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Reproduced with permission of 5 Vindobona Journal of International Commercial Law and Arbitration (2/2001) 282-309

Taming the Dragons of Uniform Law:
Sharing the reasoning of courts and arbitral tribunals
-- English case texts and translated case texts --

Albert H. Kritzer [*] & Loukas A. Mistelis [**]

1. An Introduction to "Dragon Taming"
2. The "Dragon Taming" Programme: We invite you to participate

1. AN INTRODUCTION TO "DRAGON TAMING"

"Taming the Dragons of Uniform Law" (title purloined from a scholar who coined it in another context) is a report on sharings of judicial reasoning in 225 English texts and English translations of court decisions and arbitral awards on the UN Convention on Contracts for International Sale of Goods (CISG). Our "dragon taming" paper is also an overture. We invite colleagues to co-venture with us; to serve our profession and the world community by collaborating on case translations.

Calling attention to the need to consider foreign case law to "promote ... the uniform application of the CISG", Franco Ferrari identifies the uniform-law dragons we discuss. He states:

"[R]equiring interpreters to consider foreign decisions can create practical difficulties. On the one hand, foreign case law is not readily available, i.e., it cannot easily be retrieved. On the other hand, foreign case law is often written in a language unknown to the interpreter."[1] [page 282]

Courts must have due regard to the "international character" of the CISG "and to the need to promote uniformity in its application;"[2] scholars must be equipped to assist judges struggling to comprehend the ramifications and applications of this uniform international sales law. As Peter Schlechtriem puts it:

A major help scholars can provide is by analysing the cases of their countries and of other countries "as thoroughly as possible to present the full picture of interpretations and applications to our jurists."[3]

In collaboration with persons of many countries, we work to tame Ferrari's "dragons"; to help scholars implement Schlechtriem's counsel.

In collaboration with law firms and centers of learning of Australia, Austria, Brazil, Canada, Egypt, Finland, France, Germany, Greece, Israel, Italy, Japan and Spain, with centers of China, Denmark, Mexico, Russia, South Africa, Sweden and other countries planning to affiliate,[4] we make CISG case law of all countries readily available [5] on the Internet. We currently provide:

In ruling on an international convention, Lord Denning stated: [page 283]

"We are told that there have been no decisions so far in other countries on this Article of the convention ... So where we lead, others may follow. But I would like to assure them that if it had come first before them, we would be only too glad to follow them."[6]

Compatible views have been expressed by scholars of Latin American, Scandinavian, United States and German legal cultures, and by other jurists. Representatives of many legal cultures favor consideration of decisions of courts of sister signatories. High courts, for example, the U.S. Supreme Court, urge us to give "considerable weight" to such decisions.

Antonio Boggiano of Argentina and Lord Scarman of England state:

"Uniform law requires ... a new common law" in which "[f]oreign precedents would not be precedents of a foreign law, but of uniform law";[7] and

"Courts ... have to develop their jurisprudence in company with the courts of other countries ..."[8]

Lief Sevón of Finland adds that a judge ought to be:

"obliged to search for and take into consideration foreign judgments ... at least the judgments from other Contracting States, when he is faced with a problem of interpretation of an international convention."[9]

The U.S. Supreme Court, Boggiano, and Jürgen Schwarze of Germany state that:

"the opinions of our sister signatories [to an international convention] are to be entitled to considerable weight";[10] they are to be taken into account "in a [page 284] comparative and critical manner" [11] with the "integrative force of a judgment ... based on the persuasive reasoning which the decisions of the Court bring to bear on the problem at hand."[12]

CISG Article 7(1) offers guidance to jurists of the 61 countries that have adopted the UN Sales Convention.[13] Article 7(1) imposes a positive obligation on them to consider decisions of other fora and use them in the form of precedents. Article 7(1) calls for comity.[14]

The comity is analogous to traditional practice in other contexts:

Global implementations of the jurisconsultorium are commencing.

These are encouraging signs,[24] but there is a long way to go.[25] To stimulate more such comity -- similar to the comity U.S. state courts traditionally accord UCC rulings by courts of sister U.S. states - jurists of all countries should consider decisions handed down in sister jurisdictions.

