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Reproduced with permission from 18 Journal of Law and Commerce (1999) 289-299

Alive and Well in Scandinavia: CISG Part II[*]

Professor Dr. Jur. Joseph Lookofsky [**]

I. Introduction

The four Scandinavian countries have all signed on to the 1980 Vienna Convention (CISG), [1] but the Scandinavian attitude to the uniform sales law can hardly be described as run of the mill.

Instead of "just" adopting the CISG for use in international sales, [2] Finland and Sweden have also used the Convention as a blueprint for reform of their domestic [3] Sales Acts. As a result, large portions of the Finnish and Swedish Sales Acts now read like a (translated) "copy" of CISG Part III (Sale of Goods).[4] Norway went even further. it "transformed" the CISG treaty into a single statute applicable to both domestic and international sales.[5][page 289]

In other key respects, however, the Scandinavian CISG position has been marked by restraint. For one thing, Denmark, Finland, Norway and Sweden all chose to make Article 94 declarations (reservations) which serve to exclude inter-Scandinavian commerce [6] from the CISG field.[7] These declarations were based on the assumption that all four Scandinavian States would continue to have "the same or closely related legal rules."[8] However, that assumption failed when Denmark refused to follow its northern neighbors in the adoption of a new "liability differentiation" scheme for domestic sales.[9] Now that the Scandinavian Sales Acts no longer seem "closely related,"[10] it has been argued that the Article 94 declarations should all be withdrawn.[11]

And yet, it is surely the Article 92 declarations which most clearly have set the Scandinavians apart. Among the 50 CISG Contracting States, only the Scandinavians chose to "opt out" of CISG Part II (Articles 14-24). Only these four States declared that they would "not be bound" by the Convention's Contract Formation rules.[12][page 290]

Two main arguments were advanced by Scandinavian legislators in support of these far-reaching Article 92 declarations. First, as regards the revocability of offers, the Part II rules were described as unduly influenced by the corresponding Common law rules; in particular, the (default) rule in Article 16(1) permitting an offeror to revoke tilbagekalde prior to acceptance was perceived as something quite foreign to Scandinavian law.[13] Second, and more generally, it was feared that the adoption of CISG Part II - which regulates only contract formation, but not contract validity - might create "uncertainty" as to when a binding and valid gyldig international sales contract had been made.[14]

In the view of some Scandinavian commentators, neither of these arguments seemed convincing.[15] First, as regards revocability, the starting point in paragraph (1) of CISG Article 16 is subject to significant exceptions (in paragraph 2) which greatly narrow the gap between Common and Scandinavian/Civil law.[16] Secondly, as regards the "uncertainty" argument, the Scandinavian rules on contract formation belong to a legal regime [17] which is conceptually distinguishable from the rules on contract validity, [18] so the application of CISG Part II could hardly be expected to create more "disturbance" than that which occurred when CISG Part III displaced our domestic Sales Acts as the default regime applicable to international sales.[19]

But just as the reasoning which led to the Scandinavian Article 92 reservations seemed dubious, the same might be said of the reservation's legal effect. For although Denmark, Finland, Norway and Sweden all declared their intention (in 1987-1989) [20] "not to be bound" by the Convention rules on Contract Formation, [21] CISG commentators were quick to [page 291] note that the Scandinavians could not "just say no" to CISG Part II.[22] In late 1998 this fact was confirmed by the Danish High Court of Appeals.

So it seems that CISG Part II is alive and well in Scandinavia after all. But before we take a closer look at this new Danish precedent, it may be helpful to sketch out the legal theory underlying Article 92 and to provide a few hypothetical illustrations of how the Scandinavian Part II declarations are expected to work.

II. The Article 92 Reservations: The Expected Effect

The legal effect of the Article 92 declarations is, of course, a question of international treaty-interpretation (not solely dependent on Scandinavian intent).[23] In particular, the provisions of Article 92 (located in CISG Part IV) must be read together with the rules on the Convention's Sphere of Application (located in CISG Part I).[24]

Looking first at the main rule in Article 1(1), we are reminded that:

"(1) This Convention applies to sales of goods between parties whose relevant places of business are in different States: (a) when the States are Contracting States; or (b) when the rules of private international law lead to the application of the law of a Contracting State."

