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Reproduced with permission of 19 SA Mercantile Law Journal (2007) 14-25

Adopting the Vienna Sales Convention:
Reflections Eight Years down the Line

Sieg Eiselen [*]

  1. Introduction
  2. Static Monument
  3. Compromises
    3.1     Specific Performance
    3.2     Mora Interest
    3.3     Good Faith
    3.4     Battle of Forms
    3.5     Consistent Interpretation & Application by Courts
    3.6     Cost of Litigation
  4. Conclusion

1. INTRODUCTION

More than eight years ago, I made out what I believed was a strong case for the adoption of the Vienna Convention for the International Sale of Goods of 1980 (the 'CISG') in South Africa.[1] The country was then emerging from its international isolation and had become a fully fledged member of the international community once more. International trade was flourishing, as it was all over the world in consequence of trade liberalisation policies. South Africa was starting to play a leading role in the development and economic integration of the sub-region with the founding of the Southern African Development Community Convention (the 'SADC'). It seemed to make perfect sense to introduce an instrument for the harmonisation of international trade that could facilitate that trade.

However, despite various submissions and even the intervention of the United Nations Commission on International Trade Law ('UNCITRAL') nothing has as yet been done. The CISG project that was promoted by the Department of Trade and Industry in the late 1990s has mysteriously disappeared.

The harmonisation and unification of international trade law became an important feature of the twentieth century, and this trend is continuing at an even faster rate in the new millennium. In some areas such as transport law, the use of harmonised trade-law instruments has become so axiomatic that nobody thinks twice about them. This process has been given further impetus by the growing importance of organisations such as the World Trade Organisation (the 'WTO') and the World Customs Organisation (the 'WCO'). One can truly speak of the emergence of a new lex mercatoria [2] that is increasingly playing a role in international trade, especially in international arbitration.[3] [page 14]

Despite the growing body of law and continued efforts towards harmonisation and unification, there have been a number of critical voices challenging various aspects of this process. In this analysis I will examine the criticisms, mainly in respect of the CISG, of four commentators -- Kötz,[4] Rosett,[5] Stephan [6] and Ferrari [7] -- against the backdrop of the experience with the CISG thus far in order to determine whether the need for adopting the CISG in South Africa still exists and whether its adoption is still justifiable.

2. STATIC MONUMENT

Rosett first warned that the problem with any international convention harmonising international trade law is that very often such an instrument can easily become a static monuments that is soon out of step with new developments.[8] When one considers the difficulties involved in having multilateral international treaties and conventions drafted and accepted, this is a valid concern. As more and more parties accept a convention, it becomes increasingly difficult to introduce any changes that might be required to keep that instrument current and attuned to the ever-changing needs of international trade.

The Warsaw Convention on international air carriage is a case in point. It was first introduced in 1929 and has seen a number of minor modifications since.[9] There is little doubt that the nature and needs of international air travel and transport have changed considerably from the time when the Convention was first accepted and which have led to the suggestion of important modifications. Most of these suggestions were taken up in the 1975 Montreal draft amendment, but that draft is still awaiting ratification.[10] [page 15]

Yet, not all instruments are subject to the same dangers associated with multilateral conventions. More informal harmonisation instruments, such as the International Chamber of Commerce's Incoterms, are much easier to amend, as is clear from the number of significant amendments that they have undergone since their introduction in 1936.[11] By their very nature, Incoterms, not being creatures of international law but the product of international custom and a privately run international commercial body, are easier to amend. Despite the considerable changes to international trade transportation resulting from, for instance, containerisation, Incoterms have proven to be very resilient and have been amended on only five occasions.[12]

Incoterms provide a set of standard rules and terms that are instantly recognised worldwide, irrespective of language and other legal diversities.[13] They deal with three important aspects of the international sale: the responsibility for the cost of transport, the cost of insurance, and the transfer of risk.[14] However, they also deal with incidental costs and obligations such as the responsibility for delivery, the payment of duties, import and export clearance, licences, authorisations, and formalities.[15]

The Brussels Harmonised System is another example of a spectacular success in the field of international trade harmonisation. This System is managed by the WCO (formerly the Customs Co-operation Council) in Brussels. It is aimed at harmonising a specific area of customs law, namely tariff classifications.[16]

One of the problems that countries struggled with during the early years of the General Agreement on Trade and Tariffs ('GATT') was to find a common basis for the application of the most-favoured-nation principle when levying customs duties. It is no good to apply equal customs duties to products if those products are not classified according to a common scheme and understanding. Under the auspices of the Customs Co-operation Council, the Brussels Harmonised System was developed to address this issue, Today almost all countries involved in international trade subscribe to the System, which comprises a scheme of classification capable of classifying any product that may be imported or exported according to a common, harmonised system and rules.[17] In South Africa the Harmonised System may be found as Schedule 1 to the Customs and Excise Act.[18] [page 16]

