Go to Database Directory || Go to Bibliography

Reproduced with permission of 50 University of Pittsburgh Law Review (Fall 1988) 197-226

The Need for Uniform Interpretation of the 1980 United Nations
Convention on Contracts for the International Sale of Goods

V. Susanne Cook

  1. Introduction
  2. The Convention and Its History
  3. Principles of Treaty Construction
    A. United States Principles of Treaty Construction
    B. The Role of Comity in Treaty Construction
    C. Principles of Treaty Construction Accepted as Customary International Law
  4. Application of Treaty Construction and Comity Principles to the Convention
    A. The International Character of the Convention and the Need to Promote Uniformity
    1. The Language of the Convention
    2. The Convention's History and Negotiations
    3. Domestic Legislative History of the Convention
    4. Application of Comity to the Convention
  5. The Role of Foreign Decisions in Domestic Treaty Interpretation
  6. Review of Established Unification of Law Experiences
    A. The Uniform Commercial Code
    B. The European Economic Community
  7. Conclusion

I. INTRODUCTION

Throughout history, international trade has responded to its special need for universal and predictable rules by creating its own lex mercatoria,[1] or substantive body of law. In this tradition, the 1980 United Nations Convention on Contracts for the International Sale of Goods [2] (the Convention) provides the governing law for all contracts for the sale of goods [3] where the parties have their place of business in different contracting states [4] and where the parties to the sales contract have not expressly opted out of the Convention in their contract.[5] A [page 197] variety of legal systems with different judicial procedures, perceptions, and cultures will interpret this multilateral treaty.[6] Its overall success and utility will be measured and evaluated by the extent to which it succeeds in advancing its ultimate objectives: the promotion of uniformity in interpretation [7] and predictability in conflict resolution of international sales transactions. The key issue to uniformity, which the United States as one of the original contracting states will undoubtedly confront, is the degree to which United States courts will be guided by foreign decisions [8] in interpreting the provisions of the Convention. Nothing would bury the Convention more proficiently than diverse judicial interpretation among the contracting states.

The following hypothetical situation demonstrates the problem: A buyer with his main place of business in the United States and a seller with his main place of business in France enter into a contract for the sale and installation of three refineries. The contract does not fix the substantive body of law that is to govern this transaction. The refineries malfunction and suit is brought by the buyer in a United States district court. The issue to be decided is whether the Convention applies to this mixed contract for services and the sale of goods. The Convention in article 3 provides some guidance: "This Convention does not apply to contracts in which the preponderant part of the obligation of the party who furnishes the goods consists in the supply of labour or other services."[9] The resolution of the hypothetical therefore depends on a determination of the threshold term "preponderant."

If the only adjudication of this issue had been by a French court, should the French result or its reasoning be binding on courts in other [page 198] jurisdictions? Should it be considered as persuasive authority only? Or is it irrelevant? These questions are basic to the administration of the Convention and must be analyzed and solved before reaching issues of interpretation and construction of individual articles.

A swift and dispositive determination of the relative weight of foreign judicial decisions in our domestic legal system is relevant to anyone faced with the application of the Convention, including the legal practitioner, businesspersons, judges, and ultimately the consumer. Any new law provides special challenges to the legal practitioner who does not have the benefit of past decisions defining the scope and meaning of the law. The Convention compounds this uncertainty as long as a question remains about the extent to which foreign decisions help define its terms.

This Note contends that the Convention, by its language and history, directs United States courts to achieve uniformity in interpretation by granting considerable weight to foreign decisions interpreting its terms. As a general background, the Note will review, in Part II, the Convention's solid roots in the tradition of the ancient uniform lex mercatoria and in the more recent movement for unification of private international law.[10]

Part III of this Note describes judicially enunciated principles of treaty interpretation that United States courts must apply to resolve conflicts of interpretation arising between the contracting states of the Convention. As a related issue, the Note reviews the accepted principle of comity, which requires a court to balance competing national, domestic, and international interests in order to decide an issue that the underlying treaty fails to resolve. Since uniformity in interpretation is a universal goal of the Convention, those rules of treaty construction accepted as customary international law [11] are reviewed to demonstrate that, generally, reciprocal treatment [12] will be granted to United States judicial decisions in the courts of most foreign countries. [page 199]

Part IV applies these principles of treaty construction to the Convention. This analysis concludes that in most instances a case-by-case comity analysis is misplaced since the Convention, by its terms and history, directs courts to seek guidance from foreign interpretations.

Beyond the immediate context of the Convention, Part V reviews United States cases interpreting the Warsaw Convention [13] in order to illustrate the reluctance of lower courts to seek guidance in foreign decisions.

However, a review of United States cases rendered under the Uniform Commercial Code [14] (UCC) in Part VI isolates tested guidelines which United States courts regularly apply to achieve inter-jurisdictional uniformity in the interpretation of decisions. On the international level, the European Economic Community's [15] (EEC) superimposed multinational court is introduced as a key element in the achievement of the EEC's international uniformity in the interpretation of its treaties.

This Note concludes that United States courts are well equipped to achieve international uniformity of judicial interpretation of the Convention if the familiar uniformity guidelines developed under the UCC are equally applied to foreign decisions interpreting the Convention. In addition, the Note suggests the establishment of an international judicial advisory body in order to enhance universal uniformity of interpretation of the Convention.

II. THE CONVENTION AND ITS HISTORY

In an increasingly more complex and integrated world market,[16] the need for unifying rules has become more pressing.[17] Business in [page 200] general and especially international business aspires to allocate potential risks as accurately as possible in order to determine the profit range, purchase adequate insurance, or abstain from the transaction altogether. A substantive law that is interpreted fairly consistently in different forums of the world will allocate risks predictably and prove to be a useful, reasonably accurate tool. This Section will review the manner in which international trade historically has attempted to achieve uniformity and predictability.

For centuries, international trade has been regulated by the flexible yet relatively stable lex mercatoria. It was developed by a transnational community of merchants to serve their business needs for a universal contract language.[18] Its acceptance into the English body of common law in the 18th century could have been its ultimate victory but proved instead to be its decline since simultaneously its characteristic flexibility was lost.[19] The national judicial system was incapable of assimilating the needs of the international community.

A renewed interest in the unification of private international law in the 1930s led to the establishment of the International Institute for the Unification of Private International Law (UNDROIT).[20] In 1964, its efforts culminated in the ratification of two conventions: the Uniform Law on the International Sale of Goods (ULIS) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF).[21] The United States and most third world nations never provided any input during the drafting stages.[22] As a result, UNDROIT's conventions never gained universal acceptance and have mainly been adopted by European civil law nations.[23]

When the United Nations Commission on International Trade [page 201] Law (UNCITRAL) was established in 1966 by a United Nations General Assembly resolution [24] as the permanent body responsible for the promotion of "the progressive harmonization and unification of the law of international trade,"[25] the lesson history had taught was quite clear. Unification of law does not begin with a common, homogeneous, substantive law nor does it begin with the ratification of such a law in various countries unless, throughout its development, the different needs and demands of the varied socio-economic systems and legal structures, perceptions, procedures, and cultures of the distinct legal systems of this world are a main and omnipresent consideration [26] and are capable of absorbing the unified law.

Accordingly, throughout the drafting of the Convention UNCITRAL consistently followed some basic guidelines. UNCITRAL openly embraced the rich tradition of already existing unification efforts, not mindlessly to accept, but to use as a basis for review, study, and further development.[27] Unlike its predecessor, UNCITRAL carefully assured world-wide representation at all stages of the Convention's development by allocating its permanent seats among the regions of the world.[28] The drafting committee was composed of members representing fourteen countries which, again, were chosen to represent and insure the involvement, feedback, and support from the distinct legal systems of this world,[29] including the common law, the civil law, the law of communist countries with an affinity to the civil law but a different ideological basis, the Islamic law, Hindu Law, Chinese Law, and numerous systems with mixtures thereof.[30]

The Convention is a precisely drafted,[31] yet sweeping document [page 202] consisting of 101 articles. It adheres to a practical approach in order to insure universal implementability and applicability.[32] Ambiguities, such as the extent of deference due to foreign decisions interpreting the Convention, are resolved by reference to domestic rules of treaty construction.

III. PRINCIPLES OF TREATY CONSTRUCTION

This Section reviews the approach that judges [33] employ to discern the meaning of the terms of a treaty. In the United States, well-defined common law rules of treaty construction shape the initial inquiry.

