Reproduced with permission of Camilla B. Andersen & Ulrich G. Schroeter eds., Sharing International Commercial Law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday, Wildy, Simmonds & Hill Publishing (2008) 134-167
Franco Ferrari *
It is commonly known, and has been for some time, that "[t]he creation of a single law code does not in and of itself create uniform law", 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." [page 134]
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. "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".
The drafters of the 1980 United Nations Convention on Contracts for the International Sale of Goods, CISG, as well as those of many other uniform law conventions, such as the 1980 Rome Convention the Law Applicable to Contractual Obligations  and the 1988 UNIDROIT Conventions on International Factoring and International Financial Leasing, were aware of this problem, which is why they inserted a provision into the CISG, namely [page 135] Article 7, designed to help to reach the uniformity aimed at, by imposing that 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."
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, [page 136] the topic of this paper, but also with gap-filling.
This paper, however, is not aimed at reiterating all the discussions that took place in respect of the former issue; rather, it wants to examine to what extent the solutions proposed by commentators, Albert H. Kritzer among them, as regards the difficulties arising in connection with a correct interpretation of the CISG have been adopted by courts. In other words, this paper will examine whether "the dragon of uniform [sales] law", as Albert H. Kritzer called them, have been tamed. [page 138]
THE CISG'S INTERNATIONAL CHARACTER AND IS AUTONOMOUS INTERPRETATION
As already mentioned, in interpreting the CISC, "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 Convention's "international character" in its interpretation to me in that the CISG is to be interpreted "autonomously", not "nationalistically", i.e. not in the light of domestic law, despite the fact that once put in force international [page 139] conventions become part of the domestic law. Consequently, one should not have recourse to any domestic concept order to solve interpretive problems arising from the CISG, as difficult as this may be. 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) 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. In effect, these expressions as well have to be considered to be independent  and different  from the [page 140] domestic concepts, since the expressions employed by uniform law conventions, such as the CISG, are intended to be neutral. Indeed, it has often been noted that any choice of one expression rather than another is the result of a compromise  and does -- generally -- not correspond to the reception of a concept peculiar to a specific domestic law. Where, however, it is apparent from the legislative history that the drafters wanted a specific concept to be interpreted in the light of a specific domestic law, one should be allowed to have recourse to the 'domestic' understanding of that concept. [page 141]
The policy behind the reliance upon the autonomous interpretation also precludes recourse to domestic interpretive techniques in order to solve problems, 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.
As far as the decisions are concerned that have at all touched upon the obligation to have regard to the CISG's international character in its interpretation, i.e. the obligation not to have recourse to domestic concepts or to domestic interpretive techniques in interpreting the CISG, they can be divided into two categories: on the one hand, those decisions that take that obligation into account, and, on the other hand, those that do not.
In regard to the latter kind of decisions, one has to refer above all to various very recent US court decisions, such as Travelers Property Casualty Company of America et al. v. Saint-Gobain Technical Fabrics Canada Limited, Genpharm Inc. v. Pliva-Lachema A.S. and Raw Materials Inc. v. Manfred Forberich GmbH & Co., KG, which expressly state that "caselaw interpreting analogous provisions of Article 2 of the Uniform Commercial Code ("UCC") may also inform a court where the language of the relevant CISG provisions tracks that of the UCC.” [page 142]
In this author's opinion, this statement, as well as other comparable ones, not only contrasts with the text of Article 7(1) CISG, but it also violates the very rationale behind the creation of the CISG: if all courts were to adopt this nationalistic approach, the uniformity the drafters of the CISG aimed at could never be achieved.
Fortunately, the number of decisions complying with the obligation to have regard to the CISG's international character by no resorting to domestic concepts outweighs that of the aforementioned kind. This is also true in respect of US court decisions, some of which clearly comply with the obligation set forth in Art. 7(1) CISG, as they realize that interpreting the CISG "nationalistically" would undermine the unification efforts made by the drafters of the CISG. This reasoning clearly underlies the statement to be found in St. Paul Guardian Insurance Co. et al. v. Neuromed Medical Systems & Support GmbH, et al, according to which "the CISG aims to bring uniformity to international business transactions, using simple, non-nation specific language", as well as other statements to be found in other US court decisions, such as MCC-Marble Ceramic Center Inc. v. Ceramica Nuova D'Agostino, S.p.A., where it is expressly stated that "courts applying the CISG cannot [...] substitut[e] familiar principles of domestic law when [page 143] the Convention requires a different result." This line of reasoning constitutes the basis for other US court decision, too, such as Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc., stating that "UCC case law is not per se applicable to cases governed by the CISG", and Calzaturificio Claudia S.n.c. v. Olivieri Footwear Ltd, where it is expressly stated that "although the CISG is similar to the UCC with respect to certain provisions, it differs from the UCC with respect to others, including the UCC's writing requirement for a transaction for the sale of goods and parol evidence rule. Where controlling provisions are inconsistent, it would be inappropriate to apply UCC case law in construing contracts under the CISG." In another US decision, the court simply referred to the aforementioned need to take the CISG's international character into account.
European courts as well have complied with the obligation not to interpret the CISG in the light of domestic law, but rather by having regard to its international character. In a Swiss case from 1993, a court of first instance even expressly stated that the CISG "is supposed to be interpreted autonomously and not out of the perspective of the respective national law of the forum. Thus, [...] it is generally not decisive whether the Convention is formally applied as particularly this or that national law, as it is to be interpreted autonomously and with regard to its international character. "An express reference to the need to interpret the CISG "autonomously" can also [page 144] be found in a more recent Swiss case  as well as in a Spanish case  and an Austrian one  and various very recent Italian court decisions, rendered by the Tribunale di Padova in 2005 and 2004  as well as by the Tribunale di Modena.
In Germany, while there are some courts that simply referred to the need to interpret the CISG by having regard to its international character and to the need to promote its uniform application, there are other ones which went further. In 1996, the German Supreme Court, for instance, expressly stated that "the CISG is different from German domestic law, whose provisions and special principles are, as a matter of principle, inapplicable for the interpretation [page 145] of the CISG (Art. 7 CISG)". And it is this reasoning that has led the Court of Appeal of Karlsruhe to state that "German legal concepts such as "Fehler" and "zugesicherte Eigenschaften" are therefore not transferable to the CISG", More recently, in 2005, the Germ Supreme Court stated that "insofar as the Court of Appeals refers to [various German] judgments [...] in analyzing the question whether, at the time the risk passed, the delivered meat conformed with the contract within the meaning of Arts. 35, 36 CISG, it ignored the fact that these decisions were issued before the CISG went into effect in Germany and refer to § 459 BGB [...]. The principles developed there cannot simply be applied to the case at hand, although the factual position -- suspicion of foodstuffs in transborder trade being hazardous to health is similar; that is so because, in interpreting the provisions of CISG, we must consider its international character and the necessity to promote its uniform application and the protection of good will in international trade (Art. 7(1) CISG)".
Arbitral tribunals have also referred to the need to take into account the CISG's international character. In one instance, an arbitral tribunal, after answering the question of whether Art. 35(2)(a CISG obliges the seller to deliver goods of average or reasonable quality, stated that its solution "complies with Article 7(1) CISG imposing to take into account the international character of CISG and its reluctance to rely immediately on notions based on domestic law". [page 146]
LIMITS TO THE AUTONOMOUS INTERPRETATION
It should be noted, however, that not all expressions must be interpreted autonomously. There are some expressions which an interpreter must interpret "domestically", despite the negative effect this may have on the uniformity the drafters of the CISG wanted to achieve. This is true, for instance, in respect of the expression "private international law" employed by the CISG. Since the CISG constitutes "merely" a substantive law convention  that does not set forth any private international law rule, the reference, for instance, to "private international law" to be found in Articles 1(1)(1) and 7(2) CISG has to be understood as a reference to the private international law of the forum. [page 147]
Although various courts had already implicitly adopted this view, most recently an Italian court, the Tribunale di Padova, has done so explicitly. When examining the CISG's substantive applicability requirements, the court first stated that "from a substantive point of view, it is necessary that the contract be one for the sale of goods which, however, the Convention does not define. Nevertheless, the lack of an express definition should not lead one to resort to a domestic definition, such as that to be found in Article 1470 of the [Italian] Civil Code. In effect, the Convention's concept of "contract for the sale of goods" has to be interpreted, as has the majority of concepts (such as that of "place of business", "habitual residence", "goods"[)] autonomously, i.e. without resort to concept characteristic of any particular legal system". The court, however, also (and more importantly) stated expressly that not all concepts had to be interrupted autonomously, like "that of "private international law", which corresponds to the concept of private international law of the forum, or that of "party", "which has to be determined on the basis of the law applicable by virtue of the rules of private international law of the forum".
One important conclusion can be drawn from the above: The obligation to interpret the CISG in an autonomous manner is not absolute. By itself, this causes a new problem, namely that how to identify the concepts which are not to be interpreted autonomously. Unfortunately, the CISG does not offer any guidance, as it does not offer any guidance on a different, albeit related and important, issue: that of how to determine which interpretation should be preferred when the Convention itself gives rise to different autonomous [page 148] interpretations. In this case, the uniformity of the result would be a very unlikely coincidence. Where, for instance, there are three equally plausible autonomous interpretations and two interpreters who construe the same provision independently, the chance that there will be a uniform result amounts only to 33%, or, in other words, the probability of diverging interpretations is 67%.
RESORT TO FOREIGN CASE LAW: PRACTICAL ISSUES
From the above, it clearly follows, as pointed out in recent case law as well, that the CISG's autonomous interpretation cannot, by itself, guarantee unifonnity. In other words, in view of "the need to promote uniformity in [the CISG's] application", it is insufficient to consider the CISG an autonomous body of rules. In order to achieve the CISG's ultimate goal, the creation of unifonnity, it is also necessary to consider the practice of other [page 149] jurisdictions, i.e., "what others have already done". This is why it cannot surprise that many commentators have advocated that courts resort to decisions rendered by foreign judicial bodies. [page 150]
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 obstacles, various step, official  and unofficial ones, have been undertaken. The first one to be mentioned is the creation, upon the suggestion by Albert H. Kritzer, of the CISG web-site by the Pace University Institute of International Commercial Law  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 case law from all over the world. Similar web-sites have been created in Austria, [page 151] Belgium, France, Spain  as well as in Switzerland  and elsewhere.
