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Reproduced with permission of 7 Vindobona Journal of International Commercial Law & Arbitration (2003) 63-92.

Gap-Filling and Interpretation of the CISG: Overview of International Case Law

Franco Ferrari [a1]

  1. Introduction
  2. The Issue of Interpretation (Article 7(1))
  3. Good Faith: Mere Instrument of Interpretation or More?
  4. Gap-Filling and General Principles

1. INTRODUCTION

It is common knowledge that in order to create legal uniformity, it is insufficient merely to create and enact uniform law instruments,[1] because 'even when outward uniformity is achieved [...], uniform application of the agreed rules is by no means guaranteed, as in practice different countries almost inevitably come to put different interpretations upon the same enacted words.'[2] In order to reduce the risk of diverging interpretations of one an the same text, that text must also be interpreted uniformly, since, as stated by Viscount Simonds on behalf of the House of Lords in Scruttons Ltd. v. Midland Silicones Ltd.,[3] 'it would be deplorable if the nations should, after protracted negotiations, reach agreement [...] and that their several courts should then disagree as to the meaning of what they appeared to agree upon.'[4] [page 63]

The drafters of the 1980 United Nations Convention on Contracts for the International Sale of Goods [5] (as well as those of many other uniform law conventions, such as the 1980 Rome Convention on the Law Applicable to Contractual Obligations [6] and the 1988 UNIDROIT Conventions on International Factoring and International Financial Leasing,[7]) were aware of this problem, which is why they inserted a provision into the convention - Article 7 - designed to help to reach the uniformity aimed at, as can easily be evinced from the text of the provision, more specifically of its paragraph (1), according to which in interpreting the CISG 'regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.'[8]

This provision is one of the CISG provisions most often dealt with by commentators, since it not only deals with the interpretation of the CISG,[9] to be discussed in the [page 64] following section (2), but also with gap-filling,[10] to be examined at a later section (3). This paper is not aimed at reiterating everything all the discussions which took place up to now; rather, it examines to what extent the results reached by commentators in examining article 7 are reflected in CISG case law.

2. THE ISSUE OF INTERPRETATION (ARTICLE 7(1))

2.1 Autonomous interpretation

As already mentioned, in interpreting the CISG 'regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.' Many legal writers construe the reference to the obligation to have regard to the conventions' 'international character' in its interpretation to mean that the CISG is to be interpreted 'autonomously',[11] not 'nationalistically', i.e. not in the light of domestic law,[12] despite the fact that once put in [page 65] force, international conventions become part of the domestic law.[13] Consequently, one should not have recourse to any domestic concept in order to solve interpretive problems arising from the CISG.[14] Many commentators have argued that what has just been said is true even where the expressions employed by the CISG (but this is generally true for any uniform law convention) [15] are textually the same as expressions which within a particular legal system have a specific meaning - such as 'avoidance', 'reasonable', 'good faith', 'trade usages', etc. - they must be interpreted autonomously. Such expressions as well have to be considered to be independent [16] and different [17] from the domestic concepts,[18] since the expressions employed by uniform law conventions, such as the CISG, are intended to be neutral.[19] Indeed, it has often been noted that any choice of one expression rather than another is the result of a compromise [20] and does not [page 66] correspond to the reception of a concept peculiar to a specific domestic law,[21] at least where it is not apparent from the legislative history that the drafters wanted a specific concept to be interpreted in the light of a specific domestic law.[22]

The policy behind the reliance upon the autonomous interpretation also precludes recourse to domestic interpretive techniques in order to solve problems,[23] since that would lead to results which conflict with the other premise upon which the interpretation of the CISG is to be based, namely the need to promote uniformity in its application.[24]

Affirmations similar to the aforementioned ones can now be found in CISG case law as well. Several courts expressly referred to the need to take into account the CISG's international character.[25] One United States court, like several ones prior to it,[26] interpreted that need to mean that 'although the CISG is similar to the UCC with respect to certain provisions, [...] it would be inappropriate to apply UCC case law in construing contracts under the CISG.' [27] According to various Swiss courts,[28] the need to take into account the CISG's international character obliges one to interpret the CISG autonomously and not in the light of any domestic law. Similar statements can also be found in a recent decision rendered by the German Supreme Court.[29] On an earlier [page 67] occasion, that court [30] had stated that generally it did not matter whether there were differences between the domestic German law and the CISG, since one was not allowed to interpret the CISG in the light of domestic law in any case. This, however, is nothing but a different way of saying that the CISG has to be interpreted autonomously.

Unfortunately, there are courts that have - in this author's opinion, wrongly - taken the opposite view, i.e. that case law interpreting analogous domestic law provisions may also inform a court where the language of the relevant provisions of the CISG tracks that of the domestic law, even though the domestic law 'is not per se applicable.'[31] This line of cases has to be criticised, as it contrasts with the CISG's goal of wanting to promote uniformity.

2.2 Resort to foreign case law: practical issues

Considering the CISG an 'autonomous body of rules' does, however, not per se guarantee uniformity.[32] In order to achieve the CISG's ultimate goal of uniformity,[33] it is also necessary, as pointed out also by courts, to consider the CISG's legislative history [34] as well as to take into account international scholarly writing,[35] as having recourse to them without any doubt promotes uniformity.

According to many authors, it is even more important to resort to the practice of other jurisdictions,[36] i.e. to 'what others have already done.'[37] In other words, uniformity can [page 68] only be achieved if one also considers foreign case law.[38] The interpreter must therefore consider decisions rendered by judicial bodies of foreign jurisdictions,[39] since it is possible that the same or similar questions have already been examined by other States' courts.[40] Legal writers derive this obligation directly from that part of Article 7(1) where it is stated that 'regard is to be had to [...] the need to promote uniformity in [the Convention's] application.'

However, requiring interpreters to consider foreign decisions creates practical difficulties, for two main reasons: foreign case law is not readily available, i.e. it cannot easily be retrieved, and even where it can be retrieved, it is often written in a language unknown to the interpreter.

In order to overcome these difficulties, many steps have been taken.[41] The Pace University Institute of International Commercial Law, for instance, has developed a web-site [42] which at no cost provides not only the text of the CISG, a current list of Contracting States, and the most up-to-date bibliography on the CISG, but also provides case law from all over the world.[43] Similar web-sites have been created in Austria,[44] Belgium,[45] Germany,[46] France,[47] Switzerland,[48] Spain [49] and elsewhere.[50] [page 69]

The Centre for Comparative and Foreign Law Studies in Rome has put together UNILEX,[51] a 'reasoned collection of case law and an international bibliography on the CISG',[52] which presents features similar to those found on the Internet under the foregoing sites and which is now available for free on the Internet.[53]

However, the most 'official' efforts to neutralise the danger of diverging interpretations and applications of the CISG by making foreign decisions available, or at least abstracts of such decisions, are those efforts made by UNCITRAL. After rejecting the idea of creating an international tribunal to which all cases should be referred, which some considered to be the only way to ensure uniformity,[54] UNCITRAL, in its twenty-first working session,[55] decided to adopt a procedure in which the decisions rendered in the application of the CISG in the various States are all gathered by so-called national correspondents who then have to 'send to the UNCITRAL Secretariat the full text of the decisions in their original languages. The Secretariat will then make these decisions accessible to any interested person',[56] among others, by preparing abstracts of them, translating them into the various official languages of the United Nations and distributing the papers in which they are published, the so-called CLOUTs,[57] to the [page 70] interested parties.[58] Most recently, UNCITRAL has asked several experts, among others the author of this paper, to draft a digest of existing case law on an article per article basis, to be used by practitioners when looking for CISG case law. This digest was presented for the first time to the public on the occasion of a conference to be held in Pittsburgh, United States of America, on 7 February 2003.

Although the aforementioned efforts may appear to have more theoretical than practical value, two recent Italian court decisions show that these efforts start giving concrete results in practice. In the most recent case, decided in 2002, the Tribunale di Rimini [59] decided a dispute relating to a contract governed by the CISG by resorting to about 30 foreign court decisions, published not only in law reviews, but also on the various Internet sites referred to earlier. In the other Italian case, decided in 2000, the Tribunale di Vigevano [60] had to decide a dispute concerning a contract concluded between a German party and an Italian one. In dealing with issues such as the applicability of the CISG, its exclusion as well as its rules on non-conformity and the issue of burden of proof, the Vigevano court quoted even more foreign court decisions, published both in law reviews and on the most disparate Internet sites.[61]

Although these two court decisions are without any doubt exceptional for the number of foreign court decisions they refer to, they are not the only ones in which foreign court decisions have been quoted, albeit not as numerously. One Belgian court,[62] for instance, quoted two foreign court decisions, as did an Italian court.[63] In other cases, courts [page 71] referred to one foreign court decision to reach their decision.[64]

2.3 Resort to foreign case law: methodological issues

The basic methodological problem created by the knowledge of foreign case law concerns the degree of its authority. Is foreign case law to be treated as binding or as having merely persuasive value?

According to one author, foreign case law should have the value of precedent '[i]f there is already a body of international case law.'[65] Another author even speaks of a 'supranational stare decisis'[66] which can be achieved if 'common law and civil law judges [...] reverse their approaches in a number of ways',[67] that is, for example, if the civil law judge starts to 'search other cases throughout the world and follow precedent in much the same way the common law judge does within her national system.' [68]

Although one must agree that in order to obtain uniformity civil law judges should start to 'approximate their common law counterparts in increasing their reliance on [case law]',[69] as common law judges should increasingly take into account legal writing as well as legislative history, one cannot attribute value of precedent to uniform foreign case law, much less advocate a doctrine of 'supranational stare decisis.'[70]

The aforementioned statements can be criticised for two different reasons. From a substantive point of view, stating that uniform foreign case law should be treated as binding precedent does not take into account that a uniform body of case law does not [page 72] per se guarantee the correctness of a substantive result,[71] as evidenced by the criticism towards the large body of CISG case law which has applied the rate of interest of the domestic law designated by the rules of private international law.[72]

From a methodological point of view, the suggestion to create a 'supranational stare decisis' similar to that existing in common law countries must be criticised, since it does not take into account the rigid hierarchical structure of the various court systems in which any 'national' stare decisis doctrine is embedded. It is the lack of a similar hierarchy on an international level that does not allow for the creation of a 'supranational stare decisis' doctrine.[73] Indeed, how should one decide whether a specific court is, from a hierarchical point of view, a lower court in respect to the court of a different country? And where, in the scheme of things, would arbitral tribunals fit into the hierarchy? Are they to be considered hierarchically superior to courts of first instances, appellate courts or even supreme courts? And what about the courts of Non-Contracting States? Should their decisions be taken into account at all?

In order to be able to solve these problems, foreign case law should always be considered as having merely persuasive value.[74] This view was expressly confirmed by [page 73] various Italian court decisions,[75] two of which expressly stated that 'foreign case law, contrary to what a minority of authorities have argued, is not binding on this tribunal. It must nevertheless be considered in order to assure and to promote uniform enforcement of the CISG.'