A. United States Principles of Treaty Construction

There is general agreement that the initial inquiry of all treaty construction must always begin "with the text of the treaty and the context in which the written words are used."[34] The term "context" refers to the structure and logical interrelationship of the terms, definitions, and articles of the treaty itself. In addition, courts review a wide array of extrinsic evidence to determine the meaning of terms. At that point two distinct policies emerge.[35]

On the one hand, treaties are contracts between sovereigns and are subject to rules of construction similar to those applicable to contracts.[36] However, "treaties are construed more liberally than private agreements." Extrinsic evidence such as "the history of the treaty, the negotiations, and the practical construction adopted by the parties"[37] is admitted to help discern the meaning of the provisions, and to foster construction "consistent with the shared expectations of the [page 203] contracting parties."[38] Subsequent judicial interpretations of a treaty are evidence of the meaning of the treaty's terms.

On the other hand, under the supremacy clause of the United States Constitution, treaties are the "supreme Law of the Land,"[39] and like United States statutes,[40] are interpreted by reference to their domestic legislative history. The chief executive officer, as the body responsible for negotiating treaties among nations,[41] is accorded utmost deference and is given wide discretion to determine the meaning of a treaty.[42] The presidential interpretation is subject to the Senate's understanding of the terms of the treaty [43] at the time the Senate exercised its advise and consent role.[44] Accordingly, committee meeting minutes, records of debates, and testimony of witnesses in front of the Senate are persuasive evidence.

As a contract, judicial interpretation of the treaty in the courts of all contracting states is of equal weight. However, as domestic law, United States courts are only bound by the domestic legislative history. The Constitution does not require a court to recognize or give effect to foreign acts. It is only through the "comity among nations"[45] that United States courts recognize foreign acts.

B. The Role of Comity in Treaty Construction

The concept of comity is the judicially developed tool used to [page 204] reconcile conflicting interests among sovereigns. Comity "refers to the spirit of cooperation in which a domestic tribunal approaches the resolution of cases touching the laws and interests of other sovereign states."[46] It has never been viewed as an "absolute obligation" nor as merely a matter of "good will," but rather as "the recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation."[47]

Comity factors are implicated in treaty interpretion only to the extent that a particular treaty fails to adequately address the issue before the court. Comity proscribes a test that balances domestic, foreign, and international interests.[48] Generally, courts tend to discount foreign concerns and defer strongly to their domestic concerns. Societe Nationale Industrielle Aerospatiale v. United States District Court,[49] a recent Supreme Court case, reaffirms the tested treaty construction principles and also provides the Court's most recent enunciation on comity principles in this area.

Societe Nationale arose under the Hague Evidence Convention,[50] which is a multilateral treaty delineating the rights, duties, and procedures for the taking of evidence abroad for use in domestic judicial proceedings. The initial complaint involved a negligence and breach of warranty action that had been initiated in a United States District Court by the pilot and a passenger of an airplane which crashed against the French manufacturer of the airplane. The issue before the court was whether the United States, as a signatory to the Hague Evidence Convention, was bound to honor the procedures of the Convention as the exclusive or at least as the normal means of obtaining evidence.[51] [page 205]

This issue had been vehemently debated by the United States and the rest of the contracting states.[52] The conflict centered around the liberal scope of party-conducted pre-trial discovery characteristic of the United States judicial system as opposed to the more controlled discovery procedures adhered to by other common law countries.[53] Civil law countries view discovery as a judicial act to take place during trial [54] or as a necessary but, nonetheless, intrusive governmental act [55] that requires direct judicial supervision in order to protect the constitutionally-based right of "personal privacy, commercial property and business secrets."[56] The Hague Evidence Convention strikes a middle ground between the United States and the civil law position.[57] Though it does not permit the pre-trial production of documents located abroad, it delineates procedures to question witnesses about the content of the documents.[58]

The majority of the Court, in a five to four decision, held that the procedures of the Hague Evidence Convention were merely optional, while the dissent considered the Hague Evidence Convention to be the "normal channels for discovery."[59] Despite their different conclusions, the majority and the dissent employed the same initial analysis. A unanimous Court applied the established principles of treaty construction of "starting with the text of the treaty"[60] and reviewing "the negotiations and the practical construction adopted by the parties."[61] The [page 206] Court split over how these principles should be applied to the specific facts.

After reviewing the language and the negotiations of the Hague Evidence Convention, the majority concluded that the parties at the negotiating table did not form a comprehensive agreement on discovery.[62] The Court seemed to base its conclusion solely upon the permissive language of the Hague Evidence Convention.[63] However, interwoven into its linguistic analysis, the Court supported its conclusion by stressing the importance of the United States's interest in maintaining complete control over pre-trial discovery.[64] In contrast, foreign interests did not receive any detailed discussion since the Court viewed them as mere "expectations of the parties."[65]

Left without a meaningful convention on discovery, the Court directed trial courts to determine the scope of discovery by evaluating factors that relate to comity such as the national and foreign interest, the particular facts of the case, and the likelihood of success.[66] Applying this test to the controversy at bar, the Court again emphasized the United States's interest, which was identified as the "overriding interest in the 'just, speedy, and inexpensive determination' of litigation in our courts."[67] In dicta, the Court acknowledged generally that there were competing foreign interests: "any special problem confronted by the foreign litigant on account of its nationality or the location of its operations, and any sovereign interest expressed by a foreign state."[68] Predictably, this skewed test upheld the district court's refusal to limit discovery to the procedures delineated in the Hague Evidence Convention.

While the majority recited the foreign concerns and then dropped them to defer completely to the United States's interest, Justice Blackmun, writing for the dissent, reviewed, analyzed and, most importantly, gave weight to the national as well as the constitutionally-based foreign concerns and interests. He concluded that the Hague Evidence Convention, in order to have any meaning at all, must contain the political compromise between the civil law and the United States common law discovery procedures. As a result, he rejected [page 207] the majority's case-by-case comity analysis as appropriate only in those instances where the competing national and foreign interests had not been resolved in a treaty.[69]

Correctly, the dissent associated two hazards with a derogation of the Hague Evidence Convention to an optional status. First, the dissent distrusted the ability of the lower courts to be free from their own pro-forum bias and to apply the majority's "neutral balancing process" evenhandedly.[70] Secondly, the dissent feared that the application of discovery procedures other than those outlined in the Hague Evidence Convention would carry with them the "pricetag of accumulating resentment, with . . . long-term political cost."[71]

The majority and the dissent accused each other of violating comity and separation of power principles [72] with its hands-off implications towards political compromises struck by the executive and the legislative branches.[73] While the dissent argued that a derogation of the Hague Convention to an optional status would disturb a political compromise, the majority rebutted that a court cannot give effect to the aspirations of foreign states which they were unable to enforce at the negotiating table. However, the true bargain can only be ascertained by reviewing, pondering, and weighing the evidence on both sides, and then giving effect to the shared intent of the parties. The dissent approaches its evaluation of the evidence in just that manner.

Every treaty has its own set of precipitating interests. As a result, the complete deference to United States interests in Societe Nationale is restricted to the Hague Evidence Convention and, to a lesser degree, to the particular facts of that case. A prior Supreme Court decision, Air France v. Saks,[74] which was rendered two years before Societe Nationale, demonstrates the Supreme Court's willingness to evaluate and give deference to foreign concerns and decisions on a treaty-by-treaty basis. In Air France, the Court was asked to resolve a circuit split concerning the definition of the term "accident" as it is used in the Warsaw Convention,[75] which is a multilateral agreement [page 208] regulating international transportation and limiting air carrier liability.

In a unanimous decision authored by Justice O'Connor, one of the dissenters in Societe Nationale, the Court held that the term "accident" does not cover injuries that are "caused by an unexpected or unusual event or happening."[76] Noting that the official and governing text of the Warsaw Convention is in French, the Court relied, almost exclusively, on French decisions and dictionaries defining the term "accident." Though the Warsaw Convention does not contain a codified directive of uniformity in its interpretation, the Court declared:

"In determining precisely what causes can be considered accidents, we 'find the opinions of our sister signatories to be entitled to considerable weight.'"[77]

The Court in Air France deferred strongly to foreign decisions without ever mentioning the word comity. A balancing test of competing interests was never applied. The implication is that the Warsaw Convention embodies the agreement that already accommodates conflicting interests. The Court is bound to honor this political balance.

