Go to Database Directory || Go to Bibliography || Go to Annotated Text of Art. 7 CISG


Reproduced with permission of Uniform Law Review (2000-4) 683-705

Uniform Law, General Principles and Autonomous Interpretation

Martin Gebauer [*]


I.
II.
 
 
 
 
 
III.
 
 
 
 
 
 
 
 
IV.

Introduction
Uniform Application and Autonomous Interpretation of Uniform Law
1.  Different ways to avoid the international splitting of uniform law
2.  What is autonomous interpretation?
3.  The scope of autonomous interpretation in different Conventions
4.  Comparative law as an instrument of interpretation
5.  Differences between uniform application and autonomous interpretation of uniform law
Uniform Law and General Principles
1.  Different Concepts of legal principles
2.  Internal and external principles
3.  Gaps, analogy and internal principles
4.  Gaps and the Vienna Sales Convention
5.  The grading of arguments
6.  Autonomous interpretation and gap-filling in practice
7. Grading of arguments revised
8.  Autonomous interpretation and general principles
Autonomous Interpretation as a Rule of Preference in Favour of Certain Arguments

I. INTRODUCTION

International uniform law needs to be interpreted in a manner that differs somewhat from our usual understanding of other legal instruments, i.e. rules based on national law alone. Thus, many Conventions, such as the Vienna Sales Convention (CISG) and the Rome Convention on the Law Applicable to Contractual Obligations, contain a specific rule of interpretation dealing with the international character of the Convention and with its aim of promoting uniformity in applying its rules. Having regard to the international pedigree of the rules means that they are to be interpreted in a uniform and "autonomous" manner. The present article sets out to examine the methodology of autonomous interpretation, its instruments and purposes, and the usefulness of different kinds of "general principles". It will be shown that autonomous interpretation, like any other form of legal interpretation, is a kind of argumentation. Autonomous interpretation of uniform law differs from other kinds of interpretation in that its arguments are based on specific systematic and teleological elements. It also differs from uniform interpretation in that it transcends the uniform application of unified rules in scope. To illustrate these differences and to describe the specific aims of autonomous interpretation, the first part of this article discusses the elements and arguments commonly used in favor of autonomous interpretation, including the role that comparative law can play in promoting a common understanding of the unified rules (Chapter II). Chapter III then goes on to analyze to what extent autonomous interpretation may be inspired by "general principles". What are these general principles, where do they come from, and how can they be applied? External principles can be taken from a domestic law or a group of legal orders, from another Convention or from a model law, e.g. the UNIDROIT Principles of International Commercial Contracts. Internal principles may be found within the Convention itself, in its legislative history, in the underlying aims of the uniform law, and in the ratio of the single applicable rules; they can also be established by analogy with other conventional rules not directly applicable but providing for a certain conflict of interests in a manner seemingly fit to be applied to other cases as well. What are the differences and relationships between autonomous interpretation, the filling of gaps within a Convention, and recourse to internal and external principles? Chapter III seeks to demonstrate the use of these devices by discussing a German court [page 683] decision regarding the combined application of the Brussels and the Vienna Conventions. Finally, the method of autonomous interpretation will be reviewed in the context of legal interpretation in general, with its literal, historical, systematic and teleological elements. While autonomous interpretation seems to focus above all on systematic and teleological arguments, it is not a method of interpretation like the traditional "canones" applied in other exegeses. Rather, it may be qualified as a rule of preference in favor of certain arguments (Chapter IV).

II. UNIFORM APPLICATION AND AUTONOMOUS INTERPRETATION OF UNIFORM LAW

1. Different ways to avoid the international splitting of uniform law

It seems self-evident that to achieve the purpose of any legislative unification of private law a certain degree of uniformity in applying the unified rules must be guaranteed as well. In practice, however, uniform application is not self-evident. National courts and jurists tend to resolve the problems that arise in applying uniform law by treating them as they would in applying domestic law.[1] And it is indeed true that the solutions adopted by a given Convention do not always emerge as more appropriate and just than those that might be reached by applying domestic law. The "re-nationalization" of once-unified law has been qualified as the great disillusionment of legal unification in the 20th century.[2] To prevent this drift and stave off "re-nationalization" in applying what was meant to be unified law, the drafters of international Conventions have two different devices at their disposal. The first is highly efficient but rarely practiced because of its technical and institutional difficulties:[3] the establishment of a common court for the authoritative interpretation of the uniform law in question. To establish such a court is well-nigh impossible when there are many Contracting States involved that lack a common institutional basis, as in the case of the Vienna Sales Convention. On the other hand, such a common court exists for a very important Convention between the member States of the European Community. The European Court of Justice is authorized to give rulings on the interpretation of the Brussels Convention [4] in matters expressly referred to it by the national courts of the individual Contracting [page 684] States [5] and in so doing has helped to shape the Convention and it application by national courts over the decades. Many of the Convention's revisions by the Contracting States were nothing but a codification of the Court's earlier rulings.[6]

The second device to promote uniform application by national courts is to insert a specific interpretation rule with a view to emphasizing the Convention's international character and specific aims. Many Conventions, e.g. the Rome Convention (Article 18), the UNIDROIT Convention on International Factoring (Article 4)[7] and the UNIDROIT Convention on International Financial Leasing (Article 6)[8] as well as the UNIDROIT Principles of International Commercial Contracts (Article 1.6), in fact contain such a rule.[9] Article 7(1) CISG is highly representative and of great practical significance:

"In the interpretation of this Convention, 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".[10]

In the present context, the principle of good faith may be ignored, whereas the first and second principles, i.e. the international character of the Convention and the need to promote uniformity in its application, are particularly significant.

Does Article 7(1) CISG offer any methodological assistance or advice on how to "have regard" to international character and how to promote uniformity? While the rule does not appear to answer any methodological question,[11] confining itself to stating principles,[12] the application of a principle is itself a methodological question. [page 685]

Since there is no supranational court authorized to give rulings on the interpretation of CISG, the solution of methodological problems is a task of ordinary adjudication. The first principle -- that of having regard to the international character of the Convention -- requires an autonomous interpretation,[13] i.e. one that considers the Convention as an autonomous set of rules, independent from the concepts and meanings of a particular legal system, e.g. the domestic law of the court. The principle of autonomous interpretation is linked to the second principle, that of uniform application,[14] because the autonomous interpretation of uniform law promotes uniformity of application.[15] Yet there are some differences.[16] On the one hand, autonomous interpretation of a Convention is no guarantee of its uniform application, since in difficult cases different courts are likely to give different "autonomous" interpretations of the same rules, even while at pains not to refer to anyone national legal system.[17] On the other hand, uniform application is not always based on autonomous interpretation, and sometimes autonomous interpretation requires more than merely trying to reach a uniform solution. The principle of autonomous interpretation and the principle of uniform application can favor different results, and it is not at all obvious that in case of conflict between the two principles it is invariably the latter that prevails.[18]

2. What is autonomous interpretation?

As mentioned above, an interpretation may be qualified as "autonomous" if it does not proceed by reference to the meanings and particular concepts of a specific domestic law.[19] However, this is a negative definition, stating that regard is not to be had to a particular external concept. The autonomous interpretation of uniform law can also be defined in a positive sense.[20]

The Convention's terms and concepts are to be interpreted [page 686] in the context of the Convention itself.[21] If they are to be regarded as independent terms and concepts, they must be interpreted by reference to the Convention's own system and objectives. Autonomous interpretation, in this sense, may be said to rest on systematic and teleological arguments. This does not mean that in interpreting uniform law other elements, such as literal or historical considerations, are less important, only that they do not constitute the autonomy of the interpretation. If a certain term or concept is well-known in domestic law, and the same term or concept is used in a Convention but with a different meaning,[22] the difference in interpretation is not a literal argument, not a matter of different meanings of the words.[23] If a Convention is drafted in more than one language, autonomous interpretation requires that the literal meaning in all authentic versions is taken into account. But the imperative not to focus on one single language, with its specific literal meaning, does not follow from any literal argument, but is dictated by the need to give an independent interpretation to the Convention. Likewise, if the legislative history of the uniform law favor a certain interpretative choice that differs from the solutions offered by domestic law, it is not that history that promotes autonomy of interpretation. It is merely an argument in favor of a certain choice of interpretation, not of an independent solution. Thus, autonomous interpretation is not a method of interpretation in addition to other methods such as literal, historical, teleological or systematic interpretation. Rather, it would seem to be a principle of interpretation that gives preference to a particular kind of teleological and systematic argument in interpreting a legal text.[24]

3. The scope of autonomous interpretation in different Conventions

It is interesting to see how the autonomous interpretation of uniform law can, at least in theory, play different roles in different Conventions. According to Article 7(2) CISG, recourse to domestic law may only be had in order to fill a gap in CISG rules, and only if such a gap cannot be filled autonomously, i.e. filled in conformity with the Convention's general principles, may the unsolved question be settled in conformity with the national law applicable by virtue of the rules of private international law.[25] In all questions concerning a matter governed by the Convention, the first step is always to seek a solution on the grounds of the Convention, even if there is a gap. Within the ambit of CISG, and in matters governed by the Convention, the domestic law should never be resorted to for the purposes of interpretation in a narrow sense (i.e. excluding [page 687] the application of a rule by analogy). And even for the purposes of gap-filling, recourse to domestic law constitutes an ultima ratio,[26] occurring only if a general, autonomous principle cannot be derived from CISG.