The CISG has thus far also proved to be quite resilient. There have been few areas in which there have been real problems tending to show that the instrument, now more than 25 years old, is in need of a serious overhaul or has serious deficiencies. There may be only two significant areas of concern:

(a) Those instances where, from the outset, it was impossible for the original drafters to reach consensus. The following were the most important issues:

(i) The exclusion of good faith as an underlying principle of all contracts.[19]

(ii) Specific performance as a remedy, resulting in the formulation of art 28. Article 28 does not harmonise the position, but simply preserves the different approaches found in local laws, and more specifically, in common law and civil law.[20]

(iii) The failure to stipulate which legal system should govern the issue of default interest.[21]

(iv) The failure to provide properly for the problem of the battle of forms.[22]

(b) Those instances where experience has shown up deficiencies in the application of the Convention. To date there seem to be only two such instances which are of major concern:

(i) The cost of litigation.[23]

(ii) The homeward trend in some decisions or even the complete ignorance of the applicability of the Convention.[24]

The CISG has one major advantage over most other instruments of international harmonisation: the functioning of the principle of party autonomy. It is one of the underlying principles of the CISG, as of most national laws, that in matters of contract the parties are autonomous in realising the relationships between them and that there is relatively little mandatory law that cannot be changed, modified or excluded by the parties themselves.[25] This allows parties to bypass or exclude the CISG where its provisions are inapposite to their situation and to structure their own solutions, that is if the parties are even aware that the CISG may be applicable. [page 17]

Many companies initially chose to exclude the application of the CISG to their contracts,[26] but as knowledge of the Convention became more widespread and with the ever-expanding body of case law showing a remarkable similarity in approach to the application of the Convention, there seems to less of an inclination to exclude it summarily. This is also significant in respect of the emergence of new international markets such as China where there is a great deal of uncertainty about the foreign legal rules that could possibly apply. The resort to the CISG just provides a much easier option for the parties.

The fears about disharmony in respect of the issues mentioned above have also proved to be less problematic than anticipated.

3. COMPROMISES

One of the first objections to be raised in respect of conventions as instruments of harmonisation is that they contain a number of compromises that undermine the apparent harmonisation achieved. It is a criticism that should be considered seriously.[28]

The CISG contains surprisingly few of such compromises either where the Convention does not contain a provision dealing with an issue, or where the provision itself represents a compromise.[29] The most pertinent examples of [page 18] the latter are found in art 28, dealing with the right to specific performance,[30] and art 78, dealing with the right to claim interest on overdue amounts.[31] The requirement of good faith in international transactions and the battle of forms [32] represent examples of issues that were avoided entirely because no consensus could be reached. These failures to reach a harmonised solution may largely be ascribed to the divide between common law and civil law.[33]

3.1 Specific Performance

The issue of specific performance is approached from diametrically opposing positions in common law and civil law. In terms of the latter, the obligation to perform and the right to claim performance are seen as the primary obligation and right. A party is therefore entitled to claim specific performance except in certain defined and exceptional circumstances. However, in common law a party's primary right on breach of contract is a claim for damages, unless that claim is inadequate to compensate the non-defaulting party fully, in which case that party is by way of an exception entitled to specific performance. Most commentators agree that the perceived fundamental differences on this issue are much less marked on a practical level.[34] Although not identical, there is a great deal of overlap created by the exceptions under the two approaches, so that there is virtually no difference to the practical outcome of the application of the rules of either common law or civil law.

3.2 Mora Interest

Likewise, the drafters of the CISG could reach no consensus on the basis on which interest on overdue amounts should be calculated. Article 78 simply states that a party is entitled to claim interest on amounts that are in arrears. The disagreement was caused by different economic and political approaches, [page 19] and by differences in philosophical and religious views.[35] Accordingly, determining the basis or rate of interest in a particular instance will be left to the application of the lex fori. However, this is not helpful where the dispute is resolved by way of arbitration.

The CISG largely consists of dispositive law which may be changed or added to by the parties in their contract.[36] It is therefore open to the parties to resolve any issue left open by the Convention or which is not satisfactorily regulated by it. The issue of interest is well known, and drafters of international sales transactions should therefore accommodate that as far as possible when drafting such agreements.

3.3 Good Faith

The difference in approach to the role of good faith in contract derives from differences in the basic notion of and approach to contracts. In common law, a contract is regarded from a single transactional perspective of parties dealing at arm's length, with there being little or no room for good faith.[37] It is up to each party to ensure that it has sufficient information to conclude the contract and to secure its own position in the absence of fraud and misrepresentation. In civil law, the contract. is approached much more from a relational perspective: there is a duty to negotiate and to enforce the agreement in good faith.[38]

No compromise could be reached on this aspect in the final draft of the CISG, and so its regulation was left open.[39] However, some commentators argue that the reference to good faith in art 7, which deals with the interpretation of the Convention, provides a back door for the introduction of [page 20] good faith in the application of the CISG.[40] Although this approach clearly flies in the face of the legislative history of the CISG, the permeation of the good faith principle in common law jurisdictions has led to a greater acceptance of the principle in the application of the CISG by courts as well as arbitral tribunals.[41]