C. Principles of Treaty Construction Accepted as Customary International Law

The Vienna Convention on the Law of Treaties (Vienna Convention) [78] has widely been viewed as a codification of customary international law.[79] Though it has not been signed by the United States, the Vienna Convention's rules of treaty construction in many ways resemble the United States common law rules. The Vienna Convention directs the initial inquiry to focus on the "ordinary meaning" of the terms of the treaty as interpreted in the "context and in the light of its object and purpose."[80] Unlike United States common law construction principles, the Vienna Convention defines the term "context" very narrowly. As a result, the statements of the head of state or of the legislative branch concerning a particular treaty are not given any deference unless these statements either constitute "an agreement relating [page 209] to the treaty which was made between all the parties in connection with the conclusion of the treaty"[81] or were "accepted by the other parties as an instrument related to the treaty" and were made in "connection with the conclusion of the treaty."[82] The goal of the Vienna Convention is to insure that a state cannot unilaterally impose a meaning on a treaty without the consent of the other states.

The Vienna Convention views subsequent judicial decisions as relevant evidence to be "taken into account" as a "subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation."[83] This enunciation of customary international law seems to be similar to the United States position of viewing subsequent decisions as evidence of the meaning of the terms of the treaty. The Vienna Convention does not define the weight that should be put on foreign decisions. This lack of specific guidance has its counterpart in United States jurisprudence where the Supreme Court's subjective comity analysis operates as an unpredictable wild card. As a general rule, United States court decisions will be reviewed by the courts of most countries as relevant evidence aiding in the interpretation of international agreements.

IV. APPLICATION OF TREATY CONSTRUCTION AND COMITY PRINCIPLES TO THE CONVENTION

The official text of the Sales Convention, as submitted by the President to the Senate for its advice and consent,[84] and as adopted by Congress, does not provide any specific guidance on how to deal with foreign decisions interpreting this Convention. Nonetheless, some general guidelines can be isolated.

In the preamble, the Convention's drafters voice some common concerns which express the position that international trade will help promote peace if it enhances "equality and mutual benefit" and if it takes into account "the different social, economic and legal systems."[85] Presently, there is no decision on point considering whether [page 210] the preamble is part of the enacted law or mere precatory language.[86] In addition to its unclear status, the language of the preamble is too imprecise to be helpful in deciding individual cases and thus should be viewed as an introduction which sets the directive tone.

Article 7 provides the most focused guidance and enunciates those factors which must be considered when interpreting the Convention:

(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 whith [sic] 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.[87]

The broad language of the preamble and article 7 stresses two basic tenets that require further examination: the international character of the Convention and the need to promote uniformity in its application. These general standards of interpretation are, pursuant to article 7(2), supplemented by the rules of private international law. Accordingly, common law principles of treaty construction are applicable to the Convention.

A. The International Character of the Convention and the Need to Promote Uniformity

The following analysis applies common law treaty construction principles to the Convention in order to ascertain the extent to which domestic courts should be guided by foreign decisions interpreting the Convention. The analysis will first focus on the language of the [page 211] treaty, then review the Convention's history and negotiations, and finally apply a comity-based balancing of interests.

1. The Language of the Convention

The provisions of the Convention are truly international as they are set forth in the six official United Nations languages: Arabic, Chinese, English, French, Russian, and Spanish -- all equally authoritative.[88] It is inconceivable that the Convention would reject a hierarchy between the six official languages only to condone a judicial interpretation of its terms in one language over another. This policy of equality among the six official languages will be furthered by consulting decisions in other languages.

The Convention uses urgent language when it refers to uniformity. There is a "need" for uniformity which is thereby elevated to a critical, obligatory consideration -- one that every court dealing with the provisions of the Convention has to entertain and which, in the Convention's spirit, cannot be discounted.

Critics of the Convention argue that its principles are too nebulous and undefined to provide any guidance.[89] These concerns are not completely unfounded since the Convention, by its terms, does not define the scope of admissible or relevant investigation. However, an inquiry that looks beyond the four corners of the treaty to its history and negotiations will alleviate these concerns.

2. The Convention's History and Negotiations

The Convention's mandate to the courts to apply its articles uniformly and with a regard for its international character must be viewed in light of its immediate international history -- a movement that began in Europe in the 1930s and which, in the 1960s, under the active lead of the United Nations, encompassed all conceivable interest group based on religious, socioeconomic, regional, or dogmatic interests.[90] Throughout the Convention's drafting process, its international character was an ever-present consideration. Nationalistic differences had to be put aside if the task at hand was to be mastered. Courts throughout the world are asked to emulate this cooperative spirit when they are called upon to construe the provisions of the Convention. [page 212]

The strongest criticism attaches at this point. On the one hand, articles of the Convention that address "the different social, economic and legal systems"[91] are considered to be a "compromise" between those needs.[92] Proponents of the Convention, on the other hand, stress the fact that each article was discussed thoroughly and was finalized by "consensus" without a formal vote.[93] These opposing views are not elegant rhetorical argument lacking substance, but rather they address the very heart of the ideological underpinnings of the Convention. Unification of law between diverse legal systems is impossible if all parties insist on maintaining their entire domestic character. The United States Supreme Court recently recognized this when it upheld an arbitration clause in an international agreement, stating: "'We cannot have trade and commerce in world markets and international waters exclusively on our terms, governed by our laws, and resolved in our courts.'"[94] In line with that reasoning, in Asahi Metal Industry Co. v. Superior Court,[95] a recent product liability case involving foreign businesses, the United States Supreme Court abstained from imposing United States law to its fullest constitutionally permissible extent. The holding was heavily premised upon the "international context" of the suit.[96]

Any dispute under the Convention arises out of this special context of international trade. The Convention is a domestic statute, but unlike most domestic statutes it has numerous counterparts in the substantive body of laws of other nations. The United States should not attempt to resolve disputes under the Convention without acknowledging its unique international character -- without acknowledging foreign decisions rendered under the Convention in other nations.

Any law, rule, or statute has to be applied predictably, and thus uniformly, to be effective. The Convention can master this goal only if uniformity is achieved in the major legal systems of the world. The common law and civil law, to take two of the major legal systems, have developed, more in theory than in practice, different methods to achieve uniformity of decisions. The drafters of the Convention did [page 213] not impose a standard that their own legal systems would be unable to uphold.

The common law doctrine of stare decisis [97] is not constitutionally mandated. It is considered to be a "wise policy"[98] and was developed to facilitate stability and equal treatment.[99] It applies, with equal force, to common law rules as well as to statutory law.[100] There is a strong presumption that once an issue has been settled it will not be reexamined [101] since it is considered "'more important that the applicable rule of law be settled than that it be settled right.'"[102] However, stare decisis is not a rigid policy and does not require blind adherence to a long-standing statutory interpretation, if, after further scrutiny, a different interpretation seems more logical.[103] Generally, courts tend to be reluctant to veer from an established line of decisions, so in practice, stare decisis is an extremely powerful policy.

Similiarily, civil law doctrine is preoccupied with uniformity, which is almost elevated to the level of "an unquestioned dogma, a fundamental goal."[104] In the civil law system, devoid of a theory comparable to stare decisis, uniformity is achieved by strict adherence to the language of the statutes as enacted by the legislature.[105] Separation of power principles prohibit judges from making law; they are only to interpret the law. However in practice, prior case law is routinely reviewed, studied, and ordinarily followed.[106]

Functionally, with different emphasis, civil law and common law [page 214] systems achieve uniformity and predictability by looking at similar considerations: prior decisions and the soundness of prior arguments as measured by the statutory language. Civil law may have more flexibility to dispense with bad case law. However, civil law and common law systems are equally bound by statutes. The Convention's statutory mandate to interpret its provisions with a view to uniformity is of equal weight to civil law and common law judges alike.

3. Domestic Legislative History of the Convention

The domestic legislative history of the Convention reveals a consistent concern for uniformity in light of its international character. The legal analysis that was attached to President Reagan's Letter of Transmittal to the United States Senate for its advice and consent takes the view that the general principles of the Convention encompass "an approach that was designed to strengthen uniform international interpretation."[107] The President's Letter of Transmittal expresses the hope that the Convention will alleviate the "legal uncertaintie[s]" that were a part of international trade when the contracting parties could not agree on a domestic law.[108] The United States chief executive officer, as the chief negotiator, is given considerable deference to determine the meaning of a treaty.[109] Uniform interpretation is only possible if United States courts accept foreign decisions interpreting the Convention as strong evidence of the meaning of the Convention's terms.

