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Reproduced with permission from Revue de droit uniforme/Uniform Law Review (1997) 385-395

The U.N. Convention on the International Sale of Goods:
A Critical Analysis of Current International Case Law -- 1997 (Part 1)

Michael Joachim Bonell [*] and Fabio Liguori [**]

  1. Introduction
  2. Sphere of Application Ratione Materiae
          2.1 Contracts similar to sales contracts
                      (a)    Distribution agreements
                      (b)    Works contracts
                      (c)    Sale of software
          2.2 Matters excluded from the scope of the Convention
                      (a)    Validity of the contract and effect on property
                      (b)    Other matters implicitly excluded
                      (c)    Products liability
  3. Territorial Scope of Application
          3.1 Applicability under the rules of private international law
                      (a)    The Vienna Sales Convention and the 1980 Rome Convention
          3.2 Choice of the law of a Contracting State
          3.3 CISG as "lex mercatoria"
          3.4 CISG and jurisdiction
                      (a)    Place for payment of the price
                      (b)    Place of other payments
                      (c)    Place of delivery

1. INTRODUCTION

Upon entry into force in Belgium, Luxembourg and Uzbekistan in the near future,[1] the total number of Contracting States to the Vienna Convention on Contracts for the International Sale of Goods (CISG) will rise to 48.[2]

Yet the number of international commercial transactions which may be affected by CISG is even greater if one bears in mind that CISG is applicable not only when both parties have their places of business in (different) Contracting States (Article 1(1)(a)), but also when the rules of private international law lead to the application of the law of a Contracting State (Article 1(1)(b)), including the case where the forum is that of a non-Contracting State.[3]

The number of decisions in which national judges and arbitrators have applied the rules of the Convention [4] is also constantly growing, to the extent that some selection is by now necessary. [page 385]

Although German and Dutch case law continues to be the most copious, Austrian, French, Swiss and Hungarian judgments are increasing in number while judgments handed down by courts in Denmark,[5] Belgium [6] and China [7] have been reported for the first time.

Also the number of arbitral awards applying CISG is increasing. In addition to the awards of the I.C.C. Court of Arbitration in Paris and the International Court of Arbitration of the Federal Chamber of Commerce of Vienna, some interesting arbitral awards have now been rendered under the Rules of the Hungarian [8] and Russian Federation [9] Chambers of International Commerce.

By contrast in some countries such as Italy or the United States the case law relating to CISG is still rather limited. One of the reasons for this apparent lack of interest in the Convention lies in the fact that in some trade sectors there is a clear desire to exclude its application altogether; moreover, alternative means of dispute resolution may be used and the relative awards not published.

Very rarely do decisions take into account the solutions adopted on the same point by courts in other countries. Until now it would appear that there are only two decisions rendered by national judges in which express reference is made to foreign precedents.[10]

The first of these judgments was handed down by the Tribunale Civile of Cuneo. In applying the provisions of the Convention requiring the buyer to examine the goods and give notice of any lack of conformity, the Italian court, for the purpose of interpreting the rather vague formulae "within as short a period as is practicable in the circumstances" and "within a reasonable time" contained in Articles 38 and 39, did not hesitate to refer to two judgments handed down in similar cases in Switzerland by the Pretore of Locarno-Campagna, and in Germany by the Landgericht of Stuttgart.[11] [page 386]

The second judgment, rendered by the Cour d'appel of Grenoble,[12] expressly referred to a decision of the Oberlandesgericht of Düsseldorf [13] to demonstrate that "l'interprétation habituellement donnée de [l'article 57 de la Convention] est qu'elle exprime le principe général que le paiment s'exécute au domicile du créancier."

Moreover, there are some decisions in which CISG has been interpreted and/or integrated by express reference to the UNIDROIT Principles of International Commercial Contracts.[14] Mention may be made in particular of an award by the I.C.C. Court of Arbitration in Paris [15] which, following a precedent set by the International Court of Arbitration of the Federal Chamber of Commerce of Vienna,[16] applied the UNIDROIT Principles in order to determine the rate of interest.

2. SPHERE OF APPLICATION RATIONE MATERIAE

2.1 Contracts similar to sales contracts

As the substantive sphere of application of CISG covers certain types of contracts which in some domestic laws do not correspond to the traditional notion of "sales" contracts, it is not always easy to ascertain which contracts fall within the sphere of application of CISG.[17]

(a) Distribution agreements

A situation frequently examined in international case law is that of distribution agreements where individual sales contracts are concluded between a seller and a buyer who are parties to a master agreement relating to a series of orders and deliveries. Recent judgments confirm the tendency not to apply CISG to the distribution agreement as such, where agency aspects prevail, but to consider each individual sales contract concluded under a distribution agreement to fall within the scope of the Convention.[18]

(b) Works contracts

Under Article 3(2), the Convention applies to contracts for the supply of goods and labour or other services, unless the supply of services represents a "preponderant part" of the [page 387] obligation. When the services supplied by the seller consist in the manufacture or production of the goods -- without the buyer's supplying a "substantial part" of the materials necessary for such production (for this hypothesis comes under Article 3(1) CISG) -- the contract comes very close to being a works contract. It is however disputed whether works contracts, in their entirety or in part, should be considered among the contracts Article 3 CISG assimilates to sales contracts.

