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Published in J. Herbots editor / R. Blanpain general editor, International Encyclopaedia of Laws - Contracts, Suppl. 29 (December 2000) 1-192. Reproduced with permission of the publisher Kluwer Law International, The Hague.

[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).]

excerpt from

The 1980 United Nations Convention on Contracts
for the International Sale of Goods

Joseph Lookofsky

Article 92 Declarations

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]

1. Article 92(2).
2. See supra No. 54.
3. As between these EU States, the question of jurisdiction will be regulated by the Brussels Convention of Jurisdiction and Judgments.
4. Supra No. 105 et seq.
5. See Article I of the Uniform Scandinavian Contracts Acts.
6. See supra No. 54.
7. Neither France nor Denmark has made an Article 95 declaration regarding Article 1(1)(b): see infra No. 331. [page 175]
8. Regarding this decision (reported in Danish in Ugeskrift for Retsvœsen 1998 at p. 1092), see Lookofsky, J., 'Alive and Well in Scandinavia: CISG Part II: 18 Journal of Law & Commerce 289-299 (1999) [available at <http://www.cisg.law.pace.edu/cisg/biblio/lookofsky1.html>]. Compare the decision of Oberlandesgericht Rostock, 27 July 1995, OLG Report 1996, 50, reported [at <http://cisgw3.law.pace.edu/cases/950727g1.html> and] in UNILEX, where CISG Part II was not applied in a dispute between a Danish seller and a German buyer (this result seems correct, as the relevant German PIL rules (the 1980 Rome Convention) would point to the law of the Danish seller).
The notion that CISG Part II might sometimes apply in spite of an Article 92 reservation was suggested in 1987 by Evans in Bianca & Bonell in their Commentary at p. 643 [available at <http://www.cisg.law.pace.edu/cisg/biblio/evans-bb92.html>]. In 1989, when Denmark ratified the Convention subject to Article 92, Lookofsky expressed the view that even Scandinavian courts should consider themselves bound (by Article 1) to apply CISG Part II in cases where the 1(1)(b) rule points to the law of a CISG State which has not made such a reservation: see 'Loose Ends and Contorts in International Sales: Problems in the Harmonization of Private Law Rules', 39 American Journal of Comparative Law, p. 405 (1991) [available at <http://www.cisg.law.pace.edu/cisg/biblio/lookofsky6.html>]. In 1995, a prominent German commentator concurred, arguing that only this interpretation of Article 92 could advance the goal of uniform Convention application: See Herber in von Caemmerer & Schlechtriem, Kommentar, Art. 92, Rd.Nrn. 3, with note 2b, citing Lookofsky (preceding note). See also Schlechtriem, Commentary (1998) p. 692.
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Pace Law School Institute of International Commercial Law - Last updated April 5, 2005