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Cite as Evans, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 654-657. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 95

Malcolm Evans

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

ARTICLE 95

Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1)(b) of article 1 of this Convention.

1. History of the provision

     1.1. - This article is one of the two contained in Part IV of the Convention which were not submitted by the Secretary-General of the United Nations in document A/Conf.97/6 and whose origin therefore lies in a proposal made at the Vienna Conference itself.

     1.2. - The substance of the article was originally contained in a Czechoslovak proposal to amend Article C (subsequently renumbered Article 95). The proposed amendment was rejected at the second meeting of the Second Committee of the Vienna Conference by 18 votes to 5 (Official Records, II, 439), but after lengthy consultations among delegations a new Article C bis, once again proposed by the Czechoslovak delegation, was adopted at. the eleventh plenary meeting of the Conference by 24 votes to 7 with 6 abstentions (Official Records, II, 230).

2. Meaning and purpose of the provision

     2.1. - It will be recalled that in accordance with Article 1(1), the Convention applies to contracts of sale of goods between parties whose places of business are in different States either (a) when the States are Contracting States, or (b) when the rules of private international law lead to the application of the law of a Contracting State. [page 654]

     2.2. - In the course of the discussions on Article 1, a number of delegations voiced criticism of sub-paragraph 1(b) of the article. It was in particular suggested that the provision introduced an unwelcome element of complication which had already been contained, in a more complex form, in the provisions on scope of application in the 1964 Hague Conventions and that it would moreover bind Contracting States to apply the Convention to nationals of States not party thereto, with the consequence that national Parliaments might be reluctant to ratify it. In addition, problems could arise if the rules of private international law were, for example, to lead to the application of Part II of the Convention but not Part III, or vice versa (Official Records, II, 236-237) .

     2.3. - On the other hand certain delegations stressed that in their countries special legal rules governed international commercial transactions. The effect of sub-paragraph (1)(b) of Article 1 would be to exclude the application of those rules in favour of the Convention with the consequence that the States in question would be unable to ratify it, and it was primarily to meet this concern that the Czechoslovak proposal was made to permit any State to declare, at the time of the deposit of its instrument of ratification, acceptance, approval or accession, that it will not be bound by sub-paragraph 1(b) of Article 1 of the Convention (Official Records, II, 229-230).

     2.4. - Some delegations that would have preferred to see the deletion of Article 1(1)(b) for the reasons set out in § 2.2. supra nevertheless opposed the introduction of a reservation clause as a complicating factor although, as already stated, a majority of delegations were ultimately prepared to accept the text of Article 95.

     2.5. - The practical importance of the article will depend to a large extent upon the degree of acceptance which the Convention gains since it is evident that the greater the number of Contracting States the wider will be its application pursuant to Article 1(1)(a) and the less the need to have recourse to subparagraph (b) of Article 1(1). It may however be wondered whether some States which did not press for the inclusion of the [page 655] reservation provided for in Article 95 may not in fact avail themselves of it so as to ensure the application of their own law, as opposed to the Convention, in their relations with non-Contracting States for the reason that other Contracting States have, for one reason or another, decided to exclude the application of Article 1(1)(b) in their relations with non-Contracting States.

3. Problems concerning the provision

     3.1. - No difficulties would seem to exist with regard to this provision if a court in a State taking the reservation under Article 95 (State A) finds its own law to be applicable, but delicate problems could arise if such a court were to find the law of another Contracting State (State B) to be applicable to the contract of sale or its formation in a case involving parties with their places of business in State B and in a non-Contracting State (State C).

     3.2. - The problem facing a court in State A would be to determine whether the law of State B, if that country's law is held to be applicable to the contract, is to be regarded as its own internal law or rather the rules of the Convention. The task of the court in State A would be facilitated if State B had also taken a reservation under Article 95 since it would be apparent that the intention of the national legislature was that, apart from the case contemplated by Article 1(1)(a), the domestic law of State B, rather than the rules contained in the Convention, should govern international contracts of sale of goods whenever the law of State B is deemed to be applicable.

     3.3. - The situation would, however, seem to be less clear if State B has not taken a reservation under Article 95 although a court in State A might adopt the line of reasoning that since its own legislature has deprived it of the possibility of applying the Convention pursuant to Article 1(1)(b), then it should only apply it when the requirements of Article 1(1)(a) are met. If this solution were to be adopted it would clearly be irrelevant for a court in State A whether State B had availed itself of the reservation under Article 95 or not. [page 656]

     3.4. - On closer examination, however, such an approach would scarcely seem to be satisfactory as the introduction of subparagraph (b) of Article 1(1) was intended to permit the application of the Convention in cases other than those falling under Article 1(1)(a), rather than to effect a change in the generally accepted principles of conflicts of law. Taking therefore the example given above, in which a court in Contracting State A that has taken the reservation under Article 95 finds that the law of a Contracting State which has not taken the reservation (State B) is applicable to a contract of sale of goods involving parties with their places of business in State B and a non-Contracting State C, and whose task is to determine what is, the law of State B it would seem to be incumbent on the court in State A to respect the intention of the legislature of State B which was that in such cases the Convention should apply. If this approach is deemed to be correct then in the situation where State A has not taken the reservation under Article 95 and State B has done so, and where the parties have their places of business in State B and in non-Contracting State C, consistency would appear to require that a court in State A should, if it finds the law of State B to be applicable, select the domestic law of that State as the law governing the contract rather than the Convention.

     3.5. - The analysis outlined in the preceding paragraphs reflects the widely accepted rules of conflicts of law applicable to contractual relations in that the task of the judge seized of the case is restricted, once he has identified the applicable law, to the determination of the precise rules governing the contract. In other words there is no suggestion of recourse to the doctrine of renvoi which has moreover been formally excluded by the authors of the Hague Convention of 22 December 1985 on the law applicable to contracts for the international sale of goods, Article 15 of which provides that «in the Convention "law" means the law in force in a State other than its choice-of-law rules». [page 657]


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