Cite as Bonell, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 1-20. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.
Michael Joachim Bonell
1. History of the Convention.
1.1. - In the last decades major efforts have been made for the international unification of important areas of law and from the beginning the topic of sales has occupied a preeminent position. The reasons for this are almost too evident. There is, first of all, the need to assure the most orderly and secure development possible of commercial life. While nowadays international trade has reached an unprecedented intensity, the sales contract -- which constitutes the most important legal instrument in this context -- continues to be regulated by national laws that often differ very much from one to another. Serious prejudice to legal certainty is therefore the obvious consequence. Furthermore, in international trade, developing countries are exercising an ever more important role. Hence the necessity to provide rules governing the international sale of goods which, apart from being uniform, also take into account the fact that export or import transactions are often entered into by parties who do not possess equal bargaining power and who operate in quite different socio-economic contexts.
1.2. - Work for the unification of the law of international sales dates back to 1929. In that year the International Institute for the Unification of Private Law (UNIDROIT), upon the proposal of the noted German jurist Ernst Rabel, decided to undertake the necessary preparatory studies and to entrust the elaboration of the future uniform law to a Committee presided over by Cecil J.B. Hurst, and including eminent comparative lawyers such as E. Rabel himself, A. Bragge, H. Capitant, M. Fehr, H.C. Gutteridge and J. Hamel. In 1934 the Committee submitted a preliminary draft of an international law on the sale of goods which after its approval by the Governing Council of UNIDROIT, was transmitted, together with an explanatory report, to the League of Nations in order to solicit comments from Member States. In the light of the observations received, the Committee proceeded [page 3] to revise the text and in 1939 the Governing Council of UNIDROIT adopted the new version of the draft (see Unification of Law (1923-1946), UNIDROIT, Rome, 1948, 102 et seq.). In 1951 a Conference convened by the Government of the Netherlands in The Hague and attended by the representatives of 20 Governments, after a general examination of the draft, appointed a Special Commission with the task of further elaborating its text (see Final Act of the Conference on a Draft Convention relative to a Uniform Law on the Sale of Goods held at The Hague, 1-10 November 1951, Unification of Law (1947-1952), UNIDROIT, Rome, 1954, 283 et seq.). The Special Commission produced two drafts: one in 1956 (see The Hague Conference, II, 3 et seq.) and, following the comments made by Governments and interested international organisations (see The Hague Conference, II, 81 et seq.), a second one in 1963 (see The Hague Conference, II, 213 et seq.). In the meantime, a separate draft uniform law dealing with the formation of international sales contracts was prepared by UNIDROIT (see Unification of Law (1958), UNIDROIT, Rome, 1959, 127 et seq.). Encouraged by the favourable reactions which the two draft uniform laws received, the Government of the Netherlands convened a Diplomatic Conference for their final adoption. The Conference, which took place at The Hague from 2 to 25 April 1964, was attended by 28 States, while 4 other States and 6 international organisations sent observers. The Conference ended with the adoption of two Conventions: one relating to a Uniform Law of International Sale (ULIS) and the other relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (ULFC). The two instruments entered into force in 1972. Of the nine States which have ratified them only two are non-European (Gambia and Israel), while all the others belong to the European Economic Community (Belgium, the Federal Republic of Germany, Italy, Luxembourg, the Netherlands and the United Kingdom). Only Israel did not avail itself of any of the reservations permitted under the Conventions. Gambia and the United Kingdom made the application of the uniform laws dependent on an express declaration to this effect by the parties to each individual contract (Art. V); the Federal Republic of Germany, Luxembourg, the Netherlands and San Marino declared that they will apply the uniform laws only to contracts entered into by parties whose place of business is in [page 4] the territory of a Contracting State (Art. III); finally, Belgium and Italy made use of the reservation according to which the uniform laws are applicable only if so required by the conflict of laws rules contained in the 1955 Hague Convention on the Law Applicable to International Sales Contracts (Art. IV).