The problem has recently been addressed by the Italian Supreme Court in a case concerning a contract concluded between an Italian company and an English company for the manufacture and supply of leather items to be marked with the latter's brand.[19] The Italian company brought an action claiming avoidance for fundamental breach by the English company and damages. The defendant objected that the Italian court had no jurisdiction and deferred the matter to the Supreme Court for a final decision.

The Supreme Court left it to the judge of the merits to decide whether the contract in question was a sales or a works contract (as in either case the Italian courts would have had jurisdiction); however in order to determine the kind of obligation involved according to Article 5(1) of the 1968 Brussels Convention, the Court distinguished works contracts from sales contracts, ruling that the former occur whenever one of the parties, as in the case at hand, is obliged to supply both goods and services.

In the Court's opinion, the distinction is to be made having regard to the fundamental purpose of the contract and to the importance of the supply of the materials necessary for the manufacture of the goods and the services to be provided with respect to the result the materials are meant to reach. On these grounds, the Court stated that under Article 3 CISG, as well as under Italian law, a contract is a works contract when the materials are merely a means for manufacturing the goods, and the essential purpose of the contract is the production of the goods.

The Supreme Court's ruling is only partially convincing. It is correct to consider that under the Convention the preponderance of the supply of a service with respect to the supply of goods can be evaluated bearing in mind the parties' intention and the overall purpose of the transaction concerned. Nevertheless, according to the prevailing view in legal writings, for the purposes of Article 3(2) CISG, the main criterion for making a distinction is the value of the goods supplied with respect to the service provided.[20]

(c) Sale of software

A decision by the Landgericht of Munich concerns the problem of the applicabilty of CISG to contracts for the sale of movable incorporating software.[21]

The case involved a contract for the sale and installation of a computer programme. The court held that the Convention does apply to standard software, thereby implying that it would not apply in cases involving original software because the service provided by the party who furnishes the goods would, pursuant to Article 3(2), represent the preponderant part of the obligation.[22] [page 388]

2.2 Matters excluded from the scope of the Convention

Article 4 states that the Convention only governs the formation of the contract and the rights and obligations of the seller and the buyer arising from such a contract. It also expressly excludes from its substantive scope of application issues relating to the validity of the contract, or of any of its provisions or of any usage (subparagraph (a)), as well as the effect which the contract may have on the property in the goods sold (subparagraph (b)).

(a) Validity of the contract and effect on property

With reference to the effect of a sales contract on the property in the goods sold mention may be made of a German decision stating that the Convention does not cover the question of the validity of a retention of title clause,[23] and of a judgment from an Australian court which, while applying CISG to determine whether a retention of title clause had actually been agreed by the parties and if so what its content was, ruled that the effect of such a clause on the property in the goods was to be determined according to the law applicable by virtue of the rules of private international law.[24]

A German court held that the question of the validity of the standard terms fell outside the scope of CISG under Article 4(a) and had to be determined according to the law governing the contract.[25] Also an Argentine court decided that the issue relating to the validity of a forum selection clause contained in the standard terms printed on the invoice forms sent by the buyer was excluded from the scope of the Convention under Article 4(a) and was governed by the applicable domestic law.[26]

(b) Other matters implicitly excluded

Since the list provided in Article 4 is not an exhaustive one, the problem arises of determining what other matters are excluded from the scope of the Convention and as such governed by the applicable domestic law, and how they can be distinguished from other matters which, though not expressly settled in the Convention, fall within its scope and must therefore be settled whenever possible in conformity with the general principles underlying the Convention (Article 7(2)).[27]

The case law offers quite a number of examples in which it has been held that certain matters are implicitly excluded from the Convention.