By contrast, the interpretation of the Brussels Convention often requires recourse to concepts of national law. Sometimes these concepts are to be determined by virtue of the private international law rules of the forum, sometimes by the internal law of each Contracting State.[27] Yet it is always the Convention that applies; the national law in these cases only serves to determine the concepts, the single terms used by the Convention.[28] This would appear to indicate a difference in the legal structure of the Brussels and the Vienna Conventions. The Vienna Convention is always to be interpreted in favor of an autonomous solution, and where it applies, national law is kept to hand in case the concepts of the Convention's single rules need to be determined. By contrast, national courts applying the Brussels Convention must approach the autonomous interpretation in two steps:[29] (1) they must ask whether or not the concepts of the uniform law (according to the rulings of the European Court of Justice) must be determined by recourse to national law; (2) they must apply the Conventional rule by using either the national or the autonomous concept, and establish whether the issue at hand is governed by the Convention. If it is true that autonomous interpretation is a principle of preference for a certain type of argument, then in applying the Brussels Convention this principle is directed in the first place to the Court of Justice with a view to promoting autonomous interpretation in all Contracting States.

In a great number of cases, however, the Court of Justice has been able to develop the Convention's autonomous concepts.[30]

Article 5(1) is as an example of a Conventional rule which is to be interpreted in part by recourse to a national concept, and in part on the basis of the autonomous meaning of the uniform law previously established by the Court's rulings. Article 5(1) provides a ground of special jurisdiction in relation to contract cases and reads as follows:

"A person domiciled in a Contracting State may, in another Contracting State, be sued: In matters relating to a contract, in the courts for the place of performance of the obligation in question; [...]."

Three questions arise in connection with this rule: (1) What is the scope of "matters relating to a contract"; (2) What is the meaning of "obligation in question"; [page 688] and (3) How can the "place of performance" of that obligation be ascertained? The Court has given autonomous interpretations of "matters relating to a contract"[31] and to "obligation in question",[32] but not on "place of performance", which is to be determined by recourse not to the lex fori, but to the lex causae, i.e. the national law applicable by virtue of the private international law rules of the forum.[33] Since all Contracting States of the Brussels Convention have adopted the Rome Convention on the Law Applicable to Contractual Obligations, the applicable substantive law for determining the place of performance in a single case should always be the same, regardless of the Contracting State in which the action is brought. However, the national substantive laws of the Contracting States differ considerably when it comes to determining the place of performance. Under Italian law, for example, money debts are payable at the creditor's place of business,[34] under German law, by contrast, at the debtor's.[35] Article 57(1)(a) of the Vienna Sales Convention provides that the buyer in general must pay the price to the seller at the seller's place of business. In Custom Made Commercial v. Stawa Metallbau GmbH,[36] the EC Court of Justice held that to determine the place of performance under the Brussels Convention, recourse was to be had to the applicable substantive law even if the contract was governed by the Vienna Sales Convention. In so doing, the Court agreed to establish a special ground of jurisdiction at the plaintiff's place of business where the contract is governed by the Vienna Sales Convention and where it is the seller bringing the action. It is very doubtful if this conclusion is in accordance with "the ratio and aims of the Brussels Convention.[37] This issue will be further examined [38] in discussing the interplay of different Conventions and the conflict of principles. [page 689]

4. Comparative law as an instrument of interpretation

Comparative law plays an important part in both autonomous and uniform interpretation. Uniform law without at least some degree of uniform application loses its uniform character, and uniform application of course requires comparative research. However, a distinction must be made between foreign court decisions (and scholarly writings) regarding the interpretation of uniform law on the one hand, and foreign solutions regarding domestic law on the other hand.[39] Foreign court decisions on uniform law must indeed be taken into account.[40] They can serve as arguments to help find the proper solution to an open interpretative question and, as input to the international debate, may also serve as persuasive authority.[41] Yet they have no binding character,[42] and even if uniform application were to be served by following foreign precedents by virtue of an international stare decisis,[43] their having binding character would not promote the quality of interpretation.[44]

Uniform application of a Convention is not the sole aim of autonomous interpretation.[45]

Foreign domestic law can also play a limited [46] role for the purposes of autonomous interpretation. National solutions of a legal problem can serve as an argument in the context of uniform law. There is no need for autonomous interpretation to eschew inspiration from a national legal order. Even the interpretative arguments used to solve the same problem in the lex fori cannot be excluded a priori if they are convincing in terms of uniform law. However, the concepts of a specific domestic law should be approached with due caution in connection with autonomous interpretation. The Comments to the UNIDROIT Principles of International Commercial Contracts speak clear language in this regard:

"[...] Even in the exceptional cases where terms or concepts peculiar to one or more national laws are employed, the intention was never to use them in their traditional meaning."[47] [page 690]

In order to give an autonomous interpretation to the Brussels Convention, the European Court of Justice has been known to refer to "the general principles which stem from the corpus of the national legal systems."[48] Such comparative research using "general principles" from the "common core" of national legal systems [49] would seem to be feasible in Conventions involving a limited number of Contracting States sharing a common legal, economic and cultural basis, such as the Member States of the European Community.[50] This technique of employing common national solutions in order to promote autonomous interpretation is further examined infra, in the context of uniform law and general principles.[51]

5. Differences between uniform application and autonomous interpretation of uniform law

It is quite often stated that

"[t]he principle objective of an international Convention is to achieve uniformity of legal rules within the various States Party to it."[52]

Indeed, uniform rules that are not applied uniformly lose their uniform character. But if uniform application is the supreme goal of law-unifying Conventions,[53] autonomous interpretation by the principles of interpretation provided in public international law, i.e. Articles 31-33 of the Vienna Convention on the Law of Treatises:[54] [page 691]

"In contrast to autonomous methods of interpretation, these rules not only allow, but require consideration of foreign case law, thus promoting uniform application of the Convention and thereby serving legal predictability and security."[55]

However, uniformity of result is not the sole objective of interpreting uniform law, nor does it seem to be the supreme goal. The solution must be not just uniform, but right,[56] and whether an interpretative solution seems right or wrong depends on its justification. Interpretation is a matter of well-argued choice between different interpretative alternatives.[57] If a certain interpretative solution and its inherent choice are convincingly argued, the solution appears to be the right one. When uniform law is interpreted autonomously, the justification of a certain interpretative result is based on arguments that consider both the (independent) purposes of the Convention and the need to find solutions acceptable to the other Contracting States. An interpretation of uniform law that contrasts with the aims of autonomous interpretation, or cannot be justified in its interpretative choice for other reasons, is not convincing. Domestic and foreign decisions that are not convincing in substance cannot constitute a persuasive authority. The meaning of foreign precedents therefore depends on the quality of the decisions. The random priority in time of a foreign decision does not of itself constitute a difference [58] if it is not the reasoning which is "binding" in the arguments.[59] However, a great number of common foreign precedents may be said to constitute a strong presumption in favor of the arguments used by the foreign courts.[60]

Lord DENNING was prepared to follow foreign courts' decisions even in case of disagreement. In Corocraft v. Pan Am he said that

"[t]he decisions of those courts are entitled to the highest respect. I find myself in entire agreement with them. Even if I disagreed, I would follow them in a matter which is of international concern. The courts of all countries should interpret this Convention [the Warsaw Convention] in the same way."[61] [page 692]

Noble though Lord Denning's position be, it would be going too far not to query interpretations that really ought to be changed.[62] The flexibility of uniform law is another argument against the binding character of foreign precedents. Many Conventions, especially world-wide ones covering many Contracting States, e.g. the Vienna Sales Convention, are most unlikely to be changed by any legislator within the next twenty to thirty years.[63] Yet the law needs to be developed.[64] If national courts were prevented from seeking better and different solutions to a given problem, the application of uniform law would become even more rigid, so defeating its purpose. The interpretation of uniform law stands or falls by an exchange of different ideas in order to develop autonomous solutions.