This result is, in essence, what Article 7(1) of the CISG imposes when it provides that 'regard is to be had [...] to the need to promote uniformity in its application.' [76] Foreign case law should be used as a source from which to draw either arguments or counterarguments.[77] Consequently, an arbitral award could have more influence on a specific solution than a decision of a supreme court of a country whose judges are not accustomed to dealing with international issues in general, and the CISG in particular. Similarly, a court decision of a Non-Contracting State could be more influential than that of a Contracting State. Furthermore, the obiter dicta to be found in one decision could impact the outcome of a specific case more than the rationes decidendi of other court decisions.

3. GOOD FAITH: MERE INSTRUMENT OF INTERPRETATION OR MORE?

According to Article 7(1) CISG, in interpreting its provisions one must have regard not only to the necessity of promoting the Convention's uniform application, but also to the need of promoting the observance of good faith in international trade.[78] This provision represents a compromise between the views of those representatives 'who would have preferred a provision imposing directly on the parties the duty to act in good faith, and those who on the contrary were opposed to any explicit reference to the principle of [page 74] good faith in the Convention.'[79] The question that one has to raise is how does one interpret the result of the compromise: is good faith relevant only with reference to the interpretation of the CISG or is it also relevant as far as the parties' behaviour is concerned?

According to some authors, good faith is relevant solely as an additional tool of interpretation to which judges must make recourse and which must be employed by them to neutralize the danger of reaching inequitable results.[80] One must note, however, that even if conceived as a mere instrument of interpretation, good faith may pose some problems and conflict with the 'ultimate' goal of the Convention, i.e., the promotion of its uniform application. In fact, since the concept of good faith is very vague,[81] several authors state that 'courts will be unable to develop a common definition';[82] this will inevitably lead to differing interpretations of the Convention's uniform provisions.[83] This danger becomes apparent if one considers the variety of good faith definitions one can find in a comparative setting.[84] In this respect, it suffices to remember that in the United States, where, by virtue of the influence of civil law teachings,[85] the principle of [page 75] good faith was adopted by both the Uniform Commercial Code [86] and the Restatement (Second) of Contracts,[87] its area of operation is limited to the performance of the contract.[88] In civil law systems, on the contrary, there is not only a 'common law duty to perform in good faith',[89] but the good faith principle operates also with regard to the interpretation and the formation of contracts.[90] However, 'even where [...] the principle as such is expressly stated with respect not only to performance but also to formation and interpretation of the contract [...] its specific applications in practice may differ considerably.'[91] In that regard it is sufficient to recall the importance of the good faith principle set down in 242 of the German Civil Code.[92]

While some authors, as mentioned, hold that good faith operates solely as an instrument of the interpretation of the CISG, other authors affirm that the reference to the necessity of promoting the 'observance of good faith in international trade'[93] (Art. 7(1)) is 'also necessarily directed to the parties to each individual contract of sale'[94] despite the reference to good faith being solely incorporated in the provision dedicated to the CISG's interpretation.[95] In support of this thesis according to which good faith can also [page 76] be considered as being one of the 'general principles' upon which the CISG is based, is sufficient to recall that there are several provisions which constitute a particular application of that principle,[96] such as Art. 16(2)(b).[97] In fact, it is undeniable that the aforementioned provision is grounded on the principle of good faith to the extent that it provides that a proposal is irrevocable where it was reasonable for the offeree to rely upon the offer being held open and the offeree acted in reliance on the offer.[98]

Those who argue in favour of a similar notion of good faith, i.e. good faith as one of the general principles of the CISG rather than an instrument of mere interpretation,[99] risk, however, being driven to the conclusion that '[a]s such it may even impose on the parties additional obligations of a positive character',[100] such as acting in good faith in [page 77] the bargaining and formation process.[101] In this author's opinion, the possibility of imposing on the parties additional obligations based upon good faith must be doubted. This does not mean, however, that one should adopt the view according to which good faith represents merely an instrument of interpretation. This merely means that obligations different from the ones resulting from the CISG should not be imposed on the parties; where, however, an obligation already exists under the CISG, the parties' behaviour in relation to the performance of that obligation must be measured on the basis of a good faith standard.[102]

As for courts, they appear to favour the view according to which the good faith principle is one of the general principles upon which the CISG is based.[103] This is why it cannot surprise that in one case a court justified the order to one party to pay damages on the basis that that party's conduct was 'contrary to the principle of good faith in [page 78] international trade laid down in Article 7 CISG'; in doing so, the court also stated that the abuse of process also violates the good faith principle.[104]

In a different case, the view that the good faith principle is one upon which the CISG is based led one court even to state that an explicit declaration of avoidance of the contract was not necessary once the seller had refused to perform its obligations and that to insist on such a declaration would be against the principle of good faith.[105] In this author's opinion, that holding is incorrect. Since the general principles are to be resorted to, as will be pointed out in greater detail infra, only in order to deal with issues not expressly settled in the CISG and Art. 64 of the CISG expressly deals with the issue of avoidance of the contract by expressly requiring a declaration to that effect, the issue at hand is not one in respect of which interpreters are entitled to resort to the CISG's general principles.

4. GAP-FILLING AND GENERAL PRINCIPLES

4.1 General issues

Although '[o]ne of the reasons for enacting the Convention is to provide a uniform body of law in the event the parties fail to consider, or agree on, the applicable body of law',[106] the Convention does not 'constitute an exhaustive body of rules',[107] i.e., it does not provide solutions for all the problems which can originate from an international sale. According to Article 4 CISG,[108] the issues governed by the CISG are limited to the formation of the contract and the rights and obligations of the parties resulting from such a contract.[109] This limited scope of application gives rise to problems relating to the [page 79] necessity of dealing with the incompleteness of the CISG. It is to comply with such necessity that Article 7(2) CISG provides that '[q]uestions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.'

The aim of this provision is not very different from that which the interpretation rules set forth in Art. 7(1) are pursuing,[110] i.e., uniformity in the CISG's application. Since this is the ultimate goal, '[i]n accordance with the basic criteria established in paragraph (1), first part, for the interpretation of the Convention in general, not only in the case of ambiguities or obscurities in the text, but also in the case of gaps, courts should to the largest possible extent refrain from resorting to the different domestic laws and try to find a solution within the Convention itself."[111]

However, before providing a list of the general principles referred to in Art. 7(2) (as identified in case law), it is necessary to identify the matters to which the rule set forth in Article 7(2) applies. In this respect, it must be noted that the gaps to which the rule refers are not the matters that are excluded from the scope of application of the Convention, such as the matters contemplated in Arts. 4 and 5 CISG, but the gaps praeter legem, i.e. issues to which the Convention applies but which it does not expressly resolve.[112]

To fill these gaps (praeter legem), the drafters of the CISG have chosen the approach which combines the recourse to general principles with the recourse, where needed, to the rules of private international law,[113] a choice that shows that the drafters were aware [page 80] of the fact that the absolute independence from domestic law is unattainable.[114]

As far as the recourse to general principles in filling the gaps is concerned, one must note that it constitutes a method well-known in civil law countries.[115] In fact, the recourse to general principles in order to fill gaps 'finds precedent in many codes of the Roman-Germanic legal systems, even though among such codes there are differences.'[116] It is sufficient to recall Art. 12(2) of the Italian Civil Code's Preliminary Provisions which states that 'if a controversy cannot be decided on the ground of a specific provision, one can resort to similar provisions or analogous matters; if the question remains doubtful, it shall be settled in conformity with the general principles of the legal system of the [Italian] State.' It is upon this approach that other civil law systems, such as that of Austria,[117] Egypt,[118] Spain,[119] and others,[120] are based as well.

In common law, the notion of general principles is different from that in civil law,[121] in part, because of the 'diverse notion and function of the "general principles",[122] and in part because of the different sources from which the general principles are derived. In fact, in civil law the source is the legislation, whereas in common law, the source is represented by case law.[123] In effect, in common law statutory law is seen as only [page 81] fixing rules for defined situations, not as a possible source of general principles. As such, not only are the statutes traditionally interpreted in a very strict sense, but if there is no provision specifically regulating the case at hand, the gap will immediately be filled by principles and rules of the judge-made common law.[124]

At this point it appears appropriate to recall that to fill the gaps, one can resort to various types of logical reasoning in order to find a solution within the Convention itself.[125] In this respect, recourse to general principles constitutes merely one method of gap-filling. Therefore one must determine whether Art. 7(2) CISG also covers other methods of legal reasoning, such as analogical application,[126] or whether it is to be interpreted restrictively. As to this question, one can share the opinion of those legal scholars who assert not only that the CISG permits both methods, but also that '[i]n the case of a gap in the Convention the first attempt to be made is to settle the unsolved question by means of an analogical application of specific provisions.'[127] However, when the matters expressly settled in the CISG and the matter de quo are not so closely related that it would not be unjustified to adopt a different solution,[128] one must resort to the general principles as contemplated in Art. 7(2) of the Convention. This procedure differs from the analogical application in that it does not resolve the case at hand solely by extending specific provisions dealing with analogous matters, 'but on the basis of principles and rules which because of their general character may be applied on a much wider scale.'[129] [page 82]

4.2 The general principles of the CISG in case law

As far as the general principles are concerned, given the limited scope of this paper, hereinafter only those will be referred to that have been identified in case law. This does not mean that other general principles do not exist, nor does it mean that the existence of other general principles has not been suggested; it simply signifies that there is yet no case law on those other general principles.

The most important general principle upon which the CISG is based is that of party autonomy.[130] The importance of this principle can easily be derived from the fact that it is that principle that confers dispositive nature to the CISG [131] and, thus, a subsidiary role to it.[132] As a consequence, where there is a conflict between the principle of party autonomy and any other general principle, the former always prevails.[133] Courts as well have adopted this view: indeed, they not only refer to 'party autonomy' as a general [page 83] principle, they even speak of the principle of 'prevalence of party autonomy.'[134]

According to some courts [135] as well as to some commentators,[136] another general principle, this one closely linked to the general principle of good faith - acknowledged, as already mentioned, both in case law and legal writing [137] - is that of 'estoppel.' Although that opinion is the prevailing one, it should be noted that there is case law [138] and legal writing [139] that deny that 'estoppel' is one of the general principles upon which the CISG is based.

Case law has often dealt with the issue of whether a general principle in respect of the place of performance of monetary obligations exists. In determining the place of payment of compensation due for non-conformity of the goods one court, for instance, stated that 'if the purchase price is payable at the place of business of the seller', under Art. 57 CISG, then 'this indicates a general principle valid for other monetary claims as well.'[140] In a comparable situation, another court, considering an action for restitution of an excess in the price received by the seller, stated that there was a general principle under which 'payment is to be made at the creditor's domicile, a principle that is be extended to other international trade contracts under Art. 6.1.6 of the UNIDROIT Principles.'[141] The Austrian Supreme Court, which had previously adopted the reverse principle, decided that the gap in the CISG in respect of the legal consequences of avoidance, particularly with regard to the performance of restitution obligations, was to [page 84] be filled by means of a general principle of the CISG, according to which 'the place for performance of restitution obligations should be determined by transposing the primary obligations--through a mirror effect--into restitution obligations.'[142] It should be noted, however, that there is also one decision which, in this authors opinion, correctly, denies the existence of a general principle under the Convention on the basis of which to determine the place of performance for all monetary obligations.[143]

As far as the currency of payment is concerned, one court observed that it is a question governed by, albeit not expressly settled in, the CISG.[144] The court referred first to the view that according to a general principle underlying CISG the seller's place of business governs all questions relating to payment, at least where the parties did not agree otherwise, and therefore also the question of currency. The court, however, also mentioned the view that the question cannot be solved by applying a general principle of the CISG but rather by the domestic law applicable. The Court however did not choose between the alternatives since in the case at hand the result was the same (currency of the seller's place of business). In this author's opinion, the currency in which payment is to be made is not an issue dealt with, albeit implicitly, by the CISG; thus, it is not one to be determined by having recourse to a general principle; rather, it is an issue to be left to domestic law.