1.3. - Four years after the adoption of the 1964 Hague Conventions, the United Nations Commission on International Trade Law (UNCITRAL), established in 1966 with the task of promoting «the progressive harmonization and unification of the law of international trade» above all «by co-ordinating the work of organisations active in this field and encouraging co-operation among them» and «promoting wider participation in existing international conventions and wider acceptance of existing model and uniform laws» (see General Assembly resolution 2205 (XXI) of 17 December 1966), decided to request the Secretary-General to transmit to all Member States of the United Nations the text of both ULIS and ULFC and to ask the Governments whether they intended to adhere to these instruments and the reasons for their position (see Report of the United Nations Commission on International Trade Law on the work of its first session (1968), Yearbook I (1968-1970), 79). Of the 36 States which replied, 3 indicated that they had already adopted the Conventions (Belgium, the United Kingdom and San Marino), 10 announced their intention to ratify them in the near future (Australia, Columbia, the Federal Republic of Germany, France, Gambia, Greece, Israel, Luxembourg, Mex.ico and the Netherlands), 12 stated that they had not yet reached a final decision in this respect (Denmark, Finland, Hungary, Ireland, Japan, Korea, Norway, Pakistan, Romania, Sweden and Togo), while 10 openly declared that they were not willing to adopt the two uniform laws (Austria, China, Jordan, Laos, Maldive Islands, South Africa, United Arab Republic, USSR, USA and Upper Volta) (see Analysis of replies and comments by Governments on The Hague Conventions of 1964: report of the Secretary-General, Yearbook I (1968-1970), 15 et seq.). At its second session in 1968, UNCITRAL decided to set up a Working Group which in the light of the comments and suggestions made by States would ascertain «which modifications of the existing texts might render them capable of wider acceptance by countries of different legal, social [page 5] and economic systems, or whether it will be necessary to elaborate a new text for the same purpose [...]» (see Report of the United Nations Commission on International Trade Law on the work of its second session (1968), Yearbook, I (1968-1970), 99100). The Working Group, composed of 14 (later increased to 15) States representing the different regions of the world (the initial members were Brazil, France, Ghana, Hungary, India, Iran, Japan, Kenya, Mexico, Norway, Tunisia, USSR, the United Kingdom and USA; new members were Austria, Czechoslovakia, the Philippines and Sierra Leone) held nine sessions. In 1976 it completed the revisions of ULIS by submitting the text of a new Draft Convention on the International Sale of Goods (see Yearbook, VII (1976), 89 et seq.); in 1977 it adopted the text of a new Draft Convention on the Formation of Contracts for the International Sale of Goods, based on ULFC (see Yearbook, IX (1978), 83 et seq.). At its eleventh session the Commission decided to consolidate the two drafts in a single text and to this end it established a Drafting Committee composed of the representatives of Chile, Egypt, France, Hungary, India, Japan, Mexico, Nigeria, USSR and the United Kingdom (see Yearbook, IX (1978), 13). It was then transmitted to the General Assembly of the United Nations, which by resolution 33/93 of 16 December 1978 decided that an international conference of plenipotentiaries should be convened to consider the Draft Convention.
1.4. - The United Nations Conference on Contracts for the International Sale of Goods was held in Vienna, from 10 March to 11 April 1980. It was attended by representatives of 62 States and of 8 international organisations. The main work was done by two Committees, one charged with the preparation of the substantive provisions of the Convention (Articles 1-88), the other with the preparation of the final clauses (Articles 89-101). At the end of the Conference the texts prepared by the two Committees were voted on in Plenary session article by article; the Convention as a whole was then submitted to a roll-call vote and was approved without dissent.