III. UNIFORM LAW AND GENERAL PRINCIPLES

1. Different concepts of legal principles

The concept of general principles, as commonly used with regard to uniform law, differs somewhat from the discussion about principles in legal theory.[65] In legal theory, the distinction between rules and principles has grown very important in recent decades.[66] A modern approach is to regard this distinction as a matter of quality.[67] Rules are to be either applied, or not applied, i.e. they are applicable in an all-or-nothing fashion.[68] If a rule is valid, to comply with this rule means doing exactly what the rule says.[69] In case [page 693] of conflict between two different rules (e.g., rule a requires to do x, and rule b requires not to do x), the conflict can only be resolved either by inserting an exception to one of the conflicting rules, or by declaring one of the conflicting rules invalid or inapplicable.[70] By contrast, the requirements of a principle can be met by adopting a more nuanced approach. Principles require that something be done "in as much as possible". They can be weighed against other principles [71] and -- according to Alexy - they contain so-called "commands to optimize" (Optimierungsgebote).[72]

General principles as they are commonly used in the context of uniform law cannot be qualified as principles in the sense just described. If we take the UNIDROIT Principles of International Commercial Contracts or the Principles of European Contract Law, we find that these "principles" -- if we apply the distinction described supra -- do indeed contain rules, not only principles. Therefore principles in the present context must be understood in a broad, rather than a technical sense, as containing "rules" and "principles" as well.

2. Internal and external principles

For the purposes of uniform law and its (autonomous) interpretation, another distinction seems more appropriate in that it is sometimes suggested by the uniform law itself and because it is linked to the autonomy of interpretation and of gap-filling. With regard to issues within the scope of uniform law, but not expressly settled by it, i.e. in case of a gap, both CISG and the UNIDROIT Principles require that these be settled, respectively

"in conformity with the general principles on which it [the CISG] is based,"[73]

and

"in accordance with their [the UNIDROIT Principles'] underlying general principles."[74]

These "underlying" principles on which the uniform law "is based" may be called internal principles if they are only connected with and taken from the uniform law in question, i.e. if the relevant arguments can be derived from the system and the ratio of the uniform law. External principles, by contrast, are requirements and arguments derived from outside the uniform law in question.[75] The use of comparative law in the context of autonomous interpretation and the technique of employing common [page 694] national solutions were discussed supra.[76] To adopt "the general principles which stem from the corpus of the national legal systems,"[77] e.g. from the domestic laws of all Contracting States of a Convention,[78] is nothing but the employment of external principles, even if these principles are "underlying" in the sense that they are based on a "common core" in the different national legal orders.[79]

External principles can also be taken from other uniform law instruments in order to interpret or supplement a Convention's rule. For example, some authors hold the UNIDROIT Principles to be a means of interpreting and supplementing CISG.[80] Such recourse to the external codified rules of another uniform law instrument is a convincing choice where two Conventions can form a coherent body of rules, using the same concepts for similar purposes. In interpreting the Rome Convention, for example, regard should be had to parallel concepts of the Brussels Convention and their interpretation by the European Court of Justice.[81] However, caution is indicated when attempting to embody external concepts, since they should generally be understood in their own context. Also, at times identical words used in a neighboring Convention turn out to be faux amis, conflicting with the aims and fundamental principles of a Convention if transferred to a different context.[82] Many Conventions can be regarded as small legal systems,[83] and to rely on external uniform solutions may help avoid recourse to a national law. However, [page 695] in case of a conflict between external and internal principles, the latter are to be preferred because they can be based on the system and aims of the uniform law in question.[84]

3. Gaps, analogy, and internal principles

The small legal system of a uniform law Convention is open in the sense that its uniform law covers only a limited number of legal matters, and the single uniform rules on matters governed by the Convention can never give a clear answer to each and every legal question arising out of the single cases to be decided. Of course, this is a problem not peculiar to uniform law. Every legal system, be it based on legislation or on precedent, is constantly called upon to cope with borderline cases,[85] and indeed these cases are usually the most interesting ones. But since legal unification only concerns certain sectors of the law, the borderlines are usually closer than in domestic law. What is to be done beyond the borderlines of uniform law? The Vienna Sales Convention combines different approaches to resolve this problem and, also because other recent uniform law projects follow the combined approach adopted by CISG,[86] this Convention may serve as an example to demonstrate the different steps.

4. Gaps and the Vienna Sales Convention

To begin with, a distinction must be drawn between matters governed by the Convention and matters not so governed, e.g. the validity of the sales contract or the transfer of property.[87] Matters not governed by CISG [88] because they do not fall within the scope of Article 4 [89] or because they fall under the exception in Article 5,[90] cannot [page 696] constitute a gap of the Convention.[91] They are governed by domestic law to be determined by the private international law rules of the forum.[92]

For there to be a gap in CISG requires the matter to be in general governed by the Convention. How can such a gap be filled? As mentioned supra, the Convention's approach is a mixed one,[93] a two-step combination of application of the Convention's general principles and, if such principles cannot be found or developed, application of domestic law, to be determined by the private international law rules of the forum.[94] The old Uniform Law on the International Sale of Goods (ULIS), predecessor of CISG, did not provide for subsidiary recourse to private international law, relying on the general principles in all cases. The mixed approach however presents a realistic view and is anyway better than applying the lex fori dressed up as "general principles".[95] As far as the first step is concerned, i.e. recourse to the general principles on which the Convention is based, these are primarily the internal principles described above and, according to some authors, externally codified principles such as the UNIDROIT principles as well.[96] Autonomous gap-filling through recourse to the Convention's general principles can be based on the same arguments as those connected with autonomous interpretation in general, i.e. mainly on systematic and teleological arguments.

5. The grading of arguments

Although CISG does not mention the analogical application of other rules of the Convention in order to fill a gap, this does not mean that reasoning by analogy is excluded from the Convention.[97] Principles may be established by analogy and by generalizing the legal ideas expressed in certain provisions.[98] To settle an unsolved question by the analogical application of specific provisions presents a closer connection to the Convention's system than does abstract recourse to the somewhat vague underlying [page 697] principles.[99] Arguments which can be based on other rules of the Convention can therefore take priority over abstract arguments. But there is no clear-cut dividing line between the analogical application of one or more specific rules on the one hand and recourse to the general principles on the other.[100] As a general rule, it can be stated that in order to find autonomous and uniform solutions for unsolved questions, it is always better to connect the arguments as much as possible with specific provisions of the Convention. As a consequence, there is a theoretical grading of autonomous interpretation of the Convention's rules. First of all, it should be established whether the matter can be covered by interpretation (in the narrow sense). If not, there follow application by analogy and the extension of single provisions to cases not immediately covered by them. The third option in the grading process consists of the arguments that refer to internal principles, and finally, if none of this works, recourse is had to a given domestic law to solve the question.

6. Autonomous interpretation and gap-filling in practice

The ranking and grading of autonomous interpretation, autonomous gap-filling (including analogical application and the use of internal principles) and non-autonomous gap-filling by referring to a national law may seem quite clear in theory. In practice, however, it can be quite difficult to qualify the single arguments to be taken into account when a solution for an open interpretative question must be found. Take, for example, the interpretative question arising under CISG of whether or not the assignment of the seller's claim for the price also causes a change in the place of payment. Does the place of payment change from seller's to assignee's place of business or does it not? The Oberlandesgericht (OLG) Celle was called upon to answer this question in order to determine the place of performance as a ground of special jurisdiction under Article 5(1) of the Brussels Convention.[101] Jurisdiction over the assignee's claim for payment against the debtor could in fact only be established if the place of performance were still located at the old creditor's (i.e. assignor's) place of business, because neither assignee nor debtor were situated in Germany, whereas assignor was. According to Article 57(1)(a) CISG, the buyer in general has to pay the price at seller's place of business, but the Convention does not expressly mention the possible impact of an assignment on the [page 698] place of payment. Is this question governed by the Convention? Or is it a question not expressly settled by the Convention? And if not, how then should it be settled?