The Centre for Comparative and Foreign Law Studies in Rome has put together UNILEX, a "reasoned collection of case law and an international bibliography on the CISG", which is available on the Internet and presents features similar to the aforementioned websites.
Another step taken towards the promotion of the CISG's uniform interpretation is the establishment, in 2001, of the Advisory Council of the United Nations Conventions on Contracts for the International Sale of Goods (CISG), a private initiative taken by "scholars who look beyond the cooking pot for ideas and for a more profound understanding of issues relating to CISG" and who "issue opinions relating to the interpretation and application of the Convention on request or on its own initiative".
The most "official" efforts to neutralize the danger of diverging interpretations and applications of the CISG by making foreign decisions available, or at least abstracts of such decisions, are, however, the 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 [page 152] way to ensure uniformity, UNCITRAL, in its twenty-first working session, decided to adopt a procedure according to which decisions rendered in the application of UNCITRAL instruments, among others the CISG, by courts of various States are 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", among others, by preparing abstracts of them, translating them into the various official languages of the United Nations and publishing them in the so-called CLOUTs, available at no cost to all interested parties. [page 153]
More recently, on the basis of a decision taken in 2001, UNCITRAL prepared, with the help of five experts, a "Digest of case law on the United Nations Convention on the International Sales of Goods", published in June 2004, "meant to reflect the evolution of case law" by offering "a synopsis of the relevant case law, highlighting common views and reporting any divergent approach", thus enabling the interpreter to become aware of how the CISG is actually interpreted around the world.
Recent case law shows that courts are very well aware of these and other efforts, as evidenced by a statement by the Tribunale di Rimini according to which the risk "that conventions may be interpreted differently in each country with the possibility of inconsistent results being reached on substantive issues [...] appears to be rather remote with reference to the CISG [as] there are many worthwhile publications that help to reduce interpretative differences, namely data bases that collect and edit international case law (see, for example, <http://www.unilex.info>) and law reviews that specialize in international sales law (such as International Handelsrecht)".
Other courts too, are aware of the aforementioned efforts; in a decision rendered in 2006, the U.S. District Court, Southern District of New York, referred to one of the CISG-AC's opinions; in a different decision, that very [page 154] same court referred to the UNCITRAL Digest  to rightly conclude that distribution contracts are not governed by the CISG. Moreover, a different U.S. court, the U.S. District Court, Northern District of Illinois, Eastern Division, expressly referred to the UNILEX database as t e source upon which it relied for foreign case law. Similarly, the U.S. Circuit Court of Appeals (11th Circuit) expressly referred to the website created by Albert H. Kritzer, labelling it "a promising source for [foreign] decisions". Courts of other countries, too, have referred to some of the aforementioned websites; in Germany, for instance, the Supreme Court referred to the CISG web-site created by Prof. Schwenzer at Basle University, as did the appellate Court Karlsruhe, whereas the Appellate Court Dusseldorf referred to that website's antecedent. [page 155]
Italian courts, too, have referred to the aforementioned Swiss CISG website, as well as to many other ones, among others, that created by Albert H. Kritzer.
REFERENCE TO FOREIGN CASE LAW IN STATE COURTS
As a result of the awareness of the efforts referred to in the previous chapter, courts increasingly resort to foreign case law.
The most famous decision  in this respect is that of the Tribunale di Vigevano rendered in 2000. When dealing with some of the typical issues raised by the CISG, such as party autonomy notice of non-conformity and burden of proof, the court, unlike other Italian courts that had cited -- if at all -- only few foreign decisions, referred to unprecedented number of 40 [page 156] foreign court decisions  and arbitral awards, thus "show[ing] a certain willingness to take into consideration foreign decisions and […] a depth of knowledge and research of foreign case law which has not been very common among courts of many countries". Equally noteworthy is the fact that many of the decisions the court referred to were not published in law reviews, but rather on the Internet. In referring to two of the aforementioned websites as well as to the UNILEX database the court "exhibited a willingness to employ the very means which so many jurists and scholars have exhorted courts and arbitral panels to use.”
The Tribunale di Vigevano has not remained the only Italian court to have extensively referred to foreign decisions. In 2002, the Tribunale di Rimini. in a very well received decision, has done so, too. Indeed, like the Tribunal di Vigevano, which the Tribunal di Rimini often referred to, in dealing with some "typical" CISG issues, in part corresponding to those that the Tribunale di Vigevano had had to deal with the Tribunale di Rimmi also took into account both the need for an autonomous interpretation and the need to promote uniformity in the CISG's application and cited 35 foreign decisions and arbitral awards. Similarly, in three more recent decisions, [page 157] rendered on 25 February 2004, on 31 March 2004  and on 11 January 2005, the Tribunale di Padova cited 40, 24 and 14 foreign decisions respectively. In an even more recent decision, the Tribunale di Padova referred to a more limited number of foreign decisions, as the main issue the court had to deal with did only marginally relate to the CISG. More recently, the Tribunale di Rovereto referred to two German decisions when dealing with an issue regarding jurisdiction over contracts governed by the CISG.
Italian courts, however, are not the only ones to take into account decisions rendered abroad. In its decision Chicago Prime Packers, Inc. v. Northam Food Trading Co., et al., the U.S. District Court, Northern District of Illinois, Eastern Division, cited 7 foreign decisions, all of which taken from the UNILEX database referred to earlier, this "cit[ing] more foreign cases than any other previous American ruling on the UN Sales Convention". In effect, previously only few US courts had cited any foreign decisions at all. [page 158]
More often than not, US courts had not even bothered to look for foreign case law, but had simply (and incorrectly)  stated that there was virtually no case law on the CISG, at times when foreign decisions were readily available. [page 159]
Whether, however, the Chicago Prime case will have the same effect in the US that the decision by the Tribunale di Vigevano has had in Italy is doubtful, considering that the same U.S. District Court that rendered the Chicago Prime decision in a more recent decision not only avoided any reference to foreign decisions, but even rejected the autonomous interpretation in favour of a "nationalistic" interpretation when it stated in respect of the Article 79 CISG issue of "excuse" that "case law interpreting the Uniform Commercial Code's ("U.C.C.") provision on excuse provides guidance for interpreting the CISG's excuse provision since it contain similar requirements as those set forth in Article 79".
Courts of other countries as well have stated to refer to foreign case law, albeit not as massively as the Italian courts. his is true for instance for Belgian courts; in a decision of 2002, the Rechtbank van Koophandel Hasselt  referred to one German and one Swiss decision; on two earlier occasions, that same court had cited two different Austrian decisions (both rendered by the Austrian Supreme Court).
On several occasions, German courts as well referred to (a limited number of) foreign cases; this is true not only in respect of lower courts, [page 160] but also as far as the German Supreme Court is concerned. Similarly, Swiss courts, including the Swiss Supreme Court, have on various occasions cited foreign cases, as has the Austrian Supreme Court. [page 161]
In one instance, an Australian court, too, referred to foreign case law; the same is true for a Canadian court, a Danish court  as well as a French court.
RESORT TO FOREIGN CASE LAW: METHODOLOGICAL ISSUES
Although resort to foreign case law undoubtedly promotes the uniformity the drafters of the CISG aimed at, it also creates difficulties; apart from the practical difficulties relating to the retrieval of foreign case law, which, as the aforementioned case law shows, appear to have been overcome, it creates a methodological problem, namely that of whether foreign case law is to be treated as binding or as having merely persuasive or "inspirational" 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". Another author even speaks of a "supranational stare decisis" which can be achieved if "common law and civil law judges [...] reverse their approaches in a number [page 162] of ways", that is, for example, if the civil law judge states to "search other cases throughout the world and follow precedent in much the same way the common law judge does within her national system".
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]", 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", mainly 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 per se guarantee the correctness of a substantive result, 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.
From a methodological point of view, the suggestion to create a "supranational stare decisis" similar to that existing in corn on law countries must be criticized, since it does not take into account the rigid hierarchical structure of the various countries' court systems in which the "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. 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 [page 163] 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 a German court decision, this question seems to have been answered negatively, without, however, the German court providing any rationale as to why such decision was taken. But even if the decisions of courts of Non-Contracting States were to be considered, would they have to prevail over those of Contracting States and/or arbitral tribunals?
In this author's opinion, foreign case law should always be considered as having merely persuasive value. This result is, in essence, what Article 7(1) CISG imposes when it provides that "regard is to be had [...] to the need to promote uniformity in its application". In other words, "[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 [page 164] importance; rather, the existing material in regard to relevant rulings has to be taken account of when giving the reasons for a decision".
This view finds support not only in legal writing, but also in case law. The first court that dealt with this issue was the Tribunale di Pavia. In 1999, when dealing with the issue of interest on sums in arrears, the Tribunale di Pavia reached a solution in respect of which it stated that "this solution corresponds to that adopted by foreign case law [...] which, although not binding, is nevertheless to be taken into consideration as required by Art. 7(1) of the CISG". More recently, in its famous decision of 2000, the Tribunale di Vigevano reached the same conclusion; it stated "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 the uniform application of the United Nations Convention, according to its Article 7(1)". Similar statements can now be found in other Italian decisions, such as that of the Tribunale di Rimini rendered on 26 November 2002  as well as those of the Tribunale di Padova from 25 February 2004  and 10 January 2006.
At this point, Italian courts are, however, not the only ones to have dealt with this methodological issue. Recently, a U.S. court, too, dealt with it and reached the same result, since it stated that "although foreign case law is not binding on this court, it is nonetheless instructive in deciding the issues [page 165] presented here". More recently, in 2006, a U.S. court simply stated that "foreign decisions do not bind this Court".