Senator Mathias, a member of the United States Senate Committee on Foreign Relations, recognized the significance of uniform judicial decisions under the Convention in the implementation phase. He questioned the expert witnesses at length about the extent to which civil law systems would be guided by prior case law, foreign and domestic.[110] The experts disagreed about the extend to which civil law systems adhere to prior case law.[111] Nobody expected perfect harmonization of decisions under the Convention. Most predicted a general unification process under the Convention partially due to case law, but most importantly, due to the unifying effect of the common statutory [page 215] language.[112] The domestic unifying effect of the UCC supports that position.[113]

Ultimately, it will be the business community that decides whether the Convention is a workable tool. The initial response from national business associations was positive. During the Senate hearings before the Senate Commission on Foreign Relations, many of the business associations went on record in support of the Convention.[114] There was no dissenting voice from the business community.

4. Application of Comity to the Convention

Only those competing international interests that have not been addressed after due negotiations in an international treaty will be subject to a judicial comity analysis. The Convention's history, negotiations, and its operative language stress the need for uniformity in the interpretation of its articles. The failure of the Convention to authorize specific methods to achieve uniformity was by design rather than by accident. This flexible standard leaves room for further developments of law. However, unless uniformity is an empty, meaningless standard, it must include a directive to the courts to grant considerable weight to foreign decisions interpreting the Convention. Only in those rare instances when conflicts arise between domestic and foreign interpretations which are grounded in different, fundamental national values should a court resort to a comity analysis.

In Societe Nationale, the United States Supreme Court directed the focus of treaty interpretation towards the language of the treaty, and its negotiations and history.[115] Usually, this inquiry also satisfies the first step of the comity analysis and isolates the relevant domestic, foreign, and international interests. Subsection one through three of this Section identified the following interests supporting the proposition that uniformity in the Convention's interpretation and application is the Convention's supreme goal: [page 216]

  1. The interest of the national and the international business community in predictable judicial results under the Convention.

  2. The legislative and executive interest in uniform interpretation of the Convention as evidenced by the clear language of article 7 of the Convention.

  3. The national and international interest in predicable and speedy adjudication.

Critics of the Convention do not oppose uniformity in international sales law per se but rather question the Convention's capability to interject predictable rules in international sales transactions.[116] Undoubtedly, some countervailing interests to strict adherence to foreign decisions will be encountered. There may be a national interest in limiting the concept of uniformity of judicial decisions to the extent that foreign courts do not grant guiding authority to United States decisions. However, in the enforcement of foreign judgments, reciprocity has been rejected in the majority of United States courts.[117] A hard-line stance merely tends to escalate conflicts between countries, which is against the interests of the United States.[118] National interests of public concern may present a countervailing interest to uniformity. However, since issues of validity such as capacity to contract are specifically left to domestic law according to article 4 of the Convention,[119] any countervailing interests in individual cases are likely to fall outside of the scope of the Convention.[120]

The final step in a comity analysis requires courts to weigh these competing interests. This is the crucial and most elusive part of the analysis. Interests must be evaluated according to their significance to domestic, foreign, and international concerns. Typically, lower courts deal with intra-national issues, and that becomes their point of reference. As a result, they may be ill-equipped to perform this delicate function without pro-forum bias.[121] [page 217]

V. THE ROLE OF FOREIGN DECISIONS IN DOMESTIC TREATY INTERPRETATION

United States courts frequently consult and quote foreign decisions to guide them in their interpretation of foreign treaties to which the United States is a party. However, a conceptual framework to guide courts in the use and treatment of foreign decisions is lacking.

This lack of guidance starts with the admission into evidence of foreign decisions. Rule 44.1 of the Federal Rules of Civil Procedure [122] requires foreign law to be specifically pleaded or otherwise brought to the attention of the opposing party in order to be admitted into evidence in the federal courts. However, this rule does not squarely apply since it addresses, by its language, foreign law and not foreign decisions.

At least in some instances, courts recognize a difference between foreign law and foreign decisions. For example, conflicts principles, which ascertain the applicable body of law, have been rejected by courts as inapplicable to the interpretation of a treaty.[123] However, the rationale of Rule 44.1 of preventing unfair surprise to the opposing party and unfamiliarity with the foreign law [124] extends equally to foreign decisions. The cautious and fair approach seems to be to comply, to the extent possible, with the spirit of Rule 44.1 and plead foreign decisions.

Equally unsettled is the persuasive effect of foreign decisions in United States courts. As an illustration, consider the line of cases dealing with the scope of carrier liability towards their passengers under the Warsaw Convention.[125] These cases exemplify the inconsistent weight accorded to foreign decisions. Lower court decisions generally do not elaborate on the extent to which foreign decisions are relevant, authoritative, or binding. As a result, conclusions can only be drawn by implication: from the court's tone, style, and general reasoning. The decisions concerning carrier liability fall into four categories: [page 218]

  1. Numerous cases do not discuss foreign decisions at all. This may, in part, be due to counsel's failure to present and argue foreign decisions.[126]

  2. Several cases cite foreign decisions as an interesting piece of information to be considered for comparative purposes only.[127] The foreign decisions are completely irrelevant to the holdings of these cases. Also included in this category are those cases that drop the discussion of foreign decisions to a footnote to insure that nobody will confer guiding force upon these foreign decision.[128]

  3. Frequently, foreign decisions are placed in a string cite starting out with United States decisions which the court, as a group, rejects,[129] distinguishes,[130] or follows.[131] While United States cases receive individual elaboration, none of the foreign cases do. The implication is that the court would have reached the same result absent these foreign decisions.

  4. Some cases cite foreign decisions with general respect. However, under the facts presented, these foreign decisions are side issues and the court deals with them accordingly.[132]

In contrast to these lower court decisions, the United States Supreme Court has articulated, to some extent, the role of foreign decisions in domestic courts. A unanimous Supreme Court in Air France, examining a provision of the Warsaw Convention, stressed the fact that the Warsaw Convention "was drafted in French by continental [page 219] jurists"[133] and concluded from this background that the French legal meaning of the terms of the Warsaw Convention must be considered.[134] Most importantly, the Supreme Court provided lower courts with a standard to apply to foreign decisions:

"In determining exactly what causes can be considered accidents, we 'find the opinions of our sister signatories to be entitled to considerable weight.'"[135]

Justice Blackmun's observation in Societe Nationale was accurate: lower courts tend to apply a pro-forum bias when dealing with foreign concerns. The Court in Air France enunciated a test which sufficiently restrains the discretion of lower courts to prevent undue bias. At the same time, the test does not tie United States courts to an untenable foreign decision.

VI. REVIEW OF ESTABLISHED UNIFICATION OF LAW EXPERIENCES

The Convention is part of a universal movement towards the unification of private international law. As a recently enacted treaty, the Convention does not yet have a track record. Consequently any guidance must come from established unification efforts, such as the Uniform Commercial Code in the United States and the European Economic Community in Europe.

A. The Uniform Commercial Code

The success of a uniform code is to a large degree reflected by the extent to which it has been adopted in different jurisdictions. By that measure, the UCC has lived up to the boldest expectations. First published in 1952,[136] Article 2 of the UCC has been adopted in all states except Louisiana. The UCC's common statutory basis resulted in a unifying effect on sales law.[137] In turn, this convergence of United States sales law helped change the United States's attitude towards unification of law efforts in the international arena.[138] [page 220]

The UCC and the Convention lend themselves to comparison. Their likeness extends beyond the obvious general subject area of sales law to a common origin in a unification of law movement.[139] Like the Convention, the UCC adheres to a general philosophy of uniformity. The National Conference of Commissioners on Uniform State Laws and the American Law Institute, in the 1972 introduction to the UCC, pronounced the UCC's primary purpose as the achievement of "uniformity throughout American jurisdictions."[140] Section 1-102(1) of the Code in turn declares that "[t]his Act shall be liberally construed and applied to promote its underlying purposes and policies."[141] One of these policies and purposes is defined in section 1-102(2)(c) as uniformity "among the various jurisdictions."[142]

Obviously, unification in a federal system with a shared heritage is a much simpler process than a similar attempt on the universal level. However, a review of the judicial reaction to the UCC will supply useful data to evaluate the extent to which our legal system is capable of assimilating conflicting legal conclusions into a common stance with a view towards the supreme value of uniformity.

United States courts have, for the most part, accepted and integrated the UCC's policy of uniformity which, like a wild card, can put its mark on all provisions of the UCC. Uniformity is clearly an accepted concern. However, there may be stronger countervailing interests in particular cases. Courts seem to understand that one of the benefits of the UCC is in its convergence of the sales law of each state into one body of law.[143] Diverging interpretations would undermine this benefit. In individual cases courts vary greatly in the degree of deference that they are willing to grant to decisions interpreting the UCC rendered in other United States jurisdictions.