OLG Celle held that the assignment changed the place of payment under CISG, and denied its own jurisdiction over assignee's claim on the grounds that the place of performance in the sense of Article 5(1) of the Brussels Convention was no longer in Germany. It was located in Germany up until the moment when the assignment took place, after which it was located at assignee's place of business in the Netherlands. Interestingly, although it was principally the Brussels Convention that was to be interpreted, not CISG, the court, in accordance with the rulings of the EC Court of Justice,[102] subjected its interpretation to external rules, in the instant case the uniform rules of CISG.

Was the Celle court right in holding that the place of payment is changed under CISG when the claim for the price is assigned? Such assignment itself is a matter not governed by the Convention and hence is governed by domestic law, to be determined by the private international law rules of the forum.[103] However, the Convention does govern the determination of the place of payment, and as a consequence, the impact of a valid assignment on the place of payment could also fall within its scope. There are three opinions regarding this issue. The first argues that it is governed by domestic law, since assignment and its consequences are matters not governed by the Convention.[104] The second opinion affirms, as did OLG Celle, that in cases of assignment under CISG, the place of payment changes from seller's place of business to that of the assignee.[105] And according to the third opinion, the determination of the place of payment cannot be influenced by an assignment and remains at seller's place of business.[106]

The second and third opinions do have one thing in common. They both regard the question implicitly as a matter settled, or at least governed, by CISG. For the first opinion, by contrast, the question is not a matter of interpretation or gap-filling, but of scope of application. Following the first opinion can lead to somewhat strange results. If it is left to domestic law to decide whether the place of payment is situated at the old or new creditor's place of business, it will be impossible to reach a decision if the domestic law situates the place of payment in general at the debtor's place of business. If the original place of payment is governed by the uniform law, it would appear that a coherent solution for the question of a change can only be found within the uniform law.

CISG expressly settles a similar situation in Article 57(2). According to this rule, [page 699]

"[t]he seller must bear any increase in the expenses incidental to payment which is caused by a change in his place of business subsequent to the conclusion of the contract,"

implying that in this case there is a change in the place of payment. It could be argued that Article 57(2) is a specific rule and conclusive in the sense that in all other cases not mentioned by it the place of payment will not change, thus favoring an autonomous interpretation ex contrario. There would however also be good grounds for stating that the issue at stake, i.e. a change in the place of payment caused by an assignment, is not expressly settled by the Convention and as such constitutes a gap in the sense of Article 7(2) CISG -- in which case the unsolved question is supposed to be settled if possible by means of an analogical application of specific provisions or by resorting to the general principles on which the Convention is based. As far as application by analogy is concerned, the same Article 57(2) CISG springs to mind, arguing that it makes no difference for the determination of the place of payment whether it is the seller's place of business that is changed, or the person of the creditor. The contrary argument, however, would focus on the differences between the two situations, stating that the incidence of a third person as a creditor not chosen by the debtor is important enough to justify a different solution. In support of this it could also be affirmed that the place of payment is part of the obligation, and that the substance of the obligation cannot be changed by assigning the claim for the price.[107] Supporters of this argument would probably call it a general principle on which the Convention is based.

7. Grading of arguments revised

The foregoing may serve to demonstrate that this ranking of arguments in the context of uniform law must be understood in a logical rather than a hierarchical sense. The arguments were all "autonomous" in that they focused on the uniform law and held aloof from specific domestic solutions. Even if the "first step" to fill a gap is the application by analogy of specific provisions, and the second, recourse to the Convention's general principles, and even if an argument in favor of application by analogy is in sight, this does not mean that the argument in favor of analogy necessarily trumps all other arguments. Arguments lower down the scale can be stronger in single cases.[108] Likewise, the search for arguments should never be suspended just because one argument in favor of a certain solution has been found. In that regard, uniform law does not differ from domestic law. In one as in the other, the different methods of interpretation and gap-filling can be qualified as arguments. Linguistic, systematic, historical and teleological methods of interpretation are collective names for certain kinds of argument,[109] and in general, one kind has no abstract priority over [page 700] another.[110] The different arguments need to be weighed [111] and, as far as uniform law is concerned, weighed in an autonomous manner.

8. Autonomous interpretation and external principles

The example of assignment and its impact on the place of performance under CISG [112] throws into relief a further issue regarding the possible conflict between internal and external principles and rules. In the OLG Celle case,[113] the court's principal task was to interpret the Brussels Convention, not CISG. It only resorted to the latter in order to determine the place of performance as a ground of special jurisdiction under Article 5(1) of the Brussels Convention, and made its interpretation dependent on the external rules of CISG, in accordance with the former rulings of the Court of justice.[114] In doing so, and in interpreting CISG in a way which may be acceptable in its own context, the Celle court created something that is not acceptable in the context of the Brussels Convention: that is to say, a ground of special jurisdiction at the assignee's place of business. Under the German court's interpretation, any court in Europe at an assignee's place of business would have jurisdiction over the claim for the price, on the sole ground that the sales contract between assignor (as the seller) and debtor (as the buyer) was governed by CISG. Take, for example, a seller situated in the USA and a buyer with its place of business in Portugal. If seller assigns its claim for the price to a person situated in Helsinki, the Portuguese debtor could, according to this reasoning, be sued in Helsinki.

The Brussels Convention, however, is based on the principle that, in general, persons should be sued in the courts of the Contracting State where they are domiciled (actor sequitur forum rei,[115] Article 2(1)).[116]

"[T]his is the primary rule of jurisdiction and [...] the other jurisdictional rules are exceptions to it, a fact reflected in the more restrictive interpretation given to the other jurisdictional rules."[117] [page 701]

There is no justification for a broad interpretation of Article 5(1) that would establish a ground of special jurisdiction at the assignee's place of business.[118] A connection with a particular place (the place of performance) is the connecting factor in Article 5(1),[119] but it requires the existence of a contract between the parties. And in case of an assignment, the parties in the litigation are not the parties to the contract out of which the claim has arisen.

Recourse to external rules and concepts taken from another Convention in order to find a solution for an unsolved question is therefore to be handled with care,[120] but it can be helpful in avoiding recourse to national law, thus promoting autonomous interpretation. In recent years, several State courts and arbitral tribunals have been using the UNIDROIT Principles as a means of interpreting international uniform law, mainly CISG.[121] Some Conventions, such as the Brussels Convention and the Rome Convention, are based on similar principles and form a coherent body of rules.[122] Conventions connected in that way constitute a common legal system, and the autonomous interpretation of one Convention may even require that allowance be made for the concepts and interpretation of the other.[123] However, in case of conflict between internal principles, i.e. the aims and values of the Convention to be interpreted, on the one hand, and external concepts on the other hand, autonomous interpretation and gap-filling require that priority be given to the internal principles. As a consequence, recourse to external rules and principles is only acceptable if they can be shown not to contradict a teleological and systematic interpretation of the uniform law in question.

IV. AUTONOMOUS INTERPRETATION AS A RULE OF PREFERENCE IN FAVOUR OF CERTAIN ARGUMENTS

What, then, is the relationship between autonomous interpretation and the traditional methods of interpretation? Each interpretation may be qualified as argumentation.[124] [page 702].

The activity of interpretation yields an interpretative result and consists of a choice between interpretative alternatives. This choice can only be justified by arguments.[125] The different methods of interpretation, such as systematic, literal, historical, and teleological interpretation, are merely collective names for certain kinds of argument.[126] Each collective name stands for a wide range of very different arguments. The use of comparative law, for example, as a means of interpretation, or the arguments based on the history of a legal problem or on precedents, can all be qualified as systematic arguments.[127]

Which role does the autonomous interpretation of uniform law play among the different methods of interpretation? Or, to put it the other way round: do the "classical" methods of interpretation play any role despite the need to interpret uniform law in an "autonomous" manner? Are these classical methods excluded when uniform law is to be interpreted? Or is autonomous interpretation merely an additional method amongst other methods?