Thus there are decisions which confirm that the Convention does not cover issues relating to the capacity of the parties,[28] the existence of an agency relationship,[29] the right to set-off [page 389] against the other party's claim,[30] the validity of the assignment of one party's right to third parties,[31] prescription (i.e. limitation period),[32] the validity of a penalty clause,[33] the recovery of damages arising from mandating an agent to collect debts,[34] the validity of a settlement agreement,[35] and defects in consent.[36]

Another issue discussed is whether or not the matter of burden of proof in case of defective goods is covered by the Convention. An award rendered by the I.C.C. Court of Arbitration held that, since CISG does not expressly determine who should prove non-conformity, the issue must be determined on the basis of domestic law.[37] According to a Swiss court, however, the principle according to which the buyer has to provide evidence of the defect and give notice thereof is implicit in Articles 38 and 39 and reflects a general principle underlying the Convention.[38] The argument seems convincing, although it should be clear that the further questions as to the admissibility of such evidence and the limits thereof must be settled in accordance with the applicable substantive and procedural domestic law.

The Convention deals with the modification of the contract (see Article 29), but is silent as to novation. An award of the I.C.C. Court of Arbitration rightly referred to domestic law to clarify that novation requires the proof by the party alleging it that the original parties to the contract shared an "animus novandi." The same court, however, applied Article 8 CISG -- as a generally accepted rule of interpretation -- to ascertain whether the parties actually had an "animus novandi".[39] [page 390]

(c) Products liability

Article 5 states that the Convention does not apply to the liability of the seller for death or personal injury caused by the goods to any person.

In legal writings it is widely accepted that the Convention governs liability for damage caused by defective goods to other goods, and that such damage should be compensated in conformity with Article 74.[40]

A first decision in this sense has been handed down by a Swiss court in a case relating to the sale and installation of a fitness device (an isolation tank containing water with a high salt concentration) on the buyer's premises. The court pointed out that while death and personal injury are excluded from the scope of the Convention, damage caused by the fitness device to the buyer's premises (leaking salt water) is a matter governed by the Convention.[41]

On the contrary doubts may be expressed concerning a German judgment in a case concerning an accident, which had occurred on account of a defect in the machine component sold, causing the death of a worker as well as some damage to the buyer's machinery. The buyer brought an action against the seller not only to recover the costs it had sustained in repairing the machine, but also to have him held liable in general for all consequences of the accident, including the death of the worker. Nevertheless, the court referred to CISG to ascertain whether it had jurisdiction, without making a distinction between the two claims.[42]

This solution appears subject to criticism since, as correctly observed, Article 5 is worded in such a way as to lead one to understand that "l'action récursoire, susceptible d'être intentée par l'acheteur contre le vendeur à la suite d'une action en responsabilité formée contre le premier par une tierce personne blessée ou par les héritiers d'une victime tuée par le bien doit également échapper à la Convention."[43]

3. TERRITORIAL SCOPE OF APPLICATION

3.1 Applicability under the rules of private international law

The trend in the case law -- both arbitral awards and State court decisions -- to apply the Convention on the basis of the criterion laid down in article 1(1)(b) also in cases where the forum is that of a non-Contracting State, by now appears sufficiently established.[44]

Recent examples are two judgments of the Tribunal de Commerce of Brussels, both concerning disputes arising between Italian sellers and Belgian buyers.[45] [page 391]

Although at that time Belgium was not yet a Contracting State, the court applied CISG on the grounds that the Belgian rules of private international law (in the cases at hand the 1955 Hague Convention on the Law Applicable to International Sales of Goods) led to the application of Italian law, and the Convention had already entered into force for Italy. It should also be noted that in one case the contract contained a clause making express reference to Italian law.

(a) The Vienna Sales Convention and the 1980 Rome Convention

Yet the second of the two Belgian decisions mentioned above also addressed another interesting question, namely the relationship between CISG and the 1980 Rome Convention on the Law Applicable to Contractual Obligations.

One of the parties, arguing that there was an antinomy between Article 21 CISG on late acceptance and Article 9 of the Rome Convention concerning the formal requirements of the contract, requested that the matter be submitted to the European Court of Justice. The Tribunal de Commerce of Brussels was quite correct in simply stating that Article 21 of the Rome Convention safeguards the application of international conventions to which one Contracting State is, or is about to be, party, and that CISG likewise, as laid down in Article 90, "[. . .] does not prevail over any international agreement which [. . .] contains provisions concerning the matters governed by [it], provided that the parties have their places of business in States parties to such agreement."

The question of whether "any international agreement" is intended to refer also to private international law conventions is discussed in legal writings.[46] The Tribunal de Commerce of Brussels took the negative view, stating that no conflict was possible between CISG and the Rome Convention as the former contains uniform substantive rules, while the latter contains uniform conflict of laws rules.[47] This solution would appear to be correct, also in view of the fact that, in the words of Article 90 CISG, conflict of laws is not a matter governed by that Convention.