Skipping ahead to the pertinent parts of CISG Article 92, we see that:

"(1) A Contracting State may declare at the time of signature, ratification, acceptance, approval or acession that it will not be bound by Part II of this Convention . . .[25]

"(2) A Contracting State which makes a declaration in accordance with the preceding paragraph, in respect to Part II . . . of this Convention is not to be considered a Contracting State within paragraph (1) of Article 1 of this Convention in respect to matters governed by [Part II]."[26]

Pursuant to paragraph (1) of Article 92, each Scandinavian State - e.g., Denmark - has "declared" that it "will not be bound" by CISG Part II.[page 292]

Paragraph (2) tells us what such a declaration means, i.e., that in - matters governed by Part II - Denmark is not to be considered a Contracting State within Article 1(1).

Clearly, as regards contracts entered between a party residing in a Scandinavian State (like Denmark) which has made an Article 92 reservation and a party residing in a Contracting State which has not (e.g., France), the Contact Formation rules cannot apply by virtue of subparagraph (a) of Article 1(1). For Denmark is not a "Contracting State in matters governed by Part II," [27] and Part II can only apply by virtue of subparagraph (a) when both States are "Contracting States" in Part II.

This aspect of the Part II declarations can be illustrated by the following example:

Illustration 1. Seller S, whose business is in Denmark, offers a large quantity of Danish bacon to French buyer B. Before B can post its acceptance, S revokes its offer. Claiming that S remains bound by the offer, B brings suit in Denmark, demanding damages for breach.

Since S in this illustration does not reside in a Part II Contracting State, Articles 14-24 of the Convention cannot be applied by virtue of the Article 1(1)(a) rule. Consequently, the issue of whether S is bound by the offer can only be resolved by applicable rules of domestic law, [28] in this case: the Danish Contracts Act Aftaleloven, [29] which tells us that S's offer was in fact irrevocable.[30] And since S is bound by its offer to sell, the Scandinavian court will then use Part III of the Convention which apply in this case by virtue of Article 1(1)(a), to resolve the question of B's remedies, including damages for breach, etc.[31]

In a case like that in Illustration 1 (above) the proper application of the alternative ("or") rule in subsection (b) of Article 1(1) would not change this result. This is not because CISG Part II can never apply in cases "like" this; [32] but rather because the seller in this particular [page 293] illustration just happens to reside in a Scandinavian State, which in this case means that the relevant rule of Private International Law (PIL) points to Denmark.[33]

Indeed, the rule in subsection (b) will sometimes serve to activate CISG Part II, notwithstanding the fact that the subsection (a) criterion is not met, [34] i.e., even in cases where one of the parties resides in a Scandinavian State. To help prove the point, we can simply reshuffle the facts:

Illustration 2. Seller S in France offers to sell a large quantity of French cheese to a Danish buyer B. Before B can post his acceptance, S revokes his offer. Claiming that S remains bound by the offer, B brings suit in Denmark, demanding damages for breach.

This illustration looks much like Illustration 1 (above). Of course, the fact that we are now dealing with cheese makes no difference, [35] but the fact that the seller in Illustration 2 is in France constitutes a decisive difference as regards the applicable law. For although Denmark's Article 92 declaration (still) means that Denmark cannot be considered a "Part II Contracting State" under Article 1(1), the declaration does not relieve Denmark of its treaty obligation under Article 1(1)(b) to apply the (entire) Convention when the applicable PIL rules lead to the application of the law of a "full-fledged" Contracting State (like France).[36]

Now, in Illustration 2, the PII, (conflict of laws) rules which are relevant in a Danish forum are rooted in the 1955 Hague Convention on the Law Applicable to the International Sale of Goods.[37] In this case, the applicable default rule in the 1955 Convention is that the "seller's law" - i.e., French law - applies.[38] And since France has ratified the whole CISG, including Part II, it is submitted that Article 1(1)(b) requires the Danish court to apply Part II to determine whether the seller's offer [page 294] binds, [39] Moreover, since the 1955 Hague Convention is also the P1L rule set relevant for international sales in France, [40] a competent French court seized of the same action should feel obliged to reach the same (Part II) result.