To consider such decisions, they must be able to read them.[26]

The Institute of International Commercial Law of the Pace University School of Law, in collaboration with the Centre for Commercial Law Studies of Queen Mary, University of London, has inaugurated an English text program and Case translation programme. The programme aims at making available on the Internet a (normally full text) English version of all rulings on the CISG.

It was in 1909, at the turn of the 20th century, that Lord Justice Kennedy presented this rationale for steps onward. In November 2001, at the dawn of the 21st century, Queen Mary and Pace report current steps onward by colleagues.

Examples of current steps onward include:

Further support for the Queen Mary Case Translation Programme is being provided.

The Queen Mary Case Translation Programme is a collaboration. The object of the collaboration is:

The English texts and translated texts the programme currently provides chart at: [page 290]

225 "tamed and assigned dragons"[35]

Jurisdiction Lower
Court
Appellate
Court
Supreme
Court
Arbitral
Tribunal
Totals
Argentina 2 2     4
Australia 2 1     3
Austria     6 2 8
Belgium 2 1     3
Bulgaria       5 5
Canada 2       2
China       1 1
Colombia     1   1
Finland 1 4     5
France 3 18 8   29
Germany 25 32 11 4 72
Hungary 1   1 1 3
ICC       13 13
Israel     1   1
Italy 5 4   1 10
Mexico 1     3 4
Netherlands 1 2 1   4
Russia       4 4
Spain 1   1   2
Stockholm Chamber
of Commerce
      1 1
Switzerland 12 5 1 1 19
United States 25 5     30
Yugoslavia       1 1
Totals 83 74 31 37 225

We describe our approach to case translation and identify each case cited in this chart. Two categories of cases are reported on the chart: [QM] cases processed pursuant to the Queen Mary Case Translation Programme,[36] and other cases. [page 291]

The following report also identifies still other [QM] case translations, case translations in process. Those listings are not underlined; researchers cannot now jump from URLs to the texts of in-process translations. These are "coming-attractions" we provide to identify case translations that have not yet progressed to the "second-iteration" stage of the [QM] Case Translation Programme. For such listings, in lieu of providing links to drafts of translated texts, we simply report the cases to identify translations that will be made available at a future date. The cisgw3 database does, however, provide links to presentations that contain other information on these cases: generally an abstract of the case, a link to the text of the case in its original language, and other relevant material on the case.

The entries in the cisgw3 country-by-country schedule of case presentations number 886.[39] The entries in the following report on English case texts and case translations number 225. This, of course, means we have many more cases to translate. With your help, we will increase the number of translated case texts offered to our profession and the world community.

The date of the following report is 15 November 2001.[40] Each of the 225 cases we report is identified by URL; researchers who enter these Internet URLs on their computers may jump to these case texts and case translations by clicking the URLs.

2. THE "DRAGON TAMING" PROGRAMME: WE INVITE YOU TO PARTICIPATE

For persons unfamiliar with the courts we cite -- drawing on material developed by Autonomous Network colleagues, the cisgw3 database presents court hierarchy charts for many of these jurisdictions.[41] This collection of court hierarchy charts will be expanded. [page 293]

ARGENTINA

AUSTRALIA

AUSTRIA

BELGIUM

BULGARIA

CANADA

CHINA

COLOMBIA

FINLAND

FRANCE

GERMANY

[These are ULIS cases, not CISG cases: ULIS cases on damages. For the rationale, go to the Editorial remarks section of the Case presentation for 6 October 1992 Landgericht Berlin.]

HUNGARY

INTERNATIONAL CHAMBER OF COMMERCE COURT OF ARBITRATION

ISRAEL

ITALY

MEXICO

NETHERLANDS

RUSSIAN FEDERATION

SPAIN

STOCKHOLM CHAMBER OF COMMERCE

SWITZERLAND

UNITED STATES

YUGOSLAVIA

With your help, we will expand the Queen Mary Case Translation Programme. Other elements of the cisgw3 database are also being expanded.


FOOTNOTES

* Albert H. Kritzer, Executive Secretary, Institute of International Commercial Law, Pace University School of Law

** Dr Loukas A. Mistelis, Clive M Schmitthoff Senior Lecturer in International Commercial Law, School of International Arbitration, Centre for Commercial Law Studies, Queen Mary, University of London.

