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Unification or Harmonisation: A Critical Analysis of the United Nations Convention on Contracts for the International Sale of Goods 1980

Philip James Osborne [*]
August 2006

INTRODUCTION

The United Nations Convention on Contracts for the International Sales of Goods [1] came into force on January 1, 1988 when the required number of States deposited their instruments of ratification.[2] At present, the CISG has been adopted by 67 geographically dispersed States,[3] accounting for over two-thirds of all world trade.[4] Its purpose is to promote international trade through the removal of legal barriers, thus achieving substantive uniformity in the law governing international sales contracts amongst the States party to it. As a "pillar of the entire system of commercial relations",[5] the sales contract provides the perfect mechanism for the unification of international sales law, especially when considering how many other contracts stem from it. However, it is questionable whether the CISG represents a unification or substantial harmonisation of the law of international sales. It is a central premise of this paper that although these concepts are often used interchangeably within CISG literature, it is necessary to re-establish the distinction between these terms as the classification of the CISG as unification or harmonisation of laws has a significant impact on whether it can be regarded as fulfilling its objectives.

Chapter I defines and distinguishes the "unification" and "harmonisation" of laws and provides the standard against which the CISG will be measured throughout this paper. In addition, it briefly considers the rationale behind the movement towards a uniform substantive law. Chapter II traces the development of uniform international law from the medieval concept of the lex mercatoria through to the creation of the Hague Uniform Laws 1964, the precursor to the CISG. In addition a brief overview of the CISG, stating its basic aims will be provided in order to establish the background against which our main discussion takes places. Chapter III examines the development of the Convention in more detail, highlighting some of the difficulties encountered when attempting to create a single, uniform international law and aims to determine whether the delegates at the Conference were able to overcome such difficulties. The interpretation and application of the CISG is provided for under Article 7. Chapter IV examines some of the theoretical questions surrounding the interpretative rules set out in Article 7(1), whilst Chapter V deals with the gap-filling requirements of Article 7(2). Together, these chapters seek to determine whether the CISG's rules on interpretation and gap-filling have been followed by the courts and tribunals and whether they have arrived at consistent results on difficult issues, notably determining the rate of interest pursuant to Article 78.

CHAPTER 1: UNIFICATION & HARMONISATION

The extent to which the Convention achieves its objectives cannot be determined before knowing exactly what we mean by the concept of international unification, as distinct from the harmonisation, of law. The existence of this important distinction, which is the central premise of this paper, is often overlooked by scholars who use the terms interchangeably and without due consideration of the nuance between the terms and their effects. Only when we have a clear view of what it means to achieve unification of the law on international sales can the relative success or failure of the CISG be properly judged. Evidence of this distinction might be read from the U.N. Resolution that established the United Nations Commission on International Trade Law [6] with the task of promoting the "harmonisation and unification of the law of international trade".[7]

1.1 Unification

A practical starting point in the formation of our definition of "unification" is to consider the meaning attached to the term by comparative lawyers who have contributed greatly to the debate on the unification of laws.[8] Bogdan defines unification rather succinctly as "the intentional introduction of identical legal rules in two or more legal systems".[9] Similarly, Kamba regards unification as signifying "the process whereby two or more different legal provisions or systems are supplanted by a single provision or system: it creates an identity of legal provisions or systems."[10] The similarities between the comparative law definitions provide us with the first basic requirement of our definition of unification (Pt.1). Thus the unification of laws requires in the first instance:

Pt.1: The substitution of laws in two or more jurisdictions by a single body of norms.

Although Pt.1 of our definition reflects the common elements of the comparative definitions it is noticeable that the requirement of intent in Bogdan's definition demonstrates an understanding that the laws of two or more jurisdictions may develop over time into a reflection of one another in the absence of any form of intervention from third parties. This may lead to more substantial similarity as opposed to formal similarity. Accordingly, we shall confine our discussion of unification to the ratification of international instruments, such as the CISG, which are specifically designed to have a unifying effect on legal systems. We shall not consider the resemblances between legal systems that might occur as a result of a national legislator aiming to simply improve their national laws by imitating, importing or transplanting norms from other legal systems nor judicial parallelism whereby the judiciary are influenced by decisions in other jurisdictions in developing their own domestic law.[11] Whilst not uncommon, these methods are not driven by a desire to effect the unification of law and for that reason are disregarded. Furthermore, such laws are open to amendment at a domestic level in contrast to the unification of laws which, despite becoming part of domestic law by ratification can only be changed by diplomatic conference at the supranational level.[12] In light of the above, Pt.1 of our definition needs restating as:

Pt.1: The intentional substitution of laws in two or more jurisdictions by a single body of norms.