The use of the different methods in practice, and the way in which judicial decisions are justified [128] differ considerably from country to country and from one legal culture to another.[129] As a result, the use of domestic techniques and traditions for the purpose of interpreting uniform law is often rejected.[130] Others favor recourse to the traditional "canones" of interpretation, but modified to suit the specific purposes of uniform law.[131]

It is certainly true that the interpretation of uniform law by recourse to domestic traditions of argumentation is only acceptable if these interpretative traditions can be shown not to be contrary to the purposes of the uniform law, and that the interpretative result, the solution to the problem, could also be adopted by other legal systems not based on this particular domestic legal tradition. The common law [page 703] tradition for example, which requires statutes to be interpreted restrictively because of their complementary function,[132] cannot be applied in international uniform law.[133] But this is a matter of scope, not of interpretation; it follows from the nature of the uniform law instrument. A Convention such as CISG does not complement the domestic law, it replaces it. English courts know the difference, and England and other common law countries have changed their methods of interpreting uniform law Conventions and Community law over the past decades.[134]

On the other hand, it will never be possible nor is it helpful completely to set aside the reasoning that is peculiar to a given legal culture. There is no reason to exclude any type of argument from the interpretation of uniform law in general. Autonomous interpretation does not require, for example, that certain interpretative methods, such as literal arguments or arguments connected with the legislative history, be avoided. Autonomous interpretation does not exclude arguments in general; rather, it sorts them out. By sorting out different methods of interpretation, autonomous interpretation itself seems to be based on systematic and teleological arguments,[135] in which "systematic" applies in both a negative and a positive sense. Negative, in that coherence with domestic law should not be a predominant aim of interpretation,[136] and positive, in that accordance with the other rules of the uniform law and with its internal principles should be a predominant aim.[137] Both the negative and the positive systematic aspects are linked to the teleological part of autonomous interpretation: Only those arguments pass the test of autonomous interpretation that are in accordance with the aims and purposes of the uniform law and with the need to promote uniformity in its interpretation.

In sorting out other methods of interpretation, autonomous interpretation itself does not seem to be a method of interpretation. The methods (or "canones") of interpretation can be distinguished from the rules of legal interpretation and argumentation.[138] These rules answer the question of how the different arguments are to be used and graded,[139] whether or not priority is to be given to one argument over another. Autonomous interpretation can be qualified as a rule or principle of interpretation giving preference to certain interpretative results and rejecting others. There is no [page 704] general rule of priority, e.g. of literal over systematic arguments.[140] But there may be a preference for one argument, for one interpretive choice over another in solving a problem of uniform law. And this preference is due to autonomous interpretation. [page 705]


FOOTNOTES

* Doctor juris, Research Fellow, Institute for Foreign Private and Private International Law, Heidelberg University (Germany).

1. See R.J.C. MUNDAY, "The Uniform Interpretation of International Conventions", 27 International and Comparative Law Quarterly (1978), 450.

2. C. KOHLER, "Integration und Auslegung - zur Doppelfunktion des Europäischen Gerichtshofes", in: E. JAYME, Ein internationales Zivilverfahrensrecht für Gesamteuropa (1992), 11 at 12, referring to the "Lebenslüge der Rechtsvereinheitlichung in diesem Jahrhundert".

3. See E. KRAMER, "Uniforme Interpretation von Einheitsprivatrecht", Juristische Blätter 1996, 137 at 139.

4. The Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters. The six original members of the European Economic Community entered into this Convention in 1968. It came into force in 1973, with subsequent amendments by several Accession Conventions when new Member States became Contracting States of the Convention. However, there are plans shortly to transform the Convention into Community Law, in a revised version. See E. JAYME / C. KOHLER, "Europäisches Kollisionsrecht 1999 - Die Abendstunde der staatsverträge", IPRax 1999, 401.

5. See the Luxembourg Protocol on Interpretation (03-06-1971), which came into force in 1975 (OJ 1978, L 304/97 and OJ 1990, C 189/25). The 1988 Brussels Protocols on the Interpretation of the Rome Convention have not yet entered into force.

6. See, e.g., case 133/81, 26-05-1982 (1982) European Court Reports (E.C.R.) 1891 (IVENEL / SCHWAB) and case 266/85,15-01-1987 (1987) E.C.R. 239 (SHENAVAI / KREISCHER). The Brussels Convention of 1968 was amended by the Accession Conventions in 1978, 1982, 1989 and 1996.

7. Ottawa, 28-05-1988, Uniform Law Review 1988-1, 163.

8. Ottawa, 28-05-1988, Uniform Law Review 1988-1, 135.

9. See H.P. MANSEL, "Rechtsvergleichung und europäische Rechtseinheit", Juristenzeitung 1991, 529 at 531: "Auslegungsimperativ".

10. Cf. the very similar Article 18 of the Rome Convention, which provides that "[i]n the interpretation and application of the preceding uniform rules, regard shall be had to their international character and to the desirability of achieving uniformity in their interpretation and application." For this provision and its adoption in German law, see G. REINHART, "Zur einheitlichen Auslegung vereinheitlichter IPR-Normen nach Art. 36 EGBGB", Recht der Internationalen Wirtschaft 1994, 445.

11. For a somewhat different affirmation, see STAUDINGER - U. MAGNUS, Kommentar zum Bürgerlichen Gesetzbuch, Wiener UN-Kaufrecht (CISG), 13th ed. 1994, Article 7 no.3: "The purpose of Art. 7 [...] is to safeguard uniformity by providing standard methods of interpretation." (ULR translation of German original.) But the author takes the view that unification of these methods seems to be the goal, rather than the content of Article 7 CISG; see Id., Article 7 no.30: " Although Art. 7(1) lays down the central goals and provisions with a view to interpretation, it is largely silent as to methods and procedures." (ULR translation of German original.]

12. See F. FERRARI, "Uniform interpretation of the 1980 uniform sales law", 24 Georgia Journal of International and Comparative Law (1994), 183 at 200: "[...] this choice is not one of interpretative technique or method, but rather one of policy"; E. KRAMER, supra note 3 at 141; VON CAEMMERER / SCHLECHTRIEM - R. HERBER, Commentary on the UN Convention on the International Sale of Goods (CJSG), 2nd ed., in translation (1998), Article 7 no. 10: "[...] relate only to particular aspects and aims of interpretation, not to the methods of interpretation"; M. ROTH / R. HAPP, "Interpretation of Uniform Law Instruments According to Principles of International Law", Uniform Law Review 1997, 700 at 700-701: "This common wording, however, only addresses the special features and goals proper to interpretation, not the relevant methodology." For the Rome Convention cf. STAUDINGER - G. REINHART, 12th ed. (1998), Article 36 EGBGB no. 9: "Ziel der Vorschrift ist nicht die Vereinheitlichung der Auslegungsmethode [...]."

13. See infra Chapter 11.2.

14. Cf. J. KROPHOLLER, Internationales Einheitsrecht, 1975, 241-242: "Prinzip des internationalen Rechtsanwendungseinklanges".

15. F. FERRARI, supra note 12 at 203.

16. See infra Chapter 11.4.

17. Cf. F. FERRARI, supra note 12 at 204.

18. For a different view, see F. DIEDRICH, Autonome Auslegung von Internationalem Einheitsrecht (1994), at 79.

19. See J. KROPHOLLER, supra note 14 at 265; Id., Europäisches Zivilprozeßrecht, 6th ed. (1998), Einleitung no.45; F. DIEDRICH supra note 18 at 77, 139-155; STAUDINGER - U. MAGNUS, supra note 11, Article 7 no.12; HONSELL - W. MELIS, Kommentar zum UN-Kaufrecht (1996), Article 7 no.10; G. REINHART, UN-Kaufrecht (1991), Article 7 no.2; F. FERRARI, supra note 12 at 200.

20. For other positive descriptions of autonomous interpretation, including literal, historical and comparative arguments, see F. DIEDRICH, supra note 18, 152-155.

21. See VON CAEMMERER / SCHLECHTRIEM - R. HERBER, supra note 12, Article 7 no.13.

22. Cf. Ibid.: "[...] the meaning given to a term is not necessarily the same as the meaning accorded to it in a specific legal system which uses the same term [...] it must be assumed that the term is to be interpreted independently taking into account its function within the context of the convention.

23. On the other hand, literal arguments can play a certain role for the purposes of autonomous interpretation in the case of a convention drawn up in several languages, if the different authentic versions favor different interpretations. In that case it is important to find a common, autonomous interpretation, again on mainly teleological grounds.