Cases which address the UCC's principle of uniformity can be divided into four categories according to the degree of deference given to decisions from other United States jurisdictions. In the first category are decisions which exhibit the most deference to the UCC's principle of uniformity. Solely with a view to uniformity and the singularity [page 221] of their stance, these courts overruled prior precedent.[144] However, such deference is rare and cannot be relied upon to achieve uniformity.

Cases of first impression comprise the second category. These cases often exhibit the least resistance to the section 1-102 mandate of uniformity. Since there is no domestic precedent, decisions on point rendered in other jurisdictions are almost routinely followed in order to stay within the mainstream of decisions.[145] These foreign decisions are the law, unless the decisions rendered in the other jurisdictions are, in the court's judgment, "clearly erroneous" and cannot be supported by the language of the statute or its background.[146]

The third category of cases consider holdings interpreting sections of the UCC to be persuasive authority, which is an extremely good argument though not necessarily the winning argument.[147] These courts are clearly guided by deference; the extent to which they adhere to this principle depends upon the soundness of the arguments presented and the relative advantages and disadvantages of adhering to uniformity in that particular case. Uniformity is a major consideration though in no way is it a binding or a compelling one.

The final category consists of a fair number of courts which expressly consider the mandate of section 1-102 but do not feel compelled to follow a line of cases from another jurisdiction,[148] or sometimes even a line of cases from the majority of jurisdictions.[149] The underlying rationale varies from case to case but can be summarized as follows: In the case of a single other jurisdiction, the court may feel that uniformity is not implicated at all.[150] Similarly, a true split in jurisdictions does not implicate uniformity since any decision the court may render does not change the previous divergence of decisions.[151] Even [page 222] when confronted with a commonly held view or the majority view, some courts will still refuse to overrule precedent absent a clear directive by their own legislature to deviate from and reverse a longstanding rule.[152]

For the most part, lower courts seem to be comfortable in reviewing decisions that have been rendered in other United States jurisdictions. Over the years, courts have developed guidelines on when and how to apply the UCC uniformity standard to inter-jurisdictional conflicts of decisions. While courts employ a case-by-case analysis, it is one that, for the most part, proceeds according to well defined and accepted rules. This situation provides a rare opportunity for the Convention to borrow some tested principles.

Most litigation under the Convention within the next couple of years will involve cases of first impression. It is encouraging that this category is the most favorable to uniformity. Prior decisions rendered in other jurisdictions will likely be followed unless they prove to be "clearly erroneous." A decision may not be the most compelling or most likely result, but the "clearly erroneous" standard compels a court to follow prior decisions unless a reasonable person could not have reached that particular outcome.

Where a true split in authority exists, the policy of uniformity does not provide any guidance to courts. However, as a clear majority position consolidates, the policy of uniformity gains proportionally.

To be clear, there are two levels of uniformity of case law. First, there is uniformity among the several states of the United States, and secondly, there is uniformity of decisions among the different contracting states to the Convention. The Convention enjoys the same advantages that were instrumental to the UCC's success: a common substantive law, a codified mandate of uniformity, and case law that will be readily accessible.[153] The tested principles of uniformity under the UCC will direct United States courts to consult decisions rendered in other United States jurisdictions. This is a familiar process to United States courts. However, international uniformity among the contracting states may be a more difficult objective. [page 223]

B. The European Economic Community

The European Economic Community has developed structures and procedures to promote international uniformity of interpretation of its treaties. The EEC was established on March 25, 1957 when representatives of Belgium, Germany, France, Italy, Luxembourg, and the Netherlands met in Rome to sign the treaty which created the EEC's basic systems.[154] From its inception, the EEC has been composed of a structure of permanent, somewhat independent institutions that regulate its affairs.[155] The EEC is much more than a simple treaty structure between nations. It affects the citizens of its member states directly and grants to them enforceable rights that may not be interfered with by the member states.[156] In other words, a permanent transfer of power has occurred.[157]

These are important differences that must be considered in a comparison between the EEC and the Convention.[158] But, a close analysis reveals some astonishing parallels. When the EEC was first conceived, it was met with much skepticism. The reservations advanced at that time sound very familiar and resemble today's debate on the merits of the Convention. The EEC was considered to be too uncertain and lacking detail. Many feared a surrender of their national rights and identity.[159]

The overwhelming success of the EEC is largely due to its ability to enforce its laws equally and uniformly throughout its member states. The judicial branch of the EEC is headed by the powerful, supernational Court of Justice. The Court derives its powers from article 177 which declares that "the interpretation of this treaty" shall be in the hands of the Court of Justice.[160] Article 177 further requires a national court to refer questions of interpretation of the EEC treaty [page 224] to the Court of Justice for resolution.[161] In theory, national courts, in line with civil law rejection of stare decisis, are not bound by the Court of Justice. In practice, however, courts rarely contest a ruling rendered by the Court of Justice.

The Court grants to its member states the right to intervene in any case before it.[162] The names of the parties and the issue to be decided are regularly published in the "Journal Official."[163] Member states frequently utilize the right of intervention to voice their concerns. The Court treats their input with the greatest deference, discussing the merits of the arguments advanced in the Court's published decisions.[164] The EEC has in this manner developed open, formal, and continuous channels of communication between the member states and the Court.

The EEC's structure is too elaborate to be successfully emulated by the Convention at this point. However, the present lack of a universally agreed upon response to any diversity of interpretation is inexcusable.[165] This present vacuum could be filled by a supernational, purely advisory judicial panel established for the purpose of coordinating judicial decisions interpreting the Convention. Membership would represent the general make-up of the contracting states. This panel would render advisory decisions on issues of interpretation of the Convention upon the request of a contracting state. Every contracting state would be encouraged to submit an official statement delineating its position on the issue to be decided. In return, the panel would be required to treat each official statement with great deference and address the concerns raised by the contracting states in the advisory opinion.

Despite the advisory nature of the panel, it would represent a permanent unifying force. Its opinions would be very authoritative since they would reflect the diverse interpretations of the contracting states. The court would render a decision only after all competing interests had been addressed and evaluated. In addition, the panel [page 225] would establish a continuous mechanism of communication between the contracting states in accordance with the procedures established by the Court of Justice of the EEC. Finally, its decisions would be regularly published and universally distributed to insure accessibility.[166]

VII. CONCLUSION

The Convention is the domestic and foreign statute applicable to international sales transactions. This simple statement, quite pointedly, alludes to the conceptual problems the Convention is likely to face. The Convention's roots are in an international unification of private international law movement and its enforcement structure is based upon national law. This hybrid character of the Convention must be understood by domestic courts in order to advance the Convention's ultimate goal of uniformity in international sales law.

The Convention directs courts to review all prior domestic and foreign decisions on point rendered under the Convention. If the Convention's standard of uniformity in the interpretation of its standards has any meaning at all, then foreign decisions on point must be accorded considerable weight in United States courts. [page 226]


FOOTNOTES

1. The term lex mercatoria refers to the law merchant. See Berman & Kaufman, The Law of International Commercial Transactions (Lex Mercatoria), 19 HARV. INT'L L.J. 221, 224-29, 264-72 (1978) (describing the development of the ancient lex mercatoria up to today's international codifications of lex mercatoria).

2. The official United Nations text of the Convention is contained in Conference on Contracts for the International Sale of Goods, U.N. Doc. A/CONF.97/19 (1980), reprinted in S. TREATY DOC. NO. 98-9, 98th Cong., 1st Sess. 22 (1983) and 19 I.L.M. 668 (1980) [hereinafter CISG].

3. CISG, supra note 2, at art. 1, art. 2, art. 3 (defining the term "goods").

4. CISG, supra note 2, at art. 1. The original contracting states were Argentina, Egypt, France, Hungary, Italy, Lesotha, People's Republic of China, Syria, United States of America, Yugoslavia, and Zambia.

In addition, article 1(1)(b) extends the application of the Convention to instances "when the rules of private international law lead to the application of the law of a contracting state." The United States ratified the Convention subject to the reservation permitted by article 95 to exclude the application of article 1(1)(b). See Legal Analysis of the United Nations Convention on Contracts for the International Sale of Goods attached to the President's Message to the Senate transmitting the Convention on Contracts for the International Sale of Goods, 2 PUB. PAP. 1318 (Sept. 21, 1983) [hereinafter Legal Analysis].