1.5. - According to Article 99(1) the Convention will enter into force on the first day of the month following the expiration of twelve months after the date of deposit of the tenth [page 6] instrument of ratification, acceptance, approval or accession. This requirement was satisfied on 11 December 1986 with the simultaneous deposit of the instruments of ratification of the Convention by the People's Republic of China, Italy and the United States of America. In consequence the Convention will enter into force on 1 January 1988 between the following States: Argentina, the People's Republic of China, Egypt, France, Italy, Hungary, Lesotho, Syria, United States of America, Yugoslavia and Zambia. The fact that the original Parties to the Convention include States from all continents of the world confirms the universal vocation of the new uniform law rules and can be excepted to encourage many other States to adopt the Convention, some of which have already announced their intention to do so.
1.6. - Although the United Nations Convention on Contracts for the International Sale of Goods does not formally represent a revision of the two 1964 Hague Conventions, it is clearly intended to replace the latter by becoming in the near future the only instrument governing international sales contracts at a world-wide level. For this reason it expressly provided that States which are parties to the 1964 Hague Conventions are expected to denounce them when adhering to the new Convention (Article 99). On the other hand, uniform rules of a purely regional character (e.g., the General Conditions of Delivery of Goods adopted by the Member States of the Council for Mutual Economic Assistance) may well coexist with the Convention. This is made clear by Article 94(1) where it is stated that:
2. Meaning and purpose of the Convention.
2.1. - The Convention deals only with contracts for the sale of goods of an international character. This means that sales contracts of a purely domestic nature will in the future still be governed by the non-unified national laws. [page 7]
2.1.1. - The decision to limit the scope of the Convention to international relationships has been criticized for a number of reasons. Thus, the very creation of a separate substantive law for international sales contracts has been questioned in view of the amorphous quality of the category. World economies, it is said, have reached the point of integration at which a clear economic distinction between foreign and domestic trade no longer exists. Moreover, the criteria used by the Convention for the definition of «international sales contracts» are far from satisfactory. The fact that the parties have their place of business in two different (Contracting) States may be a sufficient indicator of the international character of the transaction as long as the parties deal with each other from their home base and without intermediaries. Yet what if the parties deal with each other face-to-face or through an agent who does not disclose the identity of his principal? Furthermore, why should a sales contract between two parties. who have their place of business in different States be considered international and as such fall within the scope of the Convention, even when the agreement relates to goods which are not intended to move from one country to another, whereas a contract entered into between two parties located in the same State but relating to goods destined to be imported or exported would be governed by domestic law?
2.1.2. - Without underestimating these important criticisms, they do not appear decisive. The principal reason for which the Convention has been limited solely to international transactions rests in the impossibility, at the present time, of agreeing, with respect to sales contracts no less than to other commercial contracts, on uniform rules intended to replace entirely the different national laws. It is significant that the only examples of such a total unification of law have so far been achieved only at a regional level, i.e., among countries with legal traditions and economic and political structures sufficiently homogeneous. At a universal level, the only realistic approach is that of limiting the attempts at unification to international transactions, leaving States free to continue regulating purely domestic relations according to their own special needs. Nor should one share the opinion according to which it would be unjustified to subject international sales contracts to a special legal regime, given that normally these [page 8] agreements are neither functionally nor definitionally distinct from other sales contracts. In market-economy countries, there may be trade sectors in which from a strictly technical point of view, there are no substantial differences between import and export transactions and the purchase and sale of the same. products in the domestic sphere. However, this does not mean that from a legal point of view transactions across frontiers are not always distinguished from analogous coptracts confined to a single country. Contrary to the latter type of contracts, for which it is obvious that the respective national law applies, the former type inevitably raises a problem of conflicts of law, in the sense that in each case it is necessary to establish which of the various legal systems having contacts with the contract will ultimately regulate it. The uncertainties and the inconveniences that derive from this are too well known: suffice it to recall that because of the different national rules of private international law parties risk remaining uncertain of the law applicable to the contract until the competent forum is established. And even then, depending on the conflicts rules of the forum chosen, the same contract may well be once subject to the law of State X and another time to the law of State Y. But if this is the case the argument according to which after the entry into force of the Convention, businessmen must operate with two sales laws, i.e., the national law for domestic sales and the Convention for international sales loses much of its strength. Already a sales contract may be governed by different rules if, instead of being a transaction of a purely domestic character, it concerns the exchange of goods across frontiers. The only difference in respect to the new situation lies in the fact that, while up to the present time there was the risk that import or export transactions were subject to different national laws depending on the countries most interested in each specific contract, from now on the legal regime applicable to international transactions will be one alone and as such universally accepted.