Kastely's definition of the unification of law among nations may be used to develop our own still further by providing the link to our second requirement. She adds to the comparative law definition by arguing that unification means, "to subject people around the world to a single set of rules and principles and to have them understand and conform to these rules and principles as they would to the laws of their own communities."[13] Although not expressed clearly, Kasterly's definition appears to point us towards both an appreciation of the internationality of the supplanting rules and as a corollary, the need to ensure that they are understood and therefore conformed to. This gives rise to the second aspect of our definition:

Pt.2 The intentional substitution of laws in two or more jurisdictions by a single, international-based, body of norms.

Whilst it is desirable that all those who come into contact with the CISG are able to understand its provisions, and indeed great care was taken during its drafting to ensure this was so, it is arguably more important that those charged with applying its provisions, namely the courts and arbitrators, have a clear, common understanding of their meanings. In other words, it is an important aspect of unification that the law be interpreted and applied uniformly across all States. Such "functional uniformity"[14] can only be achieved if national courts and tribunals are conscious of decisions in other jurisdictions. Although interpretational considerations might be implied from Kasterly's definition and our own, it is necessary to make this requirement more explicit:

Pt.2 The intentional substitution of domestic laws in two or more jurisdictions by a single, international-based, body of norms, which is interpreted and applied uniformly.

Furthermore, given that the inclusion of the requirement that the law be uniformly interpreted is of paramount importance in accomplishing the unification of laws, whilst also serving to enhance certainty, this aspect of our definition calls for further explication. It is necessary to distinguish between legal certainty and certainty of outcome.[15] For example, we can be certain of the rules a uniform law prescribes, but quite uncertain of the outcome the application of a particular interpretative methodology to those rules will achieve. Thus, certainty of outcome does not necessarily follow from the creation of a uniform body of rules.[16] However, this unsatisfactory position is not irreconcilable. David defines unification in a manner that ostensibly bridges the gap between uniform rules and uniform results when stating that unification means:

[P]roviding the same rules for the different countries so that the same solution applies everywhere ... if a difficulty concerning a given relationship of international law happens to arise.[17]

Therefore, David has provided us with the third requirement of the unification of laws - the need to ensure uniformity of outcome or solution. If we conjoin parts 1, 2 and 3 of our definition the relationship between them becomes clear and we shall have explicated the definition of unification of laws that will serve as the point of reference for the rest of our discussion. For the purposes of this paper the unification of laws shall refer to:

The intentional substitution of two or more jurisdictions by a single, international-based, body of norms, which is interpreted and applied uniformly so that, in any dispute, the same solutions are achieved.

This definition has three requirements: (i) the creation of a single law or text; (ii) the uniform application of the given law, and consequently (iii) the production of uniform results. These requirements will be evaluated in turn throughout this paper. Having established the meaning of unification, we must address the question of how unification differs from the harmonisation of law.

1.2 Harmonisation

Harmonisation is a concept that has often been defined in scholarly writings but with varying degrees of congruency.[18] Whilst it is unnecessary to engage in a detailed analysis of the relative merits of these definitions, a cursory glance will enable us to unpack the main characteristics of the term and enable us to distinguish it from 'unification'.

