of law applicable to contracts.

For instance, in a contract of sale of goods concluded between a businessman from a developed country and a Nigerian, it will be the case that the law chosen is either that of the developed country or of a third nation. This will leave the Nigerian disadvantaged and potentially struggling to acclimatize with the foreign laws chosen, incurring expenses in doing so. However, where the Convention operates, its selection as the substantive law governing the trade transaction eliminates the struggle of adapting to new laws. Thus, the Convention ensures constructive, neutral and even-handed approach.[194]

In China, where the Convention applies [195] it automatically obviates any consideration of choice of law rules.[196] Since the CISG came into force in China, more foreign trade contracts have added it as the applicable law to the contracts with their Chinese counterparts. This was not the case when China had three laws regarding economic contracts.[197] The CISG thus serves as a compromise and a neutral alternative for both parties.

The Convention also guarantees that priority is not given to either seller or buyer. Where the CISG operates, although parties may find themselves in different bargaining positions, no priority is given either to buyer or seller. This ensures a more neutral arrangement for contractual relationships.[198] Where contracts fail to specify the choice of applicable law, the applicability of the Convention triggers its operation in the event of dispute, ensuring parties are not left in quandary for deciding the applicable law.

For the small and medium sized businesses, the promise of an even bargaining position and the right to modify or exclude the provisions of the convention to suit their contracts serves as a guarantee to a healthy business environment. Consequently, allaying fears associated with embarking on international trade with foreign companies.[199]

4.2.3 Consistency, Accessibility and Intelligibility

An important aim of any legal system is to ensure that parties can operate with minimum friction.[200] This is done by ensuring the rules are fair and equitable, consistent, certain and not beset with complexities.[201] By ratifying the CISG, Nigeria is offered a logical, coherent and comprehensive framework for working through complex legal issues that can develop in negotiating and implementing cross-border sales.[202]

Another reason why Nigeria should adopt the Convention is its accessibility. This may be of great benefit for the Nigerian lawyer, rather than struggling with the cumbersome case laws, they can opt for the CISG which is logical, generally tracking the issues as they arise in actual commercial transactions.[203] Empirical research has shown that the accessibility of the Convention has been of some benefit to common law lawyers in Australia.[204] These qualities also work in favour of the clients who can "double- check" decisions by lawyers by carrying out their own research on the CISG website, where concise and logical authoritative materials on the CISG are set out.[205] Lawyers will find services such as the "Case Law on UNCITRAL Texts" (CLOUT) on the UNCITRAL website with over a thousand cases well documented, as being useful and simplifying research.[206] Alternatively, the Pace University website covers more cases and websites are maintained by other countries with important secondary materials which present even more options.[207] This means that Nigerian lawyers have access to materials in the event of a dispute arising under the CISG because the internet makes it possible to access such materials.

The intelligibility of the guiding principles of the Convention which seems to accord better with commercial expectations is also appealing.[208] The Convention's readiness to uphold contract formation than the English law tradition, and its cautiousness about termination of contract, unless all hope is lost for the relationship, proves to be a better fit with the expectations and practices of traders worldwide.[209]

The benefits of ratifying the CISG in Nigeria is not limited to dispute resolution processes. It ensures that when businessmen and their legal advisers are drafting sales and commercial agreements, the contract terms will be more favourable for all parties involved as it encourages trade usages and practices worldwide.

4.4 The CISG: A Catalyst for Reforming the Nigerian Sales Law

The CISG has proven to be an ideal model for reforming domestic sales law. Generally, once ratified, it becomes the domestic law for the Contracting State. The implies that where contracting parties have their relevant places of business in different contracting states and the contract falls within the scope of the CISG, the contract is automatically governed by the CISG unless the parties indicate otherwise.[210]

The antiquated nature of the Nigerian Sale of Goods Act makes it unsuitable for modern commercial practice. The CISG being of fairly recent origin and having been drawn from the experience of a multitude of different laws of sale in constructing a very up to date sales law, specifically aimed at international transactions, offers a much more diverse and current law.[211]

The Convention has proven to be successful not only internationally but domestically.[212] As a key model, the convention has stimulated the reform of national sales law [213] in countries that have adopted it. This is because of its perceived "greater attunement to modern commercial conditions than old-style national laws."[214] For instance, Finland and Sweden introduced the Convention alongside their domestic sales law using it as a blueprint for the reform of their domestic [215] Sales Acts. Norway in addition to adopting the CISG, transformed it into a single statute applicable to both domestic and international sales.[216] The compatibility of the CISG is also seen in the respective national legislation in post soviet countries. For instance, the Convention's text was consulted when drafting the civil codes of the Commonwealth of Independent States (CIS) countries.[217]

The Convention also served as a basis for the modernisation of the Estonian Civil Code and the Estonian law of obligations.[218] This demonstrates that in addition to forming the basis for the drafting of national sales law, the Convention has also been an important source for drafting the general provisions such as breach of contract.[219] The influence of the CISG is also seen in the modernization of the German Law of Obligations.[220] The Convention is a source of inspiration towards the reform of the German law, aimed at bringing the BGB in line with the CISG.[221] In China, a country with whom Nigeria's total trade investment stands at $8.2 billion,[222] the CISG has had a great influence on the Chinese legal system and culture. The Chinese Unified Contract law is greatly inspired by the CISG.[223]

In light of the above, it is evident that the CISG makes an excellent model for the reformation of national laws with its obvious compatibility and similarity with national laws. It is suggested that Nigeria take a cue from the above countries by acceding to the Convention. Thus, ensuring our national laws are marked closer to international trade laws.

4.5 Policy Concerns

There is a strong correlation between trade and investment, economic development and the rule of law. These elements are mutually reinforcing.[224] International trade while facilitating economic changes in the interest of parties involved, manages to reflect the attitude towards the rule of law. This is because it has a direct impact on economic development and this effect invariably spills over to the rule of law outside the commercial sector.[225]

For instance, china, in seeking to modernise its trade laws and with a view to facilitating its integration in the global economy through increased foreign investment and international trade, adopted the CISG. Through reforms brought about by the Convention, there seemed more economic stability and efficiency, thus fostering sustainable economic development.[226] Since Nigeria aims to develop like China, ratifying the CISG a global sales law will promote economic development and the rule of law.

Additionally, the process of creating the CISG unlike the ULIS and ULF was an inclusive and participative process with Nigeria playing an active role in the drafting process. Thus, there was adequate representation of all groupings in UNCITRAL and its working parties.[227] Since the concerns of developing countries were adequately addressed, there is no doubt that the interests of Nigeria are well represented.

Nigeria's accession to the CISG, considering her position as the "Giant of Africa", could help in encouraging other African nations to follow suit. This is because the facilitation of international trade through a uniform global sales law is an important step in the regeneration of the economies in the region. Since the CISG plays an important role in ensuring that trade barriers are removed, it will promote trade among businesses in Africa.

4.6 Promotion of Globalization and Uniformity

An important aspect of modern life is the idea that we live in a "global village"[228] and contacts with legal systems that are foreign are more common today than ever before. Thus, international commercial law making is no longer the sole preserve of nation states.[229] Although legal realists argue that differences in the political and social makeup between nations impede the successful transplantation of laws [230] however the growth of globalization in the last few decades has tended to blunt national differences favouring instead unification efforts and the development of a new lex mercatoria.

As a result of the legal regime in developing countries generally, there is asymmetry between traders in developed and developing countries. This deprives nations of the benefits of globalisation. Ratifying the CISG, which seeks to promote uniformity and globalisation, would complement and coordinate trade law reform not only on a global but on a continental level.[231]

It is obvious that the reality of economic exchanges does not always follow legal heritage. For instance, many OHADA member States have strong commercial relations with Nigeria and yet Nigeria does not participate in OHADA.[232] Where the CISG, a global trade law text is ratified, it will serve to overcome the obstacles arising from the difference in legal systems regionally.[233]

4.7 The Success of the CISG and its Impact on Scholars Globally

The Convention has become one of the topics constantly discussed in academic circles, amongst scholars dedicated to contract law, commercial law and private international law.[234] As one author remarked, "CISG is an invaluable source of reflection on domestic contract law and contract law in general."[235] This interest is evidenced by the fact that scholars from non-contracting States have devoted much attention to it, comparing the Convention to their domestic laws and emphasizing the importance of adoption as it does not conflict with their domestic laws.[236]

That the Convention is not limited to scholars who specialize in international business law or private international law is important for the promotion of the Convention's ultimate goal of uniformity.[237] With different scholars focusing on different angles, it is an added benefit for Nigeria to accede to the Convention because Nigerian scholars would be exposed to a wider horizon and would stay current amongst their international counterparts.

The Nigerian legal system could also benefit from scholars making comparisons between some of the Nigerian domestic contract law and the CISG. This is necessary because where domestic solutions are unsound; the Convention could be used as a source of inspiration for a legislative reform.

4.8 Lessons for Nigeria - A Comparative analysis of the CISG with German and UK Sales Law

This section analyses the compatibility of the CISG with domestic Sales Laws in the UK and Germany. This is to demonstrate the flexibility and adaptability of the Convention with the domestic sales laws in two different jurisdictions.