3.2 Choice of the law of a Contracting State

The view that the parties' agreement to submit the contract to the law of a Contracting State is equivalent to an implied choice of the Convention, can by now be considered widely accepted.[48]

National judges have affirmed this principle even in cases where the forum court was that of a non-Contracting State.[49]

Arbitral awards also provide some interesting examples [50]

In a case decided by the I.C.C. Court of Arbitration a Dutch seller and a United States buyer agreed that the contract would be subject to "the laws of Switzerland." The arbitral tribunal held [page 392] CISG applicable, and excluded that an express designation of a national law could be construed as a reference to the provisions of that law applicable at domestic level, even when the parties, as in the case at hand, had chosen the law of a country of which neither is a national or a resident.[51]

Also worth mentioning is a recent award by the Schiedsgericht der Handelskammer of Hamburg, which held that by agreeing on a German arbitral court the parties had implicitly chosen the law of a Contracting State (German law) as the law governing the contract, and therefore CISG.[52]

It is generally accepted that the parties may implicitly exclude the application of the Convention not only by choosing the law of a non-Contracting State, but also by making reference to the provisions of the domestic sales law of a Contracting State.[53]

Doubts may therefore arise in relation to a decision of the Oberlandesgericht of Hamm according to which the express reference to the provisions of the German Civil Code made by the parties in the course of the proceedings, while constituting a valid choice of law according to German conflict of laws rules, was not sufficient to exclude the application CISG to the contract.[54]

3.3 CISG as "lex mercatoria"

The applicability of CISG as an expression of the new "lex mercatoria" has been affirmed by an award rendered by the I.C.C. Court of Arbitration.[55] As the contract did not indicate the applicable law, the arbitral tribunal, pursuant to Article 13(3) of the I.C.C. Rules, held that the contract was governed by the general principles of international commercial practice and accepted trade usages, and as such by CISG which reflects those principles and usages.

In this connection mention may also be made of a decision by an Italian state court concerning a contract for the sale of raw oil which contained a FOB clause as well as a reference to NIOC standard terms. Although the contract was not governed by CISG the Corte d'Appello of Genova made an express reference to the Convention in support of its ruling that the FOB clause's scheme was binding as an international trade usage (under Article 9 CISG).[56]

3.4 CISG and jurisdiction

The issue of jurisdiction clearly falls outside the scope of the Convention. Nevertheless, in an increasing number of cases the courts resort to CISG to ascertain whether or not they have jurisdiction. [page 393]

The starting point has almost always been Article 5(1) of the 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgements in Civil and Commercial Matters (or Article 5(1) of the analogous 1988 Lugano Convention), stating that a person domiciled in a Contracting State may be sued, in matters relating to contracts, in the court for the place of performance of the obligation in question, and CISG has been applied to identify the place of performance of such obligation.

(a) Place for payment of the price

In cases where the obligation in question was the payment of the price, the courts solved the issue by referring to Article 57 CISG, according to which, in the absence of an agreement between the parties, the price must be paid at the seller's place of business (Article 57(1)(a)), or if the payment is to be made against the handing over of the goods or of documents, at the place where handing over takes place (Article 57(1)(b)).[57]

(b) Place of other payments

In a case decided by the Oberlandesgericht of Düsseldorf [58] involving a sales contract between a German buyer and a United States seller, the obligation in question was payment of damages. The court noted that as the Convention does not expressly settle the place of payment of damages, regard must be had to Article 7(2) CISG, and held that Article 57(1)(a) CISG (the relevant provision on place of payment of the price) is an expression of the general principle that obligations to pay are to be performed at the creditor's place of business (in the case at hand that of the German buyer).

Also of special interest is a recent decision by the Cour d'appel of Grenoble.[59]

The case concerned a contract for the delivery of equipment concluded between a German and a French company. Following delivery, the French company commenced an action claiming reimbursement of a surplus paid, but the German company contested jurisdiction of the French court. In order to determine its own jurisdiction in conformity with Article 5(1) of the 1968 Brussels Convention, the court had to determine the place of performance of the seller's obligation to return part of the price unduly paid by the buyer. The Convention, which governed the contract, is silent on this point. The court held that, contrary to German and French domestic law, the Convention (Article 57(1)) establishes that the place where payment must be made is the seller's place of business, and that this rule is usually interpreted as expressing the general principle that payment must be made at the creditor's place of business. [page 394]

To support this reasoning, the court made an express reference to the decision of the Oberlandesgericht of Düsseldorf illustrated above, and pointed out that Article 6.1.6 of the UNIDROIT Principles lays down the same principle for international commercial contracts in general.

(c) Place of delivery

By contrast, when the obligation in question is delivery of the goods and the parties have not agreed on a particular place of delivery, the courts refer to Article 31 CISG in order to ascertain whether or not they have jurisdiction.

Under Article 31(a), when the contract involves carriage of the goods, the obligation of the seller to deliver consists in handing over the goods to the first carrier for transmission to the buyer. In most cases the seller performs this obligation at his own place of business, by putting the goods into the carrier's possession.

