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Article 93 [Federal State clause]

(1) If a Contracting State [1] has two or more territorial units [2] in which, according to its constitution, different systems of law are applicable in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification, acceptance, approval or accession [3], declare that this Convention is to extend to all [4] its territorial units [2] or only to one or more of them, and may amend [6] its declaration by submitting another declaration at any time.

(2) The declarations are to be notified to the depositary [7] and are to state expressly the territorial units [2] to which the Convention extends.

(3) If, by virtue of a declaration under this article, this Convention extends to one or more but not all of the territorial units [2] of a Contracting State, and if the place of business [8] of a party is located in that State, this place of business, for the purposes of this Convention [9], is considered not to be in a Contracting State, unless it is in a territorial unit to which the Convention extends.

(4) If a Contracting State makes no declaration under paragraph (1) of this article, the Convention is to extend to all territorial units of that State [5].

[COMMENTARY]

[1] The reservation of Article 93 (but compare Article 98, note 2) was included, in particular, at the request of Canada and Australia. It relates to federal States which for matters governed by the Convention have no central or no exclusive legislative competence. Federal States like Germany or Austria do not need such a reservation. But the federation clause was vividly discussed at the diplomatic conference also by other States for it is in the interest of legal security to know exactly which is the effect of the accession by a federated State.

[2] The term "territorial unit" was regarded as sufficiently neutral to cover federal States, federal countries, provinces, republics of a union or cantons. Regarding the difference between this term and a colonial clause, compare Article 31, note 3, of the Limitation Convention.

[3] Compare Article 91, notes 5, 7 and 8. A declaration under Article 93 can only be made at the time of, non-technical, accession to the Convention, but not later. Although Australia made great efforts at the diplomatic conference to having the possibility of such reservation, it nonetheless did not make a relevant declaration at the time it acceded.

[4] Also without making a relevant declaration, the Convention applies to all territorial units, compare paragraph 4. A positive declaration is sometimes necessary for the internal purposes of a Contracting State (O.R., 446). [page 376]

[5] This provision does not correspond to Article 29 of the Vienna Treaty Convention and customary international law and was, therefore, considered superfluous by some delegations.

[6] If possible, such amendment should increase the number of territorial units, up to extending to all of them, to be included into the scope of application of the Convention rather than reduce it. If the Convention is to apply to all territorial units under paragraph 4, a reduction of that number will no longer be possible. Evans (BB, 649), however, considers a reduction as feasible; it would, as he believes, presuppose a relevant declaration. But this would amount to a partial denunciation.

As to the taking effect of the declaration compare Article 93.

[7] Compare Article 89, note 1.

[8] Compare Articles 1 and 10.

[9] Compare Article 1, paragraph 1, subparagraph (a). In the light of Article 10, it was regarded as superfluous to go back here once again to the case where a party has several places of business (c. O.R., 445). [page 377]

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