4.8.1 Price Reduction

Where a seller fails to deliver goods that are of the same quality and quantity with the description (article 35), the CISG, (article 50) permits the buyer to reduce the price in the same proportion as the value of goods at the time of delivery. This right to reduce price is unknown in the English SOGA.[238]

Although article 50 is modelled after the German civil code, they do not serve the same function. This is because the buyer may choose a number of remedies under the German law.[239] The SOGA however, provides in Article 30(1) that if a buyer accepts delivery of a quantity of goods less than what was contracted for; he must pay at the contract rate. Additionally, section 53(1)(a) of SOGA, permits buyer to deduct damages from the price for a defect in the quality of goods. Although these provisions have similar results with that of the CISG,[240] there are numerous differences.[241]

Scholars suggest the price reduction remedy is a valid alternative to damages especially in the event of force majeure or a falling market price.[242]

4.8.2 The Right to Cure

Under articles 37 and 48 of the CISG, parties are permitted to remedy defects both before and after the date for delivery. While article 37 [243] is recognised in most legal systems, Article 48 [244] is unfamiliar to most European legal systems. Under the German law, while the seller is entitled to cure a defective tender by substituting with the time limit fixed by the contract, there is no provision for the right to cure after the contract period.[245] However, on the basis of the principle of good faith, sellers are now entitled to cure after due date for performance in limited circumstances.[246]

The provisions of the SOGA do not offer the seller a right to cure. However, case laws provide the seller has a right to cure defective performance before the date for performance lapses.[247] Regarding the right to cure after the specified time, 'there is great uncertainty, at least in English law, as to the existence and extent of the seller's right to repair or replace defective goods."[248]

Although the right to cure after date of delivery may create confusion, article 48 and 49 provide some protection. The buyer may on his own accord request that the seller cure the defects within an additional period of time.[249] Thus, the uncertainty created by the seller's right to cure is offset by giving the buyer the opportunity to force the seller to perform or terminate.

The right to cure after delivery under the CISG works better with commercial practice than the English sales law.

4.8.3 Granting of Additional Time Period

Articles 47(1) and 63(1) of the CISG allow the buyer or seller to fix additional period of time in which the other may perform, in the event of late performance. After notice, the party granting the additional time is barred from resorting to any remedy asides damages.[250] Failure to perform allows the innocent party to declare the contract avoided.[251]

This provision is similar to the German Law Concept of a Nachfrist. However, it serves a different function from that under the CISG. First, the BGB [252] does not differentiate between simple and fundamental breaches of contract and the right to terminate a contract under limited circumstances.[253] Additionally, there is no security of the injured party's right to avoid contract as is found in articles 47 and 63 of the CISG. Therefore, commentators suggest that the German law is not the model on which articles 47 and 63 are based.[254]

The English law does not provide a time extension clause unlike the CISG and German law. This is because time obligations are based on the doctrines of conditions and warranties.[255] To interpret this, the SOGA is on the presumption that time of payment is not of the essence and the basis of construction of contract.[256] Where a party wants to declare the second contract avoided, problems similar to that in article 25 of the CISG is encountered. Where the contract is silent, it will be difficult to determine whether time clause is a condition.[257]

Although the granting of additional time located in articles 47 and 63 of the CISG is an advantage, scholars suggest the English law is less complicated than the provisions of the CISG.[258]

4.9 Conclusion

The provisions of the CISG not only provide effective and modern solutions to international sales, they are in harmony with current commercial practices. The comparison between the CISG and the German law demonstrate how the Convention can coexist with domestic sales law. It is suggested that Nigeria should take a cue from this and consider a reform of the domestic law after ratification.

CHAPTER FIVE

5.1 CONCLUSION

The Convention is not a perfect success story. However, any quest for a perfect uniform law is misguided. By offering predictability and certainty to international sales law, there is no doubt that it is a good choice as the governing body in most international sales transactions.

In this era of unprecedented globalisation, Nigeria being a developing country should welcome this trend in order to bolster economic growth through the harmonised platform which the CISG provides for conducting commercial transactions.

5.2 RECOMMENDATIONS

The following is proposed alongside the ratification of the Convention. This is to ensure successful implementation and awareness.

The introduction of the CISG in law schools all over Nigeria, making it part of the regular law school curriculum. This is what is applicable in countries such as China, Croatia and Denmark and it is proven to be one of the most effective ways through practicing lawyers become familiar with the Convention.

The Institute of Continuing Legal Education (ICLE) of the Nigerian Bar Association [259] could offer introductory courses to practicing lawyers on the CISG based on existing professional rules which mandates all Nigerian lawyers to engage in continuing legal education. This medium has helped increase awareness in other jurisdictions.[260]

Finally, it is suggested that greater awareness could be created through the publication of both commentaries and court decisions in specialized law reviews

The CISG is a success as a uniform legal framework and the Nigerian Government should as a matter of urgency propose legislative action to ratify the CISG. This is for consequential reforms to domestic laws on the sale of goods.


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<http://www.un.org/esa/policy/wess/wess2004files/chap2web.pdf>

Thesis

Oosthuizen B, 'Rights, Duties and Remedies under the United Nations Convention on Contract for International Sale of Goods- An investigation into the CISG's Compatibility with the South African Law' (Masters of Law Thesis, Rhodes University 2008) 69


LIST OF ABBREVIATIONS

BGB  Burgerliches Gesetzbuch
Limitation Convention     Convention on the Limitation Period in the International Sale of Goods
FECL  Law on Contracts involving foreign Interests
UNIDROIT  International Institute for the Unification of Private Law in Rome
OLG  Oberlandesgericht
PECL  Principles of European Contract Law
SOGA  Sale of Goods Act 1979
PICC  UNIDROIT Principles
UCC  Uniform Commercial Code
ULIS  Uniform Law on International Sales
ULF  Uniform Law on the Formation of Contracts for the International Sale of Goods
UNCITRAL  United Nations Commission on International Trade Law
CISG  United Nations Convention on Contracts for the International Sale of Goods


TABLE OF CASES

AG Nordhorn (F.R.G), No.3 C 75/94, UNILEX (14 June 1994) LG Oldenburg

Borrowman, Phillips & Co. v. Free & Hollis [1878] 4 Q.B. 500

Bunge Corporation, New York v Tradax Export S.A., Panama [1981] 1 W.L.R 711 (HL).

E.E & Brian Smith (1928) Ltd. v Wheatsheaf Mills Ltd. [1939] 2 K.B. 302, 315

Genpharm Inc. v Pliva-Lachema A.S. U.S. District Court for the Eastern District Court of New York, 19 March 2005

Hick v Raymond & Reid, [1982] 1 AC 22 (ENG)

MCCMarble Ceramic Center v Ceramica Nuova D'Agostino, 144 F.3d 1384 (11th Cir.1998)

Monkland v Jack Barclay Ltd. [1951] 2 K.B 46

Motor Oil Hellas (Corinth) Refineries S.A. v Shipping Corp. Of India, (The Kanchenjunga), 1 Lloyd's Rep. 391, 399 (H.L. 1990)

Raw Materials Inc. v Manfred Forberich GmbH & Co., KG, U.S. Northern District of Illinois, Eastern Division, 6 July 2004 WL 1535839

Travelers Property Casualty Company of America et al. v Saint-Gobain Technical Fabrics Canada Limited U.S. District Court, Minnesota, 31 January 2007

St. Paul Guardian Insurance Co. et al. v Neuromed Medical Systems & Support GmbH, et al, U.S. District Court for the


TABLE OF LEGISLATION

The Sale of Goods Act 1893

The Sale of Goods Law 1959 Cap 115, Laws of Western Nigeria 1959

The United Nations Convention on Contract for International Sale of Goods 1980 (CISG)


ACKNOWLEDGEMENTS

Give unto the Lord the Glory due to His Name (Psalm 29:2). I am humbled because I know this thesis would not have been possible without the grace of God.

To my family, thank you for the constant support and dedication in enabling and encouraging my education.

I am especially grateful for the assistance and information offered by the counsels in the International and Comparative law Department of the Federal Ministry of Justice Nigeria.

I would further like to express my gratitude to Dr Jonathan Mukwuri for his constant patience and direction throughout the duration of the research.

To my beautiful and loyal friends who have constantly given their support, advice and reassurance. I appreciate it.


FOOTNOTES

1. As of 1st of August 2011, UNCITRAL reports that 77 States have adopted the CISG. The latest country to ratify the CISG is Benin Republic. PACE Law School CISG Website <http://www.cisg.law.pace.edu/cisg/countries/cntries.html> accessed 3 August 2011.

2. Antonin I. Pribetic, 'An "Unconventional Truth": Conflict of Laws Issues Arising under the CISG' (2009) 1 NJCL. <http://www.njcl.utu.fi/1_2009/article3.pdf> accessed 6 August 2011.

3. Hereinafter referred to as the "CISG" or the "Convention". The CISG was promulgated in 1980 by the UN Commission for International Trade Law (UNCITRAL), and is sometimes referred to as either the UNCITRAL or Vienna Convention on the International Sale of Goods, Apr. 11, 1980, S. Treaty Doc. No. 98-99 (1983), 1489 U.N.T.S. 3. <http://daccess-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/390/70/IMG/NR039070.pdf?OpenElement> accessed 4 September 2011.

4. For Arguments against the Convention see Kazuaki Sono, 'The Rise of Anational Contract Law in the Age of Globalization' (2001) 75 TLR 1185, 1185; Stacey A Davis, 'Unifying the Final Frontier: Space Industry Financing Reform' (2001) 106 CLJ 455, 477; Sandeep Gopalan, 'The Creation of International Commercial Law: Sovereignty Felled?'(2004) San Diego Int'l L. J 267, 289; Peter Schlechtriem, 'Of words and Issues-Finding a Common Language for Common Issues, Review of the Convention On Contracts for International Sale of Goods (CISG) 79, 80 (2003-2004).

5. Luke Nottage, 'Who's Afraid of the Vienna Sales Convention (CISG)? A New Zealander's View from Australia and Japan' (2005) 36 VUWLR 815-845, 818.

6. Ibid, Nottage (n 5)

7. Ibid, Nottage (n 5)

8. Bruno Zeller, 'The Development of Uniform Laws - A Historical Perspective'. Pace Law School CISG Database <http://www.cisg.law.pace.edu/cisg/biblio/zeller5.html> accessed 15 July 2011.