For this reason, in a case involving the carriage of the goods which were considered to have been delivered to the first carrier at the seller's place of business in France, a Dutch court declined its jurisdiction as the place of performance was in France.[60]

It may however happen that a different agreement has been reached with the carrier or the buyer, so that the seller is under a duty to hand the goods over to the carrier in a different place. Moreover, when FOB, C&f, CIF and similar terms are to be applied, the place of delivery is the ship's rail even though the carriage by sea is not the first carriage.

If the contract does not involve the carriage of the goods, Article 31(c) provides that the seller must place the goods at the buyer's disposal at the seller's place of business. In this event, where the dispute relates to the seller's obligation to the deliver the goods, the competent court is that of the seller's place of business.[61]

The solution remains unchanged when the obligation in question is the buyer's obligation to take delivery. Thus, since Article 60(b) states that the buyer's obligation to take delivery consists in taking over the goods, but does not specify where, a German court referred to Article 31(c) and affirmed its jurisdiction on the ground that the seller's place of business was in Germany.[62]

Worth mentioning is also a case decided by the Court d'appel of Paris, in which the obligation in question related to the conformity of the goods. The judges had to consider the place in which the goods should have been conforming. The court noted that under Articles 35(1) and 35(2)(a), which associate delivery and conformity, both obligations must be performed at the same place. Therefore, as the goods were to be delivered in accordance with the contract, i.e. at the buyer's place of business in France, the court stated that, as the obligation to deliver conforming goods had to be performed at this place, the French forum was competent.[63] [page 395]


FOOTNOTES

* Professor, Law Faculty, University of Rome 1 "La Sapienza"; Legal Consultant, Unidroit.

** Attorney in Rome; Research fellow, University of Rome 1 "La Sapienza".

1. The Vienna Convention will enter into force for Belgium on November 1, 1997; for Uzbekistan on December 1, 1997, and for Luxembourg on February 1, 1998.

2. A summary of the state of implementation of the Vienna Sales Convention can be found in this Review (1996) at 143-144 and (1997) at 146.

3. For the case law on this issue see M.J. Bonell -- F. Liguori, The U.N. Convention on the International Sale of Goods: a Critical Analysis of Current International Case Law, in this Review (1996) at 153.

4. Up to 219 decisions have been reported in the latest edition (December 1996) of "UNILEX - A comprehensive and 'intelligent' database on the UN Convention on Contracts for the International Sale of Goods (on disk)" created at the Centre for Comparative and Foreign Law Studies in Rome and distributed by Transnational Publishers, Irvington, NY, also available in a loose-leaf book as "UNILEX -- International Case law & Bibliography on the UN Convention on Contracts for the International Sale of Goods," edited by M.J. Bonell with the assistance of F. Liguori -- A. Veneziano et al.

With the latest issue of August 1996 (A/CN.9/SER.C/ABSTRACT/16 August 1996), the total number of cases relating to CISG reported in the CLOUT bulletins published by the UNCITRAL Secretariat amounts to 143.

Among the most recent legal writings on the international case law on CISG are L.F. Del Duca -- P. Del Duca, Practice Under the Convention on International Sale of Goods (CISG): A Primer for Attorneys and International Traders (Part II), Uniform Commercial Code Law Journal (1996) 99; P. Schlechtriem, Internationales UN-Kaufrecht (Tübingen, 1996); F. Liguori, La Convenzione di Vienna sulla vendita internazionale di beni mobili nella pratica: un'analisi critica delle prime cento decisioni, Foro Italiano (1996) IV, col. 145; A. Veneziano, Non Conformity of Goods in International Sales. A Survey of Current Caselaw on CISG, Revue de droit des affaires internationales (1997) 39.

5. Sø-og Handelsrets Domme (S.H.D.), 1 July 1992, in Ugeskrift for Retsvaesen (1992) 920; Ostre Landsert Kobenhavn (O.L.K.), 22 January 1996, in Ugeskrift for Retsvaesen (1996) 616.

6. Tribunal de Commerce de Bruxelles, 11ème ch., 13 November 1992 n. RG 4.825/91, in UNILEX 1996; Tribunal de Commerce de Bruxelles, 7ème ch., 5 October 1994, n. RG 1.205/93, in UNILEX 1996.

7. Xiamen Intermediate People's Court, 31 December 1990, in G. Guoting (ed.), Analysis of Modern Chinese Commercial Disputes with Foreign Elements (in Chinese), (Beijing, 1995) 132; and Xiamen Intermediate People's Court, 5 September 1994, Id., 153. See abstract in UNILEX 1996.