In 1998, on the occasion of the 10th anniversary of the CISG's coming into force, when examining whether courts had taken into account the CISG's international character and the need to promote its uniform application, this author stated that only very few courts had done so, despite the many laudable efforts undertaken to promote the knowledge of foreign case law. In concluding that analysis, this author suggested to "celebrate all of the efforts undertaken to promote the aforementioned knowledge" and stated that ten years later the reasons for this would be even more evident then they were then.
Ten years have passed since those remarks were made and the reasons are apparent. Without the aforementioned efforts, it would hardly be possible to find as many cases referring to foreign court decisions, since foreign case law would not be as readily available in languages that are widely known. If it were not for the aforementioned efforts, it would hardly be possible for the German Supreme Court to cite a Canadian decision, or for a U.S. District court to refer to Italian and Dutch decisions.
Although it is not possible to make a prediction as to how many courts will have had recourse to foreign case law in ten years time, one can be sure of one thing: whatever number that will be, without the efforts by Albert H. Kritzer, who not only created the most complete website, but who is making [page 166] sure that is remains updated, that number would be much closer to the one of 1998. [page 167]
1. See Riese, O (1961) 'Einheitliche Gerichtbarkeit für vereinheitlichtes Recht' in (26) Rabels Zeitschrift für ausländisches und internationales Privatrecht 604 at 607 f.; Zweigert, K (1951) 'Die Rechtsvergleichung im Dienste der europäischen Rechtsvereinheitlichung' in (16) Rabels Zeitschrift für ausländisches und internationales Privatrecht 387 at 395.
2. McMahon, AJ (2006) 'Differentiating between Internal and External Gaps in the U.N. Convention on Contracts for the International Sale of Goods: A Proposed Method for Determining "Governed by"in the Context of Article 7(2)' in (44) Columbia Journal of Transnational Law 992 at 999; see also Martiny, D (1981), Autonome und einheitliche Auslegung im Europäischen Zivilprozeßrecht' in (45) Rabels Zeitschrift für ausländisches und internationales Privatrecht 427 at 427; Rudolf, C (2006) Einheitsrecht für internationale Forderungsabtretungen Mohr Siebeck at 11; Ryan, L (1995) 'The Convention on Contracts for the International Sale of Goods: Divergent Interpretations' in (4) Tulane Journal of International and Comparative Law 99 at 101; Sturley, MF (1989) 'International Uniform Law in National Courts: The Influence of Domestic Law in Conflicts of Interpretation' in (27) Virginia Journal of International Law 729 at 731.
3. Munday, RCJ (1978) 'The Uniform Interpretation of International Conventions' in (27) International and Comparative Law Quarterly 450 at 450; for similar statements, see, more recently, Andersen, CB (1998) 'Furthering the Uniform Application of the CISG Sources of Law on the Internet' in (10) Pace International Law Review 403 at 404: "uniformity does not follow automatically from a proclamation of uniform rules. Uniformity is a difficult goal to achieve, as uniform words do not always ensure uniform results, especially where a Convention is in effect throughout countries with completely differing social, economic, and cultural backgrounds, and perhaps most significantly, different legal systems"; Duncan, JC Jr. (2000) 'Nachfrist was 1st? Thinking Globally and Acting Locally: Considering Time Extension Principles of the U.N. Convention on Contracts for the International Sale of Goods in Revising the Uniform Commercial Code' in 2000 Brigham Young Law Review 1363 at 1368 (stating the same).
4. It has often been stated that it is only possible to reduce the danger of diverging interpretations; it is not possible to eliminate it as such see, e.g., Lookofsky, JM (1989) Consequential Damages in Comparative Context Jurist- og Økonomforbundet at 294.
5. Scruttons Ltd. v. Midland Silicones Ltd., 1962 A.C. 446, 471 (1961).
6. For similar statements see Ferrari, F (2006) La vendita internazionale, Applicabilità ed applicazioni della Convenzione di Vienna del 1980 (2nd ed.) Cedam at 10 f.
7. See the United Nations Convention on Contracts for the International Sale of Goods, reprinted in (1980) International Legal Materials at 668 ff.
8. Many abbreviations have been used for the United Nations Convention on Contracts for the International Sale of Goods; for a court decision which gives an overview of the existing ones, see Oberlandesgericht Frankfurt (Germany), 20 April 1994, available at: <http://www.cisg-online.ch/cisg/urteile/125.htm>.
For a discussion in legal writing of the various abbreviations, see Flessner, A and Kadner, T (1995) 'CISG? Zur Suche nach einer Abkürzung für das Wiener Übereinkommen über Verträge über den internationalen Warenauf' in Zeitschrift für Europäisches Privatrecht 347 ff.
9. See Article 18 of the EEC Convention on the Law Applicable to Contractual Obligations, reprinted in (1980) International Legal Materials at 1496.
10. See Article 4 of the UNIDROIT Convention on International Factoring, reprinted in International Legal Materials, 1988, p. 945; Article 6 of the UNIDROIT Convention on International Financial Leasing, reprinted in (1988) International Legal Materials at 933.
11. Art. 7(1) CISG; for identical statements, see Article 4(1) of the International Factoring Convention; Article 6(1) of the International Financial Leasing Convention.
12. For papers/books dealing with the interpretation of the CISG, see Adame Goddard, J (1990) 'Reglas de interpretacion de la Convencion sobre Compraventa Internacional de Mercaderias' in (14) Revista de investigaciones juridicas 9 ff.; Andersen, CB (2007) Uniform Application of the International Sales Law. Understanding Uniformity, the Global Jurisconsultorium and Examination and Notification Provisions of the CISG, Wolters Kluwer; Bisazza, G (2004) Auslegung des Wiener UN-Kaufrechts unter Berücksichtigung ausländischer Rechtsprechung: ein amerikanisches Beispiel' in (6) European Legal Forum 380 ff.; Bonell, MJ (1986) 'L'interpretazione del diritto uniforme alla luce dell'art. 7 della Convenzione di Vienna sulla vendita internazionale' in Rivista di diritto civile 221 ff.; Cook, VS (1988) 'The Need for Uniform Interpretation of the 1980 United Nation Convention on Contracts for the International Sale of Goods' in (50) University of Pittsburgh Law Review 197 ff.; de Lukowicz, D (2001) Divergenzen in der Rechtsprechung zum CISG. Auf dem Weg zu einer einheitlichen Auslegung und Anwendung? Peter Lang; De Ly, F (2003) 'Uniform Interpretation: What is Being Done? Official Efforts' in Ferrari, F (ed.) (2005) The 1980 Uniform Sales Law. Old Issues Revisited in the Light of Recent Experiences Giuffrè/Sellier European Law Publishers 335 ff.; Diedrich, F (1994) Autonome Auslegung von Internationalem Einheitsrecht. Computersoftware im Wiener Kaufrecht Nomos; Diedrich, F (1996) 'Maintaining Uniformity in International Uniform Law via Autonomous Interpretation: Software Contracts under the CISG' in (8) Pace International Law Review 303 ff.; Felemegas, J (2000-2001) 'The United Nations Convention on Contracts for the International Sale of Goods: Article 7 and Uniform Interpretation' in Review of the Convention on Contracts for the International Sale of Goods (CISG) 115 ff.; Felemegas, J (ed.) (2006) An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law: A Comparative Approach Cambridge University Press; Ferrari, F (2005) 'The CISG's Uniform Interpretation by Courts -- an Update' in (9) Vindobona Journal of International Commercial Law and Arbitration 233 ff.; Ferrari, F (1994) , Uniform Interpretation of the 1980 Uniform Sales Law' in (24) Georgia Journal of International and Comparative Law 183 ff.; Ferrari, F (1998) 'CISG Case Law: A New Challenge for Interpreters?' in 17 Journal of Law and Commerce 245 ff.; Ferrari, F (1996) 'Interpretation uniforme de la Convention de Vienne de 1980 sur la vente internationale' in Revue internationale de droit compare 813 ff.; Ferrari, F (1998) 'Brevi considerazioni critiche in materia di interpretazione autonoma ed applicazione uniforme della convenzione di Vienna' Rivista di diritto civile 81 ff.; Graffi, L (2004) 'L'interpretazione autonoma della Convenzione di Vienna: rilevanza del precedente straniero e disciplina della lacune' in Giurisprudenza di merito 873 ff.; Happ, R (1997), Anwendbarkeit völkerrechtlicher Auslegungsmethoden auf das UN-Kaufrecht' in Recht der internationalen Wirtschaft 376 ff.; Happ, R and Roth, M (1997), ‘Interpretation of uniform law instruments according to Principles of International Law' Uniform Law Review 702 ff.; Kramer, EA (1996) 'Uniforme Interpretation von Einheitsprivatrecht -- mit besonderer Berücksichtigung von Art. 7 UNKR' Østerreichische Juristische Blätter 137 ff.; Koneru, P (1997) 'The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles' in (6) Minnesota Journal of Global Trade 105 ff.; Magnus, U (1989) 'Wahrungsfragen im Einheitlichen Kaufrecht. Zugleich ein Beitrag zu seiner Lückenfüllung und Auslegung' in (53) Rabels Zeitschrift für ausländisches und internationales Privatrecht 116 ff.; Maskow, D (1986) 'Zur Auslegung des Einheitskaufrechts der UNO-Kaufrechtskonvention von 1980' in Nationales Komitee für Rechtswissenschaft der DD (ed.) (1986) Nationalberichte zum XII. Internationalen Kongreß für Rechtsvergleichung (Sydney/Melbourne, 18.-26.8.1986) Akademie für Staats-und Rechtswissenschaft der DDR 5 ff.; McQuillen, M (2007) 'The Development of a Federal CISG Common Law in U.S. Courts: Patterns of Interpretation and Citation' in (61) University of Miami Law Review 509 ff.; Niemann, C (2006) Einheitliche Anwendung des UN-Kaufrechts in Italienischer und Deutscher Rechtssprechung und Lehre, Peter Lang; Perales Viscasillas, MP (1995) 'Una aproximacion al articulo 7 de la Convencion de Viena de 1980 sobre compraventa internacional de mercaderias ' Quadernos de derecho y comercio 55 ff.; Rizzi, A (1997), Interpretazione e integrazione della legge uniforme sulla vendita internazionale di cose mobili' in Rivista di diritto privato 237 ff.; Salama, S (2006) 'Pragmatic Responses to Interpretive Impediments: Article 7 of the CISG, An Inter-American Application' in (28) University of Miami Inter-American Law Review 225 ff.; Schwenzer, I (2005) 'The Danger of Domestic Preconceived Views with Respect to the Uniform Interpretation of the CISG: The Question of Avoidance in the Case of Non-Conforming Goods and Documents' Victoria University of Wellington Law Review 785 ff.; van Alstine, MP (1998) 'Dynamic Treaty interpretation' in (146) University of Pennsylvania Law Review 687 ff.; Vazquez-Lepinette, T (1995) 'The interpretation of the 1980 Vienna Convention on International Sale' Diritto del commercio internazionale 377 ff.; Veneziano, A (2003) 'Uniform Interpretation: What is Being Done? Unofficial Efforts and Their Impact' in Ferrari, F (ed.) (2003) The 1980 Uniform Sales Law. Old Issues Revisited in the Light of Recent Experiences Giuffrè/Sellier European Law Publishers 325 ff.; Witz, C (2003) ‘L'interpretation de la CVIM: divergences dans l'interprétation de la Convention de Vienne' in Ferrari, F (ed.) (2003) The 1980 Uniform Sales Law. Old Issues Revisited in the Light of Recent Experiences Giuffrè/Sellier European Law Publishers 279 ff.