The notion that CISG Part II might sometimes apply in spite of an Article 92 reservation was suggested in 1987.[41] In 1989, when Denmark ratified the Convention subject to Article 92, a commentator in that State 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.[42] In 1995, a prominent German commentator concurred, arguing that only this interpretation of Article 92 could advance the goal of uniform Convention application.[43]

III. Theory Confirmed in Elinette Trading v. Elodie

Those of us who have advocated the "narrow" reading of the Part II declarations outlined above have reason to be pleased by the first reported case involving the application of Article 92 by a Scandinavian court.[44] Although this 1998 decision was rendered within the jurisdictional - some might also say quite technical - context of the Brussels [page 295] Convention on Jurisdiction and Judgments, the decision clearly affirms the view that the Article 92 reservations do not have the far-reaching effect which some might otherwise expect.

The case in question, decided by the Danish Court of Appeals and recently published in the (Danish) Weekly Law reports, [45] involved the Danish plaintiff-seller (S) who sought payment against a French defendant (B) alleged to have purchased goods from S.

In particular, S claimed that B had ordered a quantity of women's clothing during a visit made by S's agent (A) to B's boutique in France. As proof of the transaction, S provided the court with an order-form completed by A and A's deposition stating that B indeed had placed the order indicated on the form. In addition, S provided a copy of an order-confirmation sent by S to B, along with the corresponding sales invoices etc.

B, on the other hand, (who had not signed anything) flatly denied that any order been given, or any contract made. B acknowledged only that the goods allegedly purchased had been received, and that they been returned to S.

So the stage seemed set for a dispute involving the law of contract formation. Had the parties made a binding contract or not?

But the resolution of this substantive question requires a preliminary determination as to which law the court should apply. Though it was clear that the rights and remedies of the parties pursuant to the alleged sales contract should be governed by CISG Part III, [46] the Danish Article 92 declaration raised the issue of whether the Part II (Contract Formation) rules also apply, or whether the domestic law of Denmark or France should govern this (contract formation) part of the case.

Because this case was brought not in France, but rather on the plaintiff's home turf (Denmark), the first question to be decided was whether the Danish court had jurisdiction to decide the case at all.[47]

As things turned out, this initial determination came to involve much more than "purely procedural" matters. Indeed, to resolve the jurisdiction issue, the Danish court twice turned to the substantive content of the CISG.[48][page 296]

Though this Journal is hardly the place to debate the technical ins and outs of European procedure under the Brussels Jurisdiction and Judgments Convention, [49] it is important to highlight how the question of jurisdiction in this particular contractual matter came to depend upon the content of the CISG.

We start by noting that Article 5(1) of the Brussels Convention provides for special (Americans would say "specific") jurisdiction in contract (and thus sales) cases at the "place of performance of the obligation in question." Since the "obligation in question" in this case was B's obligation to make the payment allegedly due, [50] and since the parties' obligations under this (alleged) sales contract were surely governed by CISG Part III, [51] then - according to Article 57(1) [52] - the proper place for the performance of the obligation in question was Denmark.[53]

But in B's view, all this was quite beside the point! B argued that, even assuming Denmark is "the place of performance" for a payment "obligation" like this, the Danish court should not accept jurisdiction if, as B claimed, no payment obligation existed, because no contract had been made.

Looking to European Court of Justice ("ECJ") precedent the Danish Court of Appeals found some merit in B's argument. In particular, it took the ECJ's ruling in the Effer case [54] to mean that jurisdiction under Article 5(1) could only be maintained if there was some evidence of "the existence of the constituent parts of the contract," [55] i.e., an offer and an acceptance.