Under article 1(1)(b), choice of law rules may lead to the application of the Convention though only one or neither party resides in a contracting state. The Draft Convention Applicable to Contracts for the International Sales of Goods provides clearly defined choice of law rules to supplement article 1(1)(b) of the Convention. See also Gabor, Emerging Unification of Conflict of Laws Rules Applicable to the International Sale of Goods: UNCITRAL and the New Hague Conference on Private International Law, 7 NW. J. INT'L L. & BUS. 696 (1986) (discussing in detail the interaction between the Convention and the Hague Evidence Convention).

5. CISG, supra note 2, at art. 6. See McLachlan, The New Hague Sales Convention and the Limits of the Choice of Law Process, 102 LAW Q. REV. 591, 596-97 (1986). The adherence of the "will theory" of contracts in international business transactions and the failure of domestic laws to give effect to the preference of the contracting parties is viewed as a cause of the increased use of form contracts and international commercial arbitration. See also Gabor, supra note 4, at 697.

6. A treaty is defined in article 2(1)(a) of the Vienna Convention on the Law of Treaties as "an international agreement concluded between states in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments, and whatever its particular designation." Vienna Convention on the Law of Treaties, May 22, 1969, art. 2(1)(a), U.N. Doc. A/CONF.39/47, Fourth Annex (1969), reprinted in 8 I.L.M. 679 (1969) [hereinafter Vienna Convention]. See generally M. AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW 121 (4th ed. 1982) (pointing out that even though the United States is not a signatory to the Vienna Convention, the treaty is basically a codification of pre-existing customary international law and that many of its provisions have been cited in judgments).

7. CISG, supra note 2, at art. 7(1).

8. As used in this Note, the term "foreign decision" refers to a final, binding, and valid decision rendered by the judicial body of another country.

9. CISG, supra note 2, at art. 3.

10. As employed in this Note, "unification of law" refers to the fusion of diverse national laws into a single unifying substantive body of law. However, this is only viewed as a first step which has to be implemented and assimilated by the "legal institutions, actors and procedures existing within nations." Merryman, On the Convergence (and Divergence) of the Civil Law and the Common Law, 17 STAN. J. INT'L L. 357, 367 (1981).

11. As employed in this Note, "customary international law" refers to "a general and consistent practice of states followed by them from a sense of legal obligation." RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 102(2) (1987).

12. This Note addresses reciprocity only in its most general terms. An analysis of the effect of foreign decisions in a specific contracting state is beyond the scope of this Note.

13. Warsaw Convention for the Unification of Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S. No. 876, 137 L.N.T.S. 11, reprinted in 49 U.S.C. 1502 note (1982) [hereinafter Warsaw Convention].

14. U.C.C. 1-102 (1977).

15. Treaty Establishing the European Economic Community, March 25, 1957, 29 U.N.T.S. 11, reprinted in E. STEIN & P. HAY, DOCUMENTS FOR LAW AND INSTITUTIONS IN THE ATLANTIC AREA (1967) [hereinafter EEC Treaty].

16. In 1984, over 500 billion dollars of goods were moved in United States import and export transactions. See 1986 STATISTICAL ABSTRACT OF THE UNITED STATES 856 (106th ed. 1986); see also International Sale of Goods: Hearing on Treaty Doc. No. 98-9 Before the Senate Comm. on Foreign Relations, 98th Cong., 2d Sess. 39, at 8-11 (1984) [hereinafter Senate Hearing] (testimony of Peter Pfund).

17. Rosett, The International Sales Convention: A Dissenting View, 18 INT'L LAW. 445, 446 (1984) (stressing the need of world trade to have unified laws); Note, Unification and Certainty: The United Nations Convention on Contracts for the International Sale of Goods, 97 HARV. L. REV. 1984 (1984) (commenting on the relationship between the increase in international commerce and unification of law efforts in the commercial area).

18. Berman & Kaufman, supra note 1, at 224-26.

19. Id. at 227-28.

20. Honnold, The Draft Convention on Contracts for the International Sale of Goods: An Overview, 27 AM. J. COMP. L. 223, 223 (1979); Sono, UNCITRAL and the Vienna Sales Convention, 18 INT'L LAW. 7, 12 (1984).

21. Uniform Law on the International Sale of Goods, 834 U.N.T.S. 107 (1972); Uniform Law on the Formation of Contracts for the International Sale of Goods, 834 U.N.T.S. 169 (1972), reprinted in 3 I.L.M. 854 (1964); see Honnold, supra note 20, at 223-24.

22. See Honnold, supra note 20, at 224; Landau, Background to the U.S. Participation in United Nations Convention on Contracts for the International Sale of Goods, 18 INT'L LAW. 29, 30 (1984); Winship, New Rules for International Sales, 68 A.B.A. J. 1231, 1232 (1982).

23. See Honnold, supra note 20, at 224; Honnold, Uniform Law for International Trade -- Progress and Prospects, 20 INT'L LAW. 635, 636-37 (1986); Winship, supra note 22, at 1231.

24. G.A. Res. 2205 (XXI), 11 U.N. GAOR Supp. (No. 6) at 99, U.N. Doc. A/6316 (1966).

25. Id.

26. Merryman, supra note 10, passim.

27. See Honnold, supra note 20, at 225-26; Honnold, The United Nations Commission on International Trade Law: Mission and Methods, 27 AM. J. COMP. L. 201, 202-03 (1979) [hereinafter Honnold, Mission and Methods].

28. See Honnold, Mission and Methods, supra note 27, at 207-08.

29. See UNCITRAL, Texts adopted by the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, Final Act, U.N. Doc. A/CONF.97/18, reprinted in 11 Y.B. U.N. COMM'N ON INT'L TRADE L. 149, U.N. Doc. A/CN.9/SER.A/1980; see also Landau, supra note 22, at 35 (drafting committee consisted of members from Brazil, China, Czechoslovakia, Ecuador, Egypt, Finland, France, Libya, the Republic of Korea, Singapore, the United Soviet Socialist Republic, the United Kingdom, the United States of America, and Zaire).

30. H. LIEBESNY, FOREIGN LEGAL SYSTEMS: A COMPARATIVE ANALYSIS 3 (4th ed. 1981).

31. This view is shared by many proponents of the Convention. See Sono, supra note 20, at 13; see also Report to the General Assembly of the United Nations Commission on International Trade Law, Sixth Committee, Eleventh Session 33 U.N. GAOR Annexes (Agenda Item 115), U.N. Doc. A/33/349 (1978), reprinted in [1979] 10 Y.B. COMM'N ON INT'L TRADE L. 5, at P22, U.N. Doc. A/CN.9/SER.A/1979 (representatives to UNCITRAL commenting positively on the Convention's overall acceptability due to its lack of use of legal concepts known only in certain legal systems).

32. Sono, supra note 20, at 13.

33. See, e.g., Terlinden v. Ames, 184 U.S. 270 (1920); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816).

34. Air France v. Saks, 470 U.S. 392, 397 (1985); In re Anschuetz & Co., 754 F.2d 602, 614-15 (5th Cir. 1985).

35. Courts do not discuss these two policies. Rather, they tend to follow one or the other to support their conclusion.

36. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 253 (1984); Tucker v. Alexandroff, 183 U.S. 424, 437 (1901); United States v. Kember, 685 F.2d 451 (D.C. Cir. 1982).

37. Air France, 470 U.S. at 396 (quoting Choctaw Nations of Indians v. United States, 318 U.S. 423, 431-32 (1943)); see also Tucker v. Alexandroff, 183 U.S. 424, 437 (1901).

38. Air France, 470 U.S. at 399 (citing Reed v. Wiser, 555 F.2d 1079, 1090 (2d Cir. 1977)); see also United States v. Conners, 606 F.2d 269, 272 (10th Cir. 1979); Day v. Trans World Airlines, Inc., 528 F.2d 31, 35 (2d Cir. 1975) (quoting Maximov v. United States, 299 F.2d 565, 568 (2d Cir. 1962), aff'd, 373 U.S. 49 (1963)).

39. U.S. CONST. art. VI, cl. 2. There are two types of treaties: those that are self-executing and those that are not self-executing. A self-executing treaty "operates of itself, without the aid of any legislative provision" -- without any enabling legislation. Foster v. Neilson, 27 U.S. (2 Pet.) 253, 314 (1829). The Convention is a self-executing treaty. See Senate Hearing, supra note 16, at 10 (testimony of Peter Pfund).

40. See United States v. Vreecken, 603 F. Supp. 715, 719 (D. Utah 1984).

41. U.S. CONST. art. II, 2, cl. 2.

42. Sumitomo Shoji America v. Avagliano, 457 U.S. 176, 184 (1982); Collins v. Weimburger, 707 F.2d 1518 (D.C. Cir. 1983); Dupree v. United States, 559 F.2d 1151, 1155 (9th Cir. 1977) (citing Factor v. Laubenheimer, 290 U.S. 276 (1933)); see also RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 326 (1987).