13. For papers on gap-filling under the CISG; see, e.g., Callaghan, JJ (1995) 'Convention on Contracts for the International Sale of Goods: Examining the Gap-filling Role of CISG in two French Decisions' in (14) Journal of Law and Commerce 183 ff.; Diedrich, F (1995) 'Lückenfüllung im Interationalen Einheitsrecht -Möglichkeiten und Grenzen richterlicher Rechtsfortbildung im Wiener Kaufrecht' Recht der internationalen Wirtschaft 353 ff.; Ferrari, F (2003) 'Gap-filling and Interpretation of the CISG: Overview of International Case Law' in (7) Vindobona Journal of International Commercial Law and Arbitration 3 ff.; Frigge, B (1994) Externe Lücken und internationales Privatrecht nach dem UN-Kaufrecht (Art. 7 Abs. 2) Peter Lang; Garro, A (1995) 'The Gap-Filling Role of the UNIDROIT Principles in International Sales Law' in (69) Tulane Law Review 1149 ff.; Hellner, J (1990) 'Gap-Filling by Analogy: Art. 7 of the U.N. Sales Convention in Its Historical Context' in Ramberg, J (ed.) (1990) Studies in International Law: Festskrift till Lars Hjerner Norstedts 219 ff.; Rosenberg, MN 'The Vienna Convention: Uniformity in Interpretation for Gap-Filling -- An Analysis and Application' in (20) Australian Business Law Review 442 ff.; Schlechtriem, P (2004) 'Interpretation, Gap filling and Further Development of the UN Sales Convention' in (16) Pace International Law Review 279 ff.; Stoll, H (1993) 'Regelungslücken im Einheitlichen Kaufrecht und IPR' in Praxis des internationalen Privat- und Verfahrensrechts 75 ff.; Teichert, U (2006) Lückenfüllung im CISG mittels UNIDROIT -- Prinzipien -- Zugleich ein Beitrag zur Wählbarkeit nichtstaatlichen Rechts, Peter Lang.
14. See, among others, Kritzer, A and Mistelis, L (2004) 'Taming the Dragons of Uniform Law: Sharing the Reasoning of Courts and Arbitral Tribunals -- English Case Texts and Translated Case Texts' in (5) Vindobona Journal of International Commercial Law and Arbitration 285 ff.; Kritzer, A and Rogers, V (2003), ‘A Uniform International Sales Law Terminology' in Schwenzer, I and Hager, G (eds.) (2003), Festschrift für Peter Schlechtriem zum 70. Geburtstag Mohr Siebeck 223 ff.
16. See, among others, Audit, B (1990) La vente international de merchandises LGDJ at 47; Barnes, WR 'Contemplating a Civil Law Paradigm for a Future International Commercial Code' in (65) Louisiana Law Review 67 at 754; Bisazza, supra fn 12, at 381; Bonell, MJ (1989) 'Commento all'art. 7 della Convenzione di Vienna' Nuove Leggi civili commentate 20 at 21; Gruber, UP (2004) Methoden des internationalen Einheitsrechts Mohr Siebeck at 80; Jametti Griener, M (1992) 'Der Vertragsabschluß' in Hoyer, H (ed.) (1992) Das Einheitliche Wiener Kaufrecht. Neues Recht für den internationalen Warenkauf Orac 43 at 43; McMahon, supra fn 2, at 1000; Melin, P (2005) Gesetzesauslegung in den USA und in Deutschland Mohr Siebeck at 355; Lookofsky, JM (2003) 'In Dubio Pro Convention? Some Thoughts About Opt-Outs, Computer Programs and Preemption under the 1980 Vienna Sales Convention (CISG)' in (13) Duke Journal of Comparative and International Law 263 at 275; Rudolf, supra fn 2, at 12; Salama, supra fn 12, at 231; Schlechtriem, P (2005) 'Requirements of Application and Sphere of Applicability of the CISG' Victoria University of Wellington Law Review 781 at 789; Schmid, G (2004) Einheitliche Anwendung von internationalem Einheitsrecht Nomos at 42; Torsello, (2004) Common Features of Uniform Commercial Law Conventions. A Comparative Study Beyond the 1980 Uniform Sales Law Sellier European Law Publishers at 18.
17. See Honnold, JO (1988) 'The Sales Convention in Action -- Uniform International Words: Uniform Applications?' in (8) Journal of Law and Commerce 207 at 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 (1992) 'Defining "Fundamental Breach"under the United Nations Convention on Contracts for the International Sale of Goods' in (6) Temple International and Comparative Law Journal 113 at 117; Komarov, AS (2006) ‘Internationality, Uniformity and Observance of Good Faith as Criteria in Interpretation of CISG: Some Remarks on Article 7(1)' in (25) Journal of Law and Commerce 75 at 76; Kritzer, AH (1989) Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods Kluwer at 109; Schlechtriem, P. (2007) Internationales UN-Kaufrecht (4th ed.) Mohr Siebeck at 45.
18. Compare Carbone, SM (1981) 'L'ambito di applicazione ed i criteri interpretativi della convenzione di Vienna' in (1981) La vendita internazionale. La Convenzione di Vienna dell’ 11 Aprile 1980 Giuffrè 61 at 84; Witz, W; Salger, HC and Lorenz, M (2000) International Einheitliches Kaufrecht Verlag Recht und Wirtschaft at 81.
19. See also Honnold, JO (1999) Uniform Law for International Sales under the United Nations Convention (3rd ed.) Kluwer Law International 89, stating that "the reading of a legal text in the light of the concepts four 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 Cassazione civile (Italy) 24 June 1968, Rivista di diritto internazionale privato e processuale, 1969, p. 914.
20. In this respect see Murray, JE (1998) 'The Neglect of CISG: A Workable Solution' in (17) Journal of Law and Commerce 365 at 367, stating that for a court it certainly is difficult to "transcend its domestic perspective and become a different court that is no longer influenced by the law of its own nation state"; more recently see Dimatteo, LA and others, (2004) 'The Interpretive Turn in International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence ' in (24) Northwestern Journal of International Law and Business 299 at 303.
21. For a detailed discussion of the interpretation of uniform law conventions as well as of the issues referred to in the text, see Bariatti, S (1985) Interpretazione delle convenzioni internazionali di diritto uniforme Cedam; Trompenaars, BMW (1989) Pluriforme unificatie en uniforme interpretatie -- in het bijzonder de bijdrage van UNCITRAL aan de internationale unificatie van het privaatrecht Kluwer.
22. Note, however, that according to Salama, supra fn 12, at 232, "a methodological approach that discounts the use of analogies to domestic legal concepts seems impractical if not impossible. In particular, a judge looking to interpret a provision needs some frame of reference to assist in understanding that provision."
23. For this statement, see, eg, Herber, Rolf and Czerwenka, Beate (1991) Internationales Kaufrecht. Kommentar zum Übereinkomme der Vereinten Nationen vom 11April 1980 über Verträge über den internationalen Warenkauf CH Beck at 47.
24. See Ferrari, F (1996) 'The Relationship Between the UCC and the CISG and the Construction of Uniform Law' in (29) Loyola of Los Angeles Law Review 1021 at 1026.
25. For similar statements, see also Lanciotti, A (1992) Norme uniformi di conflitto e materiali nella disciplina convenzionale della compravendita Edizioni Scientifiche Italiane at 287; contra van der Velden, F (1987) , Indications on the Interpretation by Dutch Courts of the United Nations Convention on Contracts for e International Sale of Goods' in (1987) Netherlands Reports to the Twelfth Congress of Comparative Law: Sidney-Melbourne (1986) Asser Instituut/Martinus Nijhoff 21 at 33.
26. The presumed neutrality of the CISG's language has also been pointed out by Bonell, MJ (1987) , Art. 7' in Bianca, CM and Bonell, MJ (eds.) (1987) Commentary on the International Sales Law Giuffrè 65 at 74, stating that when "drafting the single provisions these experts had to find sufficiently neutral language on which they could reach a common understanding".