This interpretation of the Effer ruling was somewhat controversial.[56][page 297] However, it was the next step in the Danish decision which would especially interest students of the CISG. In order to determine whether the "constituent parts" of a contract (the offer and acceptance) could be said to "exist" in this case, the court looked to the rules of Contract Formation in CISG Part II. The logic of the Danish court was as follows: [57]

1. CISG Article 1(1)(a) cannot require the application of CISG Part II.[58]

2. However, Article 1(1)(b) will require the application of CISG Part II if the. relevant Danish PIL (conflicts) rule points to the law of France - a CISG State which has not made an Article 92 declaration.

3. The relevant PIL rule in this case is (the Danish statute incorporating) Article 3(2) of the International Sale agent in France.[59] This PIL rule points to the law of France.[60]

4. This means that CISG Part II applies by virtue of CISG Article 1(1)(b).[61]

Having found the CISG Part II rules applicable, the Danish Court then proceeded to apply the rules in Article 11 and (more importantly) Article 18 whereby "[s]ilence or inactivity does not itself amount to acceptance." Since the parties in this case had no prior business dealings, B's silence [62] could not be interpreted as an implied acceptance of the offer made by S.[63] Therefore, because a key "constituent part" of the contract (the acceptance) was found missing, [64] the court held that it did not have jurisdiction to decide the case.[65]

Thus, the case was dismissed on "procedural grounds," but - significantly - on the basis of the Danish court's application of the Contact Formation provisions in CISG Part II.[page 298]

IV. Conclusion

The more general conclusion to be drawn from the weight of worldwide CISG doctrine, [66] now confirmed by the Danish Court of Appeal's decision in Elinette v. Elodie, [67] is that the Scandinavian Article 92 declarations will only preclude application of the Contract Formation rules in CISG Part II in those cases where the forum State's rules of private international law point to the law of a Scandinavian CISG State, but the declarations will not preclude application of Part II in those cases where the applicable PIL rules point to the law of a non-Scandinavian CISG State.

Since this flickering and essentially fortuitous [68] application of CISG can hardly have been what Scandinavian legislators sought to achieve by their Article 92 declarations,[69] and considering that the CISG default rules on Contract Formation seem well-suited to their international objective, [70] it is submitted that the Scandinavian States would all do well to withdraw their reservations to CISG Part II.[71]


* The Journal of Law and Commerce adheres to The Bluebook Uniform System of Citation, but the Journal of Law and Commerce has created uniform citations for certain sources not addressed by The Bluebook. Moreover, with respect to foreign language sources for which the Journal of Law and Commerce was not provided an English translation, the editors have relied on the author for the veracity of the statement drawn from such sources.

** Professor of Law, University of Copenhagen, Denmark

1. United Nations Convention on Contracts for the International Sale of Goods, Apr. 11, 1980 S. Treaty Doc. No. 98-9 (1983), 19 I.L.M. 668 (1980) [hereinafter CISG] (entered into force on Jan. 1, 1988), available in 15 U.S.C.A. app. At 49 (West Supp. 1996), 52 Fed. Reg. 6262-80, 7737 (1987), U.N. Doc. A/Conf. 97/18 (1980). Finland and Sweden both ratified the CISG in 1987. Norway ratified in 1988, followed by Denmark in 1989. All four of these States made the same reservations. See generally Joseph Lookofsky, Understanding the CISG in Scandinavia §§ 2-3 and 3-1 (1996). Iceland is a Nordic country which has not yet ratified the CISG.

2. See generally Joseph Lookofsky, Understanding the CISG in the USA Chs. 1-2 (1995) (citing the U.S. as an example of adopting the CISG for use in international sales).

3. The term domestic is preferable over the term "national" law, as use of the latter term may obscure the fact that a State which ratifies the Convention makes it part of that country’s own (national) legal system, specifically the part that applies to international sales. See Herbert Bernstein & Joseph Lookofsky, Understanding the CISG in Europe 1 n.5 (1997).