At a most basic level comparative lawyers regard harmonisation as "making the legal rules of two or more legal systems more alike".[19] In contrast to unification, harmonisation upholds the individuality of its component parts. There is a high degree of similarity in basic principles but not detailed provisions, meaning that a person familiar with the law in one jurisdiction can easily understand the law of another jurisdiction and adjust to it.[20] Goldring considers harmonisation to be a process whereby "... the effects of a type of transaction in one legal system are brought as close as possible to the effects of similar transactions under the laws of other countries".[21] Therefore harmonisation tolerates not only the difference between the individual elements (laws) to be harmonised, but also differences in the application of the harmonising measure, regardless of whether they are a consequence of substantive of interpretational differences. As Glenn notes:

Uniformity of results is not its [harmonisation's] goal since law is conceived in terms of process rather than results and variable results are entirely compatible with the process sought to be created.[22]

The net effect of upholding diversity in its constituent parts is that, in contrast to unification, harmonisation can produce and tolerate diversity of results. Accordingly, harmonisation is a process of making laws similar. Unlike unification, at the end of this process the various laws are not supplanted by a single rule, rather they continue to co-exist. Conceived as a process, harmonisation of laws is sensible first towards the grander goal of unification. However, it is only a first step and to achieve unification the harmonisation of substantive laws must be re-enforced by procedural harmonisation and therefore consistency of results. Having defined and distinguished unification and harmonisation we must now consider the reasons for this interest in international commercial law.

1.3 Globalisation

The desire to create a uniform law of international trade is not shared by all.[23] Some commentators, notably in England and to a lesser extent the US, reject uniformity in favour of open competition whereby the market is left to choose the most effective and best-adapted systems to govern various transactions.[24] As Nicholas states, the choice is between "familiar certainties of [established] laws [e.g. English commercial law] or the Utopian and unpredictable ideals Conventions."[25]

The movement towards the unification of international trade law "bears witness to the realisation that we might benefit by joining with others, and that in any event our interests are often at stake."[26] These interests are primarily economic and therefore the force driving this movement is globalisation. Technological advances made it easier and more efficient for the businessperson to buy and sell across state borders, thereby reducing barriers to trade. In this new context, the desire to create a uniform law for international sales reflects the inadequacy of many national legal systems to respond to the changing circumstances of modern international trade.[27] Accordingly unification serves a useful purpose and a unified marketplace requires a unified governing law.

The unification of laws can be achieved using a number of mechanisms. One such mechanism is the use of model laws, for example the UNCITRAL Model Law on International Commercial Arbitration. Model laws are instruments that do not in themselves acquire legal force at international level but instead are available to be adopted by States if they so require. However, with respect to unification their use is limited as adopting countries are under no obligation either to apply the law or accept it without variation.[28] Furthermore, model laws mainly benefit those countries whose law is underdeveloped in the area covered by the model law.[29]

International conventions are multilateral international agreements, which contracting states undertake to introduce into their national law. According to Hobhouse they have as their sole objective, the achievement of "stark uniformity"[30] and as such appear the perfect vehicle by which to achieve unification as defined in this paper. However, international conventions are subject to a number of criticisms which will be highlighted throughout our analysis of the CISG.[31]

SUMMARY

From the preceding discussion, it is clear that harmonisation and unification are related concepts. However they differ in the degree to which each tolerates variation. Whereas harmonisation is a flexible concept, requiring a degree of similarity in the substantive law and its interpretation and application, unification is an absolute, requiring that the substantive law of States be made the same and that it be interpreted and applied in a uniform manner in order to achieve uniform results. However, some scholars argue that absolute uniformity among sovereign nations is an impossible goal,[32] and consequently the primary goal of the CISG should be to achieve "functional" uniformity.[33] Such a stance leaves the debate on the unification or harmonisation of laws in an indeterminate state. Functional uniformity is the standard antithesis to textual uniformity - it relies purely on outcomes, without due account of underlying doctrinal or textual variations. Whilst some may regard it as a concession or pragmatic alternative to absolute uniformity; to others, it represents the epitomy of substantive harmonisation whilst retaining legal diversity.Accordingly, unification has been absorbed by the less ambitious concept of harmonisation. However, it is important that the distinction between these terms is maintained. Whilst unification may ultimately prove unattainable, it nevertheless serves a useful purpose as an ideal to be worked towards through the vehicle of harmonisation. It is arguable that we should resist the temptation to dilute the goal of absolute uniformity and settle for "functional" uniformity on the basis that it is more easily achievable. As a purportedly uniform law, unification must be the benchmark against which the CISG is tested. The subsequent chapters of this paper seek to test systematically the CISG against this definition of unification in order to determine whether it is meeting its objectives.