According to some courts,[145] the issue of burden of proof is a matter governed by, albeit not explicitly settled in, the CISG. Therefore, the issue is to be settled in conformity with the general principles on which the Convention is based.[146]According to various decisions, it is article 79(1) [147] and, at least according to one court decision, Art. 2(a) that evidence general principles of the CISG in respect of this issue. These general principles have been summarised as follows: the party which wants to derive beneficial legal consequences from a legal provision has to prove the existence of the factual [page 85] prerequisites of the provision [148] any party claiming an exception has to prove the factual prerequisites of that exception.[149] This view is to be preferred [150] to that of a few courts [151] and commentators [152] that hold that the issue of burden of proof is one not governed by the CISG, but by the applicable domestic law.

Courts [153] - but this is true for commentators [154] as well - have further stated the CISG is also based upon the principle of full compensation. However, one court restricted this general principle to cases in which, as a result of a breach of contractual obligations, a contract is declared void.[155]

Several tribunals expressly stated that the principle of informality, laid down in Art. 11 CISG also constitutes a general principle upon which the CISG is based;[156] from this principle it follows, among other things, that the parties are also free to modify or terminate their contract in any form be it either in writing or orally or in any other form. [page 86] Even an implied termination of the contract has been held possible;[157] furthermore, on the basis of the aforementioned general principle, it has been held that a written contract may be orally changed.[158]

The dispatch principle set forth in Art. 27 appears to be the CISG's general principle concerning communications made after the parties have concluded their contract. According to that principle a notice, request or other communication becomes effective as soon as the declaring party releases it from its own sphere by an appropriate means of communication. This rule applies to the notice of non-conformity or of third-party claims (Arts. 39, 43), to requests of specific performance (Art. 46), price reduction (Art. 50), damages (Art. 45 par. 1 (b)) or interest (Art. 78), to the declaration of avoidance (Arts. 49, 64, 72, 73), to the fixing of an additional period for performance (Arts. 47, 63) and other notices as in Arts. 32 par. 1, 67 par. 2 or 88. According to case law, as a general principle for Part III of the CISG, the dispatch principle applies as well to any other communication the parties may have provided for in their contract unless they have agreed that the communication has to be received to be effective.[159]

The mitigation principle laid down in Art. 77, pursuant to which a party who relies on a breach of contract must take such measures as are reasonable in the circumstances to mitigate the loss, including loss of profit, resulting from the breach, in order to avoid the party in breach to be entitled to claim a reduction in the damages in the amount by which the loss should have been mitigated, has also been considered a general principle upon which the CISG is based both by courts [160] and commentators.[161] [page 87]

Another general principle acknowledged by courts [162] and commentators [163] is that according to which, unless otherwise agreed, the parties are bound by a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.

One court suggested that the issue of set-off was governed, albeit not expressly settled-in, the CISG and that the CISG contained a general principle within the meaning of Art. 7(2) that permitted reciprocal claims arising under the CISG (here, the buyer's claims for damages and the seller's claim for the balance of the sale proceeds) to be offset.[164] In this author's opinion, this view is not tenable, since, as pointed out by many courts [165] (as well as the majority of commentators), the issue of set-off is not governed by the Convention at all and, therefore, is left to the applicable domestic law.[166] [page 88]

An arbitral tribunal (correctly [167]) stated that the entitlement to interest on all sums in arrears also constitutes a general principle of the CISG.[168] Some courts further stated, that that entitlement to interest does not require a formal notice to the debtor in default.[169] The majority of legal writers rightly hold that same view; it therefore comes as a surprise that there are courts that state that a formal notice must be given to the debtor before one is entitled to interest on sums in arrears.[170]

Commentators [171] have also correctly suggested that the CISG is based upon the 'favor contractus' principle, 'which means that, whenever possible, a solution should be adopted in favour of the valid existence of the contract and against its premature termination on the initiative of one of the parties.'[172] This view was adopted by two courts: one court expressly referred to the principle of favor contractus,[173] whereas the other court stated that the avoidance of the contract merely constitutes an 'ultima ratio' remedy.[174]

Furthermore, several courts have identified Article 40 as embodying a general principle of the CISG. According to an arbitration tribunal, 'Article 40 is an expression of the principles of fair trading that underlie also many other provisions of the Convention, and it is by its very nature a codification of a general principle.'[175] Thus, the decision asserted, even if Art. 40 did not directly apply to a lack of conformity under a contractual warranty clause, the general principle underlying Art. 40 would be indirectly [page 89] applicable to the situation by way of Art. 7(2). In another decision, a court derived from Art. 40 the general principle that even a very negligent buyer deserves more protection than a fraudulent seller, and then applied the principle to hold that a seller could not escape liability under Art. 35(3) [176] for misrepresenting the age and mileage of a car even if the buyer could not have been unaware of the lack of conformity.[177]

One arbitral tribunal,[178] when having to decide what rate of interest to apply to the sums in arrears, applied the average bank short term lending rate to prime borrowers, being the solution adopted both by Art. 7.4.9 of the UNIDROIT Principles of International Commercial Contracts and by Art. 4.507 of the Principles of European Contract Law; the arbitral tribunal adopted that solution on the grounds that such rules had to be considered general principles on which the CISG is based. In this author's opinion,[179] it is not correct to compare either the UNIDROIT Principles of International Commercial Contracts or the Principles of European Contract Law to the general principles upon which the CISG is based. Article 7(2) CISG clearly refers to "the general principles on which it [the CISG] is based." Thus, recourse to external principles, such as the UNIDROIT Principles and the Principles of European Contract Law, appears to be excluded. This does not mean, however, that the UNIDROIT Principles and the Principles of European Contract Law are meaningless whenever a contract is governed by the CISG. These principles can be useful, for instance, to corroborate a solution reached through the application of the CISG's rules, as evidenced not only by several arbitral awards,[180] but also by one state court decision;[181] on these occasions, the UNIDROIT Principles of International Commercial Contracts were used to find corroboration of the results reached by applying the rules of the CISG. Furthermore, according to a state court, the UNIDROIT Principles can also help to determine the exact meaning of a general principle upon which the CISG is based.[182] [page 90]

4.3 Resort to domestic law as ultima ratio

Article 7(2) CISG states that the gaps praeter legem are to be filled in conformity with the Convention's general principles. What happens where recourse to the general principles does not solve the problem? To solve this question, the drafters of the CISG, after some uncertainties,[183] laid down the rule according to which, absent general principles, one has to resort to the 'law applicable by virtue of the rules of private international law' (Art. 7(2)). Thus, as pointed out both in case law [184] and legal writing,[185] only as ultima ratio,[186] i.e. only where the general principles do not lead to a solution or where no such principles exist, should one resort to the applicable national law. In that case, however, not only is one allowed to have recourse to the rules of private international law, one is obliged to do so.[187] This does not mean that recourse to the rules of private international law should be abused.[188] Recourse to the rules of private international law 'represents under the [...] uniform law a last resort to be used only if and to the extent that a solution cannot be found either by analogical application of specific provisions or by the application of "general principles" underlying the uniform law as such.'[189]

Of course, matters the CISG does not govern at all are to be solved directly by having recourse to the applicable national law,[190] i.e. without first having to look into whether [page 91] general principles exist.

From the references to case law to be found in this paper, both in respect of the issue of interpretation as well as in respect of that of gap-filing, one can easily evince the importance of Article 7 CISG for reaching the CISG's ultimate goal, that is uniformity. Where either the rules on interpretation or those on gap-filling are disregarded, there will be no way to reach uniformity in the CISG's application. This appears to finally have been understood by courts as well. [page 91]


FOOTNOTES

a1. Professor of International Law, Verona University School of Law

1. For a similar affirmation, see Martiny, D., Autonome und einheitliche Auslegung im Europäischen Zivilprozeßrecht, Rabels Zeitschrift für ausländisches und internationales Privatrecht, 1981, at p. 427; Ryan, L.M., 'The Convention on Contracts for the International Sale of Goods: Divergent Interpretations', 4 Tulane Journal of International and Comparative Law, 1995, at p. 101; Sturley, M., 'International Uniform Law in National Courts: The Influence of Domestic Law in Conflicts of Interpretation', 27 Virginia Journal of International Law, 1989, at p. 731.

2. Munday, R.J.C., 'Comment: The Uniform Interpretation of International Conventions', 27 International and Comparative Law Quarterly, 1978, at p. 450.

3. Scruttons Ltd. v. Midland Silicones Ltd., 1962 A.C. 446, at p. 471 (1961).

4. For similar statements see Ferrari, F., La vendita internazionale. Applicabilità ed applicazioni della Convenzione di Vienna del 1980, Padova, 1997, at p. 10 ff.

5. Hereinafter: CISG.

6. See Article 18 of the EEC Convention on the Law Applicable to Contractual Obligations, reprinted in 19 International Legal Materials (1980), at p. 1496.

7. See Article 4 of the UNIDROIT Convention on International Factoring, reprinted in 27 International Legal Materials (1988) at p. 945; Article 6 of the UNIDROIT Convention on International Financial Leasing, reprinted in 27 International Legal Materials (1988) at p. 933.

8. Art. 7(1) CISG; for identical statements, see Art. 4(1) of the International Factoring Convention; Art. 6(1) of the International Financial Leasing Convention.