4. See Lookofsky, supra note 1, at 1; accord Jan Ramberg, Köplagen 48 (1995) [hereinafter Ramberg] ("köplagen I allt väsentligt utformats med CISG som fôrefild"). But see infra note 9 and accompanying text for a discussion regarding the cumbersome "liability differentiation" scheme that sets the new Finnish, Norweian and Swedish sales acts apart from the CISG. See infra text accompanying note 12 for a discussion of Scandinavian reservations to CISG Part II.

5. With the exception of CISG Part II. See infra text accompanying note 12.

It should also be noted that the essentially "integrated" Norwegian Sales Act of 1988 contains a few significant provisions which do not apply to international sales. Regarding, in particular, the highly controversial "liability differentiation" scheme, see infra note 9. Regarding inter-Scandinavian sales and Article 94, see infra text accompanying notes 6-11.

Regrettably, not all provisions of the Norwegian SGA which apply to international sales mirror the content of the authentic CISG text. See Lookofsky, supra note 1, §§ 1-2, 2-2, 2-4, 4-4, 6-4, 6-5 and 6-19. Compare generally the less critical views of J. Bergem & S. Rognlien, Kjpsloven (1991).

6. That is, where the parties to an international sale reside in different Scandinavian States.

7. Absent these reservations, the CISG would have applied by virtue of Article 1(1)(a). CISG, supra note 1, art. 1(1)(a).

8. Lookofsky, supra note 1, §§ 2-2 and 8-6 (regarding the Article 94 reservations).

9. Under the revised Sales Acts now applicable in Finland, Norway and Sweden, the basis of liability depends on the type of loss. On one hand, liability for "direct loss" is essentially strict, i.e., unless the obligor can document the kind of force-majeure contingency described in CISG Article 79. On the other hand, liability for "indirect loss" is based on fault. For a discussion in English, see generally Joseph Lookofsky, Consequential Damages in Comparative Context 195-203 (1989).

One Danish observer viewed this "liability differentiation" scheme as doomed from the start. See id. Some 10 years later, another Scandinavian commentator branded the same scheme a "Catch 22" failure on the basis of its application in the Scandinavian courts. See B. Sandvik, Direkt-och indirect förlust enligt "moment 22" I köprätten, Juridiske Föreningens I Finland Tidsskrift 256 (1997).

Doubts regarding the wisdom of liability differentiation help explain Denmark’s reluctance to follow the other Scandinavian States’ lead in domestic Sales Act reform. Although the original Danish Sales Act (Kbeloven) of 1906 was amended in 1977 to include a special set of rules for consumer sales, the provisions governing sales between merchants remain essentially unchanged. See generally Joseph Lookofsky, Kb: Dansk Indenlandsk Kbsret (1996).

10. Denmark, which retains its original (1906) Sales Act, has not indicated that it will follow the model for sales act revision adopted by the other Scandinavian states in 1987-90. The "liability differentiation" feature of the new Acts is extremely controversial. Regarding the CISG-inspired portions of the new Acts, see supra text accompanying notes 3-5.

11. See Ramberg, supra note 4, at 171-72. Accord Lookofsky, supra note 1, § 8-6.

12. See CISG Contracting States and Declaration Table, 18 J.L. & Com. 439 (1999).

13. According to the default rule applicable in Scandinavian domestic law (Aftaleloven, in Denmark), every communicated offer is a "firm" offer binding upon the offeror for a reasonable period of time. The Danish government’s position on this point is documented in the comments to the legislation implementing Denmark’s CISG ratification. See Folketingstidende 1988-89 tillæg A, sp. 1015.

14. See id.

15. See Joseph Lookofsky, Internationale Kb 47 (1989). Accord Gomard & Rechnagel, International Kbelov 64 (1990) (reiterating Lookofsky’s critique).

16. See generally Lookofsky, supra note 1, § 3-6.

17. Formation rules are located in Chapter I of the essentially uniform domestic Scandinavian legislation, the Contracts Act (Aftaleloven, in Denmark).

18. Validity rules are located in a separate chapter (Chapter III) of the Contracts Act. See supra note 17.

19. See supra text accompanying notes 2-12.

20. See supra text accompanying note 1.

21. This is documented in the comments to the Danish legislation implementing Denmark’s CISG ratification. Folketingstidende 1988-89 tillæg A, sp. 1015.