For a similar statement, see, more recently, Zeller, B (2003) 'International Trade Law -- Problems of Language and Concepts?' in (23) Journal of Law and Commerce 39 at 39; see also the statement by UNCITRAL itself to be found in U.N. document A/CN.9/562, at page 1: "The drafters of the Convention took special care in avoiding the use of legal concepts typical of a given legal tradition".
27. Diedrich, 'Maintaining Uniformity', supra fn 16 at 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 (1995) 'Commentary to Journal of Law & Commerce Case I, Oberlandesgericht Frankfurt am Main' in (14) Journal of Law and Commerce 177 at 177; Ferrari, 'Uniform Interpretation', supra fn 12, at 201; Koneru, supra fn 12, at 105; Salama, supra fn 12, at 232; Selden, BB (1995) 'Lex Mercatoria in European and U.S. Trade Practice: Time to Take a Closer Look' in (2) Annual Survey of International and Comparative Law 111 at 121.
28. See Enderlein, F; Maskow, D and Strohbach, H (1991) Internationales Kaufrecht: Kaufrechtskonvention, Verjährungskonvention, Vertretungskonvention, Rechtsanwendungskonvention Haufe at 61.
29. For this conclusion, see Achilles, WA (2000) Kommentar zum UN-Kaufrechts-übereinkommen (CISG) Luchterhand at 29; Ferrari, F (2004) 'Art. 7' in Schlechtriem, P and Schwenzer, I (eds.) (2004) Kommentar zum Einheitlichen UN-Kaufrecht -- CISG (4th ed.) CH Beck 138 at 142; Magnus, U (2005) Wiener UN-Kaufrecht -- CISG Sellier/de Gruyter at 171.
30. For similar statements, see, e.g., Bonell, supra fn 26, 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."See, more recently, Salama, supra fn 12, at 232: "Autonomous interpretation also means abandoning domestic techniques used to resolve interpretive problems".
31. For similar statements, see also Ferrari, 'Uniform Interpretation', supra fn 12, at 202.
32. U.S. District Court, Minnesota, 31 January 2007 (Travelers Property Casualty Company of America et al. v. Saint-Gobain Technical Fabrics Canada Limited) available at: <http://cisgw3.law.pace.edu/cases/070131u1.html>.
33. U.S. District Court for the Eastern District Court of New York, 19 March 2005 (Genpharm Inc. v. Pliva-Lachema A.S.) available at: <http://www.cisg.law.pace.edu/cisg/wais/db/cases2/050319ul.html>.
34. U.S. Northern District of Illinois, Eastern Division, 6 July 2004 (Raw Materials Inc. v. Manfred Forberich GmbH & Co. KG, US. District Court), 2004 WL 1535839 (N.D.Ill).
35. For this author's view on the matter, see Ferrari, supra fn 24 at 1021 ff.
36. See, e.g., U.S. Circuit Court of Appeals (4th Circuit), 21 June 2002 (Schmitz-Werke GmbH & Co. v. Rockland Industries, Inc.; Rockland International FSC, Inc.) 2002 WL 1357095 (4th Cir. Md), surprisingly stating that "case law interpreting provisions of Article 2 of the Uniform Commercial Code that are similar to provisions in the CISG can also be helpful in interpreting the Convention", after having stated that the "CISG directs that its interpretation be informed by its 'international character and [...] the need to promote uniformity in its application and the observance of good faith in international trade’.” For similar statements, see, more recently, U.S. District Court, Northern District of Illinois, Eastern Division (Chicago Prime Packers, Inc. v. Northam Food Trading Co., et al.) 2 J May 2004, 2004 WL 116 6628 (N.D.Ill); for an earlier statement to the same effect, see U.S. Circuit Court of Appeals (2d. Cir.), 6 December 1995 (Delchi Carrier S.pA, v. Rotorex Corporation) 71 F.3d 1024, 1028 (1995).
37. U.S. District Court for the Southern District of New York, 6 March 2002 (St. Paul Guardian Insurance Co. et al. v. Neuromed Medical Systems & Support GmbH et al.) 2002 WL 465312 (S.D.N.Y.).
38. U.S. Circuit Court of Appeals (1lth Circuit), 29 June 1998 (MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino, S.p.A.) 1998 WL 343335 (11th Cir. (Fla.)) available at: <http://cisgw3.law.pace.edu/cases/980629ul.html>.
39. U.S. District Court for the Southern District of New York, 10 May 2002 (Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc.) 201 F.Supp. 2d 236.
40. Id. at 281; for the statement referred to in the text, see most recently U.S. District Court for the Eastern District Court of New York, 19 March 2005 (Genpharm Inc. v. Pliva-Lachema A.S.) available at: <http://www.cisg.law.pace.edu/cisg/wais/db/cases2/050319ul.html>; U.S. District Court, Chicago Prime Packers supra fn 36, U.S. Court of International Trade, 24 October 1989 (Orbisphere Corp. v. United States) 726 F. Supp. 1344, 1355 (Ct. Int'l Trade 1989).
41. U.S. District Court, Southern District of New York, 6 April 1998 (Calzaturificio Claudia S.n.c. v. Olivieri Footwear Ltd.) 1998 U.S. Dist. Lexis 4586.
42. See e.g. U.S. District Court, Eastern District of Louisiana, 17 May 1999 (Medical Marketing International, Inc. v. Internazionale Medico Scientifica, S.r.l.) 1999 WL 311945 (E.D. La.), stating that "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".
43. Richteramt Laufen (Switzerland), 7 May 1993, available at: <http://cisgw3.law.pace.edulcisg/wais/db/cases2/930507sl.html> .
44. Handelsgericht Aargau (Switzerland), 26 September 1997, available at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=404&step=FullText>.
45. See Audiencia Provincial de Valencia (Spain), 7 June 2003, available at: <http://cisgw3.law.pace.edu/cases/030607s4.html>, stating that "[s]cholars maintain that the international character of the Convention obliges an autonomous interpretation of the Convention independent of domestic law, for this purpose, it is necessary to adopt a different methodology than used to apply domestic law. The only way to assure the uniformity of the Convention is to take into account decisions from tribunals of other countries when applying the Convention and to consult expert opinions of scholars in the subject, in order to achieve uniformity."For a favourable comment on this decision when discussing the uniform interpretation of the CISG, see Perales Viscasillas, MP (2005), 'Spanish Case Law on the CISG' in Ferrari, F (ed.) (2005) Quo Vadis CISG? Celebrating the 25th Anniversary of the United Nations Convention on Contracts for the International Sale of Goods Brulyant/Sellier European Law Publishers/FEC 235 at 240-241.
46. See Oberster Gerichtshof (Austria), 23 May 2005, available at: <http://cisgw3.law.pace.edu/cases/050523a3.html>, stating that "[t]he CISG creates substantive law [...] and is to be interpreted autonomously in accordance with CISG Art. 7. Therefore, discussions on the Austrian legal situation [...] have to be omitted".
47. Tribunale di Padova (Italy), 11 January 2005, available at: <http://www.unilex.info/case.cfm?pid=l&do=case&id=1005&step=FullText>; Tribunale di Padova (Italy), 25 February 2004, available at: <http://cisgw3.law.pace.edu/cases/040225i3.html>; for favourable comments on this decision, see Ferrari, F (2004), Nuove e vecchie questioni in materia di vendita internazionale tra interpretazione autonoma e ricorso alla giurisprudenza straniera' Giurisprudenza Italiana 1405 ff.; Graffi, supra fn 12, at 873 ff.
48. Tribunale di Modena (Italy), 9 December 2005, available at: <http://www.cisg-online.ch/cisg/urteile/1398.pdf>.
49. See, e.g, Oberlandesgericht Frankfurt a.M. (Germany), 20 April 1994, available at: <http://www.cisg-online.ch/cisg/urteile/125.htm>.
50. Bundesgerichtshof (Germany), 3 April 1996, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/960403gl.html>.
51. Oberlandesgericht Karlsruhe (Germany), 25 June 1997, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/970625gl.html>.
52. Bundesgerichtshof (Germany), 2 March 2005, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/050302gl.html>.
53. Netherlands Arbitration Institute, Arbitral award no. 2319, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/021015n1.html>.
54. For the following remarks as well as for a practical example, see Ferrari, F (1998) 'La jurisprudence sur la CVIM: un nouveau défi pour les interprètes?' Revue de droit des affaires internationales 497 ff.
55. For this conclusion, see also Ferrari, F (2005) ‘Do Courts Interpret the CISG Uniformly?' in Quo Vadis CISG?, supra fn 45, 3 at 10.
56. In this respect see, most recently, Tribunale di Padova (Italy), 25 February 2004, available at: <http://cisgw3.law.pace.edu/cases/040225i3.html>, expressly stating that the CISG "is a uniform convention on substantive law and not one on private international law as sometimes erroneously stated"; see also Trbunale di Rimini (Italy), 26 November 2002, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/021126i3.html>, stating that the CISG is a "uniform substantive law convention"; Oberster Gerichtshof (Austria), 29 June 1999, available at <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/990629a3.html> (stating the same).
57. For this statement see Enderlein, F and Maskow, D (1992) International Sales Law. United Nations Convention on Contracts for the International Sale of Goods. Convention on the Limitation Period in the International Sale of Goods Oceana at 370.
58. For this conclusion in case law, see Tribunale di Padova (Italy), 25 February 2004, available at: <http://cisgw3.law.pace.edu/cases/040225i3.html>.
59. See the court decisions commented on by Ferrari, F (1998) , Der Begriff des "internationalen Privatsrechts"nach Art. 1 Abs. lit. b) des UN-Kaufrechts' Zeitschrift für europäisches Privatrecht 162 ff: Oberlandesgericht Düsseldorf (Germany), 8 January 1993, available at: <http://cisgw3.1aw.pace.edu/cisg/wais/db/cases2/930108g.html>; Bezirksgericht Wien (Austria), 20 February 1992, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/92220a3.html>; Landgericht Aachen (Germany), 3 April 1990, available at: <http://www.cisg-online.ch/cisg/urteile/12.htm>.