8. Hungarian Chamber of Commerce and Industry Court of Arbitration, 17 November 1995, n. VB/94124, in UNILEX 1996; and Hungarian Chamber of Commerce and Industry Court of Arbitration, 5 December 1995, n. VB/94131, in UNILEX 1996.

9. Tribunal of International commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, awards n. 309/1993 of 3 March 1995 (CLOUT Case 139), n. 155/1994 of 16 March 1995 (CLOUT Case 140), n. 200/1994 of 25 April 1995 (CLOUT Case 141), and n. 123/1992 of 17 October 1995 (CLOUT Case 142).

10. It should be noted that in both decisions the UNILEX database is expressly referred to as a source of reference for foreign case law on CISG.

11. Tribunale civile di Cuneo, 31 January 1996, n. 45/96 (Sport D'Hiver di Genevieve Culet c. Ets. Louys et Fils), in UNILEX 1996. The foreign cases cited by the Italian judges are: Pretura di Locarno-Campagna (Switzerland), 27 April 1992, n. 6252, in UNILEX 1996, and Landgericht Stuttgart, 31 August 1989, n. 3KfH 097/89, in Recht der Internationalen Wirtschaft (1989) 984.

12. Cour d'Appel de Grenoble, Ch. com., 23 October 1996 (Scea Gaec Des Beauches Bernard Bruno c. Societé teso Ten Elsen GMBh & CokG), unpublished (kindly supplied by Professor J.-P. Beraudo) (cf. summary published in ULR 1997-1, 180).

13. Cf. Oberlandesgericht Düsseldorf, 2 July 1993, n. 17 U 73/93, in Recht der Internationalen Wirtschaft (1993) 843.

14. Cf. M.J. Bonell, The UNIDROIT Principles in Practice: The Experience of the First Two Years, in this Review (1997) at 34.

15. ICC Court of Arbitration, n. 8128/1995, in UNILEX 1996.

16. Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft, Wien, Schiedsspruche SCH 4318 and SCH 3466 of 15 June 1994. For an examination of these awards and bibliographical references see M.J. Bonell - F. Liguori, The U.N. Convention, cit., at 373, note 57.

17. For an overview of the different opinions in legal writings see F. Ferrari, Vendita internazionale di beni mobili (Tomo 1, Artt. 1 -13). Commentario Scialoja-Branca (Bologna, 1994) at 47 et seq.

18. Oberlandesgericht Düsseldorf, 11 July 1996, n. 6 U 152/9S, in Recht der Internationalen Wirtschaft (1996) 958. The Convention does not apply to an exclusive distribution agreement also according to the Metropolitan Court Budapest, 19 March 1996, n. 12.G.75.556/1994/36, unpublished, but see CLOUT Case 126. Other conforming precedents may be found in M.J. Bonell - F. Liguori, The U.N. Convention, cit., 147, note 14.

19. Corte Suprema di Cassazione, Sez. Un., 9 June 1995, n. 6499, in Giustizia Civile (1997) 1, 2065; Foro Italiano (1997) I, col. 562.

20. Cf. P. Schlechtriem, Uniform Sales Law, the UN Convention on Contracts for the international Sale of Coods (Vienna, 1986) 31-32; J.O. Honnold, Uniform Law for International Sales Under the 1980 United Nations Convention (2nd edition) (Deventer, 1991) 106.

21. Landgericht München, 8 February 1995, n. 8 HKO 24667/93, unpublished, but see abstract in CLOUT, A/CN.9/SER.C/ABSTRACT/10, 16 August 1996, Case 131.

22. Cf. M.J. Bonell- F. Liguori, The U.N. Convention, cit., at 149.

23. Oberlandesgericht Koblenz, 16 January 1992, n. 5 U 534/91, in Recht der Internationalen winschaft (1992) 1019.

24. Federal Court, South Australia District Adelaide, 28 April l995, in 57 Federal Court Report (1995) 216.

25. Amtsgericht Nordhorn, 14 June 1994, n. 3 C 75/94, in UNILEX 1996.

26. Cámara Nacional en lo Comercial, 14 October 1993, n. 45626, in El Derecho (25 April 1996) 4.

27. For a detailed examination of this problem see H.E. Hartnell, Rousing the Sleeping Dog: The Validity Exception to the Convention on Contracts for the International Sale of Goods, 18 Yale Journal of International Law (1993) 1.

28. Cf. Landgericht Hamburg, 26 September 1990, n. 5 O 543/88, in IPRax: Praxis des Intemationalen Privat- und Verfahrensrechts (1991) 400.

