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Cite as Evans, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 650-653. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 94

Malcolm Evans

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

ARTICLE 94

(1) Two or more Contracting States 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 where the parties have their places of business in those States. Such declarations may be made jointly or by reciprocal unilateral 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 may at any time declare that the Convention is not to apply to contracts of sale or to their formation 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, 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.

1. History of the provision

     1.1. - The text of the draft Article C submitted by the Secretary-General to the Vienna Conference (Official Records, I, 68) was worded as follows:

(1) A Contracting State may at any time declare that the Convention does not apply to the formation of contracts of sale or to contracts of sale between a party having a place of business in that State and a party having a place of business in another State because the two States apply to matters governed by this Convention the same or closely related rules.

(2) If that other State is a Contracting State, such declarations shall be made jointly by the two Contracting States or by reciprocal unilateral declarations. [page 650]

     1.2. - The text reproduced the substance of a proposal made at the tenth session of the Commission in 1977 (Yearbook, VIII (1977), which was subsequently amended to take account of the integration of the draft Convention on the International Sale of Goods and the draft Convention on the Formation of Contracts for the International Sale of Goods. Although its aim was the same as that underlying Article 34 of the Limitation Convention and Article II (1) and (2) of the 1964 Hague Sales Conventions, the provision represented considerable departures from them in both language and scope.

     1.3. - The draft article was the subject of lengthy discussion in the Second Committee at the Vienna Conference, both as to its content and as to drafting, and it would therefore seem preferable to refer to the more important issues raised in § 2 below. It may however be pointed out that, as regards its presentation, the final text of Article 94 closely resembles Article II (1) to (3) of the 1964 Hague Sales Conventions.

2. Meaning and purpose of the provision

     2.1. - The purpose of paragraph (1) is to permit Contracting States which have the same or closely related legal rules on matters governed by the Convention to continue to apply those rules, rather than those of the Convention, to contracts of sale or their formation when the parties have their places of business in such States. To this end, paragraph (1) provides that the Contracting States in question may at any time make a joint declaration excluding the application of the Convention or alternatively achieve the same result by making reciprocal unilateral declarations. An example of States which might wish to make such declarations is provided by the member States of the Council for Mutual Economic Assistance which have adopted the General Conditions of Delivery of Goods applicable to transactions between the organisations in those States (HONNOLD, Uniform Law, 466).

     2.2. - Paragraph (2) of the article is concerned with a somewhat different situation, namely where a Contracting State which has the same or closely related legal rules on matters [page 651] governed by the Convention as one or more non-Contracting States wishes to exclude the application of the Convention to contracts of sale or to their formation when the parties have their places of business in those States. Clearly, since the State which is the object of the declaration is not a Contracting State, it is only by way of a unilateral declaration that the Contracting State can achieve its aim, a declaration which it may make at any time. The practical effect of such a declaration would seem to be that since the possibility of the Convention's applying under Article 1(1)(a) is ab initio excluded as both parties do not have their places of business in Contracting States, a court in a Contracting State which has made a declaration under Article 94(2) would, if the rules of private international law were to lead it to designate its own law as the applicable law, apply its own national law governing contracts for the sale of goods and their formation, including any special rules of its law which might be applicable to international sales.

     2.3. - Paragraph (3) addresses the situation in which a State which is the object of a declaration under paragraph (2) subsequently becomes a Contracting State. Although some support was expressed at the Vienna Conference for adopting an approach along the lines of the original Article C, which offered no indication as to the effects in such cases on the relations between the original Contracting State and the new Contracting State of a declaration made under paragraph (2), a large majority believed that a solution should be provided in the article (Official Records, II, 436, 447-449, 453-455).

     2.4. - In this connection it should be recalled that the answer given by the drafters of the 1964 Hague Sales Conventions was that a declaration of the kind made under paragraph (2) should remain in force unless the new Contracting State were to declare that it would not accept it. Such a solution was however criticized at the Vienna Conference on the ground that close relations would normally exist between the States in question and that it would be politically undesirable to put a Government in the position of having to declare that it could not accept the declaration of another friendly State (Official Records, II, 448). [page 652]

     2.6. - The solution ultimately adopted in paragraph (3) is to provide that a declaration made under paragraph (2) 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». In other words, failure by the new Contracting State to make such a declaration will mean that the original declaration, although it continues to exist, will not enjoy the status of a joint or reciprocal unilateral declaration under paragraph (1) and will thus have no more practical effect than a unilateral declaration made by a Contracting State in relation to another Contracting State under that paragraph to which the latter State fails to respond.

     2.7. - For the entry into force of declarations made under Article 94 and the effects of their withdrawal see the commentary on Article 97, infra.

3. Problems concerning the provision

     3.1. - Notwithstanding the complicated mechanism established by Article 94, the text adopted at the Vienna Conference would seem generally speaking to be capable of working efficiently in practice. A doubt may however spring to mind in a case which might arise under either paragraph (1) or paragraph (2) where the parties have chosen as the applicable law that of a third State which is a Contracting State but which is not involved in a declaration with the two States in which the parties have their places of business. In these circumstances a literal reading of Article 94 would suggest that a court in a State which has made a declaration under paragraph (1) or (2) of that article would not apply the Convention. However the policy aim underlying the provision of applying «the same or closely related rules» of the States involved in the declaration to contracts between parties with their places of business in those States might no longer be seen as paramount once the law of a third State is deemed to be applicable and it may in such cases be considered an open question whether a court in a declaring State should apply the Convention or the domestic law of the third State. [page 653]


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