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Article 94 [Declaration of non-application of Convention]

(1) Two or more Contracting States [1] which have the same or closely related legal rules on matters governed by this Convention may at any time declare that the Convention is not to apply to contracts of sale or to their formation [5] where the parties have their places of business in those States [2]. Such declarations may be made jointly [3] or by reciprocal unilateral [4] declarations.

(2) A Contracting State which has the same or closely related legal rules on matters governed by this Convention as one or more non-Contracting States [6] may at any time declare that the Convention is not to apply to contracts of sale or to their formation [5] where the parties have their places of business in those States.

(3) If a State which is the object of a declaration under the preceding paragraph subsequently becomes a Contracting State [7], the declaration made will, as from the date on which the Convention enters into force in respect of the new Contracting State, have the effect of a declaration made under paragraph (1), provided that the new Contracting State joins in such declaration or makes a reciprocal unilateral declaration [8].

[COMMENTARY]

[1] This reservation is suited for States which have the same or closely related legal rules, irrespective of whether the same legal rules came into existence by way of international agreements (but c. Article 90), unilateral reception or in another way. At the diplomatic conference there was indication of a possible application of such reservation by the Scandinavian States as well as to the relations between the Netherlands and Belgium/Luxembourg, or between Australia and New Zealand (O.R., 436). Eörsi (Convention ...) suggested that the CMEA States make a joint declaration under Article 94. Honnold (466) in regard to Article 94, referred to the member States of the CMEA. A very similar provision can be found in the Hague Conventions (Article II) at the time of whose adoption the interests of the CMEA States did yet not play a role (c. also Evans/BB, 651). It is up to the States involved to decide for themselves what is to be considered as "closely related". So far, only the Scandinavian States made statements under Article 94, namely Denmark, Finland, Norway and Sweden pursuant to paragraph 1 in their relations with one another and the same States pursuant to paragraph 2 in their relations with Iceland.

[2] When one of those States is a federal State, Article 93 is applied. The CISG excluded, domestic law is invoked. To the extent to which the States involved have the same legal rules, there will be no difference in whether the law of State A or State B is applied. When, however, the legal rules are only closely related, the international private law of the forum will in the first place decide which law is to be applied. Evans (BB, 653) mentions the hypothetical case that the parties have chosen as the applicable law that of a third State, which is a Contracting State of the CISG, the law of that State not being the same but being very closely related. Which is then the law to be applied by the courts? Evans does not answer this question. We believe that, in such a case, the courts of the States making the declaration should invoke the CISG as the right of that third State since the Convention was to be excluded under Article 94 only in favour of the application of the domestic law of the States of the declaration. There is no reason why the CISG should also be excluded in favour of the law of a non-involved third State. [page 378]

Since a declaration under Article 94 only refers to the parties in the Contracting States themselves, parties in third States are not affected.

[3] Joint declarations have the advantage of being unequivocal also in regard to time. As to the taking effect, compare Article 97, paragraph 3.

[4] Declarations which relate to one another require prior arrangement by the States concerned. A unilateral declaration may, of course, also refer to a future declaration by another State. Regarding the taking effect, compare Article 97, paragraph 3. If there is no second declaration, the first one is up in the air and does not take effect.

[5] The declaration can also refer to sales contracts and their formation. The word or relates to the case where States might not be parties in regard to Parts II and III; thus also to the case where the States concerned have the same or very closely related legal rules only in respect to one or the other part of the Convention.

[6] Since pursuant to Article 1, paragraph 1, subparagraph (b), the CISG under certain conditions also applies to contracts between parties which have their place of business in non-Contracting States, paragraph 2 of Article 94 provides for the possibility of excluding application of the Convention where the legal rules of one Contracting State are the same or are closely related to those of non-Contracting States. Such reservation is not required where a reservation under Article 25 is made.

[7] When a non-Contracting State, to which a declaration under paragraph 2 relates, becomes a Contracting State of the Convention, it has two options: It may join the view of the State which has made a declaration under paragraph 2 and declare a reservation on its part as a result of which paragraph 1 takes effect; or, if it believes otherwise, renounce making a declaration of its own. (It is thus not obligated to reject the declaration of the other State. An obligation of rejection was considered as politically undesirable; O.R., 448.) The result is a situation under paragraph 1 in which the first declaration is not followed by a second one.

[8] When the non-Contracting State at the time of accession does not make a declaration, the Contracting State, which has made a declaration under paragraph 2, now has to apply the Convention also vis-à-vis the new Contracting State. Hence, there is the same effect as when the new Contracting State has withdrawn its declaration (Article 97, note 10). [page 379]

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