29. Cf. Landgericht Hamburg, 26 September 1990, cit.; Landgericht Berlin, 24 January 1994, n. 2 U 7418/92, in Recht der Internationalen Wirtschaft (1994) 683; Amtsgericht Alsfeld, 12 May 1995, n. 31 C 534/94, in Neue Juristische Wochenschrift Rechtsprechungs-Report (1996) 120.

30. Cf. Arrondissementsrechtbank Arnhem, 25 February 1993, n. 1992/182, in Nederlands Internationaal Privaatrecht (1993) nr.445, Arrondissementsrechtbank Roermond, 6 May 1993, n. 920159, in UNILEX 1996; Oberlandesgericht Koblenz, 17 September 1993, n.2 U 1230/91, in Recht der Internationalen Wirtschaft (1993) 934; Oberlandesgericht Hamm, 9 June l995, n.11 U 191/94, in IPRax: Praxis des Internationalen Privat- und Verfahrensrechts (1996) 269; Oberlandesgericht Stuttgart, 21 August 1995 n. 5 U 195/94, in Recht der Internationalen Wirtschaft (1995) 943; Oberlandesgericht Düsseldorf, 11 July 1996, n.6 U 152/95, in Recht der Internationalen Wirtschaft (1996) 958. A different opinion seems to be found in the judgment rendered by the Arrondissementsrechtbank Middelburg, 25 January 1995, n.300/94, in Nederlands Internationaal Privaatrecht(1996) nr. 127, which held that set-off is a matter not expressly settled by the Convention.

31. Cf. Bezirksgericht Arbon, 9 December 1994, n. BG 9341/94, in UNILEX 1996; Oberlandesgericht Hamm, 8 February 1995, n. 11 U 206/93, in IPRax: Praxis des Internationalen Privat- und Verfahrensrechts (1995) 197.

32. ICC Court of Arbitration, 23 August 1994, n. 7660/JK, in ICC International Court of Arbitration Bulletin (1995) n. 6, 69; Oberlandesgericht Hamm, 9 June 1995, n. 11 U 191/94, in IPRax: Praxis des Internationalen Privat- und Verfahrensrechts (1996) 269.

33. ICC Court of Arbitration, n. 7197/1992, in Journal du droit international (1993) 1028; Gerechtshof Arnhem, 22 August 1995, n. 94/305, in Nederlands Intemationaal Privaatrecht (1995) nr. 514.

34. Oberlandesgericht Rostock 27 July 1995, n. 1 U 247/94, in OLG-Report (1996) 50.

35. Landgericht Aachen, 14 May 1993, n. 43 O 136/92, in Recht der Internationalen Wirtschaft (1993) 760.

36. Handelsgericht St. Gallen, 24 August 1995, n. HG48/1994, in UNILEX 1996. On the other hand, application of the Convention precludes recourse to domestic laws regarding defects in the quality of the goods and "Wegfall der Geschäftsgrundlage", as these matters are exhaustively covered by the Vienna Convention, as rightly pointed out by Landgericht Aachen, 14 May 1993, n. 43 O 136/92, in Recht der Internationalen Wirtschaft (1993) 760.

37. ICC Court of Arbitration, n. 6653/1993, in Journal du droit international (1993) 1040.

38. Handelsgericht Zürich, 9 September 1993, n. HG930138 U/H93, in UNILEX 1996. See also Handelsgericht Zürich, 26 April 1995, n. HG920670, in UNILEX 1996.

39. ICC Court of Arbitration, n. 7331/1994, in ICC International Court of Arbitration Bulletin (1995) n.6, 73.

40. Cf. P. Schlechtriem, Uniform Sales Law, cit., 34-35.

41. Handelsgericht Zürich, 26 April 1995, n. HG 920670, in UNILEX 1996.

42. Oberlandesgericht Düsseldorf, 2 July 1993, n.17 U 73193, in Recht der International Wirtschaft (1993) 845. Published in English in A.H. KRITZER, Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods (Deventer), vol. 2, Suppl. 9 (1994).

43. C. Witz, Les premières application jurisprudentielles du droit uniforme de la vente internationale (Convention des Nations Unies du 11 avril 1980) (Paris, 1995) 40.

44. For the other conforming precedents on this issue see M.J. Bonell - F. Liguori, The U.N. Convention, cit., at 153.

45. Tribunal de Commerce de Bruxelles, 11ème ch., 13 November 1992, n. RG 4.825/91, in UNILEX 1996; Tribunal de Commerce de Bruxelles, 7ème ch., 5 October 1994, n. RG 1.205/93, in UNILEX 1996.

46. For a negative solution see S. Carbone, in C.M. Bianca (ed), Convenzione di Vienna sui contratti di vendita internazionale di beni mobili (Padova, 1992) 343. A broad approach is taken instead by K.H. Neumayer- C. Ming, Convention de Vienne de vente internationale de marchandises. Commentaire (Lausanne, 1993) 576.

