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Cite as Evans, in Bianca-Bonell Commentary on the International Sales Law, Giuffrè: Milan (1987) 666-671. Reproduced with permission of Dott. A Giuffrè Editore, S.p.A.

Article 99

Malcolm Evans

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

ARTICLE 99

(1) This Convention enters into force, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of deposit of the tenth instrument of ratification, acceptance, approval or accession, including an instrument which contains a declaration made under article 92.

(2) When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the tenth instrument of ratification, acceptance, approval or accession, this Convention, with the exception of the Part excluded, enters into force in respect of that State, subject to the provisions of paragraph (6) of this article, on the first day of the month following the expiration of twelve months after the date of the deposit of its instrument of ratification, acceptance, approval or accession.

(3) A State which ratifies, accepts, approves or accedes to this Convention and is a party to either or both the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Formation Convention) and the Convention relating to a Uniform Law on the International Sale of Goods done at The Hague on 1 July 1964 (1964 Hague Sales Convention) shall at the same time denounce, as the case may be, either or both the 1964 Hague Sales Convention and the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect.

(4) A State party to the 1964 Hague Sales Convention which ratifies, accepts, approves or accedes to the present Convention and declares or has declared under article 92 that it will not be bound by Part II of this Convention shall at the time of ratification, acceptance, approval or accession denounce the 1964 Hague Sales Convention by notifying the Government of the Netherlands to that effect.

(5) A State party to the 1964 Hague Formation Convention which ratifies, accepts, approves or accedes to the present [page 666] Convention and declares or has declared under article 92 that it will not be bound by Part III of this Convention shall at the time of ratification, acceptance, approval and accession denounce the 1964 Hague Formation Convention by notifying the Government of the Netherlands to that effect.

(6) For the purpose of this article, ratifications, acceptances, approvals and accessions in respect of this Convention by States parties to the 1964 Hague Formation Convention or to the 1964 Hague Sales Convention shall not be effective until such denunciations as may be required on the part of those States in respect of the latter two Conventions have themselves become effective. The depositary of this Convention shall consult with the Government of the Netherlands, as the depositary of the 1964 Conventions, so as to ensure necessary co-ordination in this respect.

1. History of the provision

     1.1. - The origins of the provision are to be found in Article J of the draft final clauses submitted by the Secretary-General of the United Nations to the Vienna Conference (Official Records, I, 69-70). The amendments made to that text during the Conference were principally of a drafting character designed to ensure a smoother application of the mechanism for the entry into force of the Convention and to clarify its relations with the 1964 Hague Conventions.

2. Meaning and purpose of the provision

     2.1. - Article 99 deals with the entry into force of the Convention, a question complicated by the co-existence, for a certain time at least, of the Convention and the 1964 Hague Conventions.

     2.2. - The basic provisions governing the entry into force of the Convention are laid down in Article 99(1) (for the qualification relating to paragraph (6) see § 2.9., infra). The paragraph provides that the Convention will enter into force on «the first [page 667] day of the month following the expiration of twelve months after the deposit of the tenth instrument of ratification, acceptance, approval or accession, including an instrument which contains a declaration under article 92». Since the tenth instrument was deposited on 11 December 1986, the Convention will in consequence enter into force on 1 January 1988. The provision follows Article 44 of the Limitation Convention in requiring ten Contracting States for the Convention to enter into force. Although a proposal was made at the Vienna Conference that the number be six (Official Records, II, 456), it was argued that a higher number would be necessary if the Convention were to have a genuine unifying effect and the figure of ten, proposed by the Secretary-General in the original Article J, was adopted.

     2.3. - Paragraph (1) departs, however, from the Limitation Convention in stipulating a twelve month period following the deposit of the tenth instrument before the entry into force of the Convention, Article 44(1) of the Limitation Convention having specified a six month period so as to give Governments which become Parties to that Convention sufficient time to notify all the national organisations and individuals concerned that a Convention which would affect them would soon enter into force. Six months would however have been insufficient in the present context in view of the fact that the 1964 Hague Conventions make provision for denunciation to take effect twelve months after receipt of notification of such denunciation by the depositary. Since it was the wish of the drafters of the Convention to allow for simultaneous acceptance of the new Convention and denunciation of the 1964 Hague Convention by Parties to the latter instruments, so as to avoid the risk of a State being Party to the present Convention and to the 1964 Conventions at the same time, it was decided to adopt the same period for entry into force of the Convention as for denunciation to take effect under the 1964 Conventions.