22. As early as 1989, it was predicted that even Scandinavian courts would sometimes be bound to apply the rules in CISG Part II, the Article 92 declarations notwithstanding. Lookofsky, supra note 15, at 50. See also infra text accompanying notes 40-42.

23. See Lookofsky, supra note 1, §§ 2-8, 2-9, regarding the uniform interpretation of the CISG under Article 7(1). See also Bernstein & Lookofsky, supra note 3, §§ 2-8, 2-9 and Lookofsky, supra note 2, §§ 2-8, 2-9.

24. All CISG Contracting States, including the Scandinavian States, are bound by the rules in Part I.

25. Article 92 continues, ". . . or that it will not be bound by Part III of this Convention." CISG, supra note 1, art. 92. No State has made such a reservation as to CISG Part III.

26. CISG, supra note 1, art. 92 (emphasis added).

27. CISG, supra note 1, art. 92(2).

28. See CISG, supra note 1, art. 4; see also id. Art. 7(2). See Lookofsky, supra note 1, §§ 2-6 and 2-11.

29. In this situation the relevant (forum) rules of private international law (PIL) lead to the application of the Danish seller’s law. See Joseph Lookofsky, International Privatret Pa Forumuerettens Omrade, Ch. 4.2.1 (2d ed. 1997). Because, incidentally, the French PIL rules on this point are the same, a French court would reach the same result.

30. For a reasonable time. This is, at least, the "starting point." See supra text accompanying note 13.

31. See Lookofsky, supra note 1, at Ch. 6B (regarding buyer’s damages for seller’s breach).

32. The Scandinavian States are not among those few CISG States which have made Article 95 declarations with respect to Article 1(1)(b). Regarding the effect of the Article 95 declarations taken by the United States, see Lookofsky, supra note 2, 2-4.

33. This point is explained more fully infra in the text accompanying notes 34-40.

34. That is, even if one of the parties to the sale does not have its place of business in a "Part II Contracting State."

35. Both bacon and cheese are "goods" within the meaning of CISG Article 1. See CISG, supra note 1, art. 1.

36. France, which has not made an Article 92 declaration, is therefore a "Contracting State" with respect to Part II.

37. This Convention has been ratified by 8 European countries: Belgium, Denmark, Finland, France, Italy, Norway, Sweden and Switzerland.

Regarding the Danish enabling legislation, which has "transformed" the Hague treaty into Danish law, see Lookofsky, supra note 29, at Ch. 4.

38. This is the main (general) default rule in Article 3, para. 1 of the 1955 Convention. For an important exception see infra text accompanying note 59.

39. Accord Kai Krüger, Norsk Kjpsret 470 n.8 (1991) (referring to Lookofsky, supra note 15, at 50 f). The implications of the Scandinavian reservations seem to have been ignored by Bergem & Rognlien, supra note 5, at 521. Regarding the revocability of certain offers under CISG Article 16, see Lookofsky, supra note 1, §§ 3-6.

40. See supra note 37.

41. See Malcolm Evans, Final Provisions, in C. Bianca & M. Bonell, Commentary on the International Sales Law 643 (Dotta. Giuffré ed., 1987). But see J. Honnold, Uniform Law for International Sales 594 (2d ed. 1991).

42. See supra note 22; see also Joseph Lookofsky, Loose Ends and Contorts in International Sales: Problems in the Harmonization of Private Law Rules, 39 Am. J. Comp. L. 405 (1991).

43. See R. Herber in E. von Caemmerer & P. Schlechtriem, Kommentar Zum Einheitlichen UN-Kaufrecht-CISG, art. 92, Rd.Nrn. 3 n.2b (2d ed. 1995) (citing Lookofsky, supra note 41). See also P. Schlechtriem, Commentary on the UN Convention on the International Sale of Goods – CISG 692 (Peter Schlechtriem ed. & Geoffrey Thomas trans., Clarenden Press, 1998) ("In such cases the courts of the [Art.92] reservation state should also be obliged to apply the excluded part of the Convention (contrary to the view expressed by the author in the previous German edition of this work); only in that way can uniformity of decisions be secured irrespective of the forum applicable.") (emphasis added).

