[For more current case annotated texts by this author, see Bernstein & Lookofsky, Understanding the CISG in Europe, 2d ed. (2003) and Lookofsky, Understanding the CISG in the USA, 2d ed. (2004).]

328. Surely the most far-reaching reservation permitted is that contained in Article 92, whereby a CISG Contracting State may declare at the time of adherence [page 174] that it will not be bound by Part II of this Convention (Contract Formation) or that it will not be bound by Part III (Sale of Goods).

The Article 92 reservation has been made by each of the Scandinavian States (Denmark, Finland, Norway and Sweden), because - at least at the time they ratified the Convention - they found certain Part II rules (regarding sales contract formation) to be unacceptable from a Scandinavian point of view. So far, no other States (except the Scandinavians) have made Article 92 reservations with respect to Part II; and no States have made reservations with respect to Part III.

The effect of the Part II reservations is that each of the (Scandinavian) States is not to be considered a 'Contracting State' within paragraph (1) of Article 1 in respect of matters governed by CISG Part II.[1] Therefore, as regards contracts entered between parties residing in a Scandinavian State and another State, the Part II rules will not apply by virtue of Article 1(1)(a) because - as regards CISG Part II - the Scandinavian State is not a 'Contracting State'.

On the other hand, according to Article 1(1)(b), the CISG also applies 'where the rules of private international law lead to the application of the law of a Contracting State.'[2] Depending on the circumstances, this rule can serve, inter alia, to activate the Convention's Part II in a Scandinavian State.

Suppose, for example, that a seller in France offers goods for sale to a buyer in Denmark, and that before the buyer can post his acceptance, the seller revokes. If the buyer seeks to hold the seller to his original offer, the (French or Danish) court seized must consider whether CISG Part II or domestic contract formation law applies.[3] (Whereas the offer might seem revocable under CISG Article 16,[4] the Uniform Scandinavian rule is that every offer is binding for a reasonable time.)[5]

As already indicated, CISG Part II cannot apply in such a situation by virtue of Article 1(1)(a). In regard to Article 1(1)(b), however, it is significant that both France and Denmark are parties to the 1955 Hague Convention on the Law Applicable to International Sales, thus providing the applicable private international law rule that the 'seller's law' applies.[6] And since France has ratified all of the CISG, including the Part II Formation rules, CISG Part II (the French 'seller's law') should be applied by both French and Danish courts by virtue of CISG Article 1(1)(b).[7]

The general - and no longer controversial - conclusion to be drawn is that Scandinavian Article 92 declarations do not displace the international sales contract formation rules in CISG Part II with (Scandinavian or other) domestic law in those many cases where the rules of private international law point to the law of Contracting State which has not made a similar declaration. In 1998 this analysis was confirmed by the Danish High Court of Appeals.[8]