24. See infra Chapter IV.

25. See infra Chapter III.4.

26. See VON CAEMMERER / SCHLECHTRIEM - R. HERBER, supra note 12, Article 7 no.31.

27. For the application of national procedural law to determine the moment when proceedings have commenced in the sense of Article 21, see Zelger v. Salinitri, case 129/83, 07-06-1984 (1984) E.C.R. 2397 at 2408 (para. 16):

28. See the European Court's comments in Tessili v. Dunlop, case 12/76, 06-10-1976 (1976) E.C.R. 1473 at 1484: "The Convention frequently uses words and legal concepts drawn from civil, commercial and procedural law and capable of a different meaning from one Member State to another. The question therefore arises whether these words and concepts must be regarded as having their own independent meaning and as being thus common to all the Member States or as referring to substantive rules of the law applicable in each case under the rules of conflict of laws of the court before which the matter is first brought [...]."

29. See I. SCHOLZ, Das Problem der autonomen Auslegung des EuGVÜ (1998), 44-46.

30. J. KROPHOLLER, Europäisches Zivilprozeßrecht, supra note 19, Einleitung no.45.

31. Case 34/82,22-03-1983, Peters v. ZNAV (1983) E.C.R. 987. Cf. J. KROPHOLLER, Europäisches Zivilprozeßrecht, supra note 19, Article 5 no.5-13; P. KAYE, Civil Jurisdiction and Enforcement of Foreign Judgments (1987), 490-502; CHESHIRE / P.M. NORTH / J.J. FAWCETT, Private International Law, 13th ed. (1999), 201-203.

32. Case 14/76, 06-10-1976, De Bloos v. Bouyer (1976) E.C.R. 1497. Cf. J. KROPHOLLER, Europäisches Zivilprozeßrecht, supra note 19, Article 5 no.14-17; P. KAYE, supra note 31, 502-515; CHESHIRE / P.M. NORTH / J.J. FAWCETT, supra note 31, 204-206.

33. See Tessili v. Dunlop, supra note 28 at 1485-1486: "Having regard to the differences obtaining between national laws of contract and to the absence at this stage of legal development of any unification in the substantive law applicable, it does not appear possible to give any more substantial guide to the interpretation of the reference made by Article 5(1) to the "place of performance" of contractual obligations. This is all the more true since the determination of the place of performance of obligations depends on the contractual context to which these obligations belong. In these circumstances the reference in the Convention to the place of performance of contractual obligations cannot be understood otherwise than by reference to the substantive law applicable under the rule of conflict of laws of the court before which the matter is brought."

34. Article 1182(3) Codice Civile.

35. Section 269(1) Bürgerliches Gesetzbuch.

36. Case 288/92, 29-06-1994 (1994) E.C.R. 2913.

37. The planned revision of the Brussels Convention provides for important changes also regarding Article 5(1). See E. JAYME / C. KOHLER, supra note 4 at 405.

38. See infra Chapter III.8.

39. For the Brussels Convention, see J. KROPHOLLER, Europäisches Zivilprozeßrecht, supra note 19, Einleitung no.39.

40. H.P. MANSEL, supra note 9 at 531; STAUDINGER - G. REINHART, supra note 12, Article 36 no.1, 2, 13-18; F. FERRARI, supra note 12 at 204-206; M. ROTH / R. HAPP, supra note 12 at 709-710; j. KROPHOLLER, supra note 14 at 280.

41. E. KRAMER, supra note 3 at 146; M. ROTH / R. HAPP, supra note 12 at 710; P. SCHLECHTRIEM, "Vertragsmäßigkeit der Ware und öffentlich-rechtliche Vorgaben", IPRax 1999, 388 at 389-390.

42. J. KROPHOLLER, supra note 14, at 281; E. KRAMER, supra note 3 at 146.

43. Cf. E. KRAMER, supra note 3 at 146; M. ROTH / R. HAPP, supra note 12 at 710.

44. J. KROPHOLLER, supra note 14 at 282; C.W. CANARIS, "Die Bedeutung allgemeiner Auslegungsund Rechtsfortbildungskriterien im Wechselrecht", ]uristenzeitung 1987, 543 at 549-550.

45. See infra Chapter 11.5.

46. For the CISG, see VON CAEMMERER / SCHLECHTRIEM - R. HERBER, supra note 12, Article 7 no.26.

47. Comment no.2 on Article 1.6, <http://www.unidroit.org/english/principles/chapter-1.htm>; for the same problems under the Vienna Sales Convention, see F. FERRARI, supra note 12 at 201-202; VON CAEMMERER / SCHLECHTRIEM - R. HERBER, supra note 12, Article 7 no.13. For a somewhat different view cf. J. KROPHOLLER, supra note 14, at 278: "It stands to reason that the autonomous domestic civil law which, for the purpose of codifying uniform law, provided the 'raw material' whose comparative valuation was instrumental in creating the uniform law, could also be used for the purpose of interpretation" (ULR translation of German original), but at 280: "Yet since autonomy of uniform law is the objective, these 'parent' legal orders cannot claim absolute priority. Rather, where one or several national legal systems are considered for comparative purposes, they serve primarily as a guide to provide further support in interpreting uniform law" (ULR translation of German original); see also E. KRAMER, supra note 3 at 142-143.

48. LTU v. Eurocontrol, case 29/76, 14-10-1976 (1976) E.C.R. 1541, at 1551; cf., e.g., Handelskwekerij G.J. Bier B.V. 48 v. Mines de Potasse d'Alsace S.A., case 21/76, 30-11-1976 (1976) E.C.R. 1735 at 1747; Zelger v Salinitri, case 129/83,07-06-1984 (1984) E.C.R. 2397 at 2408 (para. 16). See also S. O'MALLEY / A. LAYTON, European Civil Practice (1989), no. 13.19 (336-337); CHESHIRE / P.M. NORTH/ J.J. FAWCETT, Private International Law, supra note 31 at 186; STAUDINGER / G. REINHART, supra note 12, Article 36 no.81; J. KROPHOLLER, Europäisches Zivilprozeßrecht, supra note 19, Einleitung no.42.

49. See H.P. MANSEL, supra note 9 at 532; F. DIEDRICH, supra note 18 at 80-82.

50. Cf., for an English point of view, CHESHIRE / P.M. NORTH / J.J. FAWCETT, supra note 31 at 186: "Now that common law countries are parties to the [Brussels] Convention, the common core will prove much harder to identify. Indeed, with some concepts it may be impossible to identify one at all."

51. Chapter 111.2.

52. R.J.C. MUNDAY, "The Uniform Interpretation of International Conventions", 27 The International Comparative Law Quarterly (1978), 450-459 at 450; M. ROTH / R. HAPP, supra note 12 at 709: "As We have seen, uniform application in and by all contracting States is the supreme goal of law-unifying Conventions."

53. See M. ROTH / R. HAPP, supra note 12 at 709.

54. 54 23-05-1969, 1155 United Nations Treaty Series, 331.

55. M. ROTH / R. HAPP, supra note 12 at 710. For the different and predominant view, excluding the principles of interpretation of public international law, see VON CAEMMERER / SCHLECHTRIEM - R. HERBER, supra note 12, Article 7 no.12. Cf. J. KROPHOLLER, supra note 14 at 235-240.

56. See J. KROPHOLLER, supra note 14 at 281: "The principle of uniform application of international law must [...] be reconciled with the need for an interpretation that is correct as to substance [...]" (ULR translation of German original); for a pointed view, see C.W. CANARIS, supra note 44 at 549: "[...] the pursuit of legal unification [is] of no higher order [...] than the search for an optimal -i.e. legally sound and equitable - solution; on the contrary [it should] in principle take second place [...]." (idem).

57. See R. ALEXY, "Juristische Interpretation", in: Recht, Vernunft, Diskurs (1995), 71 at 78; cf. Id., Theorie der juristischen Argumentation (1978, 3rd ed. 1996), 264-268.

58. See C. W .CANARIS, supra note 44 at 549; F. DIEDRICH, supra note 18 at 147.

59. See J. KROPHOLLER, supra note 14 at 281: "It cannot, therefore, be correct blindly to follow foreign precedent against one's own conviction as to the proper way of applying the law in the case at hand. Even if a plethora of foreign court rulings were to point in a given direction, each judge has the right to take up a contrary position [...]" (ULR translation of German original); cf. C.W. CANARIS, supra note 44 at 549: "[...] the majority can nevertheless be mistaken and if so, must bow to superior reasoning." (idem]

60. See J. KROPHOLLER, supra note 14 at 281-282; E. KRAMER, supra note 3 at 146.

61. Corocraft, Ltd. and another v. Pan American Airways, Inc. [1969] All England Reports, 82 at 88.

62. See J. KROPHOLLER, supra note 14 at 281; E. KRAMER, supra note 3 at 146.

63. J. KROPHOLLER, supra note 14 at 303: " 'legislative' revision is generally more difficult in Conventional law than in autonomous law, not only because another international Conference must be called, but because the lengthy ratification process has to be gone through again." (ULR translation of German original.]