1. Franco Ferrari, "Applying the CISG in a Truly Uniform Manner", Uniform Law Review (2001-1) 206 [citations omitted].

2. CISG Article 7(1).

3. Peter Schlechtriem, "Uniform Sales Law - The Experience with Uniform Sales Law in the Federal Republic of Germany", 3 Juridisk Tidskrift 1 (1991-92) 16 (emphasis added).

4. See <http://cisgw3.law.pace.edu/network.html>.

5. See <http://cisgw3.law.pace.edu>.

6. James Buchanan & Co Ltd v. Babco Forwarding and Shipping (U.K.) Ltd [1977] 1 All ER 518 (CA) at 522, 524, [1977] 2 WRL 107 (CA) at 113, 113-14; reinforced by Fothergill v. Monarch Airlines [1981] AC 252 (HL), [1980] All ER 696 (HL) and Antwerp United Diamonds BVBA and another v. Air Europe (a firm) [1995] 3 All ER 424 (CA).

7. Antonio Boggiano, "The Experience of Latin American States", in : International Uniform Law in Practice / Le droit uniform international dans la pratique, Oceana: New York (1988) 47.

8. Lord Scarman, [1980] 2 All E.R 696, 715.

9. Lief Sevón [Finland], "Observations", in: International Uniform Law in Practice, supra note 7, at 135.

10. Air France v. Saks, 470 U.S. 392, 404 [1985] (defining the word "accident" as used in the Warsaw Convention.

11. Bogianno, supra. note 7, at 47.

12. Jürgen Schwarze, "The Role of the European Court of Justice (ECJ) in the Interpretation of Uniform Law among the Member States of the European Communities", in: International Law and Practice, supra. note 7, at 221.

13. See <http://cisgw3.law.pace.edu/cisg/countries/cntries.html> for a table of the Contracting States.

14. In the sense of Huber (1636-1694). see Joel Paul, "Comity in International Law (Private International Law)", Harvard International Law Journal (1991) 1; and the erudite Alan Watson, Joseph Story and the Comity of Errors. A Case Study in the Conflict of Laws, University of Athens Press: Athens and London (1992).

15. Harry M. Flechtner, "Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and Other Challenges to the Uniformity Principle in Article 7(1)", 17 Journal of Law & Commerce (1998) 187 <http://cisgw3.law.pace.edu/cisg/biblio/flecht1.html>.

16. Philip T. Hackney, "Is the United Nations Convention on the International Sale of Goods Achieving Uniformity?", 61 Louisiana Law Review (2001) 479.

17. See Tribunale di Cuneo 31 January 1996, Sport d'Hiver v. Etw. Louys et Fils, <http://cisgw3.law.pace.edu/cases/960131i3.html>

18. See Obergericht Luzern 8 January 1997, <http://cisgw3.law.pace.edu/cases/970108s1.html>

19. See Medical Marketing v. International Medico Scientifica, 17 May 1999, U.S. District Court (E.D. Louisiana) <http://cisgw3.law.pace.edu/cases/990517u1.html>; and MCC-Marble v. Ceramica Nuova, 29 June 1998, U.S. Circuit Court of Appeals (11th Cir.) <http://cisgw3.law.pace.edu/cases/980629u1.html> (reference to the Internet by a U.S. Circuit Court of Appeals to ensure thorough research of case law from other jurisdictions).

20. See Bundesgerichtshof 24 March 1999, <http://cisgw3.law.pace.edu/cases/990324g1.html>, a German Supreme Court ruling that cites CISG authorities from England, France, Switzerland and the United States. See also Cour d'appel Grenoble 23 October 1996 <http://cisgw3.law.pace.edu/cases/961023f1.html>, a French case that quotes a German court decision.

21. Peter Schlechtriem, IPRax - Praxis des International Privat- und Verfahrensrechts (1999) 791 [translated text of commentary <http://cisgw3.law.pace.edu/cases/990517u1.html>].