3.4 Battle of Forms

No compromise could be reached in respect of the so-called battle of forms. In the drafting negotiations, the problem was mooted and a solution was proposed but eventually omitted.[42] It would therefore seem that the drafters opted to deal with the problem of the battle of forms by means of the traditional mirror-image or last-shot approach, both of which are recognised as unsatisfactory. According to these approaches, the acceptance must be a mirror image of the offer. Although art 19 does leave room for minor adjustments to the offer in the acceptance, any material adjustment will be regarded as a counter-offer. In the case of the introduction of standard terms, very few of the provisions are not material adjustments. This leaves parties in the position that the party who gets in the last shot with its standard terms before the conclusion of the agreement, will have its standard terms included in that agreement.

The problem has been addressed in two recent German decisions [43] where the courts did not adopt the traditional last-shot approach but employed the modified consensus or knock-out approach adopted in the American Uniform Commercial Code and the German Bürgerliches Gesetzbuch. According to these approaches, the terms embodied in conflicting sets of standard terms do not reflect the true consensus of the parties, which is focused on the main aspects of the deal. So the conflicting sets of standard terms are either ignored [page 21] in total (in the case of the consensual approach), or applied only to the extent that they are in agreement (in the case of the knock-out approach). This also seems to be the approach followed in a French and an American case, although not as clearly as in the German instances.[44]

3.5 Consistent Interpretation and Application by Courts

Rossett has voiced fears that one of the biggest stumbling-blocks on the path of harmonisation would be deviating interpretations and applications of the CISG; a so-called homeward trend by courts in different jurisdictions.[45] It is, of course, of little value to have a uniform or harmonised instrument if there is significant divergence in the way it is interpreted or applied, or if coul1s interpret and augment it under the influence of their own legal system.[46]

UNCITRAL and several commentators took this danger to heart and have from an early stage collected, collated, and published cases from all over the world.[47] The UNILEX Database, compiled by Bonell, was one of the first comprehensive collections which is still being kept current.[48] To date it contains almost 700 cases. The UNCITRAL website also contains a current list of more than 600 cases that is updated regularly. In addition, it contains a Case Digest that provides guidance through the large body of case law.[49] However, apart from the Digest, this database is somewhat confusing and difficult to use and is often out of date.

The most comprehensive and ambitious collection of case law is to be found on the award-winning website of the Pace Law School's Institute of International Commercial Law.[50] This website contains the full text of more than 1800 cases and arbitral awards from all parts of the world. It is easy to use and accessible, with each case being classified according to the CISG [page 22] article to which it relates. Most cases are also available in English, either as the original language or in translation.[51] This is the premier site for any researcher on the CISG, because it also contains a comprehensive bibliography of literature on the CISG, including more than a 1000 pieces available in full text.

In addition to these websites, there are several authoritative commentaries available on the CISG. The one by Schlechtriem and Schwenzer [52] is the most comprehensive and best available in English, while that by Lookofsky [53] provides an excellent introductory text for anyone new to this field.

So, there is a wealth of material -- case law as well as scholarly commentary -- available on the interpretation and application of the Convention. Most of it is easily accessible on the Internet, and one would expect practitioners and the courts to rely on this material when dealing with the CISG.

Although there are encouraging signs in the more recent judicial decisions that courts will consider foreign decisions when applying the CISG, there are still far too many cases in which either the courts are totally ignorant even of the existence of the CISG, or there is a clear homeward trend in the reasoning and sources relied on.

Mazzacano provides incisive commentary on a number of cases from Canada (a CISG signatory since 1992) in which the interpretation of the Convention has been lamentable. He observes:[54]

'However, as the cases analyzed in this research paper illustrate, Canadian courts have tended to treat the CISG in a cursory manner, and have ultimately made decisions reflexively, on the basis of domestic law. Not only have they ignored the mandate of Article 7, but no Canadian court decision to date has treated the CISG in a serious manner, that is, without reference to domestic legal concepts. In other words, Canadian CISG jurisprudence is still permeated with domestic gloss.'

The situation seems no better in Australia (a signatory since 1989). Zeller criticises the failure by its courts to take adequate cognisance of the CISG and the requirements that the Convention should be interpreted and applied from an international perspective. He remarks as follows on the Australian decision in Ginza Pte Ltd v Vista Corporation Pry Ltd:[55]

'This case is characterized by a lack of a basic understanding of the CISG. It is disappointing to note that relevant international case law or academic writing has not been used. It is interesting to note that counsel for the defendant attempted to rely upon the provisions of the Sale of Goods Act 1895 (WA) or the CISG.'[56] [page 23]

More encouragingly, though, there are a number of cases in which courts have referred to foreign case law and commentary on the CISG, not only in Europe,[57] but also in the United States of America.[58] The most impressive case to date is the decision of the Italian District Court Vigevano,[59] in which the Court referred to more than 40 cases, most of them from foreign jurisdictions such as Austria, France, Germany, the Netherlands, Switzerland, and the United States. The case provides an important example of the way in which courts ought to deal with CISG matters in comparative perspective.[60]

3.6 Costs of Litigation

The CISG contains no provision dealing directly with the issue of whether a party is entitled to an award of legal costs where it is successful in litigation. The rule that costs ought to follow the result -- which is almost universally applied throughout the world -- does not generally apply in the United States.[61] Commentators are divided on the issues of whether costs should be regarded as part of a party's damages claim, and whether costs are a procedural matter falling outside the scope of the Convention.