See also Harry M. Flechtner, The 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 J.L. & Com. 187, 194 n.23 (1998) (citing to Lookofsky, supra note 1, § 2-4 (Illustration 2e)).

44. Compare Oberlandesgericht Rostock, 27 July 1995, OLG-Report 1996, 50, also 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.

45. Ugeskrift for Retsvæsen 1998.1092 .L.K.

46. See CISG, supra note 1, art. 1(1)(a).

47. Had S chosen to bring the action in France, the French court would surely have had jurisdiction under Article 2 of the Brussels Convention on Jurisdiction and Judgments. See Joseph Lookofsky, Transnational Litigation & Commercial Arbitration, Ch. 2.2 (1992).

48. See infra text accompanying notes 52 and 61.

49. See supra note 47.

50. This has been made abundantly clear by the European Court of Justice. See, e.g., De Bloos: Case 14/76 decided 6 October 1976; Shenavai: Case 266/85 decided 15 January 1987; and Custom Made: Case C-288/92, decided 29 July 1994.

51. Both parties reside in CISG Contracting States.

52. "If the buyer is not bound to pay the price at any other particular place, he must pay it to the seller: (a) at the seller’s place of business . . ." CISG, supra note 1, art. 57(1). See Lookofsky, supra note 1, § 4-12.

53. See, e.g., the decision of the Court of Appeal of Paris of 15 October 1997, CLOUT Case 223, published in French on the Internet "http://www.jura.uni-sb.de/FB/LS/Witz/151097.htm".

The many European decisions on this point run contrary to the view expressed by Professor Honnold that the language of CISG Article 4 "hardly supports the extension of the Convention to procedural and jurisdictional matters." Honnold, supra note 41, at 417-18. As long as Article 5(1) of the Brussels Convention requires that the place of performance be determined by the applicable substantive law, there is no way around the CISG.

54. Case 31/18, decided 4 March 1982.

55. In French: "l’existence des elements constitutifs du contrat lui-même."

56. The Danish court’s decision on this point does not necessarily follow from Effer. See Ketilbjrn Hertz & Joseph Lookofsky, CISG del II og værneting I UfR 1998.1092 LK, Ugeskrift for Retsvæsen 8 (1999). See also K. Hertz, Jurisdiction in Contract and Tort under the Brussels Convention 294-96 (1998).

57. The ratio of a Danish court’s decision is often so brief that its meaning cannot be conveyed to non-Danish jurists by a literal translation.

58. See supra text accompanying note 27.

59. The rule states that "a sale shall be governed by the domestic law of the country in which the purchaser has his habitual residence . . . if the order has been received in such country, whether by the vendor or by his representative, agent or commercial traveler."

60. Id.

61. This result applies notwithstanding the Danish Article 92 reservation.

62. That is, B’s failure to respond to the order confirmation allegedly sent by S.

63. See Schlechtriem, Commentary on the UN Convention, supra note 43, at 130. Compare Filanto S.p.A. v. Chilewich Int’l Corp., 789 F. Supp. 1229 (S.D.N.Y. 1992) (prior business dealings led to the opposite result (implied acceptance)).

64. This is not the only possible interpretation, but it was at least the way the Danish Court of Appeals interpreted the European Court’s decision in Effer. See supra text accompanying note 56.

65. See supra text accompanying note 55.

66. See supra text accompanying notes 41-43.

67. See supra note 45.

68. That is, whether or not Part II applies will depend, inter alia, on where the sales order was received. See supra text accompanying notes 38 and 59.

69. See supra text accompanying note 21.

70. See supra text accompanying note 15-16.

71. See CISG, supra note 1, art. 97(4); Lookofsky, supra note 1, at 128. Accord Hertz & Lookofsky, supra note 56.

Pace Law School Institute of International Commercial Law - Last updated September 1, 2000
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