60. Tribunale di Padova, (Italy), 25 February 2004, available at: <http://cisgw3.1aw.pace.edu/cases/040225i3.html>.
62. Id.; for this statement, see also Tribunale di Padova (Italy), 11 January 2005, available at: <http://www.unilex.inticase.cfm?pid=1&do=case&id=1005&step=FullText>.
63. For this see Ferrari, 'Uniform Interpretation', supra fn 12, at 20.
64. See also Sturley, supra fn 2, at 738, stating that "[s]ome commentators suggest more directly that international conflicts in interpretation are random occurrences. The idea is simply that, when so many national courts construe uniform laws, a form of judicial centrifugal force makes diverging interpretations inevitable. The logic of this theory is apparent, for a simple numerical example can illustrate the potential impact of random distribution. Suppose a uniform law provision as five equally plausible interpretations. The first court to construe it will adopt one of them. If a foreign court independently construes the same provision, there is only a 20% chance it will adopt the same interpretation. Thus there is an 80% chance that a conflict will develop."
65. See Tribunale di Padova (Italy), 25 February 2004, available at: <http://cisgw3.law.pace.edu/cases/040225i3.html>: "the mere autonomous interpretation of [CISG] -- i.e. an interpretation that does not refer to the meaning attribute to specific expressions by a particular national regulation -- is by itself insufficient to assure the uniformity which the [CISG] aims at in order to promote the development of international trade".
66. For a similar statement, see Bisazza, supra fn 12, at 381; De Ly, supra fn 12, at 344.
67. Article 7(1), cited in the text accompanying note 11.
68. For a very similar statement, see Bonell, supra fn 26, at 74-75.
69. It has often been pointed out that the CISG's ultimate goal is the promotion of uniformity; see, e.g., Malloy, SA (1995) '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 662 at 667 note 17.
70. See Andersen 'Uniform application', supra fn 12 at 47; Bernstein, H and Lookofsky, JM (2003) Understanding the CISG in Europe (2 nd ed) Kluwer Law International at 32 f.; Flechtner, HM (2002) 'Recovering Attorneys' Fees as Damages under the U.N. Sales Convention: A Case Study o the New International Commercial Practice and the Role of Case Law in CISG Jurisprudence, with Comments on Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co.' in (22) Northwestern Journal of International Law and Business 121 at 22-123; Graffi, L (2006) 'Securing Harmonized Effects of Arbitration Agreements under the New York Convention' in (28) Houston Journal of International Law 663 at 768; Herber, R (1995) ‘Art. 7' in Schlechtriem, P (1995) Kommentar zum Einheitlichen UN-Kaufrecht (2nd ed) CH Beck 91 at 94; Komarov, supra fn 17, at 80; Lookofsky, JM (2004) 'Digesting CISG Case Law: How Much Regard Should We Have?' in (8) Vindobona Journal of International Commercial Law and Arbitration 181 at 184; Lookofsky, JM and Flechtner, HM (2005) 'Nominating Manfred Forberich: The Worst Decision in 25 Years?' in (9) Vindobona Journal of International Commercial Law and Arbitration 199 at 201; McQuillen, supra fn 12, at 511; Müller, TM and Togo, F (2005) 'Die Berücksichtigung der Überzeugungskraft ausländischer Präzedenzfälle bei der Auslegung des CISG. Die neuere Rechtsprechung als Vorreiter un Vorbild' in Internationales Handelsrecht 102 at 103; Whittington, N (2005) 'Comment on Professor Schwenzer's Paper' in Victoria University of Wellington Law Review 809 at 812; Winship, P (1995) 'Changing Contract Practices in the Light of the United Nations Sales Convention: A Guide For Practitioners' in (29) International Lawyer 525 at 528.
71. Maskow, D (1981) 'The Convention on the International Sale of Goods from the Perspective of the Socialist Countries' in La vendita internazionale, supra fn 18, 39 at 54.
72. See, for instance, Cook, VS (1997) 'The U.N. Convention on Contracts for the International Sale of Goods: A Mandate to Abandon Legal Ethnocentricity' (16) Journal of Law and Commerce 257 at 259; Darkey, JM (1995), 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' in (15) Journal of Law and Commerce 139 at 142; Hartnell, HE (1993) 'Rousing the Sleeping Dog: The Validity Exception to the Convention on Contracts for the International Sale of Goods' in (18) Yale International Law Journal at 7; Patterson, EH (1986) 'United Nations Convention on Contracts for the International Sale of Goods: Unification and the Tension Between Compromise and Domination' in (22) Stanford Journal of International Law 263 at 283; Reinhart, G (1991) UN-Kaufrecht. Kommentar zum Übereinkommen der Vereinten Nationen vom 11. April 1980 über den internationalen Warenkauf CF Müller at 30; Zeller, B (2000) 'The UN Convention on Contracts for the International Sale of Goods: A Leap Forward Towards a Unified International Sales Laws' in (12) Pace International Law Review 79 at 104.
73. At this point it may be useful to point out that the interpreters are not only the judges and arbitrators, but the contracting parties as well; for this statement, see, e.g., Enderlein and Maskow, supra fn 57, at 55, stating that '"[t]o have regard to the international character of the Convention means, above all, not to proceed in interpreting it from national juridical constructions and terms [...]. This does not only refer to judges but also to the parties which in settling their differences of opinion first and foremost have to interpret the applicable rules"(emphasis added).
74. For a reference to the language difficulties mentioned in the text, see also Salama, supra fn 12, at 239; Whittington, supra fn 70, at 812.
75. See De Ly, supra fn 12.
76. See Veneziano, supra fn 12.
77. For an overview of the early efforts undertaken, see Herber, R (1995) ‘CLOUT, Unilex und andere Veröffentlichungen zum internationalen Kaufrecht' in Recht der internationalen Wirtschaft 502 ff.; Müller and Togo, supra fn 70, at 104.
78. The Institute's home page is available at: <http://cisgw3.law.pace.edu>.
79. For a description of this as well as other Internet sites dealing with the CISG, see, e.g., Andersen, supra fn 3, at 403 ff.; Germain, CM (1996) ‘The United Nations Convention on Contracts for the International Sale of Goods: Guide to Research and Literature' in (24) Journal of Legal Information 48 ff.; Kritzer, AH (1995) "The Convention on Contracts for the International Sale of Goods: Scope, Interpretation and Resources' Cornell Review of the Convention on Contracts for the International Sale of Goods 147 ff.
80. See <http://www.cisg.at/>.
81. See <http://www.law.kuleuven.ac.be/int/tradelaw/WK/WKhome.html>.
82. See <http://www.jura.uni-sb.de/FB/LS/Witz/cisg.htm>.
83. See <http://www.uc3m.es/cisg>.
84. See <http://www.cisg-online.ch/>.
85. For a reference to other Internet sites dedicated to the CISG, see <http://www.cisg.law.pace.edu/cisg/links.html>.
86. For a comment on UNILEX as a tool to promote the CISG's uniform application, see Liguori, F (1996) ‘“UNILEX”: A Means to Promote Uniformity in the Application of CISG' Zeitschrift für europäisches Privatrecht 600 ff.
87. Bonell, MJ and Liguori, F (1996) 'The U.N. Convention on the International Sale of Goods: A Critical Analysis of Current International Case Law (Part I)' in Uniform Law Review 147 at 147 note 1.
88. See www.unilex.info.
89. Mistelis, LA (2003) 'CISG-AC Publishes First Opinion' in Internationales Handelsrecht 243 at 244.
The opinions published up to now are available at: <http://cisgw3.law.pace.edu/cisg/CISG-AC.html>.
90. This issue arose under the CISG's predecessors, the 1964 Hague Conventions, as well; see, e.g., Graveson, RH (1968) 'The International Unification of Law' in (16) American Journal of Comparative Law 4 at 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, supra fn 26, at 89. See, however, Salama, supra fn 12, at 250: "A supranational tribunal dealing with questions of interpretation along with a structured, but evolving, guideline of what courts should consider "general principles"will help in overcoming the problems of over-reliance on domestic laws."
91. See the Report of the United Nations Commission on International Trade Law on the Work of its Twenty-First Session, 11-22 April 1988, UNCITRAL Yearbook, 1988, p. 98 ff.
92. Honnold, supra fn 19, at 98.
93. This collection of abstracts is also available on the Internet at: <http://www.uncitral.org>.
94. For a reference to this procedure, see also Bonell, MJ (1990) 'International Uniform Law in Practice -- Where the Real Trouble Begins' in (38) American Journal of Comparative Law 865 at 878; Herber and Czerwenka, supra fn 23, at 48.
95. See the Report of the United Nations Commission on International Trade Law on the Work of its thirty-fourth session, 25 June - 13 July 2001, UNCITRAL Yearbook, 2001, p. 59.
96. The authors of the Digest are Professors Flechtner, Magnus, Winship, Witz and Ferrari.
97. The English text of the Digest is available on the Internet at: <http://www.uncitral.org/uncitral/en/case_law/digests/cisg.html>.
98. U.N. document A/CN.9/562, p. 4, available at <http://daccess-ods.un.org/TMP/643864.5.html>.
100. For a more detailed examination of the UNCITRAL Digest project, see most recently Friehe, HA 'The Draft UNCITRAL Digest and Beyond' in Internationales Handelsrecht 175 f.
101. Tribunale di Rimini (Italy), 26 November 2002, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/021126i3.html>.
102. See U.S. District Court, Southern District of New York, 23 August 2006 (TeeVee Tunes, Inc. et al v. Gerhard Schubert GmbH) available at: <http://cisgw3.law.pace.edu/cases/060823u1.html#ii1>.
103. See U.S. District Court, Southern District of New York, 1 June 2006 (Multi-Juice, S.A. v. Snapple Beverage Corp.) available at: <http://cisgw3.law.pace.edu/cases/060601u1.html>.
104. For a detailed paper on this issue, see Ferrari, F (2000) 'Der Vertriebsvertrag als vom CISG (nicht) erfaßter Vertragstyp' in European Legal Forum 7 ff.