9. Ibid, Zeller (n 8).

10. Michael Bridge, 'Uniformity and Diversity in the Law of International Sales' (2003) 15 PILR 55-89, 55.

11. Chosen on December 12 2005 based on macro-economic stability, political maturity, openness of trade and investment policies and the quality of education, the Next Eleven (N-11) countries identified by Goldman Sachs investment bank are Bangladesh, Egypt, Indonesia, Iran, Mexico, Nigeria, Pakistan, Philippines, South Korea, Turkey and Vietnam have the potential of becoming the world's largest economies in the 21st century. Global Economic Website. <http://www.chicagobooth.edu/alumni/clubs/pakistan/docs/next11dream-march%20'07-goldmansachs.pdf> accessed 10 August 2011.

12. Stella Odueme, 'Rencap projects 8% growth for Nigeria in 2011' (Daily Independent 9 May 2011) <http://www.independentngonline.com/DailyIndependent/Article.aspx?id=33492> accessed 10 August 2011.

13. Global Economic Website. <http://www.chicagobooth.edu/alumni/clubs/pakistan/docs/next11dream-march%20'07-goldmansachs.pdf> accessed 10 August 2011.

14. There is an increase of 57% over that of the year 2009. The value for 2009 stands at N12,482.4 billion. This figure is attributed to both an increase in import and export valued at N1600.7 billion or 31.71% and N5,575.4 billion or 75.0% respectively within the period. The non oil value stood at N3,856.8 billion with an increase value of N,2706.7 billion or 234.34% over the previous year. Statiscal news, trade statistics, National Bureau of statistics <http://www.nigerianstat.gov.ng> assessed 3 August 2011.

15. The Sale of Goods Act 1893 is part of the Statutes of General Application, which is a United Kingdom legislation applicable in Nigeria. 30 Halsbury's Stats. of England 6 (1971); The Pub. Gen Acts of the United Kingdom and Great Britain, 353 (1894). However this Act is not applicable to states in the Western region of Nigeria. The Sale of Goods Law 1958 as amended is applicable to these states in the Western region.

16. Cap 115, Laws of Western Nigeria 1959. As mentioned above, this law only applies to the former Western States and Bendel. This law is almost a replica of the Sale of Goods Act 1893. John Agbonika and Josephine Agbonika, Sale of Goods (Commercial Law) (Ababa Press Ltd 2009) 2.

17. Nkiruka Maduekwe, 'The CISG and Nigeria: Is there a Meeting Point' (2010) CAR <http://www.dundee.ac.uk/cepmlp/car/html/car14_abstracts10.php> accessed 15 June 2011.

18. Peter J. Mazzacano, 'Canadian Jurisprudence and the Uniform Application of the UN Convention on Contracts for the International Sale of Goods' (2006) 18 PILR 1, 13.

19. For Arguments for and against unification, see Paul B. Stephan, 'The Futility of Unification and Harmonisation in International Commercial Law, (1999) 39 Va. J. Int'L. 743, 750; Gopalan (n 4)

20. Hannu Honka, 'Harmonization of Contract Law Through International Trade: A Nordic Perspective' (1996) 11 TUL. EUR. & CIV. L.F. 111, 113.

21. Mazzacano (n 18); Sieg Eiselen, 'Adoption of the Vienna Convention for International Sales of Goods (the CISG) in South Africa' (1996) 116 SALJ II 332-370.

22. Heidi Stanton, 'How to Be or Not to Be: The United Nations Convention on Contracts for the International Sale of Goods, Article 6' (1996) 4 CJICL 423-449, 424.

23. Peter Winship, The Scope of the Vienna Convention on International Sales Contracts, in Nina Galston and Hans Smit (eds), International Sales: The United Nations Convention On Contracts For The International Sale Of Goods (Juris 1999) 1.02[5]; Errol P. Mendes, 'The U.N. Sales Convention and U.S.-Canada Transactions; Enticing the World's Largest trading Bloc to Do Business Under a Global Sales Law, (1988) 8 J.L. & Com. 109; Kazuaki Sono, 'The Vienna Sales Convention: History and Perspective, in Peter Sarcevic and Paul Volken (eds), International Sale of Goods: Dubrovnik Lectures, Oceana (1986), Ch. 1, 1-17.

24. Convention Relating to a Uniform Law on the International Sale of Goods, (ULIS) 1 July 1964, 834 U.N.T.S 107, 3 I.L.M. 855 (1964).

25. Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods, (ULF)1 July 1964, 834 U.N.T.S 169, 3 I.L.M 864 (1964)

26. This was in part because the result was considered to have been dominated by European Legal concepts that were not recognised elsewhere. The Conventions were equally deficient in some of their material stipulations, very complex, abstract and aimed at regional rather than global unification. A survey carried out by the UN to find out the reasons for non accession revealed this. See 1968 UN Monthly Chronicle March 35; 1968 UN Yearbook 838; Eiselen (n 21); M L Zionitz 'A New Uniform Law for the International Sale of Goods: Is it Compatible with American Interests?'(1980) 2 Northwest Journal of International Law and Business 146-147; see also the 1969 UN Yearbook 775. On UNCITRAL see Ernst Von Caemmerer 'Internationale Vereinheitlichung des Kaufrechets' (1981) 77 Schweizinsche Juristen Zeitung 259. in Eiselen (n 21)334; John Honnold, Uniform Law for International Sales (Kluwers Law International, 3rd edn 1999) 7-12.

27. Errol P. Mendes, "The U.N. Sales Convention and U.S.-Canada Transactions; Enticing the World's Largest trading Bloc to Do Business under a Global Sales Law," (1988) 8 J.L. & Com. 109; Eiselen (n 21).

28. The UNCITRAL was established by the General Assembly in 1966 by Resolution 2205 (XX1).

29. Stanton (n 22) 425.

30. UNCITRAL established a drafting Committee for the purpose of consolidating the two treaties into a single document. Interestingly, Nigeria was a part of the Drafting Committee: Chile, Egypt, France, Hungary, India, Japan, Mexico, Nigeria, the USSR and the United Kingdom. Clayton P. Gillette and Robert E. Scott, 'The Political Economy of International Sales Law' (2005) New York University Law and Economics Research Paper Series Working Paper No. 05-02 <http://ssrn.com/abstract=709242> accessed 25 May 2011; Mazzacano (n 18); Stephan (n 19).

31. Among the 62 representatives, 29 represented third world countries, 22 European and developed Western States and 11 Socialists countries. This shows that the initial fear associated with the ULIS and ULF (poor representation of third world countries) was eliminated.

32. The first part contains 13 Articles. By the provision of Article 1(1), the Convention applies to "contracts of sale of goods between parties whose places of business are in different States." The definition of the place of business leaves significant ambiguity about what law governs where a party has multiple places of business. For discussion see Stephan, (n 19) 774.

33. Such procedural issues include the ability of those who wish to become Contracting States to declare their unwillingness to be bound by certain provisions, and the terms under which the CISG becomes effective among Contracting States. Gillette and Scott (n 30); Disa Sim, 'The Scope and Application of Good faith in the Vienna Convention on Contracts for the International Sale of Goods' <http://www.cisg.law.pace.edu/cisg/biblio/sim1.html#i> accessed 10 August 2011.

34. Matters of contract validity, the effect of the contract on the property in the goods sold (Article 4 explicitly excludes these matters) and the liability of the seller for death or personal injury caused by goods (Article 5).

35. The interpretation of the CISG has attracted a lot of criticism. The structure of the CISG has been termed "uneasy" and "strange" Arthur Rossett, 'Critical Reflections on the United Nations Convention of Contracts for the International Sale of Goods, 45 (1984) Ohio St. L.J. 265, 281 and Gyula Eorsi, 'Problems of Unifying Law on the Formation of Contracts for the International Sale of Goods, (1979) 27 AM.J.COMP.L. 311; Gyula Eörsi, 'A Propos the 1980 Vienna Convention on Contracts for the International Sale of Goods', (1983) 31 AM. J. COMP. L. 333, 348-349; Sim (n 33) Jacob Ziegel, 'The Future of the International Sales Convention from a Common Law Perspective' (2000) 6 New Zealand Business Law Quarterly 338.

36. The preamble in full states:

THE STATES PARTIES TO THIS CONVENTION,
BEARING IN MIND the broad objectives in the resolutions adopted by the sixth special session of the General Assembly of the United Nations on the establishment of a New International Economic Order,
CONSIDERING that the development of international trade on the basis of equality and mutual benefit is an important element in promoting friendly relations among States,
BEING OF THE OPINION that the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade,
HAVE DECREED as follows: [the provisions of the CISG follow].

Article 7

"(1) 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 and the observance of good faith in international trade.

"(2) Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law."

37. Michael Bridge, The International Sale of Goods: Law and Practice (OUP 1999) 37; Pace Law School CISG Database <http://www.cisg.law.pace.edu/cisg/cisgintro.html>.accessed 13 August 2011.

38. To emphasize this, The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the 'New York Convention') the most widely- adopted treaty in international trade and one of the most popular treaties ever with 145 State parties, 30 of which (out of 54 African States) are African. However, Nigeria is among the ratifying States. Luca .G. Castellani, 'International Trade Law Reform in Africa' <http://www.acicol.com/__temp/Mr.pdf> accessed 17 August 2011.

39. ibid. Initially, it was believed that adoption of uniform laws was imminent in Africa because African commercial laws with basis on colonial laws had limited original sources and as a result, enjoyed uniformity at the time of decolonization.

40. As of 1 August 2011, Benin Republic was the latest African State to ratify the Convention.

41. By far, the most important method of reception of English law in Nigeria is through local statutes. In this fashion has the whole system of English common Law and Statutes of general application in England as of January 1, 1900 been integrated in the Nigerian Legal System.(It applies everywhere in Nigeria except in Bendel, Ekiti, Ogun, Ondo, Oshun and Oyo States and any other States created from the former western region.) Olakunle Orojo, Nigerian Commercial Law and practice (Sweet & Maxwell 1983).

42. Charles Mwalimu, The Nigerian Legal System volume 2 Private Law (Lang 2009) 397-410.

43. Ibid. In the United Kingdom, the Sale of Goods was superseded in 1979 by the Sale of Goods Act 1979, ELIZ. 2. C.54; The Pub Gen Acts & Measures 1315 (1979). Part II of this instrument consolidated the law of sale of goods, others sales and obligations effective January 1, 1980.