CHAPTER 2: THE DEVELOPMENT OF UNIFORM INTERNATIONAL LAW

In order to understand the movement towards a uniform law of international commerce,[34] and more importantly to properly evaluate its success or failure, it is first necessary to trace its development. International commercial law has developed in three stages.[35] It began in the Middle Ages with the lex mercatoria, a body of international customary rules governing the cosmopolitan community of international merchants who travelled throughout the civilised world. The second phase involved the incorporation of the lex mercatoria into national systems of law. This process was carried out in various countries at different times and for different reasons. The third phase aims to achieve the unification of international trade law at the international level and has given risen to what some consider to be a new lex mercatoria.

2.1 The Lex Mercatoria

The old lex mercatoria was an international law of commerce, having five characteristics: (1) it was transnational; (2) its principle source was mercantile customs; (3) it was administered not by professional judges but by merchants themselves; (4) its procedure was speedy and informal; and (5) cases were often decided ex aequo et bono, with an emphasis on equity in the medieval sense of fairness.[36] Based primarily on mercantile customs the old lex mercatoria was an uncodified, "spontaneous"[37] body of laws that suited their needs. Essentially uniform, its authority derived from the voluntary acceptance of the merchants whose conduct it sought to regulate, but who also contributed to its development.[38]

Moreover, it is submitted that the old lex mercatoria is surprisingly consistent with the definition of a unified body of law set out in chapter 1. Being transnational in nature and based primarily on common mercantile customs and usages, the lex mercatoria was ostensibly uniform, notwithstanding the fact it was uncodified. Accordingly, one might argue that it satisfied the first requirement of the definition of "unification" - the existence of a single body of international norms. Furthermore, scholars agree that the lex mercatoria was uniformly applied by the mercantile courts and consequently a high degree of uniformity in results must have been achieved. Thus, the lex mercatoria also appears to fulfil the second requirement of our definition - uniform application and results. Whilst some scholars may refute the characterisation of the lex mercatoria as a uniform law, its success during the Middle Ages is unquestionable. As Professor Schlesinger has stated, "cosmopolitan in nature and inherently superior to the general law, the law merchant by the end of the medieval period had become the very foundation of an expanding commerce throughout the Western World."[39]

The second stage of the development of international trade law is marked by the incorporation of the "law merchant" into national systems of law in the eighteenth and nineteenth centuries, as the concept of national sovereignty acquired prominence.

In France, the Code de Commerce, enacted in 1807 emphasised the concept of freedom of contract and the notion of ownership as an absolute right.[40] In Germany, the Uniform Commercial Code of 1861 was created to give impetus to political unification on a wider scale.[41] Finally, in England the incorporation of the lex mercatoria into the common law was carried out by Lord Chief Justice Mansfield in the middle of the eighteenth century. This was achieved through the simplification of commercial procedure for reasons that appear to be motivated by economic, rather than political factors.[42]

However, scholars seem to disagree on to the effects of the "nationalisation" of the lex mercatoria. On the one hand, Lord Mansfield stressed that the lex mercatoria remained "... the same all over the world. For from the same premises, the same conclusions of reasons and justice must universally be the same."[43] On the other hand, Sealy considers that the incorporation of the lex mercatoria into the national laws of Europe during this period inevitably meant that commercial law lost much of its international character.[44] The present author favours the latter "fragmented" view, which accords with the third stage of the development of the international commercial law. Whilst the lex mercatoria might have provided French, German and English law with a common conceptual framework this did not ensure that the laws in these countries developed in the uniform manner that characterised the lex mercatoria. Although mercantile customs might evolve uniformly, variations in the law can still occur in a number of ways, whether through legislative amendments or interpretive differences.

Some commentators argue that globalisation of trade during the 20th Century has seen a revival of an international community of merchants and a universal lex mercatoria, free from any national legal system. Newly formed international organisations such as UNCITRAL have begun the process of unification and codification of international commercial law thereby creating what some consider to be a "new" lex mercatoria. Schmitthoff, one of the leading proponents of the new lex mercatoria argues that:

"[T]he circle completes itself ... the general trend of commercial law everywhere is to move away from the restriction of national law to a universal, international conception of the law of international trade."[45]

However, some of the characteristics of the new lex mercatoria differ to that which existed during the Middle Ages.[46] First, the new lex mercatoria is not a branch of international law; it is not a part of the jus gentium, but is applied in national jurisdictions by the tolerance of the national sovereign whose public policy may override or qualify any particular rule of that law. The fact alone that a number of international trade contracts are governed nowadays by international convention and uniform laws "cannot be considered proof of the existence of an autonomous lex mercatoria, because these conventions become relevant only to the extent that they have been ratified by States, and therefore have become positive law within the various national systems."[47] Secondly, the new law of international trade is codified in a number of authoritative texts compiled by international organisations such as UNCITRAL, for example the CISG.