105. See also Chicago Prime Packers case supra fn 36, expressly referring to the UNILEX web-site as the source from which it drew the foreign case it cited.
106. MCC-Marble case supra fn 38.
108. See, e.g, Kantonsgericht Appenzell Ausserrhoden (Switzerland), 9 March 2006, available at: <http://www.cisg-online.ch/cisg/urteile/1375.pdf>.
109. See Bundesgerichtshof (Germany), 30 June 2004, available at: <http://cisgw3.law.pace.edu/cases/040630g1.html>.
110. See Oberlandesgericht Karlsruhe (Germany), 20 July 2004, available at: <http://cisgw3.law.pace.edu/cases/040720g1.html>.
111. See Oberlandesgericht Düsseldorf (Germany), 28 May 2004, available at: <http://cisgw3.law.pace.edu/cases/040528g1.html>.
112. Most recently see Tribunale di Rovereto (Italy), 24 August 2006, available at: <http://www.cisg-online.ch/cisg/urteile/1374.pdf>.
113. See Tribunale di Padova (Italy), 10 January 2006, available at: <http://cisgw3.law.pace.edu/cases/060110i3.html>; Tribunale di Padova (Italy), 11 January 2005, available at: <http://www.unilex.info/case.cfm?pid=l&=case&id=1005&step=FullText>; Tribunale di Padova (Italy), 31 March 2004, available at: <http://cisgw3.law.pace.edu/cases/040331i3.html>; Tribunale di Padova (Italy), 25 February 2004, available at: <http://cisgw3.law.pace.edu/cases/040225i3.html>; Tribunale di Rimini (Italy), 26 November 2002, available at: <http://cisgw3.law.pace.edu/cases/040225i3.html>; Tribunale di Vigevano (Italy), 12 July 2000, available at: <http://cisgw3.law.pace.edu/cases/000712i3.html>.
114. Tribunale di Rovereto (Italy), 24 August 2006, available at: <http://www.cisg-online.ch/cisg/urteile/1374.pdf>.
115. For papers on this decision, see Ferrari, F (2001) 'Problematiche tipiche della Convenzione di Vienna sui contratti di vendita internazionale di beni mobili risolte in una propsettiva uniforme' in Giurisprudenza Italiana 281ff.; Ferrari, F (2001) 'Applying the CISG in a Truly Uniform Manner: Tribunale di Vigevano (Italy), 12 July 2000' in Uniform Law Review 203 ff.; Ferrari, F (2001) 'Tribunale di Vigevano: Specific Aspects of the CISG Uniformly Dealt with' in (20) Journal of Law and Commerce 225 ff.; Ferrari, F (2001) 'Internationales Kaufrecht einheitlich ausgelegt' in lnternationales Handelsrecht 56 ff.; Mazzotta, FG (2003) 'The International Character of the UN Convention on Contracts for the International Sale of Goods: An Italian Case Example' in (15) Pace International Law Review 437 ff.; Rosati, F (2001), ‘Anmerkung zu Trib. Vigevano' in Internationales Handelsrecht 78 ff.; Veneziano, A (2001) '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' in Diritto del commercio internazionale 509 ff.
116. In its decision, the court referred to court decisions from Austria, France, Germany, the Netherlands, Switzerland and the United States.
117. In its decision, the court referred two ICC arbitral awards.
118. Mazzotta, above n. 115, at 438.
119. Sant'Elia, C 'Editorial Remarks' available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/000712i3.html>.
120. See Tribunale di Rimini (Italy) 26 November 2002, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/021126i3.html>
121. For favourable comments on the decision of the Tribunale di Rimini, see Ferrari, F (2004) ‘International Sales Law and the Inevitability of Forum Shopping: A Comment on Tribunale di Rimini' in (8) Vindobona Journal of International Commercial Law and Arbitration 1 ff.; Graffi, L (2003) 'Spunti in tema di vendita internazionale e forum shopping' in Diritto del commercio internazionale 807 ff.; Mecarelli, G (2003) ‘A propos du caractère inévitable du Forum Shopping dans la vente internationale’ in Revue de droit des affaires internationales 935 ff.
122. In its decision, the Tribunale di Rimini referred to court decisions rendered in Austria, Belgium, France, Germany, Switzerland, the Netherlands and the United States, as well as one Hungarian arbitral award.
123. Tribunale di Padova (Italy), 25 February 200 , available at: <http://cisgw3.law.pace.edu/cases/040225i3.html>.
124. Tribunale di Padova (Italy), 31 March 2004, available at: <http://cisgw3.law.pace.edu/cases/040331i3.html>; for a comment, see Ferrari, F (2004) 'La disciplina sostanziale della vendita internazionale ed il saggio d'interessi' in Giurisprudenza di merito 1069 ff.
125. Tribunale di Padova (Italy), 11 January 2005 available at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=1005&step=FullText>.
126. See Tribunale di Padova (Italy), 10 January 2006, available at: <http://cisgw3.law.pace.edu/cases/060110i3.html>.
127. See Tribunale di Rovereto (Italy), 24August 2006, available at: <http://www.cisg-online.ch/cisg/urteile/1374.pdf>.
128. Chicago Prime Packers case supra fn 36.
129. In its decision, the U.S. District Court referred to decisions rendered by Dutch, German and Italian courts.
130. See Chicago Prime Packers case supra fn 36: 'That decision and the other foreign decisions cited in this opinion have not been translated into English and, as a result, cannot be cited directly by this court. Instead, this court relies upon the detailed abstracts of those decisions provided by UNILEX, an "intelligent database"of international case law on the CISG. All of the abstracts cited herein are available at <http://www.unilex.info/>".
131. Teiling, A (2004) 'Case Analysis of Chicago Prime Packers v. Northam Food Trading' in Uniform Law Review 431 at 435.
132. See U.S. District Court, Western District Washington at Tacoma, 13 April 2006 (Barbara Berry, S.A. de C.V. v. Ken At: Spooner Farms, Inc.) 2006 WL 1009299 (W.D. Wash.) citing one Swiss court decision; U.S District Court, Eastern District of Pennsylvania, 29 March 2004 (Amco Ukrservice & Prompriladamco v. American Meter Company) 2004 WL 692233 (E.D.Pa.) citing two German decisions, both of which were taken from the Pace University website: referred in n 78; U.S. District Court for the Northern District of Illinois, Eastern Division, 28 March 2002 (Usinor Industeel v. Leeco Steel Products) 209 F.Supp. 2d 880 citing one Australian case; U.S. District Court for the Southern District of New York, 26 March 2002 (St. Paul Guardian Insurance Company et al. v. Neuromed Medical Systems & Support et al.) WL 465312 (S.D.N.Y.) referring to 3 German cases; and Medical Marketing case supra fn 42 citing one decision rendered by the German Supreme Court.
It should be noted that from the text of two US Court decisions one can gather that these two courts had looked at foreign decisions before rendering their decisions; see U.S. District Court, Western District of Michigan, Southern Division, 17 December 2001 (Shuttle Packaging Systems v. Tsonakis et al.) 2001 WL 34046276 (W.D.Mich.) at *8, stating that "The international cases cited by Defendants are not apposite to this discussion because they concern the inspection of simple goods and not complicated machinery like that involved in this case"; U.S. District Court, Northern District of Illinois, Eastern Division, 28 August 2001, (Zapata Hermanos v. Hearthside Baking) 2001 WL 1000927 (N.D. Ill) at *4, stating that "That distorted reading of the language is clearly refuted by the decisions cited at [seller] Mem. 4 from other countries' courts and arbitral tribunals."
In one case, a federal Court of Appeals referred to its unsuccessful efforts to locate foreign court decisions on the issue it had to deal with; see MCC-Marble case supra fn 38.
133. For critical comments see also Hartwig, JR (2003) 'Schmitz-Werke & Co. v. Rockland Industries Inc. and the United Nations Convention on Contracts for the International Sale of Goods (CISG): Diffidence and developing International Legal Norms' in (22) Journal of Law and Commerce 77 at 98.
134. See Chicago Prime Packers case supra fn 36, stating that "there is little case law under the CISG"); U.S. District Court, Northern District of Illinois , Eastern Division, 29 January 2003 (Ajax Tool Works. Inc v. Can-Eng Manufacturing Ltd) 2003 Westlaw 22187 (N.D.Ill., Jan 30, 2003), stating that "case law interpreting and applying the CISG is scant"; Usinor case supra fn 132 (stating the same); MCC-Marble case supra fn 38 stating that "[d]espite the CISG's broad scope, surprisingly few cases have applied the Convention"; U.S. District Court, Northern District of California, San Francisco Division, 30 January 2001 (Supermicro Computer v. Digitechnic) 2001 U.S. Dist. LEXIS 7620 (stating the same); U.S. District Court, Southern District of New York, 6 April 1998 (Calzaturificio Claudia v. Olivieri Footwear) 1998 Westlaw 164824 stating that "there is little to no case law on the CISG in general"; U.S. District Court, Southern District of New York, 21 July 1997 (Helen Kaminski v. Marketing Australian Products) Westlaw 414137 (stating the same); U.S. District Court, Southern District of New York, 14 April 1992 (Filanto v. Chilewich) 789 F. Supp. 1229, 1237 (S.D.N.Y. 1992) stating that "there is as yet virtually no U.S. case law interpreting the Sale of Goods Convention"; U.S. Circuit Court of Appeals (2d. Cir.), 6 December 1995 (De[chi Carrier Spit v. Rotorex Corp.) 71 F.3d 1024, 1027-28 (2d Cir. 1995) observing that "there is virtually no case law under the Convention"; for a similar (incorrect) statement in legal writing, see Brannelly, JM (2002) 'The United States Grant of Permanent Normal Trade Status to China: A Recipe for Tragedy or Transformation?' in (25) Suffolk Transnational Law Review 565 at 572-573 and Pistor, K (2002) 'The Standardization of Law and Its Effect of Developing Economies' in (50) American Journal of Comparative Law 97 at 111.