2.2. - But purpose of the Convention is not only to assure a uniform regime for the international sales contracts. Its other objective consists in offering rules that will be more responsive than the traditional national laws to the effective needs of international trade. [page 9]
2.2.1. - Even for this proposition there are criticisms. The Convention, one notes, constitutes only apparently a comprehensive sales law system. In fact, some categories of sale -- among which are also transactions of considerable importance in international trade practice, such as sales of shares and other securities, of negotiable instruments and money, of ships and aircraft -- are expressly excluded from its scope (see Article 2). But also in regard to ordinary sales contracts, a number of important issues have not been taken into consideration. The Convention itself mentions the validity of the contract, the effect of the contract on the property in the goods (Article 4) and the liability of the seller for death or personal injury caused by the goods to the buyer or any other person (Article 5). In addition, one may recall e.g. the conclusion of the contract through an agent, the delicate questions arising from the use by one or both of the parties of their own standard forms, or the impact which the different kinds of State control over the import and/or export of certain goods or the exchange of currency may have on the contract of sale as such or on the performance of any of its obligations.
Still more relevant, moreover, are the criticisms that concern the very content of the new uniform rules. The drafters of the Convention, it is argued, have in general missed the opportunity to reconsider domestic laws which call for revision. Thus, there are few improvements on existing national solutions. A typical example may be seen in the fact that the Convention sticks to the classical concepts of «offer» and «acceptance», while in commercial practice contracts are often concluded after prolonged negotiations during which the parties exchange a series of partial, conditional and contingent communications that only gradually ripen into a firm and definite deal. Furthermore, the Convention contains a number of provisions intended to represent a compromise between conflicting views, but which in fact either openly refer the definite answer to the applicable domestic laws (see e.g. Articles 11, 12 and 96 with respect to the formal requirements of the contract; Article 28 concerning the possibility of obtaining a judgment for specific performance; Article 55 with respect to the possibility of a contract being validly concluded without an express or implied determination of the price (at least for States which will not adhere to Part II of the Convention)), or by using the technique of a main rule immediately followed by [page 10] an equally broad exception leave the question open as to which of the two alternatives will ultimately prevail in each single case (see e.g. Article 16 dealing with the revocability of the offer; Articles 39(1), 43(1) and 44 as to the notice requirement in case of delivery of non-conforming goods or goods which are not free from third parties' rights; Article 68 concerning the transfer of risk where the goods are sold in transit). Provisions of this kind, together with others which in the absence of an agreement have been intentionally drafted in an extremely vague and ambiguous language (see e.g. the reference to good faith in the contract of Article 7; the definition of «fundamental breach of contract» in Article 25; Article  concerning the right to interest on sums in arrears, etc.) demonstrate that on several occasions the drafters of the Convention were unable to provide for hard and fast rules, either by choosing one of the traditional solutions or by adopting a new conceptual approach. Hence, the risk exists, that in pratice, under the new uniform law, it will become even more difficult for parties to an international sales contract to know exactly what their respective rights and duties are and to predict probable outcomes of litigation.