9. For papers dealing with the interpretation of the CISG, see Goddard, J.Adame, 'Reglas de interpretacion de la Convencion sobre Compraventa Internacional de Mercaderias', Revista de investigaciones juridicas, 1990, 9; Bonell, M.J., 'L'interpretazione del diritto uniforme alla luce dell'art. 7 della Convenzione di Vienna sulla vendita internazionale', Rivista di diritto civile, 1986, II, 221; Cook, V.S., 'The Need for Uniform Interpretation of the 1980 United Nations Convention on Contracts for the International Sale of Goods', University of Pittsburgh Law Review, 1988, 197; Diedrich, F., 'Autonome Auslegung von Internationalem Einheitsrecht. Computersoftware im Wiener Kaufrecht', Baden-Baden; 1994; Ferrari, F., 'Uniform Interpretation of the 1980 Uniform Sales Law', Georgia Journal of International and Comparative Law, 1994, 183; Ferrari, F., 'CISG Case Law: A New Challenge for Interpreters?', Journal of Law and Commerce, 1998, 245; Ferrari, F., 'Interprétation uniforme de la Convention de Vienne de 1980 sur la vente internationale', Revue internationale de droit comparé, 1996, 813; Ferrari, F., 'Brevi considerazioni critiche in materia di interpretazione autonoma ed applicazione uniforme della convenzione di Vienna', Rivista di diritto civile, 1998 II, 81; Happ, R., 'Anwendbarkeit völkerrechtlicher Auslegungsmethoden auf das UN-Kaufrecht', Recht der internationalen Wirtschaft, 1997, 376; Happ, R., 'Interpretation of uniform law instruments according to Principles of International Law', Uniform Law Review, 1997, 702; Kramer, E.A., 'Uniforme Interpretation von Einheitsprivatrecht - mit besonderer Berücksichtigung von Art. 7 UNKR', österreichische Juristische Blätter, 1996, 137; Koneru, P., 'The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles', Minnesota Journal of Global Trade, 1997, 105; Magnus, U., 'Währungsfragen im Einheitlichen Kaufrecht. Zugleich ein Beitrag zu seiner Lückenfüllung und Auslegung', Rabels Zeitschrift für ausländisches und internationales Privatrecht, 1989, 116; Maskow, D., 'Zur Auslegung des Einheitskaufrechts der UNO-Kaufrechtskonvention von 1980', in Nationales Komitee für Rechtswissenschaft der DDR (ed.), Nationalberichte zum XII. Internationalen Kongreß für Rechtsvergleichung (Sydney/Melbourne, 18.- 26.8.1986), Potsdam-Babelsberg, 1986, at p. 5; Perales Viscasillas, M.d.P., 'Una aproximacion al articulo 7 de la Convencion de Viena de 1980 sobre compraventa internacional de mercaderias', Quadernos de derecho y comercio, 1995, 55; Rizzi, A., 'Interpretazione e integrazione della legge uniforme sulla vendita internazionale di cose mobili', Rivista di diritto privato, 1997, 237; van Alstine, M.P., 'Dynamic Treaty interpretation', University of Pennsylvania Law Review, 1998, 687; Vazquez-Lepinette, T., 'The interpretation of the 1980 Vienna Convention on International Sales', Diritto del commercio internazionale, 1995, 377.

10. For papers on gap-filling under the CISG; see, e.g., Callaghan, J.J., 'Convention on Contracts for the International Sale of Goods: Examining the Gap-filling Role of CISG in two French Decisions', Journal of Law and Commerce, 1995, 183; Diedrich, F., 'Lückenfüllung im Internationalen Einheitsrecht - Möglichkeiten und Grenzen richterlicher Rechtsfortbildung im Wiener Kaufrecht', Recht der internationalen Wirtschaft, 1995, 353; Frigge, B., 'Externe Lücken und internationales Privatrecht nach dem UN-Kaufrecht (Art. 7 Abs. 2)', Frankfurt a.M., 1994; Garro, A., 'The Gap-Filling Role of the UNIDROIT Principles in International Sales Law', Tulane Law Review, 1995, 1149; Hellner, J., 'Gap-Filling by Analogy: Art. 7 of the U.N. Sales Convention in Its Historical Context', in: J. Ramberg (ed.), Studies in International Law: Festskrift till Lars Hjerner, Stockholm, 1990, 219; Rosenberg, M.N., 'The Vienna Convention: Uniformity in Interpretation for Gap-Filling - An Analysis and Application', Australian Business Law Review, 1992, 442; Stoll, H., 'Regelungslüchen im Einheitlichen Kaufrecht und IPR', Praxis des internationalen Privat- und Verfahrensrechts, 1993, 75.

11. See, among others, Audit, B., La vente internationale de marchandises, Paris, 1990, 47; Bonell, M.J., 'Commento all'art. 7 della Convenzione di Vienna', Nuove Leggi civili commentate 21, 21 (1989); Diedrich, F., 'Maintaining Uniformity in International Uniform Law via Autonomous Interpretation: Software Contracts under the CISG', 8 Pace International Law Review, 1996, 303; Ferrari, F., Il factoring internazionale, Padova, 1999, at p. 106. (with respect to the 1988 Unidroit Convention on International Factoring); Jametti Griener, M., 'Der Vertragsabschluß', in Hoyer, H., (ed.), Das Einheitliche Wiener Kaufrecht. Neues Recht für den internationalen Warenkauf, Vienna, 1992, at p. 42 (with respect to the CISG).

12. See similarly Honnold, J.O., 'The Sales Convention in Action - Uniform International Words: Uniform Applications?', 8 Journal of Law and Commerce, 1988, 208, where the author states that 'one threat to international uniformity in interpretation is a natural tendency to read the international text through the lenses of domestic law.' See also Babiak, A., 'Defining "Fundamental Breach" under the United Nations Convention on Contracts for the International Sale of Goods', Temple International and Comparative Law Journal, 1992, 117.

13. Compare Carbone, S., 'L'ambito di applicazione ed i criteri interpretativi della convenzione di Vienna', in La vendita internazionale. La Convenzione di Vienna dell'l 1 Aprile 1980, Milan, 1981, at p. 84; Witz, W., Salger, H.Ch., Lorenz, M., International Einheitliches Kaufrecht, 2000, Heidelberg, at p. 81.

14. See also Honnold, J.O., 'Uniform Law for International Sales under the United Nations Convention', Deventer, 3rd ed., 1999, at p. 89, stating that 'the reading of a legal text in the light of the concepts of our domestic legal system [is] an approach that would violate the requirement that the Convention be interpreted with regard to its international character.' For a similar affirmation in case law, see Italian Supreme Court, June 24th, 1968, Rivista di diritto internazionale privato e processuale, 1969, 914.

15. For a detailed discussion of the interpretation of uniform law conventions as well as of the issues referred to in the text, please see Bariatti, S., Interpretazione delle convenzioni internazionali di diritto uniforme, Padova, 1985; Trompenaars, B.W.M., 'Pluriforme unificatie en uniforme interpretatie - in het bijzonder de bijdrage van UNCITRAL aan de internationale unificatie van het privaatrecht', Deventer, 1989.

16. For this affirmation, please see, e.g., Herber, R., Czerwenka, B., Internationales Kaufrecht. Kommentar zum Übereinkommen der Vereinten Nationen vom 11. April 1980 über Verträge über den internationalen Warenkauf, Munich, 1991, at p. 47.

17. See Ferrari, F., 'The Relationship Between the UCC and the CISG and the Construction of Uniform Law, Loyola of Los Angeles Law Review, 1996, 1026.

18. For a similar statement, see also Lanciotti, A., Norme uniformi di conflitto e materiali nella disciplina convenzionale della compravendita, Naples, 1992, at p. 287; contra van der Velden, F., 'Indications on the Interpretation by Dutch Courts of the United Nations Convention on Contracts for the International Sale of Goods', in Netherlands Reports to the Twelfth Congress of Comparative Law: Sidney-Melbourne (1986), The Hague, 1987, at p. 33.

19. The presumed neutrality of the CISG's language has also been pointed out by Bonell, M.J., 'Art. 7', in Bianca, M.C., Bonell, M.J. (eds.), Commentary on the International Sales Law, Milan, 1987, at p. 74 (stating that when 'drafting the single provisions these experts had to find sufficiently neutral language on which they could reach a common understanding").

20. Diedrich, please see fn 11 at p. 310, even states that 'the [entire] text of the CISG consists of unique, supranational collective terms formed out of compromises between state delegates based on several systems of laws.' For statements to the effect that the provisions of the CISG are the result of a compromise, see, among others, Diederichsen, E., 'Commentary to Journal of Law & Commerce Case I, Oberlandesgericht Frankfurt am Main', 14 Journal of Law and Commerce, 1995, 177 (1995); Ferrari, F., Uniform Interpretation, please see fn 9, at p. 201; Koneru, please see fn 9, at p. 105; Selden, B.S., 'Lex Mercatoria in European and U.S. Trade Practice: Time to Take a Closer Look', 2 Annual Survey of International and Comparative Law, 1995, 121.

21. See Enderlein, F., et al., 'Internationales Kaufrecht: Kaufrechtskonvention, Verjährungskonvention, Vertretungskonvention, Rechtsanwendungskonvention', Berlin, 1991, at p. 61.

22. For a similar statement, refer Ferrari, please see fn 16, at p. 1021 (using several concrete examples to illustrate the negative consequences that can arise from the use of domestic concepts); less recently, see Zannini, V., 'Questioni sull'uniformità di interpretazione del diritto uni'forme', Rivista di diritto internazionaleprivato e processuale, 1971, 336 (albeit with reference to a different uniform law convention).

23. For similar statements, refer, e.g., Bonell, please see fn 19, at 72, stating, in respect of the CISG, that '[t]o have regard to the "international character" of the Convention means first of all to avoid relying on the rules traditionally followed in interpreting ordinary domestic legislation.'

24. For similar statements, refer also Ferrari, Uniform Interpretation, please see fn 9, at p. 202.

25. Medical Marketing International, Inc. v. Internazionale Medico Scientifica S.r.l., 1999 WL 1128468 (N.D.Ill.) ('under CISG, the finder of fact has a duty to regard the "international character" of the Convention and to promote uniformity in its application. CISG Article 7'); see also Delchi Carrier S.p.A. v. Rotorex Corp., 71 F.3d 1024, 1028 (2d Cir. 1995); OLG Frankfurt, April 20, 1994, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/125.htm>; BG Laufen, May 7, 1993, Schweizerische Zeitschrift für internationales und europäisches Recht, 1995, 277.

26. See Delchi Carrier S.p.A. v. Rotorex Corp., 71 F.3d 1024, 1028 (2d Cir. 1995) (stating that 'UCC case law is not per se applicable'); Orbisphere Corp. v. United States, 726 F. Supp. 1344, 1355 (Ct. Int'l Trade 1989) (stating the same).

27. Claudia v. Olivieri Footwear Ltd., 1998 WL 164824.

28. See HG Kanton Aargau, June 11, 1999, Schweizerische Zeitschrift für internationales und europäisches Recht, 2000, 117-118; BG Laufen, May 7, 1993, Schweizerische Zeitschrift für internationales und europäisches Recht, 1995, 277.

29. German Supreme Court, March 24, 1999, Recht der internationalen Wirtschaft, 1999, 617.

30. Cf German Supreme Court, April 3, 1996, Neue Juristische Wochenschrift, 1996, 2364.

31. Delchi Carrier S.p.A. v. Rotorex Corp., 71 F.3d 1024, 1028 (2d Cir. 1995); for a more recent case stating the same, see Schmitz-Werke GmbH & Co. v. Rockland Industries, Inc.; Rockland International FSC, Inc., 2002 U.S. App. LEXIS 12336.

32. For a very similar statement, refer Bonell, please see fn 19, at pp. 74-75.

33. It has often been pointed out that the CISG's ultimate goal is uniformity; see, e.g., Malloy, S.A., 'The Inter-American Convention on the Law Applicable to International Contracts: Another Piece of the Puzzle of the Law Applicable to International Contracts', 19 Fordham International Law Journal, 1995, 667, at fn 17.

34. See Landgericht Aachen, Germany, 20 July 1995, published on the Internet at <http://www.jura.uni-freiburg.de/iprl/cisg/> (referring to the legislative history of article 78); OLG Frankfurt, April 20, 1994, Recht der internationalen Wirtschaft, 1994, 593.

35. Oberster Gerichtshof, April 13, 2000, published on the Internet at <http://www.cisg.at/2_10000w.htm>.

36. See Herber, R., 'Art. 7', in Schlechtriem, P. (ed), Kommentar zum Einheitlichen UN-Kaufrecht, 2nd ed., Munich, 1995, at p. 94; Winship, P., 'Changing Contract Practices in the Light of the United Nations Sales Convention: A Guide For Practitioners', 29 The International Lawyer, 1995, 528.