135. U.S. District Court, Northern District of Illinois, Eastern Division, 6 July 2004 (Raw Materials Inc. v. Manfred Forberich GmbH & Co. KG.), 2004 WL 1535839 (N.D.Ill).
136. Rechtbank van Koophandel Hasselt (Belgium), 6 March 2002, available at: <http://www.law.kuleuven.ac.be/ipr/eng/cases/2002-03-06s.html>.
137. See Rechtbank van Koophandel Hasselt (Belgium), 28 April 1999, available at: <http://www.law.kuleuven.ac.be/ipr/eng/cases/1999-04-28.html>; Rechtbank van Koophandel Hasselt (Belgium), 2 December 1998, available at: <http://www.unilex.info/case.cfm?pid=1&do=case&id=809&step=FullText>.
138. See Oberlandesgericht Karlsruhe (Germany), 8 February 2006, available at: <http://www.cisg-online.ch/cisg/urteile/1328.pdf>, citing a Swiss Supreme court decision as well as a decision rendered by a U.S. district court; Landgericht Neubrandenburg (Germany), 3 August 2005, available at: <http://cisgw3.law.pace.edu/cases/050803g1.html>, citing one Russian arbitral award; Oberlandesgericht Karlsruhe (Germany), 20 July 2004, available at: <http://www.cisg-online.ch/cisg/urteile/858.pdf>, citing a decision rendered by the Austrian Supreme Court; Landgericht Trier (Germany), 8 January 2004, available at: <http://cisgw3.law.pace.edu/cases/0401081.html>, citing a US court decision; Oberlandesgericht Köln (Germany), 14 October 2002, available at: <http://www.cisg-online.ch/cisg/urteile/709.htm>, citing a Swiss Supreme Court decision as well as a decision by the Austrian Supreme Court.
139. See Bundesgerichtshof (Germany), 2 March 2005, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/050302gl.html>, citing two decisions from the Austrian Supreme Court; Bundesgerichtshof (Germany), 30 June 2004, available at: <http://www.cisg-online.ch/cisg/overview.cfm?test=847>, citing a Dutch and a Canadian decision, as well as an ICC arbitral award and an award of the Arbitral Tribunal of the Stockholm Chamber of Commerce; Bundesgerichtshof (Germany), 31 October 2001, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/011031g1.html>, citing one decision of the Austrian Supreme Court.
140. See also Kantonsgericht Appenzell Ausserrhoden (Switzerland), 9 March 2006, available at: <http://www.cisg-online.ch/cisg/urteile/1375.pdf>, citing one German and one Austrian decision; Handelsgericht Aargau (Switzerland), 5 November 2002, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/021105s1.html>, citing one German court decision; see also Obergericht Kanton Luzern (Switzerland), 8 January 1997, available at: <http://cisgw3.law.pace.edu/cases/97108s1.html>, where the court, in dealing with the timeliness of the notice of non-conformity, referred to German, Dutch and US practice, without, however, quoting specific cases.
141. See Bundesgericht (Switzerland), 13 November 2003, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/031113s1.html>, citing two decisions rendered by the German Supreme Court, one rendered by a German court of appeals as well as one rendered by a Belgian court of appeals; Bundesgericht (Germany), 28 October 1998, available at: <http://www.cisg-online.ch/cisg/urteile/413.htm>, citing a decision rendered by the German Supreme Court.
142. See Oberster Gerichtshof (Austria), 25 January 2006, available at: <http://cisgw3.law.pace.edu/cases/060125a3.html>, citing one German Supreme court decision; Oberster Gerichtshof (Austria), 13 April 2000, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/000413a3.html>, citing one decision rendered by the German Supreme Court; see also Oberster Gerichtshof (Austria), 15 October 1998, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/981015a3.html>, citing one decision rendered by the German Supreme Court; Oberster Gerichtshof (Austria), 6 February 1996, available at: <http://cisgw3.law.pace.edu/cisg/wais/cases2/960206a3.html>, citing one German decision.
143. See Supreme Court of Queensland (Australia) 17 November 2000 (Downs Investments v. Perwaja Steel) available: at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/001117a2.html>, citing a US court decision.
144. See Supreme Court of Justice, Ontario (Canada) 6 October 2003 (Diversitel v. Glacier) available at: <http://cisgw3.law.pace.edu/ci wais/db/cases2/031006c4.html>, citing a German court decision.
145. See Maritime and Commercial Court of Copenhagen (Denmark), 31 January 2002, available at: <http://www.cisg.dk/DANISH_COMMERCIAL_COURT31012002.htm>, citing two Dutch decisions and a German one.
146. See Cour d'Appel de Grenoble (France), 23 October 1996, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/961023f1.html>.
147. Andersen, Uniform application, supra fn 12, a 51.
148. Bonell, supra fn 26, at 91.
149. Dimatteo, LA (1997) 'An International Contract Law Formula: The Informality of International Business Transactions Plus the Internationalization of Contract Law Equals Unexpected Contractual Liability, L=(II)2' (23) Syracuse Journal of International Law and Commerce 67 at 79; it has been pointed out that the bracketed words referred to in the text only refers to part of the quote; in this respect see Dimatteo, LA and others (2005) International Sales Law. A Critical Analysis of CISG Jurisprudence Cambrige University Press at 4, where it is pointed out that the full statement refers to "informal supranational stare decisis". In this authors' opinion, this only adds to the confusion.
150. Dimatteo, LA (1997) 'The CISG and the Presumption of Enforceability: Unintended Contractual Liability in International Business Dealings' in (22) Yale Journal of International Law 111 at 133.
152. Grosswald Curran, V (1996) 'The Interpretive Challenge to Uniformity' in (15) Journal of Law and Commerce 175 at 177.
153. For similar remarks, albeit with reference to a different uniform law convention, see Canaris, CW (1987) 'Die Bedeutung allgemeiner Auslegungs- und Rechtsfortbildungskriterien im Wechselrecht' in JuristenZeitung 543 at 543.
154. For an overview of cases applying the rate of interest of the domestic law applicable by virtue of the rules of private international law, see Ferrari, F (2003) 'Verzugszinsen nach Art. 78 UN-Kaufrecht' in Internationales Handelsrecht 153 ff.
155. See Oberlandesgericht Frankfurt (Italy), 20 April 1994, available at: <http://www.cisg-online.ch/cisg/urteile/125.htm>. In deciding dispute regarding the sale of New Zealand mussels by a Swiss seller to a German buyer, the court expressly referred to the need to interpret the CISG by having regard to its international character and the need for the promotion of the CISG's uniform application in Contracting States.
156. For this conclusion, see also Diedrich, supra fn 13, at 356; Flechtner, supra fn 70, at 124; Gebauer, M (2000) 'Uniform Law, General Principles and Autonomous Interpretation' in Uniform Law Review 683 at 690; Gillette, CP and Scott, RE (2005) 'The Political Economy of International Sales' in (25) International Review of Law and Economics 446 at 479; Graffi, supra fn 70, at 769; Janssen, A (2004) 'Die Einbeziehung von allgemeinen Geschäftsbedingungen in internationale Kaufverträge und die Bedeutung der UNIDROIT- und der Lando-Principles' in Internationales Handelsrecht 194 at 199; Koneru, supra fn 12, 109; Kramer, supra fn 12, at 146; Lookofsky and Flechtner, supra fn 70, at 201; Magnus, supra fn 12, at 123; Mazzotta, FG (2005) 'Why Do Some American Courts Fail to Get it Right?' in (3) Loyola University Chicago International Law Review 85 at 91; Müller and Togo, supra fn 70, at 103; Schmid, C (1996) Das Zusammenspiel von Einheitlichem UN-Kaufrecht und nationalem Recht: Lückenfüllung und Normenkonkurrenz Duncker & Humblot at 65; Schmid, supra fn 16, at 112; Zeller, supra fn 72, at 90; see also Lookofsky, JM (2004) 'CISG foreign case law: how much regard should we have?' in Ferrari, Flechtner, and Brand (eds.) The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention Sellier European Law Publishers/Sweet&Maxwell at 216 at 218, suggesting that "foreign court decisions at most have "persuasive (non-binding) value".
157. Article 7(1) CISG (emphasis added).
158. Enderlein and Maskow, supra fn 57, at 56.
159. Tribunale di Pavia (Italy), 29 December 1999, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/991229i3.html>.
160. Tribunale di Vigevano (Italy), 12 July 2000, available at: <http://cisgw3.law.pace.edu/cases/000712i3.html>.
161. Tribunale di Rimini (Italy), 26 November 2002, available at: <http://cisgw3.law.pace.edu/cisg/wais/db/cases2/021126i3.html>, stating that "uniform application and interpretation of the CISG [are promoted] through reference to the case law of different countries. The goal of uniformity can be advanced even if the court decisions and arbitral awards of other countries, which should be taken in consideration by judges, have only persuasive and not binding value"(emphasis added by the author).
162. See Tribunale di Padova (Italy), 25 February 2004, available at: <http://cisgw3.law.pace.edu/cases/040225i3.html>.
163. See Tribunale di Padova (Italy), 10 January 2006, available at: <http://cisgw3.law.pace.edu/cases/060119i3.html>.
164. Chicago Prime Packers case supra fn 36. See also Usinor case supra fn 132, where the court stated, after referring to an Australian decision, that "[w]hile this case is far in distance from the present jurisdiction, commentators on the CISG have noted that courts should consider the decisions issued by foreign courts on the CISG".
165. TeeVee Tunes case supra fn 102.
166. See Ferrari, F (1998) 'Remarks on the Autonomy and the Uniform Application of the CISG on the Occasion of its Tenth Anniversary' in International Contract Advisor 33 at 33.
167. Bundesgerichtshof (Germany), 30 June 2004, available at: <http://cisgw3.law.pace.edu/cases/040630g1.html>.
168. Chicago Prime Packers case supra fn 36.