2.2.2. - One can certainly not deny that the Convention is silent on a number of important issues which may arise in connection with the conclusion or the performance of an international sales contract, and that also with respect to questions which fall within its scope it does not always provide for direct and clear-cut solutions. It would, however be unjust to attribute the blame for this to those who participated in the preparation of the new uniform law. Rather it is important to remember that even in an area as technical as sales law, the attempt to reach unification at a universal level today encounters objective limits. In part, this stems from the difficulty of reconciling legal traditions that are too diverse. Suffice it to consider the contrary solutions, that at least in principle, follow the civil law and common law systems in regard to the revocability of the offer, specific performance and the basis of contractual liability. In part, the reasons lie in the particular political structure and/or in the differing degrees of economic development of individual States or groups of States. A typical example of this is shown by the contrast between market economy and planned economy countries as [page 11] to the requirement of a written form for the conclusion or modification of the contract; another example may be found in the different positions taken by industrialized countries on the one hand, and developing. countries on the other as far as the relevance of usages in the interpretation and implementation of the contractual agreement is concerned, or the possibility of concluding a sales contract without explicitly or implicitly determining the price, or the time-limit within which the buyer must give notice of the non-conformity of the goods. But if this is so, not only would it be unrealistic to expect more from the new Convention, but it can easily be said that it represents the most advanced solution achievable under the present circumstances. Nor should one object that in view of the impossibility of finding a satisfactory solution to such a large number of important questions, it would have been preferable to renounce from the outset any attempt to unify the substantive rules on international sales contracts and to concentrate efforts rather on the harmonization of the conflicts-of-law rules in this area. This view would be hardly acceptable for several reasons. First of all, in reasoning in this manner one forgets that the new Convention is not intended to constitute the only legal source in the field of international sales contracts. There already exists a number of «ancillary» uniform laws, such as the 1974 United Nations Convention on the Limitation Period in the International Sales of Goods or the 1983 Geneva Convention on Agency in International Sale of Goods, and it is hoped that other international instruments relating to issues so far neglected will follow in the near future. Secondly, at least some of the ambiguities and gaps which are presently to be found in the text of the new Convention may well be gradually eliminated by virtue of a growing body of international case law, especially since in interpreting the Convention courts are bound to «have regard to its international character and to the need to promote uniformity in its application» (Article 7(1)), and to resort primarily to «the general principles on which it is based» (Article 7(2)) for the settlement of questions falling within its scope but not expressly regulated by it. Finally, the unification of the substantive law governing international sales contracts has never been seen as an alternative to the unification of conflicts-of-law rules. As a matter of fact, right after the approval of the Vienna Convention work was [page 12] begun under the auspices of The Hague Conference of Private International Law for the revision of the 1955 Hague Convention on the Law applicable to International Contracts for the Sale of Goods, with a view to making it consistent with the former. The new Hague Convention was adopted in 1985 by a Diplomatic Conference of 60 States. Although it is too early to predict what success this Convention will have in practice, there is no doubt that in theory it not only can coexist with the Vienna Convention, but in a certain way it represents an ideal integration with it, in the sense that The Hague Convention offers uniform conflicts-of-law-rules to which recourse may be made every time a question arises with which the Vienna Convention has not dealt or for the solution of which it expressly refers to applicable domestic law.