47. Cf. Tribunal de Commerce de Bruxelles, 7ème ch., 5 October 1994, cit.

48. Cf. M.J Bonell - F. Liguori, The U.N. Convention, cit., at 155 et seq.

49. Cf. Tribunal de Commerce de Bruxelles, 11ème ch., 13 November 1992, cit.

50. In addition to those cited in the following text are ICC Court of Arbitration, n. 8324/1995, in Journal du droit international (1996) 1019, which expressly states that "l'autonomie des parties étant une règle du droit international privé, la désignation par elles du droit français en l'espèce conduit à l'application de la Convention" at p. 1020, ICC Court of Arbitration, n 7844/1994, in ICC International Court of Arbitration Bulletin (1995) n. 6, 72.

51. ICC Court of Arbitration, n. 7656/1994, in ICC International Court of Arbitranon Bulletin (1995) n. 6, 64.

52. Schiedsgericht der Handelskammer Hamburg, 21 March 1996, in Recht der Internationalen Wirtschaft (1996) 766.

53. Cf. M.J. Bonell, in C.M. Bianca- M.J. Bonell, Commentary on the International Sales Law. The 1980 Vienna Sales Convention (Milano, 1987) 56.

54. Oberlandesgericht Hamm, 9 June 1995, in IPRax: Praxis des Internationalen Privat- und Verfahrensrecht (1996) 269, with a comment by P. Schlechtriem, Aufrechnung durch den Käufer wegen Nachbesserungsaufwand - deutsches Venragsstatut und UN-Kaufrecht, Id., at 256. A similar decision has been taken by Landgericht Landshut, 5 April 1995, n. 54 O 644/94, in UNILEX 1996 Cf. M.J. Bonell- F. Liguori, The U.N. Convention, cit., at 157, note 57.

55. ICC Court of Arbitration, case n. 7331/1994, in ICC International Court of Arbitration Bulletin (1995) n. 6, 73.

56. Corte d'Appello di Genova, 24 March 1995 (Marc Rich & Co. A.G. v. Iritecna), in Diritto Marittimo (1995) 1054, with a note by M. Lopez de Gonzalo, La rilevanza degli usi nella disciplina dell'obbligazione di consegna nella vendita marittima, Id., at 1055.

57. Cf. for Italy: Corte Suprema di Cassazione, sez. un., 9 June 1995, n. 6499, in Foro Italiano (1997) 1, col. 562.; for Denmark: Ostre Landsret København, 22 January 1996, n. B-31112-95, in Ugeskrift for Retsvaesen (1996) 616; for Germany: Landgericht Siegen, 5 December 1995, n. 6 O 135/94, in UNILEX 1996; Landgericht München, 29 May 1995, n. 21 O 23363/94, in UNILEX 1996; for France: Cour d'Appel de Grenoble, 29 March l995, n. 156, in UNILEX 1995; Cour d'Appel de Grenoble, 16 June 1993, n. RG92/4223, in UNILEX 1995; Cour d'Appel de Paris, 10 November 1993, n. 9, in Journal du droit international (1994) 678; for The Netherlands: Arrondissementsrechtbank Middelburg, 25 January 1995, n. 300/94, in Nederlands Internationaal Privaatrecht (1996) nr. 127; Arrondissementsrechtbank Middelburg, 30 November 1994, n. 588/93, in Nederlands Internationaal Privaatrecht (1996) nr. 296; Arrondissementsrechtbank Hertogenbosch, 6 May 1994, n. 2548/93, in Nederlands Internationaal Privaatrecht (1994) nr. 646; Gerechtshof's Hertogenbosch, 26 October 1994, n. 26/94/R0, in Nederlands Internationaal Privaatrecht (1995) nr. 261.

58. Oberlandesgericht Düsseldorf, 2 July 1993, n. 17 U 73/93, in Recht der Internationalen Wirtschaft (1993) 845.

59. Cour d'Appel de Grenoble, 23 October 1996, cit.

60. Gerechtshof's-Hertogenbosch, 9 October 1995, n. 334/95/MA, in Nederlands Internationaal Privaatrecht (1996), nr. 118.

61. For a case where the contract expressly provided that the buyer was to take delivery from the seller's place of business, see Oberlandesgericht Koblenz, 23 February 1990, n. 2 U 1795/89, in Recht der In ternational Wirtschaft (1990) 316.

62. Landgericht Aachen, 14 May 1993, n. 43 O 136/92, in Recht der Internationalen Wirtschaft (1993) 760.

63. Cour d'Appel de Paris, 13 December 1995, n. 95-018179, in UNILEX 1996.


Pace Law School Institute of International Commercial Law - Last updated October 9, 2008
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