The debate on this issue was triggered by the American decision in Zapata Hermanos v Hearthside Baking.[62] In this case Hearthside Baking, an American importer, for spurious reasons failed to make payment to Zapata, a Mexican exporter. After protracted litigation that Zapata eventually won, the Court of first instance held that the American rule did not apply and that the [page 24] successful claimant was entitled to the costs of litigation. However, this decision was overturned on appeal where the Court held that the award of costs is a procedural matter falling outside the scope of application of the CISG. Commentators are divided on the issue, but the weight of opinion seems to accept the decision rendered on appeal.[63]

4. CONCLUSION

Although some of the concerns raised at the outset by commentators in respect of the CISG have materialised, the majority of issues on which there is no harmonisation are not serious enough to detract from the overall value of harmonisation brought about by the CISG. On the contrary, there are encouraging signs that courts and arbitral tribunals all over the world are beginning to take cognizance of the decisions of other courts and the opinions of commentators. The legal uncertainty caused by these areas of disharmony or conflicting decisions is in fact no greater than one would find in most legal systems.

The wealth of material and the ease with which it may be accessed have contributed greatly to the development and harmonisation of decisions under the CISG, and will continue to do so. In this regard, the contribution of the Pace Institute of International Commercial Law, and more particularly that of Professor Al Kritzer, can hardly be overstated.

The main advantages of the harmonisation of international sales law remain unchanged: legal certainty, the lowering of transaction costs, the suitability of the CISG for international trade, the balancing of the interests of the parties, as well as the policy reasons explained in my earlier contribution. In short, the case for adopting the CISG in South Africa remains strong. [page 25]


FOOTNOTES

* BJuris LLB (PU vir CHO), LLD (PU vir CHO). Professor, Department of Private Law, School of Law, University of South Africa.

1. S Eiselen 'Adoption of the Vienna Convention for the International Sale of Goods (the CISG) in South Africa' (1999) 116 SALJ 323-70, also available at <http://www.cisg.law.pace.edu/cisg/biblio/eiselen.html>.

2. For a discussion of the 'old' lex mercatoria, see PJ Mazzacano 'Canadian Jurisprudence and the Uniform Application of the UN Convention on Contracts for the International Sale of Goods' (2006) 18 Pace International LR ch 2(i), also available at <http:/www.cisg.law.pace.edu/cisg/biblio/mazzacano1.html>; A Goldstajn 'Lex Mercatoria and the CISG: The Global Law Merchant' in: Petar Sarcevic & Paul Volken (eds) The International Sale of Goods Revisited (2001) at 241-2; Keith Highet 'The Enigma of the Lex Mercatoria' (1989) 63 Tulane LR 613-28.

3. See Mazzacano op cit note 2 in ch 2(iii); Jan H Dalhuisen Dalhuisen on Commercial, Financial and Trade Law (2000) at 73ff; Goldstajn op cit note 2 at 243ff.

4. Hein Kötz 'Rechtsvereinheitlichung-Nutzen, Kosten, Methode, Ziele' (1986) 50 Rabels Zeitschrifl für ausländisches und internationales Privatrecht 1.

5. Arthur Rosett 'Critical Reflections on the United Nations Convention on Contracts for The International Sale of Goods' 45 (1984) Ohio State LJ 265-305, available at <http://www.cisg.law.pace.edu/cisg/biblio/bib2.html#r>; idem 'CISG Laid Bare: A Lucid Guide to a Muddy Code' 21 (1988) Cornell International LJ 575-89, Available at <http://cisgw3.law.pace.edu/cisg/biblio/arthurrosett.html>; idem 'Unification, Harmonization, Restatement, Codification, and Reform in International Commercial Law' (1992) 40 American J of Comparative Law 683-97, available at <http://cisgw3.law.pace.edu/cisg/biblio/rosett2.html>; idem 'UNIDROIT Principles and Harmonization of International Commercial Law: Focus on Chapter Seven', available at <http://www.unidroit.org/english/publications/review/articles/1997-3.htm>; Arthur I Rosett 'The UNIDROIT Principles of International Commercial Contracts: A New Approach to International Commercial Contracts' (1998) 46 American J of Comparative Law, Supplement 347-60, available at <http://www.cisg.law.pace.edu/cisg/biblio/rosett1.html>.