Still less convincing appears the view according to which the new uniform law is inspired by schemes or principles that are outdated or at least not corresponding to the effective needs of international trade. One must bear in mind that elaborating an international Convention is something quite different from proposing a model law. While in the latter case, one can look exclusively to the most advanced solutions, in the former one must take into account all the different positions that States take on the merits of the questions under consideration. Hence the necessity for compromise solutions that by their nature will be less valuable from a strictly technical standpoint, but at least present the advantage of rendering the uniform rules acceptable to all States. Notwithstanding this, there are a number of fairly innovative provisions in the present Convention. Thus, in respect to the common law systems, one may note the overriding of the Statute of Frauds which requires a signed writing for the enforcement of sales contracts, whenever the price exceeds a certain amount (see Article 11), of the doctrine of consideration in case of an offeror's promise not to revoke the offer (see Article 16(2)(a)) or of an agreement to modify the contract by merely increasing or reducing the obligations of one of the parties (see Article 29(1)), and of the traditional distinctions, as to the seller's obligation to deliver conforming goods, and between «conditions», and «warranties» (see Article 35). On the other hand, for many civil law systems it is innovative that fault on the side of the party who fails to perform is no longer a prerequisite for the [page 13] exercise of the remedies granted to the aggrieved party (see Articles 45, 61 and 79), or that avoidance of the contract always takes effect upon notice by the aggrieved party and that consequently both cases of ipso-facto avoidance and of avoidance as a result of a court decision are excluded (see Article 26). Finally, there are a number of solutions which represent an authentic innovation of the uniform law insofar as they are as such virtually unknown to most, if not all traditional sales laws. These include the unified approach to the parties, obligations and, correspondingly, to the remedies for breach of contract (see Articles 30 and 53, 45 and 61), the seller's right to cure defects in his performance not only up to date for delivery, but even thereafter, provided that he can do so without unreasonable delay and without causing the buyer unreasonable inconvenience (see Articles 34, 37, and 48), the limitation of the right to avoid the contract to breaches which are «fundamental» (see Articles 25, 49(1)(a), 64(1)(a) and 73), except the case of non-delivery, non-payment or failure to take delivery, where avoidance becomes possible also if the defaulting party does not perform within an «additional period of time of reasonable length» fixed by the aggrieved party (see Articles 49(1)(b), 64(1)(b)), the passing of risk for loss of or damages to the goods separated from the passing of «property» and related to the physical acts of transfer of possession of the goods to a carrier or to the buyer (see Articles 85-88).
2.3. - In the light of what has been observed up to now, one can legitimately conclude that the new Convention, despite its limits and insufficiencies, constitutes an important step toward a more secure and balanced regulation of international sales contracts. On the other hand, even its most severe critics must recognize that when expressing a comprehensive judgment on the merits or demerits. of a new international instrument, one must choose as a point of reference not an ideal model, but the preexisting situation of fact and law. Now, what are the conditions in which the economic operators actually find themselves, when they decide to conclude a contract for the import and export of goods? We have already pointed out the uncertainties deriving from the fact that the criteria adopted by States for resolving the conflicts which inevitably arise between the different national [page 14] laws are all but uniform, and that consequently, even the choice of the proper law of the contract is going to vary according to the competent forum. It is true that in theory the parties are normally free to choose the law that should govern their contract. In practice, however, they are interested above all in defining the economic and financial aspects of their transaction so that they are not always so sufficiently cautious as to address fully a problem so technical as the choice of the applicable law. But even if the parties are prepared to discuss this problem, it is not certain that they will reach an agreement. For understandable reasons, each party will seek to insist on the choice of his own national law and, faced with the resistance of the other party, he will normally prefer to leave the question unresolved, rather than yield his own position.
Given this, it appears evident that only the large enterprises occupying a dominant position in their respective markets will be satisfied with the actual situation. For them, the problem of a conflict of laws does not even exist, because their superior bargaining power always allows them to impose their own national law on their foreign trade partners. All the other economic operators, however, cannot but greet the new Convention with extreme favour. It is designed to be applied at least between contracting States, independently from the conflicts-of-law rules of the forum. But there is more. The Convention would serve as «background law», or a «legal lingua franca », to be utilised by the parties whenever they themselves wquld want to designate the law governing the contract. Until now the parties have had only the alternative of choosing between the national law of one of them, and the law of a third State. Thus, at least one of the parties was constrained to accept a law unfamiliar to him and perhaps even less favourable in content. The new Convention allows the parties to avoid this dilemma. Elaborated under the auspices of the United Nations, the Convention offers the necessary guarantee of impartiality. Furthermore, since it is edited in six