37. Maskow, D., 'The Convention on the International Sale of Goods from the Perspective of the Socialist Countries', in La vendita internazionale, please see fn 13, at p. 54.

38. See Darkey, J.M., 'A U.S. Court's Interpretation of Damage Provisions Under the U.N. Convention on Contracts for the International Sale of Goods: A Preliminary Step Towards an International Jurisprudence of CISG or a Missed Opportunity', 15 Journal of Law and Commerce, 1995, 142; Hartnell, H.E., 'Rousing the Sleeping Dog: The Validity Exception to the Convention on Contracts for the International Sale of Goods', 18 Yale International Law Journal, 1993, 7; Heuzé, V., 'La vente internationale de marchandises. Droit uniforme', Paris, 1992, at p. 79; Patterson, E.H., 'United Nations Convention on Contracts for the International Sale of Goods: Unification and the Tension Between Compromise and Domination', 22 Stanford Journal of International Law, 1986, 283.

39. See most recently, Cook, V.S., 'The U.N. Convention on Contracts for the International Sale of Goods: A Mandate to Abandon Legal Ethnocentricity', 16 Journal of Law and Commerce, 1997, 259.

40. See Reinhart, G., UN-Kaufrecht. Kommentar zum Übereinkommen der Vereinten Nationen vom 11. April 1980 über den internationalen Warenkauf, Heidelberg, 1991, at p. 30.

41. For an overview of the steps taken, see also Herber, R., 'CLOUT, Unilex und andere Veröffentlichungen zum internationalen Kaufrecht', Recht der Internationalen Wirtschaft, 1995, 502.

42. Please see <http://cisgw3.law.pace.edu>.

43. For a description of this as well as other Internet sites dealing with the CISG, see, e.g., Baasch Andersen, C., 'Furthering the Uniform Application of the CISG: Sources of Law on the Internet', 10 Pace International Law Review, 1998, 403; Germaine, C.M., 'The United Nations Convention on Contracts for the International Sale of Goods: Guide to Research and Literature', 1995 Cornell Review on the CISG, 1995, 117; Kritzer, A.H., 'The Convention on Contracts for the International Sale of Goods: Scope, Interpretation and Resources', 1995 Cornell Review on the CISG, 1995, 147.

44. Please see the following Internet address: <http://www.cisg.at/>.

45. Please see the web-site created by the Institute for International Trade Law of the Katholieke Universiteit Leuven: <http://www.law.kuleuven.ac.be/int/tradelaw/WK/WKhome.html>.

46. Please see the web-site created by the Institute of Foreign and International Law of Freiburg University: <http://www.jura.uni-freiburg.de/iprl/cisg>.

47. Please see the web-site created at Saarbrücken University: <http://www.jura.uni-sb.de/FB/LS/Witz/cisg.htm>.

48. Please see the following Internet address: <http://www.cisg-online.ch/>.

49. Please see <http://www.uc3m.es/cisg>.

50. For other Internet sites dedicated to the CISG, see <http://www.cisg.law.pace.edu/cisg/links.html>.

51. For a comment on UNILEX as a tool to promote the CISG's uniform application, see Liguori, F., "'UNILEX": A Means to Promote Uniformity in the Application of CISG', Zeitschrift für europäisches Privatrecht, 1996, 600.

52. Bonell, M.J., and Liguori, F., 'The U.N. Convention on the International Sale of Goods: A Critical Analysis of Current International Case Law (Part I)', Uniform Law Review, 1996, 147, at fn 1.

53. Please see the following Internet address: <http://www.unilex.info>.

54. This issue arose under the 1964 Hague Conventions as well; see, e.g., Graveson, R.H., 'The International Unification of Law', 16 American Journal of Comparative Law, 1968, 12, where the author states that '[a]llowing for the necessary and inevitable divergence of human decision, a problem still remains of ensuring that any tendencies towards divergence in the application of uniform laws shall be corrected at appropriate times and in suitable ways. How then shall continuing uniformity be ensured? Shall it be done by giving ultimate jurisdiction to an international court, such as the International Court of Justice?' (emphasis added).

However, 'a similar solution can hardly be conceived with respect to [the Vienna Sales] Convention. This Convention, like other international conventions elaborated under the auspices of the United Nations or other international organizations [...] is intended to receive a world-wide acceptance. To expect that all adhering States, notwithstanding their different social, political and legal structure, could even agree on conferring to an international tribunal the exclusive competence to resolve divergences between the national jurisdictions in the interpretations of the uniform rules, would be entirely unrealistic', Bonell, please see fn 19, at p. 89.

55. See Report of the United Nations Commission on International Trade Law on the Work of its twenty-first session, New York, 1988, at p. 98.

56. Honnold, please see fn 14, at p. 98.

57. Note that the CLOUTs (Case Law on UNCITRAL Texts) can be found on the Internet as well; see <http//www.un.or.at/uncitral/>.

58. For a reference to this procedure, see also Bonell, M.J., 'International Uniform Law in Practice - Where the Real Trouble Begins', 38 American Journal of Comparative Law, 1990, 878; Herber, Czerwenka, please see fn 16, at p. 48.

59. Trib. Rimini, November 26, 2002, available on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=823&step=FullText>.

60. See Trib. Vigevano, July 12, 2000, Giurisprudenza italiana, 2001, 280.

61. For comments on the decision referred to in the text, see Ferrari, F., 'Problematiche tipiche della Convenzione di Vienna sui contratti di vendita internazionale di beni mobili risolte in una prospettiva uniforme', Giurisprudenza italiana, 2001, 281; Ferrari, F., 'Internationales Kaufrecht einheitlich ausgelegt - Anmerkungen anlaßlich eines italienischen uRteils (Trib. Vigevano, 12.07.2000)', Internationales Handelsrecht, 2001, 56; Ferrari, F., 'Applying the CISG in a Truly Uniform Manner: Tribunale di Vigevano, 12 July 2000', Uniform Law Review, 2001, 203; Ferrari, F., 'Tribunale di Vigevano: Specific Aspects of the CISG Uniformly Dealt With', 20 Journal of Law and Commerce, 2001, 225; Rosati, F., 'Anmerkung zu Trib. Vigevano, 12.7.2000', Internationales Handelsrecht, 2001, 78; Spiegel, N., 'Exclusion tacite de la CVIM par les parties et dénonciation des défaits de conformité', Recueil Dalloz, 2002, 395; Veneziano, A., 'Mancanza di conformità delle merci ed onere della prova nella vendita internazionale: un esempio di interpretazione autonoma del diritto uniforme alla luce dei precedenti stranieri', Diritto del commercio internazionale, 2001, 509.

62. Please see Rechtbank Koophandel Hasselt, December 2, 1998, published on the Internet at: <http://www.law.kuleuven.ac.be/int/tradelaw/WK/1998-12-02.htm>;

63. Trib. Cuneo, January 31, 1996, published on the Internet at: <http://www.unilex.info/case.cfm?pid=1&id=160&do=case>.

64. See Usinor Industeel, v. Leeco Steel Products, Inc., published on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=746&step=FullText>; Rechtbank Koophandel Hasselt, March 6, 2002, published on the Internet at: <http://www.law.kuleuven.ac.be/int/tradelaw/WK/2002-03-06s.htm>; Oberster Gerichtshof, April 13, 2000, published on the Internet at <http://www.cisg.at/2_10000w.htm>; Trib. Pavia, December 29, 1999, Corriere giuridico, 2000, 932; Cour d'Appel Grenoble, October 23, 1996, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=222&step=FullText>.

65. Bonell, please see fn 19, at p. 91.

66. Dimatteo, L.A., 'An International Contract Law Formula: The Informality of International Business Transactions Plus the Internationalization of Contract Law Equals Unexpected Contractual Liability', 23 Syracuse Journal of International Law and Commerce, 1997, 79.

67. Dimatteo, L.A., 'The CISG and the Presumption of Enforceability: Unintended Contractual Liability in International Business Dealings', 22 Yale Journal of International Law, 1997, 133.

68. Ibid.

69. Grosswald Curran, V., 'The Interpretive Challenge to Uniformity', 15 Journal of Law and Commerce, 1995, 177.

70. For this criticism, see most recently Ferrari, F., 'Art. 7', in Schlechtriem, P., (ed.), Kommentar zum UN-Kaufrecht - CISG, Munich, 3rd ed., 2000, at p. 128.

71. For similar remarks, albeit with reference to a different uniform law convention, see Wilhelm Canaris, C.W., 'Die Bedeutung allgemeiner Auslegungs- und Rechtsfortbildungskriterien im Wechselrecht', JuristenZeitung, 1987, 543.

72. For case law applying the rate of interest of the domestic law applicable by virtue of the rules of private international law, see, most recently, Landgericht Stendal, October 12, 2000, Internationales Handelsrecht, 2001, 31; Oberlandesgericht Stuttgart, February 28, 2000, OLG-Report Stuttgart, 2000, 407; Trib. Pavia, December 29, 1999, Corriere giuridico, 2000, 932; ICC Court of Arbitration, Arbitral award n. 8611, Unilex; Tribunal Civil de la Gane, May 20, 1996, Unilex; AG Tessin, February 12, 1996, Schweizerische Zeitschrift für internationales und europäisches Recht, 1996, 135. For papers dealing with the issue of interest under the CISG, see Asam, H., 'Ersatz des Zins- und Geldentwertungsschadens nach dem Wiener Kaufrechtsübereinkommen vom 11.4.1980 bei deutschitalienischen Kaufverträgen', Recht der internationalen Wirtschaft, 1989, 841; Ferrari, F., 'Uniform application and interest rates under the 1980 Vienna Sales Convention', 24 Georgia Journal of International and Comparative Law, 1995, 467; Ferrari, F., 'Le taux d'intérêt applicable au montant des arriérés dans la jurisprudence concernant la CVIM', Revue de droit des affaires internationales, 1999, 86; Ferrari, F., 'Tasso degli interessi ed applicazione uniforme della convenzione di Vienna sui contratti de vendita internazionale', Rivista di diritto civile, 1995, 277; Königer, U., 'Die Bestimmung der gesetzlichen Zinshöhe nach dem deutschen Internationalen Privatrecht', Berlin, 1997; Reinhart, G., 'Fälligkeitszinsen und UN-Kaufrecht, Praxis des internationalen Privat- und Verfahrensrechts', 1991, 376; Roßmeier, D., 'Schadensersatz und Zinsen nach UN-Kaufrecht - Art. 74 bis 78 CISG', Recht der internationalen Wirtschaft, 2000, 407; Thiele, C., 'Interest on damages and rate of interest under article 78 of the U.N. Convention on Contracts for the International Sale of Goods', 2 (1998) Vindobona Journal of International Commercial Law and Arbitration 3.

73. For this criticism, refer also Ferrari, Brevi considerazioni critiche, please see fn 9, at p. 81.

74. For this conclusion, refer also Ferrari, please see fn 70, at p. 128; Kramer, please see fn 9, at p. 146; Witz, Salger, Lorenz, please see fn 13, at p. 83.