44. Mwalimu (n 42)

45. These terms have over the years evolved by trade usages, customs and practices of merchants and they are "a shorthand or abbreviated way of incorporation of some aspects of contractual obligations and performance in sales contracts" The International Chamber of Commerce (ICC) based in Paris came out in 1936 with their uniform definitions officially called International Rules for Interpretation of Trade Terms popularly known as INCOTERMS which constitute a common and universal international trade language, resulting from international commercial practice. Mike Igbokwe, 'Contracts of Sale/Purchase and Carriage of Goods' <http://www.mikeigbokwe.com/mikework/Contracts%20of%20sale%20&%20Carriage%20of%20Goods.pdf> accessed 30 August 2011.

46. The word "accession" as opposed to adoption is used because it is not a signatory to the Convention as it failed to sign the Convention when it was open for signing. So the proposal is for accession- this term is used by the UNCITRAL.

47. James E. Bailey, 'Facing the Truth: Seeing the Convention on Contract for the International Sale of Goods as an Obstacle to a Uniform Law of International Sales' (1999) 32 Cornell International Law Journal 273; Stephan (n 19) 743; Steven Walt, 'Novelty and the Risk of Uniform Sales Law' (1999) 39 Va. J. Int'L. 671.

48. Joseph Lookofsky, 'Loose Ends and Contorts in International Sales: Problems in the Harmonisation of Private Law Rules (1991) 39 American Journal of Comparative Law 403, 403.

49. Wayne Barnes, 'Contemplating a Civil Law Paradigm for a Future international Commercial Code' (2005) 65 Louisiana Law Review 677, 678.

50. Criteria such as the number of Contracting States 77 states, which admittedly is impressive; the percentage of world trade to which it applies-two thirds and the fact that the CISG is increasingly being applied by both arbitral tribunals and State Courts.

51. Franco Ferrari, 'The CISG and Its Impact on National Contract Law-General Report'. <http://www.bibliojuridica.org/libros/6/2843/8.pdf> accessed 1 September 2011.

52. Gillette and Scott (n 30)

53. ibid. These are legal knowledge costs and problem solving costs.

54. ibid.

55. Thus, some commentators have aptly referred to the CISG's "Austrahlungswirkung" defined as the CISG's effectiveness beyond its scope as a measure of success. Ulrich Magnus, 25 Jahre UN-Kaufrecht, Zeup (1993) 79-99; Ragno, Convenzione di Vienna e diritto europeo (2008) 233 and 259 in Ferrari CISG and its impact (n 51) 127.

56. Ferrari CISG and its impact (n 51) 123.

57. ibid 123.

58. Franco Ferrari, 'Universal and Regional Sales Law: Can they Coexist' (2003) 8 Uniform Law Review 177.

59. Castellani (n 38).

60. This entered into force on 1 January 1998 in 16 countries. As of the date of writing the paper the following States are member States of OHADA: Benin, Burkina Faso, Cameroon, Central African Republic, Cote d'Ivoire, Congo, Comoros, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Niger, Senegal, Chad and Togo. OHADA.com <http://www.ohada.com/> accessed 20 August 2011

61. The CISG entered into force for Guinea on the 1 February 1992, for Gabon on 1 January 2006 and most recently for Benin Republic on 1 August 2011 but becomes effective on 1 August 2012.

62. Several aspects of the OHADA have been criticized. First, there is the democratic deficit of enacting it. Ministers approve the laws not parliaments or legislatures. Since Council members are appointed by executives of OHADA nations, the laws are not directly enacted by the people's representatives. Second, French is the only working language of the OHADA and the only authoritative version of the OHADA treaty is in French (for Nigeria, an Anglophone country, the author suggests this is a major hindrance). Third, while the CCJA interprets the OHADA, there is tension between the national court system and the CCJA. Professor Claire Dickerson however, suggests ways of improvement. For further discussion see Martha Simo Tumnde and others, Unified business Laws for Africa: Common Law Perspectives on OHADA (GMB Publishing Ltd 2009).

63. Castellani (n 38).

64. Acceding to the CISG will also be easier since the OHADA is inspired by the CISG. Castellani (n 38).

65. The CISG just became effective in Armenia as of January 1 2010. Tajikistan and Turkmenistan are excluded because it is an obvious fact that the Tajikistan is still handicapped by the civil war while Turkmenistan just opted to isolate itself from international conventional life. Rolf Knieper, 'Celebrating Success by Accession to CISG" <http://www.uncitral.org/pdf/english/CISG25/Knieper.pdf> accessed 20 July 2011.

66. Ibid.

67. There is no doubt that the Convention will eventually make its way to ratification although it will be a slow process.

68. This information is gotten from Rolf knieper's article and at the time of his writing in 2005 this was the position. It is important to note that at the time of writing his article, Armenia had not ratified the CISG although the constitutional Court had confirmed the constitutionality of the CISG and the Government had sent the text for ratification to the parliament after the necessary approval by the Minister of Foreign Affairs. Presently Armenia is a Contracting State.

69. When the civil codes of some of the Commonwealth of Independent States (CIS) countries were drafted the Convention's text were consulted. Of course, for countries which followed the CIS-Model Civil Code there are differences with the CISG. Presently, Uzbekistan has also started to modernize its national Civil Code with a group of drafters who are more oriented towards the CISG. For further discussion, Knieper (n 65).

70. Zeller, The Development of Uniform Laws (n 8) 168.

71. First, after the Convention was promulgated, the UK adopted a policy of 'wait and see' (to see if their major trading partners would ratify) Barry Nicholas, The United Kingdom and the Vienna Sales Convention: Another Case of Splendid Isolation?, (Lecture at Saggi, Conferenze e Seminari, Centro di Studi e Ricerche di Diritto Comparato e Straniero Centre for Comparative and Foreign Law Studies Austria 1993). Subsequently, steps were taken in 1989 and in 1997 when the Department of Trade and Industry issued consultation documents asking the business community for opinions on an eventual ratification of the CISG. While a majority responded in the affirmative, the responses received were not representative enough.

72. Sally Moss, 'Why the United Kingdom has not ratified the CISG' (2005) 25 J.L. & Com. 483, 483.

73. For example, Article 25 and 49 of the CISG indicate that a fundamental breach is a precondition for avoidance of contract, whereas according to the English sale of Goods Act any conformity will be considered as a breach of condition and thus a ground for termination of contract. Michael Bridge, 'A Law for International Sales' 37 H.K. L.J. 17, 40 (2007); Nathalie Hoffman, 'Interpretation Rules and Good Faith as obstacles to the UK's Ratification of the CISG and the Harmonization of Contract Law in Europe' (2010) 22 Pace International Law Review 141, 152.

74. Moss (n 72) 484.

75. Alison E. Williams, 'Forecasting the Potential Impact of the Vienna Sales Convention on International Sales Law in UK' Pace Law School CISG Database <http://cisgw3.law.pace.edu/cisg/biblio/williams.html> accessed 1 September 2011.

76. ibid.

77. Camilla Basch Andersen, United Kingdom in: Franco Ferrari '(ed.)' The CISG and its Impact on National Legal Systems (Munich Sellier, European law Publ. 2008) 303.

78. Such as America, China and Japan

79. Nicholas (n 71).

80. De Aguilar Vieira, Brazil, in Ferrari, National Legal Systems (n 77) 337.

81. Sieg Eiselen, 'Adopting the Vienna Sales Convention: Reflections Eight Years down the Line' (2007) 19 SA Merc. LJ 24-25.

82. Madrid Martinez, Venezuela, in Ferrari National Legal Systems (n 77) 337.

83. In the early years of the Convention R.J.C Munday stated that "even when outward uniformity is achieved [...] uniform application of the agreed rules is by no means guaranteed, as in practice different countries almost inevitably [...] put different interpretations upon the same enacted words". His statement thus aligns with the position of the Legal Realists. R.J.C. Munday, 'The Uniform Interpretation of International Conventions" (1978) 27 Int'l & Comp. L.Q. 450, 450.

84. Gillette and Scott (n 30).

85. Bailey (n 47) 276.

86. Hein Kötz 'Rechtsvereinheitlichung-Nutzen, Kosten, Methode, Ziele' (1986) 50 Rabels Zeitschrift für ausländisches und internationales Privatrecht 1, 3 in Eiselen, 'Adoption of the Vienna Convention' (n 21).

87. Ingeborg Schwenzer and Paschal Hachem, 'The CISG-Successes and Pitfalls' (2009) 57 American Journal of Comparative Law 457, 467.

88. Admittedly, the CISG is inspired by the continental civil codes as opposed to the common law. ibid; Eiselen, 'Adoption of the Vienna Convention' (n 21) 364.

89. Peter J. Mazzacano, 'Harmonizing Values, Not Laws: The CISG and the Benefits of a Neo-Realist Perspective' (2008) 1 Nordic Journal of Commercial Law <http://ssrn.com/abstract=1434174> accessed 25 May 2011.

90. Article 7(1)

91. See among others, Barnes, (n 49) 754; Joseph Lookofsky 'In Dubio Pro Convention? Some Thoughts About Opt-Outs, Computer Programs and Preemption under the 1980 Vienna Sales Convention (CISG)' (2003) 13 Duke Journal of Comparative and International Law 263, 275; Peter Schlechtriem 'Requirements of Application and Sphere of Applicability of the CISG' (2005) Victoria University of Wellington Law Review 781, 789; Marco Torsello, Common Features of Uniform Commercial Law Conventions. A Comparative Study Beyond the 1980 Uniform Sales Law (Sellier European Law Publishers 2004) 18.