Goode however is reluctant to subscribe to the idea of a new lex mercatoria, being of the opinion that the lex mercatoria should be confined to international trade practices:

"To equate the lex mercatoria with the entirety of transnational commercial law deprives us of a useful label to denote that part of transnational commercial law which derives from the international practice of merchants. To treat as part of the lex mercatoria standard-term contracts, codes of practice ... and even international conventions seems to me to confuse customary international law ... the essence of the lex mercatoria ... with contract and treaty law, and to treat as a homogeneous mass things that are quite different in character."[48]

On this view, there is a clear difference between the "old" lex mercatoria, which was principally drawn from mercantile customs or usages and the "new" lex mercatoria, which is arguably based on general principles.[49] As Goode states:

"If we look at the list of rules of the lex mercatoria propounded by modern scholars and remove from it general principles of law, we find that almost nothing is left, while on the other hand there is a conspicuous absence of ... modern usages."[50]

Although there is undoubted merit in Goode's argument, Article 9 of the CISG, which binds contracting parties to any usages they have established themselves and more importantly to those usages they knew, or ought to have know are readily applied in the course of international trade,[51] is interpreted as meaning the Convention is subordinate to trade usages. The parties are bound by any usages which they have agreed between themselves and such express provision as to usages regarding the place of delivery or the passing of risk for example, are decided by reference to the expressly agreed usages rather than the CISG provisions. Furthermore, Article 9(2) provides that, in the absence of an express provision to the contrary in their agreement, the parties are considered to have made trade usages impliedly applicable to their contract or its formation. Therefore, as Audit argues, the CISG acknowledges that rules reflecting established practice in an area and not made by sovereign States can be enforced by the parties and implied into their agreement. Accordingly, usages are regarded as equal to party autonomy and have a superior status to the CISG rules which are supplementary.[52]

It might be suggested that one possible test of whether a "new" lex mercatoria has been created is whether it satisfies the definition of unification to the same degree, or more, than the "old" lex mercatoria. If the CISG fulfils the requirements of the unification of laws, then Schmitthoff's claim that we have "completed the circle" might hold some currency.

2.4 The Hague Uniform Laws

Work on the unification of international sales law can be traced back to the 1930's [53] when the International Institute for the Unification of Private Law (UNIDROIT), acting on the recommendations of a report by the eminent German scholar Ernst Rabel,[54] initiated the preparation of a uniform law on the international sale of goods. However, it was not until the Diplomatic Conference held at The Hague in 1964, that the first significant steps towards the creation of a uniform law on the international sale of goods were made. The conference adopted the two uniform laws,[55] the Uniform Law on the International Sale of Goods (ULIS) and the Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF).

Nevertheless, the Uniform Laws failed to achieve widespread acceptance and were adopted by only eight States,[56] which produced a small, mainly German body of case law. Although the UK was an adopting State, it did so subject to the reservation that the ULIS would be applicable only to contracts where the parties chose it as the law of the contract. This inevitably prompted some scholars to question whether the UK can really be considered as having ratified the laws at all.[57] This failure has largely been attributed to what one commentator calls "the biased and isolated drafting process"[58] which was dominated by the civil law traditions of Western Europe.[59] They failed to address the needs of the Socialist and Third World states who considered them to favour sellers of manufactured goods located in developed countries.[60] Furthermore, the drafting style has been criticised as being too long and overcomplicated.[61]

In 1966, following the failure of the Uniform Laws, the United Nations established the UNCITRAL with the task of promoting "the progressive harmonisation and unification of the law of international trade". Schmitthoff regards the creation of UNCITRAL as a "milestone on the road to unification of the law of international trade".[62] UNCITRAL was seen as the ideal organisation to undertake the task of drafting a new international convention since its broad-based membership, would counter the political objections that plagued the Uniform Laws. In the following years, UNCITRAL proposed various drafts, the last of which - the 1978 draft - led to the convening of a diplomatic conference in Vienna from March 10 to April 11 1980. At the conclusion of that conference the United Nations Convention on Contracts for the International Sale of Goods was borne.