64. J. KROPHOLLER, supra note 14 at 242: "[...] international uniform law, if it is to remain a live force, cannot afford to ignore the impetus afforded by the creativity of the courts and hence must be interpreted and developed dynamically." (ULR translation of German original.]

65. For an analysis regarding the different concepts of principles in legal theory, private law and comparative law, see J.H. RÖVER, Vergleichende Prinzipien dinglicher Sicherheiten (1999), 77-96.

66. See J. ESSER, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts (1956, 41h ed. 1990); R. DWORKIN, "The Model of Rules", The University of Chicago Law Review 35 [19671 14-46; reprinted in: Taking Rights Seriously (1977), Chapter 2; for a continental reception and development of Dworkin's ideas, see R. ALEXY, "Zum Begriff des Rechtsprinzips", in: Rechtstheorie, Beiheft 7 (1979), 59- 87; reprinted in: Id., Recht, Vernunft, Diskurs (1995), 117-212; Id., Theorie der Grundrechte (1985, 3rd ed. 1996), 71-157; Id., "Rechtssystem und praktische Vernunft", in: Rechtstheorie 18 (1987), 405-419, reprinted in: Id., Recht, Vernunft, Diskurs (1995), 213-231; see also H.L.A. HART, The Concept of Law (1961, 2nd ed. 1994) at 259-263, replying to Dworkin's criticisms.

67. R. ALEXY, Theorie der Grundrechte, supra note 66 at 76-77: "This means that the difference between rules and principles is one of quality, not of degree. A norm is either a rule or a principle." (ULR translation of German original.) For a different view, see H.L.H. HART, supra note 66 at 262: "[...] the distinction is a matter of degree."

68. R. DWORKIN, supra note 66 at 25; R. ALEXY, "Rechtssystern und praktische Vernunft", supra note 66 at 216; Id., Theorie der Grundrechte, supra note 66 at 76. See also C. W. CANARIS, "Das Rangverhältnis der 'klassischen' Auslegungskriterien, demonstriert an standardproblemen aus dem Zivilrecht", in: Festschrift für Dieter Medicus (1999), 25 at 59.

69. R. ALEXY, Theorie der Grundrechte, supra note 66 at 76.

70. For the problems of the all-or-nothing criterion, see R. ALEXY, "Zum Begriff des Rechtsprinzips", supra note 66 at 188-192.

71. See R. DWORKIN, supra note 66 at 27.

72. R. ALEXY, "Zum Begriff des Rechtsprinzips", supra note 66 at 202-203; Id., Theorie der Grundrechte, supra note 66 at 75-77.

73. Article 7(2) CISG.

74. Article 1.6(2) UNIDROIT Principles of International Commercial Contracts.

75. The expression "external legal principles" is borrowed from F. FERRARI, supra note 12 at 218. However, Ferrari uses it to describe recourse to a specific domestic legal order by applying the forum's rules of Private International Law in case of a gap in the uniform law. See infra 111.3. See also F. FERRARI, "General Principles and International Uniform Commercial Law Conventions: A Study of the 1980 Vienna Sales Convention and the 1988 UNIDROIT Conventions", Uniform Law Review 1997, 451 at 455, referring to the "applicable 'external' legal rules".

76. Supra Chapter II.4.

77. LTU v. Eurocontrol, case 29/76, 14-10-1976 (1976) E.C.R. 1541 at 1551; cf. the other Court decisions cited supra note 48.

78. This is not possible, however, for a Convention such as CISG. See supra 11.4. and VON CAEMMERER / SCHLECHTRIEM - R. HERBER, supra note 12, Article 7 no.35; E. KRAMER, supra note 3 at 149-150.

79. For the meaning of the word "contract" in the Rome Convention, see R. PLENDER, The European Contracts Convention (1991), 51: "The work undertaken by the Université de Paris II the comparative law of contract in the Member States of the European Community enables us to offer some general conclusions on the commonly accepted elements in the definition of a contract. In all Member States, the word 'contract' implies a voluntary agreement giving rise to obligations capable of being enforced by law. The distinction drawn in France and in Denmark between contracts and agreements ('conventions'), the latter being a species of which the former is a genus, appears to be wholly exceptional when viewed in the context of the laws of Member States as a whole, and therefore immaterial to the meaning of the expression 'contractual obligation' as it appears in Article 1 of the Rome Convention."

80. See M.J. BONELL, "The UNIDROIT Principles of International Commercial Contracts and CisG - Alternatives or Complementary Instruments?", Uniform Law Review 1996, 26 at 36: "The only condition which needs to be satisfied is to show that the relevant provisions of the UNIDROIT Principles are the expression of a general principle underlying CISG"; for a different view, see F. FERRARI, "General Principles", supra note 75 at 459: "[...] no recourse can be had to 'external' general principles, such as the 'Principles of International Commercial Contracts', drafted by UNIDROIT [...]."

81. See D. MARTINY, "Internationales Vertragsrecht zwischen Rechtsgefalle und Vereinheitlichung", Zeitschrift für europäisches Privatrecht 1995, 67 at 72. Cf. CHESHIRE / P .M. NORTH / J.J. FAWCETT, supra note 31,542: "[...] some of the provisions in the Rome Convention use the same concepts as, or are even lifted word for word from, the Brussels Convention. In such a situation, it is only right and proper that the earlier interpretation of this concept or term under the Brussels Convention should be looked at, and, unless there is a good reason to the contrary, followed."

82. See infra Chapter 111.8.

83. For the Brussels Convention, see J. KROPHOLLER, Europäisches Zivilprozeßrecht, supra note 19, Einleitung no.35.

84. See infra Chapter 111.8.

85. See H.L.H. HART, supra note 66 at 127-128: "Whichever device, precedent or legislation, is chosen for the communication of standards of behavior, these, however smoothly they work over the great mass of ordinary cases, will at some point where their application is in question, prove indeterminate; they will have what has been termed an open texture. So far we have presented this, in the case of legislation, as a general feature of human language; uncertainty at the borderline is the price to be paid for the use of general classifying terms in any form of communication concerning matters of fact."

86. See, e.g., the Preliminary Draft UNIDROIT Convention on International Interest in Mobile Equipment (Rome, 12-02-1999), in its Article 6(2): "Questions 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 applicable law."

87. See Article 4 CISG, quoted infra note 89.

88. The distinction between matters that are governed by the Convention and matters that are not so governed can cause difficulty in individual cases: see VON CAEMMERER / SCHLECHTRIEM - R. HERBER, supra note 12, Article 7 no.28.

89. Article 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."

90. Article 5 CISG: "This Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person."

91. Some authors in these cases speak of "intra legem gaps" to be distinguished from "praeter legem gaps" (see F. Ferrari, Uniform Interpretation, supra note 12 at 217; Id., supra note 75 at 454-455) or "external" and "internal" gaps (B. FRIGG, Externe Lücken and internationals Privatrecht im UN-Kaufrecht). For a critical view regarding the use of this terminology, see E. KRAMER, supra note 3 at 147.

92. VON CAEMMERER / SCHLECHTRIEM - R. HERBER, supra note 12, Article 4 no. 6. However, by virtue of the parties' contractual reference to the UNIDROIT Principles, the latter are intended to apply to matters actually outside the scope of CISG; see M.J. BONELL, supra note 80, Uniform Law Review 1996, 26 at 38; see also K. BOELE-WOELKE, "Principles and Private International Law", Uniform Law Review 1996, 652 at 659.

93. Cf. F. FERRARI, Uniform Interpretation, supra note 12 at 217-218.

94. See Article 7(2) CISG: "Questions 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."

95. Cf. M.J. BONELL, "L'interpretazione del diritto uniforme alla luce dell' art. 7 della Convenzione de Vienna sulla Vendita Internazionale", Rivista di diritto civile, 1986 II, 221 at 230.