92. Franco Ferrari, 'Have the Dragons of Uniform Sales Law Been Tamed? Ruminations on the CISG's Autonomous Interpretation by Courts' in Camilla B. Andersen and Ulrich G. Schroeter '(eds)', Sharing International Commercial Law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday (Wildy, Simmonds & Hill Publishing 2008) 134-167.

93. DiMatteo 'and others' in their fifteen year review of CISG jurisprudence, found that Cases such as Travelers Property Casualty Company of America et al. v. Saint-Gobain Technical Fabrics Canada Limited U.S. District Court, Minnesota, 31 January 2007 <http://cisgw3.law.pace.edu/cases/070131u1.html>, Genpharm Inc. v Pliva-Lachema A.S. U.S. District Court for the Eastern District Court of New York, 19 March 2005 <http://www.cisg.law.pace.edu/cisg/wais/db/cases2/050319ul.html> accessed 10 August 2011 and Raw Materials Inc. v. Manfred Forberich GmbH & Co., KG, U.S. Northern District of Illinois, Eastern Division, 6 July 2004 WL 1535839 (N.D.Ill) which expressly state that "case law interpreting analogous provisions of Article 2 of the Uniform Commercial Code ("UCC") may also inform a court where the language of the relevant CISG provisions tracks that of the UCC. Larry A. Dimatteo 'and others' 'The Interpretive turn in International Sales Law : An analysis of Fifteen Years of CISG Jurisprudence' (2004) 34 Nw.J. Int'L. & Bus.J. 299, 447.

94. A decision of the U.S. Court of Appeals for the Eleventh Circuit MCCMarble Ceramic Center v. Ceramica Nuova D'Agostino, 144 F.3d 1384 (11th Cir.1998).

95. MCCMarble Ceramic Center v. Ceramica Nuova D'Agostino, 144 F.3d 1384 (11th Cir.1998). it was stated also in St. Paul Guardian Insurance Co. et al. v. Neuromed Medical Systems & Support GmbH, et al, U.S. District Court for the Southern District of New York, 6 March 2002 according to which "the CISG aims to bring uniformity to international business transactions, using simple, non-nation specific language",

96. The Federal Supreme Court of Germany (BGH) the Highest Supreme Court for Civil and Criminal Matters held in 1996 (Art. 7 CISG) Bundesgerichtshof (Germany), 3 April 1996, <http://www.cisg.law.pace.edu/cases/960403g1.html> accessed 10 August 2011 And it is this reasoning that led the Court of Appeal of Karlsruhe to hold that "German legal concepts such as "Fehler" and "zugesicherte Eigenschaften" are therefore not transferable to the CISG", Oberlandesgericht Karlsruhe (Germany), 25 June 1997, <http://www.cisg.law.pace.edu/cases/970625g1.html> accessed 10 August 2011. (German case citations do not identify parties to proceedings)

97. (Art. 7(1) CISG)". Bundesgerichtshof (Germany), 2 March 2005, <http://cisgw3.law.pace.edu/cases/050302g1.html> assessed 10 August 2011.

98. Ferrari in Andersen and Schroeter (n 92). However, Di Matteo notes a good number of the CISG cases fall somewhere in the middle between two extremes of recognition and insensitivity to the interpretive requirements of the Convention Larry A. Dimatteo and others 'The Interpretive turn in International Sales Law : An analysis of Fifteen Years of CISG Jurisprudence' (2004) 34 Nw.J. Int'L. & Bus.J. 299, 447.

99. This is in contrast to the European Communities or OHADA. Schwenzer and Hachem (n 87) 467.

100. Gyula Eörsi, 'A Propos the 1980 Vienna Convention on Contracts for the International Sale of Goods', (1983). 31 AM. J. COMP. L. 333, 348-349. A problem recognised in regards to lack of a court of ultimate resort is the fact that it is not possible to deem any of the courts superior to the other, neither is it possible to advocate the doctrine of "supranational stare decisis" this is because there is no hierarchy of courts of various countries on an international level. Franco Ferrari "Do Courts Interpret the CISG Uniformly?" in Franco Ferrari '(ed)' Quo Vadis CISG? Celebrating the 25th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods (Bruylant, Bruxelles, 2005) 4-5

101. Such resources include the Digest of CISG decisions assembled by the Convention's sponsor, the UNCITRAL. The Digest is available in 6 official U.N languages through the 'Case Law (CLOUT) section of the UNCITRAL website (http://www.uncitral.org/uncitral/en/index.html). For the English language version see Pace Law School CISG Database, <http://www.cisg.law.pace.edu> assessed 15 August 2011.

102. Harry M. Fletchner, 'Recovering Attorneys' Fees as Damages under the UN Sales Convention (CISG): The Role of Case Law in the New International Commercial Practice, with Comments on Zapata Hermanos v. Hearthside Baking', 22 Northwestern Journal of International Law & Business (2002) 121, 122-23.

103. Micheal Joachim Bonnell and Fabio Liguori "The UN Convention on the International Sale of Goods: A Critical analysis on Current International Case Law" (1997) 2 Uniform L. Rev. 359, 374-375.

104. Harry M. Flechtner, 'Globalization of Law as Documented in the Law on International Sales of Goods' in: Eraw, J / Taelman P. '(eds)', Nieuw Internationaal Privaatrecht: Meer Europees, Meer Globaal, No. 35, Kluwer (2009) 541-560, U. of Pittsburgh Research Paper Series No. 2010-09 <http://ssrn.com/abstract=1572917> accessed 24 May 2011.

105. Mazzacano, 'Harmonizing Values' (n 89).

106. Ibid.

107. The common law states are utilising their interpretation tools, such as interpreting general rules or principles and applying them to facts while the failure of the Civil law courts to abide by the stare decisis doctrine has not prevented such courts from paying adequate attention to the cases already decided. Elizabeth H. Patterson, 'United Nations Convention on Contracts for the International Sale of Goods: Unification and the Tension between Compromise and Domination' (1986) 22 Stanford Journal of International Law 263, 282.

108. Article 92(1) permits parties to adopt the CISG, but to declare at the time of approval that they will not be bound by Part II, concerning the formation of contracts, or Part III concerning the Sale of Goods. Article 93 permits a Contracting State to take exceptions for certain territorial units Australia has declared that the Convention shall not apply to certain parts of the Country. Article 94 permits Contracting States that have the same or closely related international sales rules as another state to declare that the CISG does not apply to transactions between businesses located in those states. These include the territories of Christmas Island, the Cocos (Keeling) Islands and the Ashmore and Cartier Islands. Gillette and Scott (n 30).

109. They all exercised their rights not to be bound by Article 1(1)(b) which makes the CISG applicable to contracts between a business located in a Contracting State and a business located in a non-Contracting State. Fritz Enderlein, 'Vienna Convention and Eastern European Lawyer' (1997) International Sales Quarterly 12 <http://www.cisg.law.pace.edu/cisg/biblio/vienna.html> accessed 7 August 2011.

110. Gillette and Scott (n 30).

111. Article 96 permits a Contracting State whose legislation includes a statute of frauds for contracts of sale to make a declaration that conflicting provisions of the CISG do not apply to international sales contract that involves a party that has its place of business in that state.These countries exercised their rights: Argentina, Belarus, Chile, Estonia, Hungary, Latvia, Lithuania, Russian Federation, Ukraine, and perhaps China. The Chinese declaration has a phrase which is somewhat different from that required by the Convention.

112. These countries include Denmark, Sweden, Norway and Finland.

113. For example, a seller in China and a buyer in Russia agree that their sales contract should be governed by the 'Swedish Sale of Goods Act of 1990' (koplagen), then that Swedish (domestic) law will displace the CISG. This is despite the fact that both Chinese and Russian courts otherwise would have applied the Convention between the parties concerned, simply because they reside in different Contracting States. Joseph Lookofsky, 'The 1980 United Nations Convention on Contracts for the International Sale of Goods' Pace Law School CISG Database <http://www.cisg.law.pace.edu/cisg/biblio/lookofsky.html> accessed 3 August 2011.

114. Gillette and Scott (n 30).

115. Thus, they incorporate legal principles which they are familiar with. This is consistent with De Ly's observation that attorneys and trade associations in the Netherlands, the law of which largely reflects CISG principles, tend not to exclude the CISG. Fillip De Ly, 'The relevance of the Vienna Sales Convention for International Sales Contract-Should We Stop Contracting It Out?' (2003) 4 Business Law International 241, 244.

116. Ibid, 243.

117. Lisa Spagnolo, 'The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the Vienna Sales Convention for Australian lawyers' (2009) 10 Melbourne Journal of International Law 1.

118. Lisa Spagnolo, 'A Glimpse through the Kaleidoscope: Choices of Law and the CISG (kaleidoscope part I)' (2009) 13 Vindobona Journal of International Law and Arbitration 135 <http://ssrn.com/abstract=1514130> accessed 2 September 2011.

119. For an analysis on why lawyers should not exercise the option of opting out, see Spagnolo, 'The Last Outpost' (n 117)

120. Amy H. Katstely, 'Unification and Community: A Rhetorical Analysis of the United Nations Sales Convention' (1988) 8 Nw. J. Int'l L. & Bus. 574; Mazzacano, 'Harmonizing Values Not Laws' (n 89).

121. Gillette and Scott (n 30).

122. Micheal P. Van Alstine, Dynamic Treaty Interpretation, (1998)146 U. Pa. L. rev. 687, 750-51. The relevant provisions are Articles Arts. 8(2), 8(3), 25, 34, 35(2)(b), 37, 48(1), 60(a), 75, 77, 79(4), 85, 86(1), 86(2), 87, 88(2), 88(3), 18(2), 33(C), 39(1), 43(1), 47(1), 49(2)(a), 49(2)(b), 63(1), 64(2)(b), 65(1), 72(2), and 88(1).

123. Gillette and Scott (n 30).

124. Philip James Osborne, 'Unification or Harmonisation: A Critical Analysis of the United nations Convention on Contracts for the International Sale of Goods 1980' Pace Law School CISG Database <http://www.cisg.law.pace.edu/cisg/biblio/osborne.html#ch1> assessed 26 August 2011.