6. Paul B Stephan 'The Futility of Unification and Harmonization in International Commercial Law' (June 1999). University of Virginia School of Law, Legal Studies Working Paper No 99-10, available at SSRN: <http://ssrn.com/abstract=169209>.

7. Franco Ferrari 'Uniform Interpretation of the 1980 Uniform Sales Law' (1994) 24 Georgia J of International & Comparative Law 183-228, available at <http://www.cisg.law.pace.edu/cisg/biblio/franco.html>; idem 'CISG Case Law: A New Challenge for Interpreters' (1999) 17 J of Law & Commerce 245-61, available at <http://www.cisg.law.pace.edu/cisg/biblio/ferrari3.html>.

8. Rosett 'Critical Reflections' op cit note 5 in Section VI at n 95.

9. By the Hague Protocol to the Warsaw Convention 1955; the Guadalajara Convention 1961; the Guatemala Protocol 1971; and the Montreal Protocols of 1975.

10. Four protocols were adopted but none has come into force since 1975. See also Paul B Stephan 'Futility' op cit note 6 at 19-22.

11. Jan Ramberg ICC Guide to the Incoterms 2000 (1999).

12. In 1953, 1967, 1976, 1980, 1990 and in 2000.

13. Henry Gabriel 'The International Chamber of Commerce INCOTERMS 1990: A Guide to the Terms and Their Usage' (1999) 3 Vindobona J of International Commercial Law & Arbitration 61-70, available at <http://cisgw3.law.pace.edu/cisg/biblio/gabriel1.html>; Rosett 'Chapter Seven' op cit note 5.

14. Ramberg op cit note 11 at 10.

15. Ibid.

16. See the WCO website at <http://www.wcoomd.org/ie/En/AboutUs/aboutus.html/> for further information.

17. Ibid.

18. 91 of 1964, See also Secretary for Customs & Excise v Thomas Barlow & Sons Ltd 1970 (2) SA 660 (A) 675-6; RC Williams 'Revenue, Part 2' in WA Joubert (ed) The Law of South Africa Vol 22 Part 2, First Reissue (2002) in par 526 at 231-2.

19. Rosett 'Critical Reflections' op cit note 5 at notes 82-7.

20. Ulrich Magnus 'Wiener UN-Kaufrecht (CISG)' in: M Martinek (ed) J Von Staudingers Kommentar Zum Bürgerlichen Gesetzbuch (2005) at 303; Peter Schlechtriem & Ingeborg H Schwenzer Commentary on the UN Convention on the International Sale of Goods (CISG) 2 (English) ed (2005) at 316-8.

21. Rosett 'Critical Reflections' op cit note 5 at n 112.

22. Rosett 'CISG Laid Bare' op cit note 5 at n 6.

23. John Felemegas 'The Award of Counsel's Fees under Article 74 CISG in Zapata Hermanos Sucesores v Hearthside Baking Co (2001)' (2002) 6 Vindobona J of International Commercial Law & Arbitration 30-9, available at <http://www.cisg.law.pace.edu/cisg/biblio/felemegas1.html>.

24. Rosett 'Critical Reflections' op cit note 5 at n 110.

25. Schlechtriem & Schwenzer op cit note 20 at 82-4; Magnus op cit note 20 at 149-50.

26. Sarah G Zwart 'The New International Law of Sales: A Marriage Between Socialist, Third World, Common Law and Civil Law Principles' (1988) 13 North Carolina International Law & Commerce Register 127-8, available at <http://www.cisg.law.pace.edu/cisg/biblio/Zwart.html>; Jacob S Ziegel 'The International Sales Convention: Some Considerations' in: Louis Perret & Nicole Lacasse (eds) Actes du Colloque sur la Vente Internationale (1989) at 59-60; Louis F del Duca & Patrick del Duca 'Practice Under the Convention on International Sale of Goods (CISG): A Primer for Attorneys and International Traders' (1995) 27 Uniform Commercial Code LJ 157, available at <http://www.cisg.law.pace.edu/cisg/biblio/delduca.html>; Franco Ferrari 'Specific Topics of the CISG in the Light of Judicial Application and Scholarly Writing' (1995) 15 J of Law and Commerce 78-9, available at <http://www.cisg.law.pace.edu/cisg/biblio/2ferrari.html>.

27. See the decision of the German Lower Court (Amtsgericht) Kehl of 6 Oct 1995, available at <http://cisgw3.law.pace.edu/cases/951006g1.html>; the decision of the German Supreme Court (BGH) of 9 Jan 2002, available at <http://cisgw3.law.pace.edu/cases/020109g1.html>.