2.5 Overview of CISG

For the purposes of this paper it is not necessary to provide an analysis of the many provisions contained within the CISG, such a task has already been undertaken by a number of eminent scholars.[63] In this respect, our aims here are more modest and seek only to provide a summary of the framework of norms against which our main discussion takes place.

The CISG establishes a comprehensive body of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller and remedies for breach of contract. The 101 Articles are divided into four parts. Part I contains its sphere of application and general provisions (Articles 1-13). Notably the CISG represents a "partial codification"[64] of the law of international sales, applying only to the formation of the contract and the rights and obligations of the buyer and seller.[65] Further certain sales are excluded under Article 2.[66] The dominant theme of the CISG is freedom of contract and accordingly the parties may exclude its application altogether or, subject to Article 12, derogate from or vary the effect of any of its provisions.[67] However, although the onus is on the parties to contract out of the CISG,[68] there is disagreement amongst scholars and tribunals as to how explicit the contracting out language must be.[69] Part II concerns the formation of contracts (Articles 14-24). Part III deals with the sale of goods and is subdivided into five further chapters dealing with general provisions, obligations of the buyer and seller and the passing of risk (Articles 25-88). Under the Convention the seller is obliged to transfer the property in the goods, which must be of the quantity, quality and description required by the contract and which are packaged in the correct manner whilst the buyer must pay the purchase price and take delivery of the goods. Part IV is addressed to the Contracting States, supplies the public international law framework and importantly includes the reservations that may be made to the Convention's applicability by the Contracting States (Articles 89-101).[70]

2.6 Summary

Although the Uniform Laws failed the test of acceptability and are now little more than an historical interest, they nevertheless served as a model for the drafting of the CISG and notable lessons were learned.[71] Most importantly, attempts at unification will not realise their full value unless they are inclusive of a wide range of interests and States.[72] As Allot noted when reflecting on the experiences of African countries in the unification of international law:

"African countries have not opted out of discussions on the world unification of laws - quite the contrary ... they wish to be more closely and directly involved in such discussions in the future than they have been in the past."[73]

In other words, successful unification of the law on the international sale of goods requires a broad based or "accomodationist" participation in the drafting process. However broad based participation does not resolve the problem. Instead it simply creates new difficulties in terms of balancing the competing interests of a greater number of participants.[74]

CHAPTER 3: COMPROMISES

Even though the delegates at the Vienna Conference held a common interest in the creation of a unified law of international sales they harboured differing views on the form the law should take. Reconciling these views required reaching compromises on difficult issues. Many arose out of the disparities between; civil and common law traditions, socialist and western systems and developed and developing countries.[75] Accordingly, the creation of the Convention was essentially a diplomatic process.

Eörsi has suggested that there are four types of compromise in the CISG; those which are "clear and recognisable"; those only discoverable by persons with "access to Conference documents"; those where each side has their own assessment of what was agreed; and those which merely mask "continuing agreement" and thus serve no practical purpose, being "illusory" in character.[76] It is submitted that these empty compromises (except for the first "type" mentioned by Eörsi) mean that the text of the Convention is uniform in name not nature. Some of these compromises will now be examined in turn.

3.1 Methodology of Compromises

Honnold argues the approach used by the authors of the CISG to set aside their own legal backgrounds and arrive at a common and acceptable solution made reaching a consensus easier.[77] Instead of submitting various legislative drafts of how the respective delegates thought a given provision should be worded, delegates adopted a results-orientated approach. Once they had agreed the outcome they wished a given provision to achieve, the words used to reach that outcome were more easily approved.