125. Harry Flechtner, '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.

126. Ibid 187.

127. However, some scholars believe all the languages in the texts are equally authentic. Bruno Zeller, 'International Trade Law- Problems of Language and Concepts?' (2003) 23 Journal of Law and Commerce 39, 43.

128. Robert H. Hillman, 'Applying the United Nations Convention on Contracts for the International Sale of Goods: The elusive Goal of Uniformity' (1995) Cornell Review of the Convention on Contracts for the International Sale of Goods 21.

129. An illustration of this language barrier is found in Article 71 and 72. For the French and English problem see Osborne (n 124).

130. Flechtner, 'The Several Texts' n (125) 187.

131. Graveson, R.H, 'The International Unification of Law' (1968) 16 American Journal of Comparative Law 4, 9.

132. C.K. Allen, Law in the Making, (6th ed. 1958) 466 in Mazzacano, 'Harmonizing Values Not Laws' (n 89).

133. It has been suggested that in countries such as Greece, Israel and New Zealand, the CISG has no impact on lawyers. However in Denmark, france, Argentina and Germany, lawyers are aware of it. Ferrari, 'National Contract' (n 51).

134. Damjan Mozina, Slovenia in: Ferrari 'National Legal System'(n 77) 265.

135. See M F Kohler, Das UN-Kaufretch (CISG) und sein Anwendungsausschluss, 2007, in Ulrich Magnus in Ferrari 'National Legal System' (n 77). Magnus quoting Kohler at 146 stating "the reported main reasons for this reluctance towards the CISG are two which are interconnected: first, that the CISG is too little known. Second, doubts concerning legal certainty. It is feared that solutions under the CISG cannot be foreseen due to too many vague terms which the CISG uses."

136. For a detailed analysis of the reservations that are admitted under the CISG as well as under various other uniform commercial law conventions, see Marco Torsello, 'Reservations to International Uniform Commercial Law Conventions' (2000) Uniform Law Review, 85.

137. Ferrari, 'National Contract' (n 51).

138. Spagnolo, 'The Last Outpost' (n 117).

139. Denmark is an example; see Lookofsky in Ferrari, 'National Legal System' (n 77) stating that "there does not however seem to be considerable (direct and indirect) evidence suggesting that Danish practicing lawyers who are aware of the CISG- and there, as just indicated, many of these - do not tend to exclude it (opt out), as is sometimes otherwise suggested in legal writing (concerning lawyers outside Denmark)."

140. Christiana Fountoulakis, 'The Parties' Choice of 'Neutral Law' in International Sales Contracts' European Journal of Law Reform 2005, 303, 314, stating that "the CISG is neutral law by Nature. Neither party has a particular advantage when applying it; the parties are quasi on the same 'level playing field'." See also De ly in Ferrari, 'Quo Vadis' (n 100); Tom McNamara, 'The U.N Sale of Goods Convention: Finally Coming of Age?, (2003) 32 Feb. Colorado Lawyer 11; Kenji G. Nakata, 'Filanto S.p.A v. Chilewich Intl Corp.: Sounds of Silence Bellow forth Under the CISG's International battle of the Forms, (1994) 7 The Transnational Lawyer 141, 144.

141. Ferrari in measuring the success of the CISG identifies this - CISG and Interconventional Interpretation" as one of the measures of the Convention's success. The author agrees with him. Ferrari, 'National Contract' (n 51).

142. This approach limits the number of autonomous concepts that must be dealt with simply by obviating the need to create different autonomous concepts for each international uniform law instrument. This prepares the ground for a more coherent unification of the law. This could serve to "replace the piecemeal unification one confronts today". It has also been advocated by various authors. For other proponents see Ferrari 'National Contract' (n 51).

143. Ferrari states that in using the Convention as a role model for their unification efforts, legislators inevitably acknowledge the position of the CISG as a role model.

144. Notwithstanding the criticisms on the basis of the nature of the Convention as constituting a set of rules on international civil procedure, a justification for this interpretation is the fact that there are instances where it sets forth substantive law concepts such as "sale of goods", which is not defined.Brussels Regulation. See Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Official Journal L 12, of 16 January 2001, p. 1; Commission Regulation (EC) No 1937/2004 of 9 November 2004 amending Annexes I, II, III and IV to Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Official Journal L 334, of 10 November 2004, p.3; Commission Regulation (EC) No 2245/2004 of 27 Dec 2004 amending Annexes I, II, III and IV to Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Official Journal L 381, of 28 December 2004, 10.

145. Ferrari poses the question "what better set of autonomous rules is there than the CISG to be used as a reference for interpreting - in an autonomous way, as required by the Brussels 1 Regulation - this substantive concept? There is none, which is why recourse to the CISG has often been advocated. Franco Ferrari, 'Remarks on the autonomous interpretation of the Brussels 1 Regulation, in particular of the concept of "place of delivery" under Article 5(1) (b), and the Vienna Sales Convention (on the occasion of a recent Italian court decision), International Business Law Journal, 2007, 83, 91.

146. Marco Torsello, in Ferrari, 'National Contract' (n 51).

147. These are Lawyers, Judges and the Body UNCITRAL.

148. Ferrari, 'National Contract' (n 51).

149. Monica Killian, 'CISG and the Problem with Common Law Jurisdictions' (2001) 10 J. Transnat'l L. & Pol'y. 217, 217; Peter .L. Fitzgerald, 'The International contracting Practices Survey Project: An Empirical Study of the Value and Utility of the United Nations Convention on the International Sale of Goods(CISG) and the UNIDROIT Principles of International Commercial Contracts to Practitioners, Jurists, and Legal Academics in the United States' (2009) 27 J.L. & Com. 1; Jacob Ziegel, 'The Future of the International Sales Convention from a Common Law Perspective' (2000) 6 New Zealand Business Law Quarterly 338; Mathais Reimann, 'The CISG in the United States: Why it has been Neglected and Why Europeans should Care" (2007) 71 Rabels Zeitschrift fur auslandishes und internationals Privatrecht 115-129 at 118.

150. It has been suggested that a closer look into the U.S. cases show that there is even a fewer number of cases which are truly relevant. Mathais Reimann, 'The CISG in the United States: Why it has been neglected and why Europeans should Care" (2007) 71 Rabels Zeitschrift fur auslandishes und internationals Privatrecht 115-129 at 118.

151. Germany alone boasts of 476 cases alone

152. Albert Kritzer, the director of the Pace University Law School CISG Website also believes personally that lack of familiarity is at the root of the paucity of cases in the U.S. Jacob Ziegel, 'The Future of the International Sales Convention from a Common Law Perspective' (2000) 6 New Zealand Business Law Quarterly 338.

153. Martin F. Koehler and Guo Yujun, 'The Acceptance of the Unified Sales Law (CISG) in different Legal Systems', (2008) 20 Pace Int'L. Rev .45; For example, it is claimed that the CISG is better known in Germany than North America. Therefore, this is a contributory factor to the lack of cases. This opinion was given by subscribers to the CISG website Germany in a query issued by Jacob Ziegel in September 2000. Ziegel, (n 152) 70.

154. Reimann, (150)120.

155. John Honnold who was the first director of UNCITRAL and a leading international sales law scholar, long before he became involved in UNCITRAL and E. Allans Farnsworth of the Columbia University Law School. He was a leading U.S contract scholar and served for many years as the senior U.S delegate to UNCITRAL and UNIDROIT.

156. Reimann, (n 150), 120

157. This explains why in so many of the U.S. cases, there is little, if any, reference to earlier CISG case law and the abundant CISG literature, and even fewer citations to non U.S sources. It also explains why U.S courts appear ready to interpret the CISG provisions through common law lenses. Jacob Ziegel, 'The Scope of the Convention: Reaching out to Article One and Beyond' (2006) 25 Journal of Law and Commerce 59, 71.

158. Ziegel, 'The Scope of the Convention' (n 157) 72.

159. Micheal R. Will, Twenty Years of International Sales Law Under the CISG: International Bibliography and Case Law Digest (1980-2000) (2000) in Jacob Ziegel, 'The Scope of the Convention: Reaching out to Article One and Beyond at 68; Pace University Law School, Yearbook of CISG Cases: 2000-2010, <http://www.cisg.law.pace.edu/cisg/text/YB2006-2000.html>. As of the writing of this article, the CISG website records 2675 cases and decisions. See <http://www.cisg.law.pace.edu/cisg/text/casecit.html> assessed August 26 2011.

160. Castellani, (n 38).

161. This is a problem usually inherent in legislations but more especially with Conventions. Gopalan, (n 4) 295.

162. Rossett, 'Critical Reflections' (n 35) Eiselen, 'Reflections Eight years down the Line'(n 81).

163. Arthur Rossett, 'Improving the Uniform Commercial Code' Pace Law School CISG Database. <http://www.cisg.law.pace.edu/cisg/biblio/rosett4.html> accessed 10 August 2011.

164. With all these problems law becomes "static, unable to conquer new challenges and problems" Eiselen, 'Reflections Eight years down the Line'(n 81).

165. At the time of drafting the Convention, there was only the telex and telegram (Article 13).Such as fax, electronic data interchange (EDI) and the internet. Honnold (n 26); Electronic Messaging Services task force under Chairmanship of Baum M 'The Commercial use of electronic data interchange- A report and model trading partner agreement'1647 ff (Task force Report) in Sieg Eiselen, 'Electronic Commerce and the United Nations Convention on Contracts for the International Sale of Goods (CISG) 1980 (1999) 6 EDI Law Review 21-46, 21.

166. Ibid, 37

167. Ibid, 37. However, Eiselen has suggested that the record of cases is inadequate to determine clearly if the convention can categorically be said to be a living code.