96. See supra Chapter III.2.

97. Cf. M.J. BONELL, supra note 95 at 232; F. FERRARI, Uniform Interpretation, supra note 12 at 222; E. KRAMER, supra note 3 at 148.

98. VON CAEMMERER / SCHLECHTRIEM - R. HERBER, supra note 12, Article 7 no. 30.

99. Cf. E. KRAMER, supra note 3 at 148: "If to resort to what are after all rather vague general principles of law is legitimate, then all the more (and rather more so) should be the analogical application of specific rules drawn from the Convention's individual provisions." (ULR translation of German original.) See also Comment no. 4 on Article 1.6 of the UNIDROIT Principles, supra note 47, regarding the supplementation of the Principles: "The first step is to attempt to settle the unsolved question through an application by analogy of specific provisions. [...] If the issue cannot be solved by a mere extension of specific provisions dealing with analogous cases, recourse must be made to their underlying general principles, i.e. to the principles and rules which may be applied on a much wider scale because of their general character."

100. See E. KRAMER, supra note 3 at 149: "Gap-filling by application of specific analogies (Gesetzesanalogien) blends quite seamlessly into the area of general analogy (Rechtsanalogie), and this in turn differs only in theory, at best, from the gap-filling function of the Convention's underlying general principles." (ULR translation of German original.]

101. OLG Celle, 11-11-1998, IPRax 1999, 456 [also available at <http://cisgw3.law.pace.edu/cases/981111g1.html>].

102. See supra Chapter 11.3.

103. See STAUDINGER - U. MAGNUS, Wiener UN-Kaufrecht, 13th ed. (1994), Article 4 no.57; R. HERBER/ B. CZERWENKA, Internationales Kaufrecht (1991), Article 4 no.16.

104. HONSELL - A.K. SCHNYDER / R.M. STRAUB, Kommentar zum UN-Kaufrecht (1997), Article 57 no.24.

105. See VON CAEMMERER / SCHLECHTRIEM - R. HERBER, supra note 12, Article 57 no.8; STAUDINGER -MAGNUS, supra note 103, Article 57 no.18; K.H. NEUMAYER / C. MING, Convention de Vienne sur les contracts de vente internationale de marchandises, Commentaire, Lausanne (1993), Article 57 no.7.

106. BIANCA / BONELL -MASKOW, Commentary on the International Sales Law (1987), Article 57 note 3.1; B. PILTZ, Internationales Kaufrecht (1993), 4 no.140; R. HERBER / B. CZERWENKA, supra note 103, Article 57 no.10.

107. B. PILTZ, supra note 106, 4 no.140; R. HERBER / B. CIERWENKA, supra note 103, Article 57 no.10.

108. See also F. DIEDRICH, supra note 18 at 314, who develops as a method of autonomous interpretation a four-step "ladder of interpretation" ("Interpretationsleiter"): "No one method of interpretation takes priority over the other, since [als Synthese] an autonomous, uniform international interpretation requires the step-by-step application of each and every method." (ULR translation of German original.]

109. See C.W. CANARIS, supra note 68 at 58; R. ALEXY, "Juristische Interpretation", in: Id., Recht, Vernunft, Diskurs (1995), 71-92 at 78 and 83.

110. See C. W.CANARIS, supra note 68 at 60; R. ALEXY, supra note 109 at 89: "The ranking of arguments admissible for purposes of legal reasoning is still in dispute. There is broad consensus that strict rules cannot be formulated except, if need be, for prima facie rules of precedence" (ULR translation of German original); see also J. KROPHOLLER, supra note 14 at 261.

111. See H.L.H. HART, supra note 66 at 205, in the context of interpretation: "In all this we have the 'weighing' and 'balancing' characteristic of the effort to do justice between competing interests."

112. See supra Chapter 111.6.

113. See supra note 101.

114. See supra Chapter 11.3

115. For a general analysis of this principle, see A.T. VON MEHREN, "Must plaintiffs seek out defendants? The contemporary standing of actor sequitur forum rei", The King's College Law Journal 8 (1997-98), 23.

116. CHESHIRE / P.M. NORTH / J.J. FAWCETT, supra note 31 at 199.

117. S. O'MALLEY / A. LAYTON, supra note 48, no. 16.06 (379) and Ibid., no. 15.08 (370) with proofs of a narrow interpretation of the rules of special jurisdiction by the European Court of Justice.

118. See M. GEBAUER, "Neuer Klägergerichtsstand durch Abtretung einer dem UN-Kaufrecht unterliegenden Zahlungsforderung ?", IPRax 1999, 432 at 434.

119. S. O'MALLEY / A. LAYTON, supra note 48, no. 15.06 (370).

120. see J. KROPHOLLER, supra note 14 at 271: "As in international treaty law, the problem is to what extent rules of law taken from other texts may be called upon in order to view a given uniform rule in a broader context." (ULR translation of German original.]

121. See M.J. BONELL, "The UNIDROIT Principles in Practice: The Experience of the First Two Years", Uniform Law Review 1997, 34 at 41-42, with examples and proofs. For an interpretation of the concept of "usage" in the sense of Article 17 of the Brussels Convention by having regard to the same concept in the CISG, see J. KROPHOLLER, Europäisches Zivilprozelßrecht, supra note 19, Article 17, no. 46-54.

122. Cf. J. KROPHOLLER, supra note 14 at 273: "Each uniform law text is also, as a rule, a small legal system unto itself. There are, however, exceptions. At times, uniform law texts are purposely interconnected, or else single provisions are modelled on a related text, so that [...] a comparative approach is indicated"; CHESHIRE / P.M. NORTH / J.J. FAWCETT, supra note 31 at 542.

123. See supra Chapter 111.2.

124. R. ALEXY, supra note 109 at 78.

125. Id., supra note 109 at 78.

126. C.W. CANARIS, supra note 68 at 58; R. ALEXY, supra note 109 at 83.

127. See R. ALEXY, supra note 109 at 86-87.

128. See H. KÖTZ, "Über den Stil höchstrichterlicher Entscheidungen", RabelsZ 37 (1973), 245.

129. The criteria even differ within legal cultures; see J. KROPHOLLER, supra note 14 at 260.

130. See BIANCA / BONELL - M.J. BONELL, supra note 106, Article 7, Note 2.2.1: "To have regard to the 'international character' of the Convention means first of all to avoid relying on the rules and techniques traditionally followed in interpreting ordinary domestic legislation"; Cf F. FERRARI, supra note 12 at 202; M. ROTH / R. HAPP, supra note 12 at 701-702; S. BARIATTI, L'interpretazione delle convenzioni internazionali di diritto uniforme 1986) at 87-88: "The most recent legal doctrine [...] is generally in favor of a uniform interpretation not linked to national legal systems, as the only way to achieve the goal of unifying the law specifically contemplated by these conventions; this objective would be defeated if a contrasting interpretation were to be given in the various States" (ULR translation of Italian original), providing a multitude of proof; see also Id. at 160-161: " A number of legal scholars [...] have studied the problem of identifying a single exegetic method with recourse to a series of hermeneutic criteria [...]. Such an approach is based, in most cases, on an express refusal to use the exegetic methods proper to the lex fori" (ULR translation of Italian original); for a rejection of the traditional methods of interpretation, see also DIEDRICH, supra note 18 at 57.

131. C. W. CANARIS, supra note 44 at 544; E. KRAMER, supra note 3 at 141.

132. See F. DIEDRICH, supra note 18 at 84-93.

133. F. FERRARI, supra note 12 at 202.

134. See F. DIEDRICH, supra note 18 at 93-108.

135. See supra Chapter 11.2.

136. Arguments regarding legislative history should not, of course, be derived from domestic legal history but from the history of the relevant uniform law. However, this is a systematic, not a historical line of argument; see supra Chapter 11.2.

137. Literal arguments, for example, must take into account the different languages of the authentic text versions. Again, this is a systematic, not a literal line of argument; see supra 11.2.

138. See R. ALEXY, "Juristische Interpretation", supra note 109 at 83, 89-91.

139. See R. ALEXY, "Juristische Interpretation", supra note 109 at 83; Id., Theorie der juristischen Argumentation, supra note 57 at 306.

140. See supra Chapter 111.7.


Pace Law School Institute of International Commercial Law - Last updated July 9, 2003
Go to Database Directory || Go to Bibliography || Go to Annotated Text of Art. 7 CISG
Comments/Contributions