22. See Tribunale di Vigevano 12 July 2000 <http://cisgw3.law.pace.edu/cases/000712i3.html>.

23. Franco Ferrari, "Applying the CISG in a Truly Uniform Manner", supra note 1, at 208.

24. We have also seen other cases, e.g., from the United States: Filanto v. Chilewich , 789 F. Supp. 1229, 1237 (S.D.N.Y. 14 April 1992) <http://cisgw3.law.pace.edu/cases/920414u1.html> ("there is as yet virtually no U.S. case law interpreting the Sale of Goods Convention"); Beijing Metals v. American Business Center, 993 F.2d 1178 (5th Cir. 15 June 1993) <http://cisgw3.law.pace.edu/cases/930615u1.html> (citing Filanto "there is as yet virtually no U.S. case law interpreting the Sale of Goods Convention"); Delchi v. Rotorex, 71 F.3d 1024, 1028 (2nd Cir 1995) <http://cisgw3.law.pace.edu/cases/951206u1.html> ("there is virtually no case law under the Convention"); Helen Kaminski v. Marketing Australian Products, 1997 U.S. Dist. Lexis 10630 (S.D.N.Y. 23 July 1997) <http://cisgw3.law.pace.edu/cases/970723u1.html> ("there is little to no case law on the CISG . . ."); Calzaturificio Claudia v. Olivieri Footwear, 1998 U.S. Dist. Lexis 4586 (S.D.N.Y. 6 April 1998) <http://cisgw3.law.pace.edu/cases/980406u1.html> ("The case law interpreting and applying the CISG is sparse", citing and quoting Kaminski "there is 'little to no case law on the CISG . . .' " and Filanto "there is virtually no United States case law interpreting the CISG"); Mitchell Aircraft Spares v. European Aircraft Service, 25 F. Supp. 2d 915 (N.D. Ill. 27 October 1998) <http://cisgw3.law.pace.edu/cases/981027u1.html> (" 'there is virtually no case law under the Convention' ", quoting Delchi); and, as recently as this year, Supermicro Computer v. Digitechnic, 2001 U.S. Dist. Lexis 7620 (N.D. Cal. 30 January 2001) <http://cisgw3.law.pace.edu/cases/010130u1.html> ("the case law interpreting and applying the CISG is sparse", citing Delchi).

25. Camilla Baasch Andersen, Uniformity in the CISG in the First Decade of Its Application", in Fletcher, Mistelis and Cremona (eds.), Foundations and Perspectives of International Trade Law, Sweet & Maxwell: London (2001), 289, 295-297.

26. Franco Ferrari, "Applying the CISG in a Truly Uniform Manner", Uniform Law Review, supra note 1, at 208. UNCITRAL's multi-lingual case law collection system ("CLOUT") has been very useful. Gerold Herrmann, "The Role of UNCITRAL", in Fletcher, Mistelis and Cremona (eds.), Foundations and Perspectives of International Trade Law, supra note 25, at 28, 33. But see Camilla Baasch Andersen, supra note 25, at 297. UNCITRAL offers a unique collection of case digests on CISG case law. However, the current reporting system does not made all rulings on the CISG readily available to the Bar and the Bench.

27. Supra note 19, at n. 14.

28. See <http://cisgw3.law.pace.edu/cisg/text/casecit.html>.

29. See <L.Mistelis@qmul.ac.uk> or via <http://www.ccls.edu/eclu>.

30. See <akritzer@law.pace.edu>.

31. Lord Justice Kennedy, The Unification of Law, 10 J. Soc'y of Comp. Legis. 21, 214-215 (1909).

32. For data on the MAA, go to <http://www.maa.net>.

33. For data on the Moot, go to <http://cisgw3.law.pace.edu/vis.html>.

34. For data on the Casenote project, contact MAA coordinator Dijana Kesonja <dijanakesonja@hotmail.com>.

35. For Internet updates of this chart, go to <http://cisgw3.law.pace.edu/cisg/text/schedule.html>.

36. See <http://cisgw3.law.pace.edu/cisg/text/queenmary.html>.

37. See <http://cisgw3.law.pace.edu/network.html>.

38. See <http://cisgw3.law.pace.edu/cisg/text/cisg-toc.html>.

39. See <http://cisgw3.law.pace.edu/cisg/text/casecit.html>.

40. For Internet updates of this report, go to <http://cisgw3.law.pace.edu/cisg/text/schedule.html>.

41. See <http://cisgw3.law.pace.edu/cisg/text/casecit.html>.


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