168. Other nations have adopted strategies in dealing with the need to harmonize alongside the CISG. For instance, in Europe, the CISG has been supplemented by the Rome Convention on Contractual choice of Law. The European Convention on the Law Applicable to Contractual Obligations (1980) (The "Rome Convention"). This Convention pursues a different strategy, one that seeks to clarify the legal setting for international transactions by providing rules for choosing among competing national substantive laws. Rossett, 'Improving the Uniform Commercial Code' (n 166).

169. Ibid.

170. Eiselen, "Adoption of the Vienna Convention' (n 21)

171. Arthur Rossett, "The International Sale Convention: A Dissenting View" (1984) 18 international Lawyer 445 at 447. For example in the United States, where the CISG was adopted, it became a second body of law attempting to control the same problems. However, the CISG will prove useful in situations where the UCP does not apply.

172. For instance, Forte points out with regards to the United kingdom's reluctance to ratify the Vienna Convention "if the Convention were ratified by the UK and …came to be widely applied to international sales, with or without a connection with this country, the role of the English Law in the settlement of international trading matters would obviously be diminished. A consequential effect might be a reduction in the number of international arbitration coming to this country." Angelo forte, 'The United Nations Convention on Contracts for the International Sale of Goods: Reason or Unreason in the United Kingdom' (1997) 26 University of Baltimore Law Review 56-66.

173. Mancur Olson, The rise and Decline of Nations : Economic growth, Stagflation, and Social Rigidities (New Haven: Yale University Press, 1982).

174. In the case of the CISG, it will be the Secretary General of the United Nations. Statement by Abiola Ademola, Legal counsel in the Department of International and Comparative Law (Personal email correspondence 23 August 2011).

175. Williams (n 75) Moss (n 72) 483; Natalie Hoffman, 'Interpretation Rules and Good Faith as Obstacles to the UK's Ratification of the CISG and to the Harmonization of Contract Law in Europe' (2010) 22 Pace International Law Review 145-181.

176. Moss, (n 72) 483.

177. Sieg Eiselen, "Adoption of the Vienna Convention for International Sales of Goods (the CISG) in South Africa' 116 South African Law Journal Part 11 324-332, 362

178. Sieg Eiselen, "Adoption of the Vienna Convention for International Sales of Goods (the CISG) in South Africa' 116 South African Law Journal Part 11 324-332

179. such as International Commission of Jurists

180. Sieg Eiselen, "Adoption of the Vienna Convention for International Sales of Goods (the CISG) in South Africa' 116 South African Law Journal Part 11 324-332 http://www.cisg.law.pace.edu/cisg/biblio/eiselen.html 362

181. Sieg Eiselen, "Adoption of the Vienna Convention for International Sales of Goods (the CISG) in South Africa' 116 South African Law Journal Part 11 324-332 http://www.cisg.law.pace.edu/cisg/biblio/eiselen.html 362

182. See chapter one of the Paper.

183. This figure is attributed to both an increase in import and export valued at N1600.7 billion or 31.71% and N5,575.4 billion or 75.0% respectively within the period. The non oil value stood at N3,856.8 billion with an increase value of N2,706.7 billion or 234.34% over the previous year. Statistical news, trade statistics, National Bureau of Statistics. <http://www.nigerianstat.gov.ng> accessed 3 August 2011.

184. <http://www.un.org/esa/policy/wess/wess2004files/chap2web.pdf>

185. China, United States and France.

186. The author first visited the Ministry of Commerce and Industry where she was referred to the International and Comparative Law Department of the Federal Ministry of Justice as the appropriate place to make all enquiries regarding the adoption of Conventions. Federal Ministry of Justice, International and Comparative Law Department <http://www.fmi.gov.ng/pages/departments/dept_international%20and%20comparative%20law.htm> accessed 13 September 2011.

187. Interview with Abiola Ademola and Ekanem, Legal Counsels, Department of International and Comparative Law Department, Ministry of Justice, Nigeria (Abuja, Nigeria, 7 June 2011).

188. Presently there are about four UNCITRAL Conventions which Nigeria has ratified. The United Nations Convention on the Carriage of Goods by Sea 1978 acceded to on 07/11/1988 and it came into force 01/11/1992. <http://www.uncitral.org/uncitral/en/uncitral_texts/transport_goods/Hamburg_status.html> accessed 23 August 2011; The United Nations Convention on the recognition and Enforcement of Foreign arbitral Awards (New York) 1958 acceded to on the 17 March 1970 and came into force in Nigeria 15 June 1970; UNCITRAL Model Law on International Commercial Arbitration (1985); UNCITRAL Model Law on Procurement of goods Construction and Services. 2007. UNCITRAL website <http://www.uncitral.org/uncitral/en/uncitral_texts/procurement_infrastructure/2011Model.html> accessed 23 August 2011.

189. Castellani (n 38).

190. Ibid.

191. A possible reason for incomplete contracts could be because the transaction costs of writing complete contracts are too high. One cost of writing complete contract is the resource costs of negotiating and reducing to a written form the agreed upon allocations of risk and these resource costs include not only the time and effort to negotiate and draft the clauses in question but also the possibility that in doing so, the parties might make a mistake. Gillette and Scott (n 30).

192. Eiselen, 'Adoption of the Vienna Convention' (n 21).

193. Castellani (n 38).

194. Tom McNamara, 'U.N. Sale of Goods Convention: Finally Coming of Age?' (2003) 32 Feb. Colorado Lawyer 11, <http://www.jus.uio.no/pace/cisg_finally_coming_of_age.tom_mcnamara/_7.html> accessed 31 August 2011.

195. The courts are bound to apply the CISG directly to situations falling within its sphere of application.This is subject to the reservations declared by China at the time of deposit of its instrument of ratification. Chen Weizuo, 'The Conflict of Laws in the Context of the CISG: A Chinese Perspective' (2008) 20 Pace International Law Review 115-123.

196. However, we still find that choice of law issues arise in certain circumstances despite the fact that the Convention seeks to unify substantive law in this area. Peter North & J. J. Fawcett, Cheshire and North's Private International Law (13th ed. 1999) 603.

197. Ibid. While the Chinese insisted on the FECL to govern transactions with foreigners, foreign parties insisted on their own internal laws. Law on Contracts involving Foreign Interests (FECL).

198. However, representatives from developing countries have argued that the CISG is too seller friendly. The compromise can now be found in Article 44 CISG. Furthermore, an interpretation of Article 38, 39 CISG invalidates such criticism. on the other hand, lawyers from other jurisdictions like Germany, fear the CISG is too buyer friendly as a result of attenuation of notice requirement. These disagreements actually neutralize each other, thereby emphasizing the reasonableness of the Convention. Schwenzer and Hachem,(n 87) 475.

199. Eiselen, 'Adoption of the Vienna Convention'(n 21) 350.

200. Eiselen, 'Adoption of the Vienna Convention' (n 21)338

201. ibid.

202. For a logical analysis of the provisions of the Convention and its comprehensiveness see Nottage (n 5).

203. ibid, 827.

204. Fred Ellingham 'and others' Models of Contract Law: An empirical Evolution of their Utility (Themis Press, Sydney, 2005)

205. Nottage (n 5) 827.

206. UNCITRAL Website <http://www.uncitral.org> accessed 24 August 2011.

207. Pace Law School CISG Database <http://www.cisg.law.pace.edu> accessed 24 August 2011.

208. The guiding principles of the CISG which seem to accord better with commercial expectations than mainstream sales law in the English tradition emphasises the CISG's intelligibility in a broader sense. Nottage (n 5) 828

209. In the UK for example, although lawyers may point out to business people the unenforceability of contracts as a result of strict domestic laws, they prefer to stand on by their contracts ignoring legal niceties of contract formation. This is reinforced by the provision of Article 7 which emphasises good faith. Nottage,(n 5) 829.

210. It is also applicable when only one of the parties has his relevant place of business in a Contracting State if the applicable domestic law regards the law of that Contracting State as the governing law. This is subject to Article 95 of the CISG.

211. Eiselen, 'Adoption of the Vienna Convention' (n 21). Luca Castellani, 'Promoting the Adoption of the United Nations Convention on Contracts for the International Sale of Goods (CISG)' (2000) 13 Vindobona Journal of International Commercial Law & Arbitration 241-248, 242.

212. Peter Schlechtriem, '25 Years of the CISG: An International lingua franca for Drafting Uniform Laws, Legal Principles, Domestic Legislation and Transnational Contracts' in Harry M. Fletcher 'and others' (eds), Drafting Contracts under the CISG 167, 174, 177 (2008) and Peter Schlectriem, 'Basic Structures and General Concepts of the CISG as Models for a Harmonisation of the Law of Obligations' (2005) 10 Juridica International 27 in Schwenzer and Hachem (n 87) 460.

213. Schwenzer and Hachem (n 87) 461.

214. Micheal Bridge, 'A comment on "Towards a Universal Doctrine of Breach: The Impact of CISG by Jurgen Basedow"' (2005) 25 International law and Economics Review" 501-511, 501.

215. However they did not include Part II of the CISG (provisions on formation of the contract). Joseph Lookofsky, Alive and well in Scandinavia: CISG Part II' (1999) 18 J.L. & Com. 289; Herbert Bernstein and Joseph Lookofsky, Understanding the CISG in Europe (2nd ed. Kluwer Law International, 2003).

216. This is with the exception of CISG Part II. Albeit being integrated, the Norwegian Sales Act of 1988 contains a few significant provisions which do not apply to international sales, especially the "liability differentiation" scheme. Commentators however have criticized the implementation of the CISG in Norway see for example, Viggo Hagstróm, 'CISG- Implementation in Norway, an approach not advisable' Internationales Handelsrecht 246 et seq. (2006). A new Danish Sale of Goods Act has been drafted. Schwenzer and Hachem, (n 87) 463.

217. This however is with differences in certain areas. These differences however do not create fundamental conceptual contradictions or insurmountable hurdles between national codes and the CISG. Knieper (n 65), 478.