28. Rosett 'Critical Reflections' op cit note 5 in Section III.

29. Ibid.

30. Schlechtriem & Schwenzer op cit note 20 at 316-9; Magnus op cit note 20 at 303-4; John Honnold Uniform Law for International Sales under the 1980 United Nations Convention 3 ed (1999) at 218-28; Amy H Kastely 'The Right to Require Performance in International Sales: Towards an International Interpretation of the Vienna Convention' (1988) 63 Washington LR 607-51, available at <http://www.cisg.law.pace.edu/cisg/biblio/kastely1.html>.

31. Schlechtriem & Schwenzer op cit note 20 at 794-5; Magnus op cit note 20 at 763-4.

32. Paul C Blodgett 'The UN Convention on the Sale of Goods and the "Battle of the Forms"' (1989) 18 Colorado Lawyer 423-30, available at <http://www.cisg.law.pace.edu/cisg/biblio/blodgett.html>; Maria del Pilar Perales Viscasillas '"Battle of the Forms" under the 1980 United Nations Convention on Contracts for the International Sale of Goods: A Comparison with Section 2-207 UCC and the UNIDROIT Principles' (1998) 10 Pace International LR 97-155, available at <http://www.cisg.law.pace.edu/cisg/biblio/pperales.html>.

33. On the divide, see generally Wayne R Barnes 'Contemplating a Civil law Paradigm for a Future International Commercial Code' (2005) 65 Louisiana LR 677-774, available at <http://www.cisg.law.pace.edu/cisg/biblio/barnes.html>.

34. John Honnold Uniform Law for International Sales 3 ed (1 999) at 306; Joseph Lookofsky 'The 1980 United Nations Convention on Contracts for the International Sale of Goods' in: Roger Blanpain (ed) International Encyclopaedia of Laws (1993) at 30; Nayiri Boghossian 'A Comparative Study of Specific Performance Provisions in the UN CISG', in 1999-2000 Pace Review of the Convention on Contacts for the International Sale of Goods (2000) date 3-78; Ole Lando & Hugh Beale (eds) Principles of European Contract Law Parts I and II (2000) at 394-402.

35. Schlechtriem & Schwenzer op cit note 20 at 794-5.

36. Idem at 88-9.

37. Hector L MacQueen 'Good Faith' in: Hector L MacQueen & Reinhard Zimmermann European Contract Law: Scots and South African Perspectives (2006) at 45; cf too the English decisions in Interfoto Picture Library Ltd v Stiletto Visual Programunes Ltd [1989] QB 433 (CA) at 439; Walford v Miles [1992] 2 AC 128 (HL) at 138.

38. David Ramos Muñoz 'The Rules on Communication of Defects in the CISG: Static Rules and Dynamic Environments. Different Scenarios for a Single Player' (Dec 2005) in Section III.I.B, available at <http://www.cisg.law.pace.edu/cisg/biblio/munoz.html>; Peter Bassenge et al (eds) Palandt Bürgerliches Gesetzbuch 60 ed (2001) at 229-30; John Klein 'Good Faith in International Transactions' (1993) 15 Liverpool LR I 15-41, available at <http://www.cisg.law.pace.edu/cisg/biblio/Klein.html>.

39. Schlechtriem & Schwenzer op cit note 20 at 95, 100-1; Magnus op cit note 20 at 169-70; Paul J Powers 'Defining the Indefinable: Good Faith and the United Nations Convention on Contracts for the International Sale of Goods' (1999) 18 J of Law & Commerce 333-53, available at <http://www.cisg.law.pace.edu/cisg/biblio/powers.html>; Amy H Kastely 'Unification and Community: A Rhetorical Analysis of the United Nations Sales Convention' (1988) 8 Northwest J of International Law & Business 574, available at <http://www.cisg.law.pace.edu/cisg/biblio/kastely.html>; Phanesh Koneru 'The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: All Approach Based on General Principles' (1999) 6 Minnesota J of Global Trade 105, available at <http://www.cisg.law.pace.edu/cisg/biblio/koneru.html>; Maureen T Murphy 'United Nations Convention on Contracts for the International Sale of Goods: Creating Uniformity in International Sales Law' (1989) 12 Fordham International LJ 727, available at <http://www.cisg.law.pace.edu/cisg/biblio/murphy.html>; Ulrich Magnus 'Editorial remarks on the manner in which the UNIDROIT Principles may be used to interpret or supplement CISG Article 7', available at <http://www.cisg.law.pace.edu/cisg/principles/uni7.html#um>; Franco Ferrari 'Uniform Interpretation' op cit note 7; Disa Sim 'The Scope and Application of Good Faith in the Vienna Convention on Contracts for the International Sale of Goods' (Sept 2001), available at <http://www.cisg.law.pace.edu/cisg/biblio/sim1.html>.

40. Magnus op cit note 20 at 175; E Allan Farnsworth 'Duties of Good Faith and Fair Dealing under the UNIDROIT Principles, Relevant Conventions and National Laws' (1995) 3 Tulane J of International & Comparative Law,' 56, available at <http://tldb.uni-koeln.de/php/pub_show_document.php?pubdocid=122100>; C Massimo Bianca & Michael Joachim Bonell Commentary on the International Sales Law: The 1980 Vienna Sales Convention (1987) at 85; Fritz Enderlein, Dietrich Maskow & Heinz Strohbach Internationales Kaufrecht (1991) in Art 7 Comment 9.1; Joseph M Lookofsky Understanding the CISG in the USA 2 ed (2004) at 35.