official languages, it is equally comprehensible to most of the economic operators of the world. Finally, in contrast to other worldwide uniform laws which deal exclusively with the effects of the respective contracts (if not even -- as is the case of the conventions in the area of transport -- with only the liability regime of one of the parties), the present Convention regulates in [page 15] addition to the rights and duties of the buyer and the seller, also the formation and interpretation of the sales contract. This means that the parties will find in one and the same legal instrument an answer to questions which in most of the existing domestic laws are settled by two separate bodies of rules, i.e. by the special legislation on sales contracts and by the codified or uncodified general contract law. The question, however, remains open to what extent the parties are free to choose this Convention as the proper law of their contract even where none of them have their place of business in a Contracting State. This question will be extensively discussed later in this Commentary, precisely in connection with Article 1 which defines the sphere of application of the Convention, and with Article 6 which lays down the principle of the parties' autonomy. Obviously this is not the place for entering into the merit of the conclusions which are suggested there. One thing is certain however: since the Convention has been elaborated in order to «contribute to the removal of legal barriers in international trade and promote the development of international trade» (see the Preamble to the text of the Convention) it is in the interest of everyone to ensure the widest dissemination of it. This means that even if in the immediate future not all the States who participated in its elaboration will ratify it, they should at least encourage in practice its voluntary adoption. To this end the international business community must first be convinced of the advantages deriving from the choice of the Convention, instead of national laws, as the proper law of the individual sales contracts. But the attitude of the national judges and arbitrators will be even more important: it is up to them to decide in the case of a controversy whether or not to apply the Convention as the proper law chosen by the parties and the validity and effects of a contractual reference to it will to a large extent depend on the more or less liberal interpretation they will adopt in respect to the general principle of the parties' autonomy.
3. Problems concerning the Convention.
3.1. - If the representatives of different legal systems are called upon to elaborate a text of uniform law, the problem is not only to reach an agreement on the substance of the rules to be [page 16] adopted, but also to phrase these rules in a language which can be easily understood by everybody.
One of the most frequent criticisms that arose from the two Uniform Laws of 1964 was that their drafting style was too similar to that traditionally used for codification in civil law countries and considered too abstract and dogmatic by jurists from other legal systems. In contrast, the first comments on the new Convention are generally extremely positive; one of its most important merits, it is said, is constituted by its simplicity, practicability and clarity of language, easy to understand for both lawyers and businessmen.
It is certainly true that the Convention presents, even under the formal aspect, an improvement in respect to ULIS and ULFC. The mere fact that the rules concerning the formation and the effects of the international sales contract have been consolidated in a single text, has permitted the elimination of a series of duplications and possible incongruencies. Furthermore, the rules on the effects of the contract have been considerably simplified. Contrary to the system adopted in ULIS, the remedies for breach are no longer laid down separately for each of the different obligations of the seller and of the buyer, but have been provided for in a general manner in two sets of rules dealing, respectively, with the seller's failure to perform «any of his obligations», (Articles 45 et seq.) and with the buyer's failure to perform «any of his obligations» (Article 61 et seq.). Finally, the authors of the Convention to a large extent succeeded in avoiding the use of abstract expressions and concepts by turning to more analytic formulations or even to descriptions of an empiric nature to express the content of individual rules. One need only think of the attempt to overcome the traditional concepts of «force majeure» or of « frustration» with a definition in analytic terms of cases of «exemption» from liability for non-performance (Article 79), or of the renunciation of the concept of delivery (see Article 19 of ULIS), and of the indication in its place, of the material acts that the seller must, according to the specific case, effect in order to fulfil his «obligation to deliver» the goods (Articles 31 and 32).
Notwithstanding these improvements, the correct interpretation of the Convention will remain one of the most delicate problems. [page 17]
A first difficulty derives from the fact that the drafting style of the Convention differs considerably from that of many national-legislations. In particular in common law countries statutes are normally drafted with great care and in considerable detail. Courts from those countries cannot but feel a sense of unease when faced with the comparatively much shorter and more synthetic provisions of the Convention. This sense of uneasiness is magnified since common law judicial bodies are used to interpreting statutory law narrowly so as to limit its interference with their own case law. Hence the risk exists that in applying the Convention they will also stick to its literal and grammatical meaning instead of taking a more liberal and flexible attitude. In view of the fact that the Convention represents a veritable codification of the law on international sales contracts and as such is intended to replace all the rules previously governing matters within its scope, whether deriving from statutes or from the case law, this type of behaviour would be inappropriate.