218. Law of Obligations Act, General Part of the Civil Code Act and Private International Law Act Implementation Act, passed 5 June 2002, (RT 1 2002, 53,336), entered into force 1 July 2002. This code is based not only on the CISG, but on the principle of the European Contract law and the UNIDROIT Principles of International Commercial Contracts. Paul Varul "CISG: A Source of Inspiration for the Estonian Law of Obligations" (2003) 2 Uniform Law Review 209, 209.

219. ibid.

220. This came into force on January 1, 2002.This dates back from the very beginning in the 1980s. At the time the legislation came into force, it had lost some of the initial zeal but it still had some influence especially with respect to the basic concepts. Schwenzer and Hachem (n 87) 462.

221. German law on breach of contracts, Schuldrechtsreform, where experts have recommended that a seller be given an opportunity to remedy lack of conformity before damages can be claimed, under certain circumstances. Although this rule is not entirely the same with article 48 of the CISG. It has been suggested that it was stimulated by article 48 based on the reform of the BGB

222. Making it the fourth largest trade partner and the second largest export market of China in Africa. Forum on China Africa Cooperation website <http://www.focac.org/eng/zxxx/t841051.htm> assessed 19 July 2011.

223. The Uniform Contract Law of the Peoples Republic of China replaced the former Economic Contract Law of the Peoples republic of China, the former Foreign Economic Contract Law of China and the former law on Technology Contracts of the Peoples Republic of China. The CISG has greatly influenced the evolution of the Chinese domestic contract law. Published in March 15 1999, the Contract Law of China is much broader than the CISG; Ding Ding, 'China and CISG' Pace Law School CISG Database <http://www.cisg.law.pace.edu/cisg/biblio/dingding.html> accessed 21July 2011; Weizuo (n 194).

224. Castellani (n 38).

225. Castellani (n 38).

226. Another country which boasts of such success is Vietnam. Castellani (n 38).

227. Eiselen, 'Adoption of the Vienna Convention' (n 21)334.

228. Gopalan (n 4) 272.

229. Thatcher Stone, 'In Flight Between Geneva and Rome: Abandoning Choice of Law Systems for Substantive Legal Principles in International Aircraft Finance, (199) 20 U. PA.J.INT'L ECON.L.487, 490.

230. Montesquieu's publication The Spirit of the Laws discussing transferability at a great length identified such indigenous characteristics such as climate, terrain, population and religion as keys to determining government structures and understanding diverse practices of nations in matters of public and private law. Baron the Montesquieu, The Spirit of the Laws, trans. By Thomas Nugent (New York: Hafner Publishing Co. 1959) in Mazzacano, 'Harmonizing Values'(n 89).

231. Tom McNamara, 'U.N. Sale of Goods Convention: Finally Coming of Age?' Pace Law School CISG Database <http://www.jus.uio.no/pace/cisg_finally_coming_of_age.tom_mcnamara/_7.html> accessed 31 August 2011

232. Ghana as well does not participate in the OHADA and they are common law countries.

233. This is made easier by the fact that the regional uniform legislation such as OHADA is already inspired by the CISG. The CISG inspired the OHADA particularly Book V on Sale of Goods. See G. Kenfack Douajni, La vente commercial OHADA, Uniform Law Review / Revue de droit uniforme, (2003) 191, provides a comparative analysis of the CISG vis-a-vis the OHADA Uniform Act on General Commercial Law.

234. Marco Torsello, in Franco Ferrari '(ed.)' The CISG and its Impact on National Legal Systems (Munich Sellier, European law Publ. 2008) states "in one way or another, both for CISG enthusiasts and for those who never came to consider it in positive terms, the CISG represented a milestone in legal scholarship in all countries where the Convention was adopted (including Italy), as well as in many where the Convention is still not in force."

235. Shinichiro Hayakawa in Ferrari, CISG and National Systems (n 77).

236. Ibid

237. It is assumed that because the CISG is "merely" a substantive law convention that does not set forth any private international law rule. Enderlein/Maskow, International Sales Law. United Nations Convention on Contract for International Sale of Goods. Convention on the Limitation Period in the International Gale of Goods, 1992, p. 370; Franco Ferrari, 'What sources of law for contracts for the international sale of goods?' Internationales Handelsrecht 2006, 1, 4. Eleni Zervogianni in: Ferrari, CISG and National Systems (n 77).

238. This provision of the CISG is similar to the French and German civil law code. In fact, article 50 has the same ratio legis as the provisions of the German Civil Code, upon which it was modelled. Paragraphs 462 and 472 of the Bürgerliches Gesetzbuch (BGB).

239. The buyer may retain the goods and reduce the price or discharge the contract and reclaim the purchase price paid. However under paragraphs 463 and 480(2) of the BGB the buyer may only claim damages if the seller has given an express warranty or is guilty of fraudulent concealment of a defect. Beverly -Claire Oosthuizen, 'Rights, Duties and Remedies under the United Nations Convention on Contract for International Sale of Goods- An investigation into the CISG's Compatibility with the South African Law' (Masters of Law Thesis, Rhodes University 2008) 69.

240. However, the manner of calculating the price reduction differs.

241. Under the SOGA, no right is conferred on the buyer to reduce the price payable, he is simply permitted to set up a warranty entitlement against a seller who is suing for the price. The method of calculation is also different. For further analysis on the calculation see Micheal Bridge, International Sale Of Goods: Law And Practice (OUP 2007) 101.

242. Despite this benefit, an examination of German case law on article 50 of the CISG, show that neither of the circumstances have encouraged buyers to utilize this remedy. Buyers often elected to reduce the price under circumstances where damages could have resulted in greater monetary relief. Thus, this remedy is used in the instance of non-conformity of goods. See LG Aachen (F.R.G), No. 41 O 198/89, UNILEX (3 April 1990), <http://www.jura.uni-freiburg/de/ipr1/cisg/urteile.text/12.htm> AG Nordhorn (F.R.G), No.3 C 75/94, UNILEX (14 June 1994), LG Oldenburg.

243. Article 37 provides that a party may cure a defect prior to the date of performance

244. Article 48 does not permit a party to remedy a defect after the stipulated date of delivery has passed. This provision follows article 44(1) of the ULIS which follows the American rule of section 2-508(2) of the UCC.

245. Annette Gärtner "Britain and the CISG: The Case for Ratification - A Comparative Analysis with Special Reference to German Law" <http://www.cisg.law.pace.edu/cisg/biblio/gartner.html> accessed 10 September 2011.

246. Although there was no provision for this in the German civil code, Courts and academics eventually took the view that under certain circumstances, sellers should be entitled to remedy minor defects. It has been suggested by experts working on the schuldrechtsreform, a reform on the German law on the breach of contract that sellers be given the opportunity to remedy lack of conformity before any claim on damages is made. Gärtner (n 244).

247. Borrowman, Phillips & Co. v. Free & Hollis [1878] 4 Q.B. 500; E.E & Brian Smith (1928) Ltd. V Wheatsheaf Mills Ltd. [1939] 2 K.B. 302, 315; Motor Oil Hellas (Corinth) Refineries S.A. v. Shipping Corp. Of India (The Kanchenjunga), 1 Lloyd's Rep. 391, 399 (H.L. 1990).

248. Sale and Supply of Goods, Law Com. 85, Scot. Law Com. 58 (1983) para 2.38. However in Bernstein v Pamson Motors (Golders Green) Ltd. [1986] 2 All E.R. 220 (QB). It was suggested that English sales law grants the right to cure outside of contract period. The decision was based on the loss of the right to reject through the retention of the goods and how long a reasonable time can be said to be. Oosthuizen, (n 238) 75.

249. Article 46. Failure of the seller to do so may allow the buyer to declare the contract avoided.

250. Articles 47(2), 63(2)

251. Article 49(1)(b), 64(1)(b)

252. Bügerliches Gesetzbuch

253. While the innocent party is allowed to avoid the contract for any fundamental under the CISG, the BGB provides that a contract may only be terminated unilaterally if the agreement provides for a contractual right of avoidance. Para. 326 BGB

254. Oosthuizen, (n 238) 72.

255. Bunge Corporation, New York v Tradax Export S.A., Panama [1981] 1 W.L.R 711 (HL). If the time is of the essence in a contract and there is a delay in performance, the innocent party may discharge the contract because timely performance will be considered to be a condition of the contract. SOGA section 11(3). If the contract is regarding the date of performance, the courts may not consider timely performance to be of essence in the contract. Then, the parties will be required to perform within a reasonable time. SOGA section 29(3). See Hick v Raymond & Reid, [1982] 1 AC 22 (ENG); Monkland v. Jack Barclay Ltd., [1951] 2 K.B 46

256. Section 10(1); Section 10(2)

257. Should the innocent party elect to terminate the contract, he/she will be taking a risk because the term may later be held to be a warranty. Due to the need for certainty in commercial relationships, courts tend to interpret time stipulations as conditions. Under English law, if a contract contains a stipulation as to time, the parties may safely assume that it will give rise to a right to cancel. Under English law the risk of unjustified cancellation is virtually non-existent and there is hence no need to provide the innocent party with an option of setting a Nachfrist.

258. Oosthuizen (n 238) 67.

259. The Nigerian Bar Association Institute of Continuing Legal Education (ICLE) serves as the CLE regulatory authority for the Nigerian Bar Association-and the profession- by providing standards and scope for the MCLE programme. <http://www.icle.nigerianbar.org> accessed 10 August 2011.

260. Places like Denmark, see Lookofsky in: The CISG and its Impact on National Legal Systems (2008) 119 and Italy, see Torsello in: The CISG and its Impact on National Legal Systems (2008) 192. However, we find in Canada where the CLE for practicing lawyers is compulsory in most jurisdictions, it appears that only two CLE events [regarding CISG related topics] have been presented by major CLE providers in the last seven to ten years. Franco Ferrari, 'The CISG and Its Impact on National Contract Law-General Report' <http://www.bibliojuridica.org/libros/6/2843/8.pdf> accessed 2 September 2011.


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