75. Please see Trib. Rimini, November 26, 2002, available on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=823&step=FullText>; Trib. Vigevano, July 12, 2000, Giurisprudenza italiana, 2001, 280; Trib. Pavia, December 29, 1999, Corriere giuridico, 2000, 932.

76. Article 7(1) CISG (emphasis added).

77. For similar statements, please see Enderlein, F., Maskow, D., 'International Sales Law', New York, 1992, at p. 56, where the authors state that '[w]hat matters [...] is not a prejudicial effect of rulings by foreign courts or arbitrational tribunals and not that the decision taken by an organ, which by accident entrusted first to deal with a specific legal issue, is attached a particularly great importance; rather, the existing material in regard to relevant rulings has to be taken account of when giving the reasons for a decision.'

78. For papers dealing with good faith under the CISG, please see, e.g., Keinath, S., 'Der gute Glauben im UN-Kaufrecht', Konstanz, 1997; Lefebvre, G., 'La bonne foi dans la Convention des Nations Unies sur les contrats de vente internationale de merchandises', 27 Revue Juridique Thémis, 1993, 561; Magnus, U., 'Remarks on Good Faith: The United Nations Convention on Contracts for the International Sale of Goods', 10 Pace International Law Review, 1998, 89; Najork, E.N., 'Treu und Glauben im CISG', Bon, 2000; Powers, P., 'Defining the Undefinable: Good Faith and the United Nations Convention on the Contracts for the International Sale of Goods', 18 Journal of Law and Commerce, 1999, 333.

79. Bonell, please see fn 19, at pp. 83-84; for similar affirmations, see also Honnold, please see fn 14, at p. 99, according to whom Art. 7(1) 'was adopted as a compromise between two divergent views: (a) Some delegates supported a general rule that, at least in the formation of the contract, the parties must observe principles of "fair dealing" and must act in "good faith"; (b) Others resisted this step on the ground that "fair dealing" and "good faith" had no fixed meaning and would lead to uncertainty.'

80. See, e.g., Farnsworth, E.A., 'The Convention on the International Sale of Goods from the Perspective of the Common Law Countries', in La vendita internazionale, please see fn 13, at p. 18; Honnold, please see fn 14, at p. 99; Winship, P., 'Commentary on Professor Kastely's Rhetorical Analysis (Symposium Reflections)', 8 Northwestern Journal of International Law and Business, 1988, 631.

81. The vagueness of the concept of good faith has been criticized, for instance, by Rosett, A., 'Critical Reflections on the United Nations Convention on Contracts for the International Sale of Goods', 45 Ohio State Law Journal, 1984, 289, where the author also points out 'the multiple meanings of good faith and the differing connotations the doctrine possesses in different legal systems' (footnote omitted).

82. Dore, I., Defranco, J.A., 'A Comparison of the Non-Substantive Provisions of the UNCITRAL Convention on the International Sale of Goods and the Uniform Commercial Code', 23 Harvard International Law Journal, 1982, 63. For a similar conclusion, see also Eörsi, G., 'Problems of Unified Law on the Formation of Contracts for the International Sale of Goods', 27 American Journal of Comparative Law, 1979, 314.

83. Regarding this risk, see 'Note, A Practitioner's Guide to the United Nations Convention on Contracts for the International Sale of Goods', 16 International Law and Policy, 1983, 89, where it is stated that 'the vagueness of a good faith provision may create problems for courts trying to decide when and how to apply it; in addition, overuse or underuse of the principle may lead to inconsistent results or to outright abuse.'

84. For a comparative overview on good faith, see, for example, Newman, R., 'The General Principles of Equity', in Newman, R (ed.), Equity in the World's Legal Systems: A Comparative Study, 1973, 589.

85. For a similar statement, see Honnold, please see fn 14, at p. 100, where the author states that the 'general requirements of "good faith" is not [sic] typical of common-law statutory drafting; [it] reveals the unstated influence of some of the civil law codes.'

86. See U.C.C. 1-203 (1978) ('Every contract or duty within this Act imposes an obligation of good faith in its performance or enforcement.'). For a detailed discussion of the good faith provision in the U.C.C., see Burton, S.J., 'Good Faith Performance of a Contract Within Article 2 of the Uniform Commercial Code', 67 Iowa Law Review, 1981, 1; Farnsworth, E.A., 'Good Faith Performance and Commercial Reasonableness under the Uniform Commercial Code', 30 University of Chicago Law Review, 1963, 666; Summers, R.S., "'Good Faith" in General Contract Law and the Sales Provisions of the Uniform Commercial Code', 54 Virginia Law Review, 1968, 195.

87. See Restatement (Second) of Contracts 205 ('Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.').

88. See, e.g., Farnsworth, please see fn 80, at p. 18 ('[T]he American rules on good faith go to the performance of the contract.').

89. For this expression, see Burton, S.J., 'Breach of Contract and the Common Law Duty to Perform in Good Faith', Harvard Law Review, 1980, 369.

90. See Rosett, please see fn 81, at p. 290 ('In continental and socialist systems the concept [of good faith] may have broader connotations. In particular, the notion of good faith is not limited to the performance of completed agreements, but extends to the process of formation. It operates as a limit on the right of a party to terminate the formation process').

91. Bonell, please see fn 19, at pp. 85-86.

92. See 242, German Civil Code [hereinafter BGB]: 'The debtor is bound to effect performance according to the requirements of good faith, giving consideration to common usage.'

93. As far as the notion 'good faith in international trade' is concerned, it has been pointed out that the reference to international trade prevents national courts from being allowed to draw on domestic conceptions of good faith; but see Note, 'Unification and Certainty: The United Nations Convention on Contracts for the International Sale of Goods', 97 Harvard Law Review, 1984, 1991, where the contrary has been stated: 'In applying the [good faith] rule, national courts remain free to draw on domestic--and hence diverse--conceptions of "good faith."'

94. Bonell, please see fn 19, at p. 84; see, for similar statements, Schlechtriem, P., Uniform Law of Sales, Vienna, 1986, at p. 39; Schlechtriem, P., Einheitliches UN-Kaufrecht, Tübingen, 1981, at p. 25.

95. See, for a similar statement, Eorsi, G., 'General Provisions', in Galston, N., Smit, H., (eds.), International Sales. The United Nations Convention on Contracts for the International Sale of Goods, New York, 1984, at pp. 2-8 ('[T]he good faith clause may play an active role in spite of its location in the Convention.'). The same has been said by Huber, U., 'Der UNCITRAL-Entwurf eines Übereinkommens fur internationale Warenkaufvertrage', 43 Rabels Zeitschrift für ausländisches und internationales Privatrecht, 1979, 432; Réczei, L., 'The Rules of the Convention Relating to its Field of Application and to its Interpretation', in Problems of Unification of International Sales Law, New York, 1980, at p. 86.

96. Similar statements can be found in Audit, please see fn 11, at p. 49; Honnold, please see fn 14, at p. 100; Kritzer, A., Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods, Deventer, 1989, at p. 111.

97. Art. 16(2)(b) provides, in its pertinent part, '(2) [A]n offer cannot be revoked: [...] (b) if it was reasonable for the offeree to rely on the offer as being irrevocable and the offeree has acted in reliance on the offer.'

98. For a list of further applications of the good faith principle in particular provisions of the Convention, see Official Records of the United Nations Conference on Contracts for the International Sale of Goods. Vienna, 10 March - 11 April 1980, New York, 1981, at p. 18, where it is stated that '[a]mong the manifestations of the requirement of the observance of good faith are the rules contained in the following articles:

99. A similar notion seems to be supported, for instance, by Dore, Defranco, please see fn 82, at p. 61, where the authors state that the good faith provision does not constitute a mere instrument of interpretation, but rather, it 'appears to be a pervasive norm analogous to the good faith obligation of the U.C.C.'

100. Bonell, please see fn 19, at p. 85.

101. The view that Art. 7(1) imposes on the parties the duty of good faith bargaining has been taken, for instance, by Silva-Ruiz, P., 'Some Remarks about the 1980 Vienna Convention on Contracts for the International Sale of Goods--Emphasis on Puerto Rico', 4 Arizona Journal of International and Comparative Law, 1987, 141, where the author states that 'Article 7 makes good faith applicable not only to the performance and enforcement of contracts but also to their formation' and (by referring to Reinhart, G., 'Development of the Law for the International Sale of Goods', 14 Cumberland Law Review, 1983, 100) that the culpa in contrahendo principle 'may be incorporated into the Convention by the court even though not expressly adopted by the Convention.'

Cf, in the sense that they expressly deny the existence of a duty of good faith bargaining imposed on the parties by virtue of Article 7, Jametti Greiner, please see fn 11, at p. 46; Herber, please see fn 36, at p. 74.

102. Maskow, please see fn 37, at p. 55, seems to reach the same conclusion by stating that 'the most objective criterion for what the principle of goof faith in international trade means is the Convention itself.'

103. Please see Hof Beroep Gent, May 17, 2002, published on the Internet at: <http://www.law.kuleuven.ac.be/int/tradelaw/WK/2002-05-17.htm>; German Supreme Court, January 9, 2002, Internationales Handelsrecht, 2002, 17; German Supreme Court, October 31, 2001, Internationales Handelsrecht, 2002, 14; HG Kanton Zürich, November 30, 1998, Transportrecht-Internationales Handelsrecht, 2000, 12; Corte d'Appello Milano, December 11, 1998, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=359&step=FullText>; Compromex Arbitration, November 30, 1998, published on the Internet at <http://www.uc3m.es/cisg/rmexi3.htm>; OLG Hamburg, February 28, 1997, OLG Rechtsprechungs-Report Hamburg, 1997, 149; Rechtbank Arnhem, July 17, 1997, published on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=355&step=FullText>; Landgericht München, May 6, 1997, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/341.htm>; LG Saarbrücken, March 26, 1996, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/391.htm>; Schiedsgericht der Handelskammer Hamburg, March 21, 1996, Recht der internationalen Wirtschaft, 1996, 766; OLG Celle, May 24, 1995, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/152.htm>; ICC Court of Arbitration, Award No. 8128/1995, Journal du droit international, 1997, 1024; Arbitration Court attached to the Hungarian Chamber of Commerce and Industry, Award No. VB/94124, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=217&step=FullText>; Cour d'appel Grenoble, February 22, 1995, Journal du droit international, 1995, 632; Renard Constructions v. Minister for Public Works, Court of Appeal, New South Wales, March 12, 1992, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=57&step=FullText>.

104. Cour d'appel Grenoble, February 22, 1995, published on the Internet at: <http://www.cisg-online.ch/cisg/urteile/151.htm>.

105. See OLG Hamburg, February 28, 1997, published on the Internet at: <http://www.cisg-online.ch/cisg/urteile/261.htm>.

106. Kritzer, supra note 96, at p. 31.

107. Benedetti, G., 'Art. 4', Nuove Leggi civili commentate, 1989, 9.

108. Please see Art. 4 CISG:

'This Convention governs only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract. In particular, except as otherwise expressly provided in this Convention, it is not concerned with:

(a) the validity of the contract or of any of its provisions or of any usage;
(b) the effect which the contract may have on the property in the goods sold.'

