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Cite as Evans, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 636-638. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 90

Malcolm Evans

1. History of the provision
2. Meaning and purpose of the provision
3. Problems concerning the provision

ARTICLE 90

This Convention does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement.

1. History of the provision

     1.1. - Based on a proposal first made at the tenth session of UNCITRAL in 1977, the language of this provision is similar to that of Article 37 of the 1975 United Nations Convention on the Limitation Period in the International Sale of Goods (hereafter referred to as «the Limitation Convention»).

2. Meaning and purpose of the provision

     2.1. - The effect of the provision is, in certain cases, to displace the application of the Convention in favour of existing or future international agreements containing provisions concerning matters governed by the Convention, for example agreements concluded by States on a regional basis, although it would, given the absence of any provision in the Convention establishing a revision procedure, seem also to cover any future convention intended to supersede the 1980 Convention itself.

     2.2. - This recognition of the fact that States or groups of States may in certain circumstances wish to see international contracts for the sale of goods regulated by rules other than those contained in the Convention to a certain extent weakens the universal character of the instrument and could create an element of uncertainty for the parties. It is for this reason that Article 90 [page 636] will apply only when both parties have their places of business in States Parties to another agreement concerning the matters governed by the Convontion itself.

     2.3. - Moreover, it should be noted that Article 90 is addressed only to the relations between the present Convention and other international agreements, the position of States with the same or closely related legal rules on matters covered by the Convention which wish such rules to prevail over it being dealt with in Article 94.

3. Problems concerning the provision

     3.1. - The question arises as to the extent to which Article 90 affects the relationship between the Convention and the 1964 Hague Sales Conventions since these are undeniably international agreements already entered into which contain provisions concerning the matters governed by the Convention. The correct view, already indicated by the Secretary-General in the notes on Article D, now Article 90, as submitted to the Vienna-Conference (Official Records, I, 68), would appear to be that the provision does not extend to the 1964 Conventions since a State which accepts the 1980 Convention and is Party to the 1964 Conventions will, pursuant to Article 99, denounce both of the earlier Conventions. At first sight there might seem to be a possible qualification to this statement, which concerns the highly unlikely case of two States, both Parties to the 1964 Hague Sales Conventions, making a declaration under Article 92 of the present Convention excluding either Part II or Part III thereof. Assuming that the declarations excluded Part II and that the States in question did not denounce the 1964 Hague Formation Convention, the requirement of Article 90 that the parties have their places of business in States parties to another international agreement would be met. That situation would not however seem to be one of a genuine conflict of conventions as contemplated by Article 90 as States which exclude Part II or Part III of the 1980 Convention are not, according to Article 92, to be considered as Contracting States within Article 1(1) for the purpose of the Part excluded. [page 637]

     3.2. - As already mentioned (see § 2.1., supra) the Convention contains no provision regarding its possible revision, wisely perhaps in view of the unhappy fate reserved to the revision clauses contained in the 1964 Hague Conventions (Article XIV of the Sales Convention and Article XII of the Formation Convention). It would nevertheless seem probable that any future convention or protocol intended to modify the 1980 Convention would contain provisions analogous to those to be found in Article 99, paragraphs (3) to (6) thereof, rather than leave the relations between the Convention and the later instrument to be regulated by Article 90. [page 638]


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