43. See Kennedy, Treaty Interpretation by the Executive Branch: The ABM Treaty and "Star Wars" Testing and Development, 80 AM. J. INT'L L. 854, 866 (1986). Kennedy tries to distinguish the presidential treaty power from the congressional treaty power. This issue has not been decided by the courts.

44. U.S. CONST. art. II, 2, cl. 2.

45. Societe Nationale Industrielle Aerospatiale v. United States Dist. Court, 107 S. Ct. 2542, 2555 n.27 (1987).

46. Id.

47. Id.

48. RESTATEMENT (REVISED) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 437(1)(c) (Tent. Draft No. 7, 1986), cited with approval but not adopted in Societe Nationale, 107 S. Ct. at 2555-56. Section 437(c)(1) is new 442(1)(c) of the RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES (1987).

49. 107 S. Ct. 2542 (1987).

50. Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, July 27, 1970, 23 U.S.T. 2555, T.I.A.S No. 7444, 847 U.N.T.S. 231. The Hague Convention entered into force between the United States and France on October 6, 1974. The Convention also has been adopted in Barbados, Cyprus, Czechoslovakia, Denmark, Finland, the Federal Republic of Germany, Israel, Luxemburg, the Netherlands, Norway, Portugal, Singapore, Sweden, and the United Kingdom.

51. There was a definite split in prior decisions. Numerous decisions viewed the Hague Evidence Convention as the normal means of obtaining evidence. See Societe Nationale, 107 S. Ct. at 2558 n.1. Others viewed the Hague Convention as optional. See id. at 2560 n.4.

52. Some states took direct action to force the United States to comply with the Hague Convention. For example, in order to protect its citizens, France had passed a blocking statute with criminal sanctions imposed upon any cooperation with discovery requests outside the procedures of the Hague Evidence Convention. French Penal Code Law No. 80-538, reprinted in Societe Nationale, 107 S. Ct. at 2546 n.6; see Rosenthal, Jurisdictional Conflicts Between Sovereign Nations, 19 INT'L LAW. 487, 491 (1985) (stating that every blocking statute in effect is directed against United States "unilateral extraterritorial measures").

53. See Laker Airways v. Sabena, Belgian World Airlines, 731 F.2d 909 (D.C. Cir. 1984). This case involved an English company that tried to resist a discovery request that was beyond the acceptable realm of the English discovery system.

54. Societe Nationale, 107 S. Ct. at 2562; see also Meessen, The International Law on Taking Evidence from, not in, a Foreign State, App. to Brief for Anschuetz & Co. GmbH and Messerschmitt-Bolkow-Blohm GmbH as Amici Curae 27a-28a, reprinted in 25 I.L.M. 832, 840 (1986) [hereinafter Meessen].

55. Societe Nationale, 107 S. Ct. at 2562.

56. Id. at 2563.

57. The civil law countries had been willing to enlarge their regular discovery procedures to accommodate the United States. See Societe Nationale, 107 S. Ct. at 2559.

58. See Meessen, supra note 54, at 838.

59. Societe Nationale, 107 S. Ct. at 2553, 2559 (Blackmun, J., dissenting).

60. Id. at 2550.

61. Id.

62. Id. at 2552.

63. Id. at 2551.

64. Id. at 2553.

65. Id. at 2552 n.23.

66. Id. at 2556.

67. Id. at 2555 (quoting FED. R. CIV. P. 1).

68. Id. at 2557.

69. Id. at 2555.

70. Id. at 2560.

71. Id. at 2568.

72. Id. at 2553 n.23, 2561.

73. The political question doctrine is as an exception to the courts' general mandate to interpret treaties. According to this doctrine, courts usually abstain from rendering decisions that would shape foreign policy. See Baker v. Carr, 369 U.S. 186, 211 (1962).

74. 470 U.S. 392 (1985).

75. Warsaw Convention, supra note 13. The United States ratified the Warsaw Convention in 1934.

76. Air France, 470 U.S. at 405.

77. Id. at 404 (quoting Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir. 1978), cert. denied, 439 U.S. 1114 (1979)).

78. Vienna Convention, supra note 6.

79. M. AKEHURST, A MODERN INTRODUCTION TO INTERNATIONAL LAW 121 (5th ed. 1984).

80. Vienna Convention, supra note 6, at art. 31, 1.

81. Id. 2(a).

82. Id. 2(b).

83. Id. 3(b).

84. President's Message to the Senate transmitting the Convention on Contracts for the International Sale of Goods, 2 PUB. PAPERS 1318 (Sept. 21, 1983) [hereinafter President's Letter of Transmittal].

85. 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 agreed as follows: ... .

CISG, supra note 2, preamble.

86. Vienna Convention, supra note 6, at art. 31, 2. Under the Vienna Convention, a preamble is clearly considered to be a part of the relevant context but does not comprise the treaty itself.

87. CISG, supra note 2, at art. 7.

88. CISG, supra note 2.

89. Rosett, supra note 17, at 446; Note, supra note 17, passim.

90. See supra notes 20-30 and accompanying text.

91. CISG, supra note 2, preamble.

92. See Rosett, supra note 17, at 446-47.

93. See Honnold, Mission and Methods, supra note 27, at 210-26.

94. Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, 473 U.S. 614, 629 (1985) (quoting The Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 9 (1979)).

95. 480 U.S. 102 (1987).

96. Id. at 116.

97. "To abide by, or adhere to, decided cases." BLACK'S LAW DICTIONARY 1261 (5th ed. 1979).

98. Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting).

99. See EEOC v. Trabucco, 791 F.2d 1, 4 (1st Cir. 1986) (quoting 1B. MOORE'S FEDERAL PRACTICE P0.402[2] at 30, 37, 38 (2d ed. 1988) (defining the elements of stare decisis as: (1) an issue of law must have been heard and decided; (2) if an issue is not argued, the decision does not constitute a precedent; (3) a decision is stare decisis despite the contention that the court was improperly instructed by counsel; (4) a decision may be properly overruled if it is out of "keeping with contemporary views" (citations omitted); and (5) there is a heavy presumption that settled law will not be disturbed); see also J. MERRYMAN, THE CIVIL LAW TRADITION (2d ed. 1985).

100. But see Thomas, Statutory Construction when Legislation is Viewed as a Legal Institution, 3 HARV. J. ON LEGIS. 191, 193-94 (1966) (supporting the position that stare decisis violates separation of power principles when statutory construction is involved).

101. See EEOC v. Trabucco, 791 F.2d 1, 4 (1st Cir. 1986).

102. Monell v. Department of Social Services, 436 U.S. 658, 715 (1978) (Rehnquist, J., dissenting) (quoting Burnet v. Corondo Oil Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)).

103. See, e.g., id. at 695; Trabucco, 791 F.2d at 2, 4.

104. J. MERRYMAN, supra note 99, at 48 n.87.

105. Id. at 48.

106. Id. at 47; see also Senate Hearing, supra note 16, at 47 (testimony of John Honnold). But see Senate Hearing, supra note 16, at 46 (testimony of Frank Orban III).

107. President's Letter of Transmittal, supra note 84, at 4.

108. Id. at 5.

109. See supra notes 41 & 42 and accompanying text.

110. See Senate Hearing, supra note 16, at 11, 55, (questions posed by Senator Mathias).

111. See id. at 8 ("practicing lawyers in France and Germany know their cases") (testimony of John Honnold). But see id. at 46, 68-69 (testimony of Frank Orban III); id. at 75-76 (testimony of Arthur Rosett).

112. See id. at 12 (testimony of Peter Pfund); id. at 56 (testimony of John Honnold and Mr. Joelson).

113. See id. at 22 (testimony of John Honnold); see also infra notes 97-106 and accompanying text.

114. See Senate Hearing, supra note 16, at 31 (testimony of Peter H. Kaskell listing the following organizations in support of the Convention: Chamber of Commerce of the United States, National Association of Manufacturers, National Foreign Trade Council, United States Council for International Business, and Business International).

115. Societe Nationale Industrielle Aerospatiale v. United States Dist. Ct., 107 S. Ct. 2542, 2550 (1987); see supra notes 60 & 61 and accompanying text.

