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This Convention does not prevail [1] over any international agreement [5] which had already been [2] or may be entered into [3] and which contains provisions concerning the matters [4] governed by this Convention, provided that the parties have their place of business in State Parties to such agreement [6].

[COMMENTARY]

[1] This article regulates the relationship between the CISG and earlier or later international agreements on the same subject. This is a complicated problem because the simple principle that agreements which are concluded later prevail over those which were concluded earlier cannot be applied here, among others because of the fact that the Contracting States to the different conventions are seldom identical. Article 90 stipulates that other international agreements are not affected by the CISG. This corresponds to Article 30, paragraph 2, of the Vienna Treaty Convention. Because of the rule laid down in Articles 30 and 59 of the Vienna Treaty Convention there was doubt that Article 90 was needed at all.

When it is stated that earlier or later conventions on the same subject are not affected, this means that those prevail over the CISG, but they do not fully exclude the CISG. The provisions of the CISG fill the gaps to the extent to which those are contained in the other agreements (Winship/Parker, 1-42).

[2] The agreements on the same subjects which are already concluded include, inter alia, the Hague Conventions and the General Conditions of Delivery of Goods of the Council for Mutual Economic Assistance (GCD/CMEA). While the Hague Conventions are to be replaced by the CISG (c. Article 99, paragraphs 3-6), the Member States of the CMEA have not declared such intention in regard to the GCD/CMEA. Besides, the matters which the GCD/CMEA provides for are not fully congruous with those of the CISG. The GCD/CMEA rules a number of matters which are not contained in the CISG and, vice-versa, certain matters are only regulated by the CISG so that in regard to those, the CISG is to be applied as a subsidiary. [page 369]

[3] The Contracting States can conclude deviating agreements in the future, both bilateral and multilateral. Agreements to be concluded in the future are not meant to be a revision of the CISG. The Hague Conventions (Articles XIV and/or Article XII), in contrast, contained specific provisions on the possibilities of revision which were not included in the CISG (Evans/BB, 638). Should there be in the future a modification of the CISG, it would not be regulated by Article 90, but rather would provisions be agreed that are similar to those found in Article 99.

[4] There need not be congruence. The Contracting States can regulate specific questions in deviation of or amending the provisions of the Convention.

There is differing interpretation of what is meant by "the matters governed by this Convention". It is clear that the subject of the Convention is international sales of goods, but is reference made only to the substantive rules of the international sale of goods or also to the conflict-of-law rules? Vékas (342 fol) and Winship (Parker, 1-41) include the conflict-of-law rules in their considerations, which is of significance above all for the Hague Convention on the Law Applicable to Contracts for the International Sale of Goods, while Kindler (780) obviously understands matters to be governed by the convention as not only covering the social situation to be taken into account but also the character of the regulation itself, and therefore excludes the latter Convention from the matters referred to under Article 90.

According to Kindler (780), referring to Evans (BB, 637), Article 90 was meant to relate in particular to the two Hague Conventions.

The latter, however, expressly points to the fact that reference is not made to the Hague Conventions because the CISG in regard to those Conventions contains the special rule of Article 99.

[5] The notion "international agreement" is used here as the generic term for international conventions. Besides, there is no difference between treaty, convention, charter, covenant, pact, concordat or certified recommendation. Article 90, however, is to cover only multilateral agreements. When Contracting States conclude bilateral or multilateral contracts, they have the possibility to make a reservation invoking Article 94. [page 370]

[6] The application of this provision presupposes that the parties to the sales contract have their place of business in States that are parties to the other conventions; it is, however, no condition that they have their places of business also in the States that are parties to the CISG (namely when the CISG is applied on the basis of Article 1, paragraph 1, subparagraph (b)).

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