109. For an overview of issues the CISG does not deal with, see, e.g., Ferrari, F., 'Die Schuldübernahme als vom UN-Kaufrecht nicht geregelte Rechtsmaterie', Forum International, 1997, 89; Ferrari, F., 'Jurisprudence concernant les questions non abordées par la CVIM', Revue de droit des affaires internationales, 1998, 835; Mather, H., 'Choice of Law for International Sales Issues not Resolved by the CISG', 20 Journal of Law and Commerce, 2001, 155; Witz, C., 'CVIM: interprètation et questions non couvertes', Revue de droit des affaires internationales, 2001, 253.

110. For a discussion of the relationship between Art. 7(1) on interpretation and Art. 7(2) on gap filling, see Eörsi, please see fn 95, at pp. 2-9, where the author, after having discussed Art. 7(1), states '[a]s a transition to Article 7(2), it might be mentioned that gaps in the law constitute a danger in respect of interpretation of the Convention, since one way to follow the homeward trend is to find gaps in the law. On the other hand, if a gap is detected, the problem arising thereby should be solved by way of interpretation of the Convention. This must be the means whereby gaps are filled.'

111. Bonell, please see fn 19, at p. 75.

112. Bonell, please see fn 19, at p. 75 also stresses that '[a] first condition for the existence of a gap in the sense of Article 7(2) is that the case at hand relates to "matters governed by [the] Convention." Issues which are not within the scope of the Convention have been deliberately left to the competence of the existing non-unified national laws.'

113. For a similar statement, see Kritzer, please see fn 96, at p. 117, affirming that '[w]hen a matter is governed by the Convention but not expressly settled in it, the Convention's solution is (i) internal analogy where the Convention contains an applicable general principle; and (ii) reference to external legal principles (the rules of private international law) where the Convention does not contain an applicable general principle.'

114. For a similar statement, see Frignani, A., Il contratto internazionale, Padova, 1990, at p. 309.

115. See also Honnold, please see fn 14, at p. 102, where the author underlines that the provision contemplating the settlement of questions in conformity with the general principles of the Convention 'reflects the approach established for civil law codes.'

116. Frignani, please see fn 114, at p. 308.

117. See Art. 7 of the Austrian Civil Code [hereinafter ABGB] (1811) ( 'Where a case cannot be decided either according to the literal text or the plain meaning of a statute, regard shall be had to the statutory provisions concerning similar cases. [...] If the case still remains doubtful, it shall be decided [...] on the ground of principles of natural law.').

118. See Article 1(2) of the Egypt Civil Code (1948); for a reference to this provision, see also Bonell, please see fn 19, at p. 77.

119. See Article 6(2) of the Spanish Civil Code ('Whenever there is no directly applicable statutory provision, usages must be applied and, absent such usages, the general principles of the law.').

120. According to Bonell, please see fn 19, at p. 77, even 'in countries such as France or the Federal Republic of Germany, where the approach is not formally imposed by statute, it is taken for granted that a Code or any other legislation of a more general character must be considered as more than the mere sum of its individual provisions. In fact, it must be interpreted and, if necessary, supplemented on the basis of the general principles which underlie its specific provisions.'

121. It has even been said that 'the term [general principles] sounds alien to English lawyers.' Brown, N., 'General Principles of Law and the English Legal System', in Cappelletti, M., (ed.), New Perspectives for a Common Law of Europe, 1978, at p. 174.

122. Frignani, please see fn 114, at p. 308

123. For a similar statement, see Kahn-Freund, O., 'Common Law and Civil Law--Imaginary and Real Obstacles to Assimilation', in New Perspectives for a Common Law of Europe, please see fn 121, at p. 154 (stating that 'in the common law world, the lawyer looks for his principles in the "cases", and the statutes merely fill in details, the "case law" playing the role of the Codes on the Continent').

124. Bonell, please see fn 19, at pp. 77-78.

125. Enderlein, Maskow, please see fn 77, at p. 58, point out that Article 7(2)'s major concern is to make sure that the gaps are 'closed [...] from within the Convention. This is in line with the aspiration to unify the law which [...] is established in the Convention itself' (emphasis in original).

126. For a clear distinction between analogical application and the recourse to general principles, see Kropholler, J., Tübingen, 1975, at p. 292.

127. Bonell, please see fn 19, at p. 78. The analogical application as a method of gap-filling has been admitted by other authors as well; see, for example, Enderlein, Maskow, please see fn 77, at p. 58, where the authors state that 'gap-filling can be done, as we believe, by applying such interpretation methods as extensive interpretation and analogy. The admissibility of analogy is directly addressed in the wording contained in the CISG because it is aimed at obtaining, from several comparable rules, one rule for a not expressly covered fact and/or a general rule under which the fact can be subsumed.'

128. For a similar criterion employed in order to distinguish the analogical approach from the recourse to general principles, see Bonell, please see fn 19, at p. 79 (stating that if cases expressly settled by specific provisions and the case in question are so analogous 'that it would be inherently unjust not to adopt the same solution', the gap should be closed by resorting to the general principles). For a criticism of this criterion, see Rosenberg, please see fn 9, at p. 451 (affirming that '[t]here are inherent problems with an "inherently unjust" test').

129. Bonell, please see fn 19, at p. 80.

130. For this view, see, e.g., Kritzer, please see fn 96, at p. 114; many commentators consider the principle of 'party autonomy' as being one of the general principles upon which the CISG is based; see, e.g., Achilles, infra note 160, at p. 30; Burkart, F., Interpretatives Zusammenwirken von CISG und UNIDROIT Principles, Baden-Baden, 2000, at p. 194; Garro, A., Zuppi, A., at p. 58 fn 10; Hyland, R., 'Conformity of Goods to the Contract under the United Nations Sales Convention and the Uniform Commercial Code', in Schlechtriem, P., (ed.), Einheitliches Kaufrecht und nationales Obligationenrecht, Baden-Baden, 1987, at p. 329; Karollus, M., UN-Kaufrecht, Vienna/New York, 1991, at p. 16; Kramer, please see fn 9, at p. 149.

131. For references to the CISG's dispositive nature, see, in legal writing, Carbone, please see fn 13, at p. 78; Carbone, S., Luzzatto, R., 'I contratti del commercio internazionale', in Rescigno, P., (ed.), Trattato di diritto privato, vol. 11, Turin, 1984, at p. 131; Caravaca, C., 'Art. 6', in Diez-Picazo, L., (ed.), La compravendita internacional de mercaderias, Madrid, 1998, at p. 92; Ferrari, please see fn 4, at p. 158; Lanciotti, please see fn 17, at p. 146; Lindbach, J., Rechtswahl im Einheitsrecht am Beispiel des Wiener Kaufrechts, Aachen, 1996, at p. 67; Piltz, B., Internationales Kaufrecht, Munich, 1993, 2, Rn. 174; Sacerdoti, G., Rivista trimestrale di diritto e procedura civile, 1990, 744; Witz, C., 'L'exclusion de la Convention des Nations unies sur les contrats de vente internationale de marchandises par la volonté des parties (Convention de Vienne du 11 avril 1980)', Recueil Dalloz, 1990, Chron. 107; for an express reference to the CISG's non-mandatory nature in case law, see Cassazione civile, June 19, 2000, Giurisprudenza italiana, 2001, 236; Oberster Gerichtshof, March 21, 2000, Internationales Handelsrecht, 2001, 41; Oberster Gerichtshof, October 15, 1998, Transportrecht-Internationales Handelsrecht, 1999, 25; HG Wien, March 4, 1997, unpublished; KG Wallis, June 29, 1994, Zeitschrift für Walliser Rechtsprechung, 1994, 126.

132. For this thesis, see, for example, Honnold, please see fn 14, at p. 4 (stating that 'the Convention's rules play a supporting role, supplying answers to problems that the parties have failed to solve by contract'); for a similar conclusion, see Sono, K., 'The Vienna Sales Convention: History and Perspective', in Sarcevic, P., and Volken, P., (eds.), International Sale of Goods. Dubrovnik Lectures, New York, 1986, at p. 14 (affirming that 'the rules contained in the Convention are only supplementary for those cases where the parties did not provide otherwise in their contract').

133. Farnsworth, E.A., 'Rights and Obligations of the Seller', in Wiener Übereinkommen von 1980 über den internationalen Warenkauf, Zurich, 1985, at p. 84, draws the same conclusion ('[I]n case of a conflict between the contract and the Convention, it is the contract--not the Convention--that controls.').

134. Please see Trib. Rimini, November 26, 2002, available on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=823&step=FullText>; Hof Beroep Gent, May, 17, 2002, published on the Internet at <http://www.law.kuleuven.ac.be/int/tradelaw/WK/2002-05-17.htm>; Rechtbank Koophandel Ieper, January 29, 2001, published on the Internet at <http://www.law.kuleuven.ac.be/int/tradelaw/WK/2001-01-29.htm>; Landgericht Stendal, October 12, 2000, Internationales Handelsrecht, 2001, 32.

135. See Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, award No. 302/1996, published in English on the Internet at <http://cisgw3.law.pace.edu/cases/990727r1.html>; OLG Karlsruhe, June 25, 1997, Recht der internationalen Wirtschaft, 1998, 235; Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft, arbitral awards SCH-4366 and SCH-4318, Recht der internationalen Wirtschaft, 1995, 590; Hof s'Hertogenbosch, February 26, 1992, Nederlands Internationaal Privaatrecht, 1992, No. 354.

136. See Ferrari, please see fn 70, at p. 134; Magnus, 'Die allgemeinen Grundsätze im UN-Kaufrecht', Rabels Zeitschrift für ausländisches und internationales Privatrecht, 1995, 481.

137. See supra, the text accompanying fns 77 ff.

138. Rechtbank Amsterdam, October 5, 1994, Nederlands Internationaal Privaatrecht, 1995, No. 231.

139. See Frigge, please see fn 10, at p. 82.

140. OLG Düsseldorf, July 2, 1993, Recht der internationalen Wirtschaft, 1993, 845.

141. Cour d'appel Grenoble, October 23, 1993, Revue critique de droit international privé, 1997, 756.

142. Oberster Gerichtshof, June 29, 1999, Transportrecht-Internationales Handelsrecht, 1999, 48.

143. Cour d'appel Paris, January 14, 1998, Schweizerische Zeitschrift für internationales und europäisches Recht, 1999, 201.

144. Landgericht Berlin, March 24, 1998, published on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=440&step=FullText>.

145. Please see Trib. Rimini, November 26, 2002, available on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=823&step=FullText>; Trib. Vigevano, July 12, 2000, Giurisprudenza italiana, 2001, 280; Trib. Pavia, December 27, 1999, Corriere giuridico, 2000, 932; HG Kanton Zürich, April 26, 1995, Transportrecht-Internationales Handelsrecht, 1999, 54; HG Kanton Zürich, September 9, 1993, CLOUT case No. 97.

146. See HG Kanton Zürich, September 9, 1993, CLOUT case No. 97, Switzerland, 1993.

147. Trib. Vigevano, July 12, 2000, Giurisprudenza italiana, 2001, 280; German Supreme Court, January 9, 2002, Unilex; Trib. Pavia, December 27, 1999, Corriere giuridico, 2000, 932.

148. For references to this principle, see Trib. Vigevano, July 12, 2000, Giurisprudenza italiana, 2001, 280; Landgericht Frankfurt, July 6, 1994, published on the Internet at <http://www.jura.uni-freiburg.de/iprl/cisg/>; OLG Innsbruck, July 1, 1994, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/107.htm>.