41. Peter Schlechtriem 'Good faith in German Law and in International Uniform Laws', available at <http://soi.cnr.it/crdcs/crdcs/frames24.htm>.

42. Heinrich Honsell & Martin Karollus Kammentar zum UN-Kaufrecht, Übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf (CISG) (1997) in art 19 n 5; Bianca & Bonell op cit note 39 in art 19 n 1.2; see also Alejandro Garro 'Reconciliation of Legal Traditions in the UN Convention on Contracts for the International Sale of Goods' (1989) 23 International Lawyer 443-83, available at <http://www.cisg.law.pace.edu/cisg/text/garro11,12.html>.

43. See the decision of the German Lower Court (Amtsgericht) Kehl of 6 Oct 1995 and that of the German Supreme Court (BGH) of 9 Jan 2002, supra note 27. For an analysis of the latter decision, see Pilar Perales Viscasillas 'Battle of Forms and the Burden of Proof: An Analyses of BGH 9 January 2002' (2002) 6 Vindobona J of Commercial Law & Arbitration 217-28, available at <http://www.cisg.law.pace.edu/cisg/biblio/perales2.html>, See also the decision of the French Supreme Court (Cour de Cassation) of 16 Jul 1998 (Société Les Verreries de Saint Gobain, SA v Martinswerk GmbH), available at <http://cisgw3.law.pace.edu/cases/980716f1.html>; and Larry A DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer & Marisa Pagnattaro 'The Interpretive Turn In International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence' (2004) 34 Northwestern J of International Law & Business 299-440 at 348, available at <http://www.cisg.law.pace.edu/cisg/biblio/dimatteo3.html>.

44. DiMatteo, Dhooge, Greene, Maurer & Pagnattaro op cit note 43. For a more in depth analysis, see Sieg Eiselen & Matthias Bergenthal 'The Battle of Forms: A Comparative Analysis' (2006) 39 Comparative & International LJ of Southern Africa 214-40.

45. Rosett 'Critical Reflections' op cit note 5 in Section VI C. See also Michael P van Alstine 'Dynamic Treaty Interpretation' (1998) 146 University of Pennsylvania LR 687-793, available at <http://www.cisg.law.pace.edu/cisg/biblio/alstine2.html>; Camilla Baasch Andersen 'Furthering the Uniform Application of the CISG: Sources of Law on the Internet' (1998) 10 Pace International LR 403-10, available at <http://www.cisg.law.pace.edu/cisg/biblio/andersen1.html>; Franco Ferrari 'Uniform Interpretation' op cit note 7; idem 'CISG Case Law' op cit note 7.

46. Franco Ferrari 'Tribunale di Vigevano: Specific Aspects of the CISG Uniformly Dealt With' (2001) 20 J of Law & Commerce 225-39, available at <http://www.cisg.law.pace.edu/cisg/biblio/ferrari6.html>; Spiros V Bazinas 'Uniformity in the Interpretation and the Application of the CISG: The Role of CLOUT and the Digest' in: 'Celebrating Success: 25 Years United Nations Convention on Contracts for the International Sale of Goods' (Collation of Papers at UNCITRAL -- SIAC Conference 22-23 Sept 2005, Singapore) at 18-27, available at <http://www.cisg.law.pace.edu/cisg/biblio/bazinas.html>.

47. Michael R Will CISG, The UN Convention on Contracts for the International Sale of Goods International Bibliography 1980-1995: The First 150 or So Decisions 4 ed (1995); Michael J Bonell (ed) UNILEX International Case Law & Bibliography on the United Nations Convention on Contracts for the International Sale of Goods (loose-leaf ed).

48. See <http://www.unilex.info/dynasite.cfm?dssid=2375&dsmid=14276>.

49. Joseph Lookofsky 'Digesting CISG Case Law: How Much Regard Should We Have? (2004) 8 Vindobona J of International Commercial Law & Arbitration 181-95, available at <http://www.cisg.law.pace.edu/cisg/biblio/lookofsky9.html>.

50. See the Pace Law School 'CISG Database' at <http://www.cisg.law.pace.edu>.

51. See <http://www.cisg.law.pace.edu/cisg/text/queenmary.html> for details of the translation programme of the Queen Mary College, University of London.

52. Schlechtriem & Schwenzer op cit note 20.

53. Lookofsky op cit note 39.

54. Mazzacano op cit note 2 in ch 9: Conclusion.

55. See the decision of the Supreme Court of Western Australia of 17 Jan 2003 in Ginza Pte Ltd v Vista Corporation Ply Lid, available at <http://cisgw3.law.pace.edu/cases/030117a2.html>.