     2.4. - The purpose of the reference to Article 92 in paragraph (1) is to make it clear that the Convention as a whole will enter into force in accordance with the provisions of that paragraph even if one or more of the ten Contracting States have declared that they will not apply the provisions of Part II or of [page 668] Part III of the Convention. In other words, if two of the ten States had for example excluded Part II and one of them Part III, the Convention would initially have entered into force for eight States in respect of Part II, and for nine in respect of Part III, although in actual fact none of the first ten Contracting States made a declaration under Article 92(1).

     2.5. - Paragraph (2) is concerned with the entry into force of the Convention as regards those States which become Parties thereto after the triggering of the mechanism for its entry into force under paragraph (1). In respect of such States the Convention will enter into force on the first day of the month following the expiration of twelve months after the date of the deposit of their instrument of ratification, acceptance, approval or accession so that in the case of a State depositing such an instrument precisely nine months before the entry into force of the Convention under paragraph (1), the Convention will enter into force for that State of the first day of the month following the expiration of three months after the Convention's entry into force. Like paragraph (1), paragraph (2) contains a proviso relating to paragraph (6).

     2.6. - It is however not easy to grasp why the drafters of the Convention found it necessary to refer in paragraph (2) to the hypothesis of a State excluding part of the Convention. The reference to Article 92 in paragraph (1) was deemed appropriate for the reason given in § 2.4., supra, but the mere fact that paragraph (2) is concerned with the entry into force of the Convention in respect of single States rather than the Convention itself under paragraph (1) would not seem to necessitate the inclusion in paragraph (2) of the words «with the exception of the Part excluded», since the question of whether or not a Part has been excluded will depend upon whether a declaration has been made by the State in question under Article 92. Similar provisos might have been made in respect of, for example, Articles 95 or 96, and it does not seem to be relevant that Article 92 is the only one of the reservation clauses to indicate (paragraph (2)) that a «Contracting State which makes a declaration ... is not to be considered a Contracting State» as this statement is qualified by an express reference to Article 1(1). There was no discussion of [page 669] the significance of the words «with the exception of the Part excluded» at the Vienna Conference in the course of a brief examination of paragraph (2) (Official Records, II, 456) and the only explanation of their inclusion in the draft Article J submitted by the Secretary-General (Official Records, I, 70) would seem to be that they were somehow seen as a pendant to the reference to Article 92 in paragraph (1).

     2.7. - The remaining paragraphs of Article 99 concern the coexistence between the Convention and the 1964 Hague Sales Conventions and paragraph (3) underlines the policy aim of the drafters of the Convention in requiring States Parties to one or both of the 1964 Hague Conventions to denounce the Convention or Conventions, as the case may be, when ratifying or otherwise becoming a Contracting State to the present Convention. The one State Party to the Hague Conventions which has so far ratified the 1980 Convention, Italy, has denounced both of the 1964 Conventions.

     2.8. - Paragraphs (4) and (5) on the other hand contemplate the special case of a State Party to either the 1964 Hague Sales Convention or the 1964 Hague Formation Convention or to both of them making a reservation under Article 92 in respect of Part II or of Part III of the present Convention. In these situations, such a State is required to denounce the Hague Sales Convention if it takes a reservation in respect of Part II of the Convention (paragraph (4)) and to denounce the Hague Formation Convention if it excludes Part III of the Convention (paragraph (5)).

     2.9. - Paragraph (6), to which reference has already been made, recognizes the possibility of a denunciation by States Parties to one or both of the 1964 Hague Conventions becoming effective subsequent to the date on which, the present Convention would normally have entered into force in respect of that State under paragraph (1) or (2), as a result of such a State failing to denounce either or both of the 1964 Conventions in due time pursuant to paragraphs (3), (4) or (5). The effect of paragraph (6) is to delay the entry into force of the Convention in respect of such a State until the denunciation of the 1964 Convention or Conventions has become effective and, if the State concerned is [page 670] one of the first ten States to ratify or otherwise consent to be bound by the Convention, to delay until such time the entry into force of the Convention itself in accordance with the provisions of Article 99(1).

3. Problems concerning the provision

     3.1. - Although the drafters ot the Convention have taken all possible steps to ensure a smooth transition from the 1964 Hague Sales Conventions to the new regime established at the Vienna Conference, it is clear that not every detail of the necessarily complicated mechanism set up under Article 99 could have been foreseen in advance and to this end the last sentence of paragraph (6) provides that «the depositary of this Convention shall consult with the Government of the Netherlands, as the depositary of the 1964 Conventions, so as to ensure necessary co-ordination» in connection with the matters dealt with in that paragraph. [page 671]


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