Furthermore, the Convention, just like any other legislative text, contains a number of provisions that are open to different interpretations and by its very nature is unable to anticipate all the problems to which it will be applied. In contrast to ordinary domestic legislation which is an integrated part of a wider legal system, the Convention does not possess its own legal background for interpretation. Consequently, in the case of obscurities or true gaps in the text there exist only two alternatives: either refer to principles and criteria taken from a particular domestic law or find the solution within the Convention itself. The first approach is the one which so far has generally prevailed in regard to other existing uniform laws, but it does not take into consideration the fact that uniform law, having been prepared and agreed on at an international level, remains an autonomous body of law even after its formal incorporation into the different legal systems. The drafters of the Convention, on the contrary, clearly favoured the second approach and to this effect included a special provision stating that «[i]n the interpretation of the Convention regard is to be had to its international character...» and that «[q]uestions concerning the matters governed by the Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based» and, only in the absence of such principles, [page 18] «in conformity with the law applicable by virtue of the rules of private international law» (Article 7(1) and (2)). Yet will this be sufficient to induce courts in the different countries to abandon their traditional preference for the nationalistic approach which after all, at least where the rules of interpretation are taken from their own domestic law, has the advantage of offering a relatively easy solution to the problem? And even if this be the case, what is the methodology to be followed in interpreting the Convention's provisions «autonomously» or in solving the unsettled questions in conformity with the «general principles» on which the Convention is based?
3.2. - The Convention's main purpose is to bring about uniformity at a world-wide level in the law of international sales contracts. To this end it is not sufficient that the single States adopt the Convention. It is equally important that its provisions be interpreted in the same way in various countries.
Accepting the idea that due to its international origin and nature the Convention is to be interpreted differently from ordinary domestic legislation is only a pre-condition for its uniform application in practice. There still remains the possibility that the Convention, even if considered as an autonomous system of law, will be given divergent interpretations in the different parts of the world.
In theory there exists a wide range of remedies against such a risk. The most radical would be to give an international tribunal competence to make preliminary rulings on questions arising out of the interpretation of the Convention, while at the same time requiring national courts to suspend their decisions until after the judgment of this tribunal and then to decide in accordance with that judgment. Later on in this Commentary, precisely in connection with Article 7, it will be shown that neither this nor the less ambitious solution which consists in entrusting an international organ, whether a court or a particularly qualified international organization, with the limited task of rendering advisory opinions concerning the proper interpretation to be given to this Convention, can be reasonably expected under the present circumstances.
This means that in practice it will be essentially up to national judges and arbitrators called upon to interpret the Convention [page 19] in a given case, to ensure its uniform application to the widest possible extent. There are, however, some interpretative aids which may help them in fulfilling this difficult task. Thus, the existence of several equally authentic language versions of the Convention may provide insight when a troublesome ambiguity appears in one of the languages. Another useful guide is the legislative history of the Convention. Finally, the most effective means of ensuring uniformity in the application of the Convention. consists in examining the way in which it is interpreted in other countries. Unfortunately enough, however, each of these devices also has its shortcomings. For instance, what if there are discrepancies between the different language versions of the Convention? What if the preparatory materials reveal a conflict of opinion among the drafters themselves? How can an adequate collection and dissemination of international case-law and scholarly writings concerning the Convention be achieved? And what if divergent solutions have been adopted by the different national courts with respect to a particular issue? It follows that the good intentions on the part of those called upon to interpret the Convention in individual cases is not enough, by itself, to realize the goal of maximum uniformity in its application. What is equally needed is that judges and arbitrators be put in the position to fulfil their task adequately, and for this purpose, much depends on finding satisfactory solutions to the above-mentioned problems of a theoretical and practical nature. [page 20]