56. Bruno Zeller 'CISG Cases' sv 'Ginza Pte Ltd v Vista Corporation Pty Ltd [2003] WASC 11 (17 Jan 2003)', available at <http://www.business.vu.edu.au/cisg/Cases.htm>.

57. See the decision of the Italian District Court Cuneo of 31 Jan 1996 (Sport d'Hiver di Genevieve Culet v Ets Louys et Fils), available at <http://cisgw3.law.pace.edu/cases/960131i3.html>; the decision of the Swiss Appellate Court Luzern of 8 Jan 1997, available at <http://cisgw3.law.pace.edu/cases/970108s1.html>; the decision of the German Supreme Court (BGH) of 24 Mar 1999 [VIII ZR 121/98], available at <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/990324g1.html>, the decision of the Spanish Appellate Court Valencia of 7 Jun 2003 (Cherubino Valsangiacomo SA v American Juice Import Inc), available at <http://cisgw3.law.pace.edu/cases/030607s4.html>; the decision of the Italian District Court Vigevano of 12 Jul 2000 (Rheinland Versicherungen v Atlarex), available at <http://cisgw3.law.pace.edu/cases/000712i3.html>.

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

59. See the decision of the Italian District Court Vigevano of 12 Jul 2000 (Rheinland Versicherungen v Atlarex), available at <http://cisgw3.law.pace.edu/cases/000712i3.html>.

60. For a discussion of this case, see Ferrari 'Tribunale di Vigevano' op cit note 45; idem 'Applying the CISG in a Truly Uniform Manner: Tribunale di Vigevano (Italy)' (2001-1) Uniform LR 203-15, available at <http://cisgw3.law.pace.edu/cisg/biblio/ferrari4.html>; Djakhongir Saidov 'Methods of Limiting Damages under the Vienna Convention on Contracts for the International Sale of Goods' (Dec 2001) at notes 351, 353, 355 and 357, available at <http://www.cisg.law.pace.edu/cisg/biblio/saidov.html>; Perales Viscasillas 'Battle of Forms and the Burden of Proof' op cit note 42 at n 23: Francesco G Mazzotta 'The International Character of the UN Convention on Contracts for the International Sale of Goods: An Italian Case Example' (Jun 2003), available at <http://www.cisg.law.pace.edu/cisg/biblio/mazzotta.html>; Leonardo Graffi 'Case Law on the Concept of "Fundamental Breach" in the Vienna Sales Convention' 2003 Revue de droil des affaires internationales / International Business LJ 338-49 at n 65, available at <http://www.cisg.law.pace.edu/cisg/biblio/graffi.html>; DiMatteo, Dhooge, Greene, Maurer & Pagnattaro op cit note 42 at notes 340, 402, 408, 567, 582, 589, 788 and 866.

61. See the decision of the Illinois Federal District Court of 28 Aug 200l (Zapata Hermanos v Hearthside Baking), available at <http://cisgw3.law.pace.edu/cases/010828u1.html>.

62. See the decision of the Illinois Federal District Court of 28 Aug 2001 (Zapata Hermanos v Hearthside Baking) supra note 60 and the decision of the United States Federal Appellate Court (7th Circuit) of 19 Nov 2002 (Zapata Hermanos v Hearthside Baking), available at <http://cisgw3.law.pace.edu/cases/021119u1.html>.

63. Commentators in favour of the decision a quo include John Felemegas 'An Interpretation of Article 74 CISG by the US Circuit Court of Appeals' (2003) 15 Pace International LR 91-147, available at <http://www.cisg.law.pace.edu/cisg/biblio/felemegas4.html>; Jarno Vanto 'Attorneys' Fees as Damages in International Commercial Litigation' (2003) 15 Pace International LR 203-22, available at <http://www.cisg.law.pace.edu/cisg/biblio/vanto1.html>; Bruno Zeller 'Interpretation of Article 74 -- Zapata Hermanos v Hearthside Baking -- Where Next?' 2004 Nordic J of Commercial Law, available at <http://www.njcl.fi/1_2004/commentary1.pdf> at 11. Commentators supporting the decision on appeal include Harry M Flechtner & Joseph Lookofsky, 'Viva Zapata! American Procedure and CISG Substance in a US Circuit Court of Appeal' (2003) 7 Vindobona J of International Commercial Law & Arbitration 93-104, available at <http://www.cisg.law.pace.edu/cisg/biblio/flechtner5.html>; Troy Keily 'How Does the Cookie Crumble? Legal Costs under a Uniform Interpretation of the United Nations Convention on Contracts for the International Sale of Goods' (Jul 2003), available at <http://www.cisg.law.pace.edu/cisg/biblio/keily2.html>; Schlechtriem & Schwenzer op cit note 20 at 757. The decision has been referred to the United States Supreme Court for reconsideration, but at present no final judgment is available.


Pace Law School Institute of International Commercial Law - Last updated December 6, 2007
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