116. See supra notes 110-13 and accompanying text.

117. See RESTATEMENT (THIRD) OF THE FOREIGN RELATIONS LAW OF THE UNITED STATES 481 reporter's note 1 (1987); see also Somportex Limited v. Philadelphia Chewing Gum Corp., 453 F.2d 435, 440 n.8 (3d Cir. 1971), cert. denied, 405 U.S. 1017 (1972).

118. Cf. Somportex Limited, 435 F.2d at 440.

119. CISG, supra note 2, at art. 4.

120. See supra note 4. This list, due to the hypothetical nature of this analysis, is incomplete and additional interests are likely to be identified.

121. Societe Nationale Industrielle Aerospatiale v. United States Dist. Ct., 107 S. Ct. 2542, 2560 (1987).

122. FED. R. CIV. P. 44.1.

123. Saiyed v. Transmediterranean Airways, 509 F. Supp. 1167, 1169 (W.D. Mich. 1981) (citing Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1258 n.2 (9th Cir.), cert. denied, 431 U.S. 974 (1977)).

124. Commercial Ins. Co. of Newark v. Pacific-Peru Constr., 558 F.2d 948 (9th Cir. 1977); see also MOORE'S FEDERAL PRACTICE RULES PAMPHLET; FED. R. CIV. P. 44.1 advisory committee's note (1975).

125. Since the Warsaw Convention was finalized in French, it lends itself to consulting foreign decisions, particularly those rendered in a French speaking country.

126. See Stratis v. Eastern Airlines, Inc., 682 F.2d 406 (2d Cir. 1982) (did not cite any foreign judgments and cursory legislative history); DeMarines v. KLM, Royal Dutch Airlines, 580 F.2d 1193, 1199 (3d Cir. 1978) (explicitly rejecting legislative history: "KLM points to 'legislative history' of sorts marshalling an impressive array of statements from representatives"); Karfunkel v. Compagnie Nationale Air France, 427 F. Supp. 971 (S.D.N.Y. 1977) (not mentioning any foreign cases); Bianchi v. United Air Lines, 22 Wash. App. 81, 587 P.2d 632 (1978) (not mentioning any foreign cases).

127. Maugnie v. Compagnie Nationale Air France, 549 F.2d 1256, 1260 (9th Cir. 1977).

128. Evangelinos v. Trans World Airlines Corp., 550 F.2d 152, 155 n.8 (3d Cir. 1977); Day v. Trans World Airlines, Inc., 528 F.2d 31, 37 n.17 (2d Cir. 1975).

129. In re Air Crash Disaster at Warsaw, 535 F. Supp. 833, 837 (E.D.N.Y. 1982), aff'd, 705 F.2d 85 (2d Cir.), cert. denied sub nom. Palskie Linic Lotnicze (LOT Polish Airlines) v. Robles, 464 U.S. 845 (1983); In re Tel Aviv, 405 F. Supp. 154, 156 (D.P.R. 1975), aff'd sub nom. Hernandez v. Air France, 545 F.2d 279 (1st Cir. 1976), cert. denied, 430 U.S. 950 (1977).

130. Evangelinos v. Trans World Airlines, Inc., 396 F. Supp. 95, 102 (W.D. Pa. 1975).

131. Petrire v. Spantax, 756 F.2d 263, 265 (2d Cir.), cert. denied, 474 U.S. 846 (1985); Hernandez v. Air France, 545 F.2d 279, 282 (1st Cir. 1976), cert. denied, 430 U.S. 950 (1977).

132. See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 257 n.31 (1984); Reed v. Wiser, 556 F.2d 1079, 1087 n.11 (2d Cir. 1977).

133. Air France v. Saks, 470 U.S. 392, 399 (1985).

134. Id.

135. Id. at 404 (emphasis added) (quoting Benjamins v. British European Airways, 572 F.2d 913, 919 (2d Cir.1978)).

136. See Malcolm, The Uniform Commercial Code in the United States, 12 INT'L & COMP. L.Q. 226, 240 (1963).

137. See Senate Hearing, supra note 16, at 22 (testimony of John Honnold); id. at 64 (joint responses to additional questions submitted for the record by Honnold, Kaskell & Joelson).

138. Lansing, The Change in American Attitude to the International Unification of Sales Law Movement and UNCITRAL, 18 AM. BUS. L.J. 269, 272 (1980).

139. See Malcolm, supra note 136, at 226-33.

140. U.C.C. Introduction (1972).

141. U.C.C. 1-102 (1987).

142. Id.

143. See Evans v. Everett, 10 N.C. App. 435, 179 S.E.2d 120, 125-26, rev'd on other grounds, 279 N.C. 352, 183 S.E.2d 109 (1971).

144. L. & V. Co. v. Asch, 267 Md. 251, 297 A.2d 285, 287 (1972); In re Osborn, 6 U.C.C. Rep. Serv. (Callaghan) 227, 230-31 (1969).

145. Siver v. Gulf City Body & Trailer Works, 432 F.2d 992, 993-94 (5th Cir. 1970); Bank of India, N.A. v. Holyfield (S.D. Miss. 1979); In re Armstrong, 1 U.C.C. Rep. Serv. 2d (Callaghan) 990, 996 (1986); In re Webster, 20 U.C.C. Rep. Serv. (Callaghan) 802, 805 (1976).

146. Jahn v. Burn, 593 P.2d 828, 831 (Wyo. 1978); In re Webster, 20 U.C.C. Rep. Serv. (Callaghan) 802, 805 (1976).

147. ABM Escrow Closing & Consulting, Inc. v. Matanuska Maid, Inc., 659 P.2d 1170, 1172 (Ala. 1983); Waldron v. Armstrong Rubber Co., 64 Mich. App. 626, 232 N.W.2d 722, 723-24 (1976); Commonwealth v. National Bank & Trust Co., 469 Pa. 187, 364 A.2d 1331, 1335 (1976); Evans v. Everett, 10 N.C. App. 435, 179 S.E.2d 120, 125-26 (1971).

148. Kane-Miller Corp. v. Tip Tree Corp., 60 Misc. 2d 776, 303 N.Y.S.2d 273 (1969).

149. Riley v. West Ky. Prod. Credit Ass'n, 603 S.W.2d 916, 917-18 (Ky. App. 1980).

150. See, e.g., Kane-Miller Corp., 303 N.Y.S.2d 273.

151. See, e.g., Riley, 603 S.W.2d at 917-18.

152. See, e.g., id.

153. UNCITRAL plans to take command of the situation and will collect and publicize judicial decisions of the Convention. See Senate Hearing, supra note 16, at 56 (testimony of John Honnold).

154. Treaty Establishing the European Community, March 25, 1957, 298 U.N.T.S. 11, (1957), reprinted in E. STEIN AND P. HAY, DOCUMENTS FOR LAW AND INSTITUTIONS IN THE ATLANTIC AREA (1967).

155. See P. MATHIJSEN, A GUIDE TO EUROPEAN COMMUNITY LAW (1972); J. USHER, EUROPEAN COMMUNITY LAW AND NATIONAL LAW: THE IRREVERSIBLE TRANSFER? (1981).

156. See J. USHER, supra note 155, at 30 (citing Costa v. E.N.E.L., 10 Recueil 1141, [1961-66 Transfer Binder] Common Mkt. Rep. (CCH) P8023 (1964)).

157. See id.; see also Warner, The Relationship Between European Community Law and the National Laws of Member States, 93 LAW Q. REV. 349, 354-55 (1977).

158. Compare Senate Hearing, supra note 16, at 50 (testimony of Frank A. Orban III).

159. See P. MATHIJSEN, supra note 155, at 22.

160. See id. at 150; see also SWEET & MAXWELL'S EUROPEAN COMMUNITY TREATIES 107 (2d ed. 1975).

161. See SWEET & MAXWELL, supra note 160, at 107.

162. See 1 VALENTINE, THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES 57-60 (1965).

163. See id. at 59.

164. European Communities Court of Justice: Preliminary Ruling before the German Higher Regional Court, reprinted in 23 I.L.M. 1409, 1411-12 (1984); N.V. Algemene Transport-en Expeditie Onderneming van Gend & Loos v. Netherlands Fiscal Administration, 9 Recueil 619 [1961-1966 Transfer Binder] Common Mkt. Rep. (CCH) P8008 (1963), reprinted in H. STEINER & D. VAGTS, TRANSNATIONAL LEGAL PROBLEMS 1270 (2d ed. 1976).

165. See J. USHER, supra note 155.

166. Compare supra note 153 and accompanying text.


Pace Law School Institute of International Commercial Law - Last updated September 30, 2005
Go to Database Directory || Go to Bibliography
Comments/Contributions