149. See Trib. Vigevano, July 12, 2000, Giurisprudenza italiana, 2001, 280.

150. For commentators holding that as far as the issue of burden of proof is concerned, the CISG is based upon the general principles referred to in the text, see Magnus, please see fn 136, at p. 489; Schlechtriem, P., Internationales UN-Kaufrecht, Tübingen, 1996, no. 50.

151. See BG Saane, February 20, 1997, Transportrecht-Internationales Handelsrecht, 2000, 11; ICC Court of Arbitration, arbitral award no. 6653, Journal du droit international, 1993, 1040; in one case, a state court referred to the problem of whether the Convention is based upon a particular general principle in respect of the issue of burden of proof or whether the issue is one not governed by the Convention, but left the issue open; see Tribunale cantonale del Ticino, January 15, 1998, Transportrecht-Internationales Handelsrecht, 2000, 12.

152. See for instance Khoo, W., Art. 2, in Commentary on the Uniform Sales Law, please see fn 19, at p. 39.

153. Trib. Rimini, November 26, 2002, available on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=823&step=FullText>; Oberster Gerichtshof, March 9, 2000, published on the Internet at <http://www.cisg.at/6_31199z.htm>; Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft, arbitral awards SCH-4366 and SCH-4318, Recht der internationalen Wirtschaft, 1995, 590.

154. See Ferrari, F., 'General Principles and International Uniform Law Conventions: A Study of the 1980 Vienna Sales Convention and the 1988 UNIDROIT Conventions on International Factoring and Leasing', 10 Pace International Law Journal, 1998, 173; Flambouras, D.P., 'The Doctrines of Impossibility of Performance and Clausula Rebus Sic Stantibus in the 1980 Convention on Contracts for the International Sale of Goods and the Principles of European Contract Law - A Comparative Analysis', Pace International Law Review, 2001, 289; Magnus, please see fn 136, at pp. 484 ff.; Mather, please see fn 109, at p. 158; van Alstine, M.P., 'Dynamic Treaty Interpretation', 146 University of Pennsylvania Law Review, 1998, 752.

155. Oberster Gerichtshof, March 9, 2000, published on the Internet at: <http://www.cisg.at/6_31199z.htm>.

156. See Compromex Arbitration, July 16, 1996, published on the Internet at: <http://www.uc3m.es/cisg/rmexi2.htm>; Compromex Arbitration, April 29, 1996, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=258&step=FullText>.

157. Oberster Gerichtshof, June 29, 1999, Zeitschrift für Rechtsvergleichung, 2000, 33.

158. Oberster Gerichtshof, February 6, 1996, published on the Internet at: <http://www.cisg-online.ch/cisg/urteile/224.htm>.

159. Trib. Rimini, November 26, 2002, available on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=823&step=FullText>; Landgericht Stuttgart, August 13, 1991, published on the Internet at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/33.htm> (according to the contract the notice of non-conformity had to be by registered letter. The court held that that meant that the notice had to be received by the other party. Moreover, the declaring party had also to prove that the notice had been received by the other party); see also Oberster Gerichtshof, June 30, 1998, published on the Internet at: <http://www.cisg.at/1_27397x.htm>.

160. Trib. Rimini, November 26, 2002, available on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=823&step=FullText>; Landgericht Zwickau, March 19, 1999, published on the Internet at: <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/519.htm>; ICC Court of Arbitration, award No. 8817, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=398&step=FullText>.

161. Achilles, W.-H., 'Kommentar zum UN-Kaufrechtsübereinkommen (CISG)', Neuwied/Kriftel/Berlin, 2002, at p. 30; Audit, please see fn 11, at p. 52;

162. Trib. Rimini, November 26, 2002, available on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=823&step=FullText>; Rechtbank Koophandel leper, January 29, 2001, published on the Internet at: <http://www.law.kuleuven.ac.be/int/tradelaw/WK/2001-01-29.htm>.

163. Dore, Defranco, please see fn 82, at p. 63; Karollus, please see fn 130, at p. 17; Plantard, J.P., 'Un nouveau droit uniforme de la vente internationale: La Convention des Nations-Unies du 11 avril 1980', Journal du droit international, 1988, 332.

164. OLG Hamburg, November 26, 1999, OLG Rechtsprechungsreport Hamburg, 2000, 155.

165. See Oberster Gerichtshof, October 22, 2001, Internationales Handelsrecht, 2002, 27; Trib. Vigevano, July 12, 2000, Giurisprudenza italiana, 2001, 280; Amtsgericht Duisburg, April 13, 2000, Internationales Handelsrecht, 2001, 114; OLG München, March 11, 1998, Transportrecht-Internationales Handelsrecht, 1999, 20; KG Freiburg, January 23, 1998, Transportrecht-Internationales Handelsrecht, 2000, 13; Landgericht Hagen, October 15, 1997, available on the Internet at <http://www.jura.uni-freiburg.de/iprl/cisg/>; Landgericht München, May 6, 1997, available on the Internet at <http://www.jura.uni-freiburg.de/iprl/cisg/urteile/text/341.htm>; OLG München, July 9, 1997, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/282.htm>; OLG Düsseldorf, April 24, 1997, published on the Internet at: <http://www.cisg-online.ch/cisg/urteile/385.htm>; OLG Düsseldorf, July 11, 1996, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/201.htm>; Landgericht Duisburg, April 17, 1996, available on the Internet at <http://www.jura.uni-freiburg.de/iprl/cisg/>; OLG Stuttgart, August 21, 1995, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/150.htm>; Landgericht München, March 20, 1995, available on the Internet at <http://www.cisg-online.ch/cisg/urteile/164.htm>; Rechtbank Middelburg, January 25, 1995, Nederlands International Privaatrecht, 1996, No. 127; Amtsgericht Mayen, September 19, 1994, available on the Internet at <http://www.jura.uni-freiburg.de/iprl/cisg/>; OLG Koblenz, September 17, 1993, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/91.htm>; OLG Hamm, June 9, 1995, Recht der internatinoalen Wirtschaft, 1996, 689; Rechtbank Roermond, May 6, 1993, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=94&step=FullText>; Rechtbank Arnhem, February, 25, Nederlands Internationaal Privaatrecht, 1993, No. 445.

166. See, e.g., Ferrari, F., 'Art. 4', in Kommentar zum Einheitlichen UN-Kaurecht, please see fn 70, at p. 101.

167. For this view, see also Ferrari, F., 'Das Verhältnis zwischen den Unidroit-Grundsätzen und den allgemeinen Grundsätzen internationaler Einheitsprivatrechtskonventionen', JuristenZeitung, 1998, 12.

168. ICC Court of Arbitration, arbitral award No. 8908, published on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=401&step=FullText>.

169. HG Kanton Aargau, September 26, 1997, Transportrecht-Internationales Handelsrecht, 1999, 11; Kammergericht Berlin, January 24, 1994, Recht der Internationalen Wirtschaft, 1994, 683; Pretore della giurisdizione Locarno-Campagna, April 27, 1992, schweizerische Zeitschrift für internationales und europäisches Recht, 1993, 665.

170. Arbitral Tribunal at the Bulgarian Chamber of Commerce and Industry, award No. 11/1996, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=420&step=FullText>; Landgericht Zwickau, March 19, 1999, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/519.htm>.

171. For a reference to the favor contractus principle, see Ferrari, please see fn 167, at p. 12; Honnold, J.O., 'Uniform words and Uniform Application. The 1980 Vienna Sales Convention and International Judicial Practice', in Einheitliches Kaufrecht und nationales Obligationenrecht, please see fn 130, at p. 140; Plantard, please see fn 163, at p. 333; Rosenberg, please see fn 10, at p. 452.

172. Bonell, please see fn 19, at p. 81.

173. Cour de Justice de Génève, October 10, 1997, Schweizerische Zeitschrift für internationales und europäisches Recht, 1999, 182.

174. Oberster Gerichtshof, September 7, 2000, published on the Internet at <http://www.cisg.at/8_2200v.htm>.

175. Arbitration Institute of the Stockholm Chamber of Commerce, Transportrecht-Internationales Handelsrecht, 1999, 26.

176. Article 35(3) provides that a seller is not liable for a lack of conformity under Article 35(2) 'if at the time of the conclusion of the contract the buyer knew or could not have been unaware of such lack of conformity.'

177. OLG Köln, May 21, 1996, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/254.htm>.

178. See ICC Court of Arbitration, arbitral award No. 8128, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=207&step=FullText>.

179. For a detailed analysis of the arguments in favor of this author's opinion referred to in the text, see Ferrari, please see fn 167, at p. 9.

180. ICC Court of Arbitration, arbitral award No. 9117, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=399&step=FullText>; ICC Court of Arbitration, arbitral award No. 8817, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=398&step=FullText>.

181. Cour d'appel Grenoble, October 23, 1996, Revue critique de droit international privé, 1997, 756.

182. Please see Rechtbank Zwolle, March 5, 1997, published on the Internet at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=332&step=FullText>.

183. For an overview of the dispute which finally led to the solution adopted by the Uniform Sales Law, see Schlechtriem, please see fn 94, at p. 23.

184. See ICC International Court of Arbitration, arbitral award No. 8611/HV/JK, published on the Internet at <http://www.jura.uni-freiburg.de/iprl/cisg/>.

185. Ferrari, please see fn 167, at p. 15.

186. Bonell, M.J., 'Art. 7', Nuove Leggi civili commentate, 1989, 25; Herber, please see fn 36, at p. 93.

187. For a similar conclusion, refer Bonell, please see fn 19, at p. 83, stating that the 'recourse to domestic law for the purpose of filling gaps under certain circumstances is not only admissible, but even obligatory.'

188. The danger of an abuse of the recourse to the rules of private international law is considerable, since the gaps can easily be filled by virtue of the rules of private international law: 'It is enough to state that no general principles can be found and therefore the only way out it to resort to private international law.' Eörsi, please see fn 95, at pp. 2-12.

189. Bonell, supra note 18, at 83.

190. See, e.g., Cour d'appel Paris, November 6, 2001, published on the Internet at <http://witz.jura.uni-sb.de/CISG/decisions/061101v.htm>, expressly referring to article 7 of the Convention when stating that issues not governed by the Convention have to be solved by means of the applicable law; for a similar statement, see also Camara Nacional de Apelaciones en lo Comercial, April 24, 2000, published on the Internet at <http://www.uc3m.es/uc3m/dpto/PR/dppr03/cisg/sargen10.htm> (stating the same); HG Kanton Aargau, June 11, 1999, Schweizerische Zeitschrift für internationales und europäisches Recht, 2000, 117; Rechtbank Zutphen, May 29, 1997, published on the Internet at <http://www.unilex.info/case.cfm?pid=1&do=case&id=353&step=FullText> (stating the same); Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, arbitral award No. 38/1996, published in English on the Internet at <http://cisgw3.law.pace.edu/cases/970328r1.html>; Amtsgericht Mayen, September 6, 1995, published on the Internet at <http://www.cisg-online.ch/cisg/urteile/382.htm> (stating the same); HG Kanton Zürich, September 9, 1993, CLOUT case No. 97 (stating the same).


Pace Law School Institute of International Commercial Law - Last updated August 17, 2006
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