Article 67, whose purpose is to describe when the risk of the transaction passes to the buyer, is an example of this results-based approach to drafting. The drafters have described a common occurrence in international transactions, i.e. handing over of goods from the seller to a carrier, in order that they are delivered to the buyer. Therefore, having agreed when the risk would fall on the buyers, it was easier to find the words to convey that intention.[78]

However, not all States have the necessary will to compromise their traditions.[79] The extent to which these States are able to maintain such a stance is determined by their bargaining power in international trade. Countries who trade extensively at international level negotiate from a position of strength and have less incentive to compromise than others; firstly because their multinational corporations can dictate terms to their suppliers; [80] secondly because those corporations often have access to legal advice from well-informed lawyers familiar with the nature of international trade law.

The businessperson who is familiar with the law governing international sales contracts has a clear commercial advantage over the businessperson who is not so familiar. Accordingly, each State representative at the conferences that developed the CISG had an economic interest in promoting a harmonised law that most reflected their domestic legal system. Underlying this selfish motivation is a natural tendency "to assume that what is familiar is probably better than what is new and strange."[81]

3.2 Civil and Common Law

Although the civil law approach had dominated attempts to unify international law before the Second World War, latterly, the common law approach had "gathered momentum" within the working group of UNCITRAL.[82] Nevertheless, it has been argued that the general style of the CISG is inconsistent with the classic approach of the common law lawyer,[83] whilst its language of is "not typical of the concise style of draftmanship" of civil law such as the French Civil Code.[84]

One of the clearest examples of the differing approaches to sales law held by the civil and common law systems relates to remedies.[85] Whereas civil law systems underline the non-breaching party's right to compel the breaching party to perform their obligations under the contract, common law systems view performance as an exceptional remedy, preferring instead to award damages to the non-breaching party. Article 46 grants the buyer the right to demand specific performance of the seller's obligations, whilst Article 62 entitles the seller to require the same of the buyer. Whilst these provisions are consistent with both the traditional preferences of civil law systems and the economic needs of planned economies lacking substitute transactions, for largely historical reasons these principles are unfamiliar to common law.[86] Accordingly the role of specific performance as a remedy provided by the CISG is controversial. The drafters included a compromise in the form Article 28. This provides that neither the buyer nor the seller are entitled to claim the remedy of specific performance unless "the court would do so under the law forum in respect of similar contracts of sale not governed by the Convention".[87] Therefore, Article 28 contradicts Article 46 and 62 as it allows States, not ordinarily recognising the remedy of specific performance, to sidestep its award. This compromise is illusory, as it is unlikely that Article 28 would protect the common law trader from an order for specific performance were he to be placed in a civil law court. In the context of achieving a unified sales law, this outcome is problematic as it ostensibly allows each State to apply their own law. Accordingly, it is possible that the inclination of the judiciary to award specific performance is likely to "vary dramatically in accordance with the lex fori".[88] As a consequence Article 28 has been described as an "enclave built into ... unified law".[89]

However, although there is potential for non-uniformity to arise from the Article 28 compromise, to date this issue has (appears to have) remained a hypothetical one, rather than having caused real practical difficulties. One view is that this is because civil lawyers whose laws are more permissive towards specific performance do not utilise the remedy any more than common lawyer do as it is often not practical to exercise the freedom that civilian laws given. Furthermore, the issue of specific performance has seldom been an issue in practice and has only been reported in one of over 1800 reported cases so far.[90]

3.3 East and West

The drafters encountered further problems when attempting to reconcile the differences between socialist and capitalist States. Whilst socialist states emphasise the need for security and predictability in contracting in order to operate their centrally planned economies, capitalist States prefer flexible standards that allow parties to adjust the contract if necessary.[91] These differences are best illustrated with respect to the writing requirements for the formation of contracts and the rules on open-prices.

Many Western legal systems have abandoned the requirement for sales of moveable property to be evidenced in writing, due, in part, to a belief that such formalities interfere with the "necessary speed of commercial transactions".[92] Article 11 reflects this view, in holding that a contract of sale need not be evidenced in writing and may be proved by other means including witnesses. Conversely, Article 96 reflects the socialist viewpoint, by allowing States requiring contracts of sale to be evidenced in writing to circumvent Article 11, by declaring it inapplicable with respect to a contract for sale governed by the CISG. The result is that Contracting States may apply choice of law rules to determine whether the writing requirement is necessary. The CISG tolerates different rules and appears somewhat fragmented; consequently it fails to achieve perfect textual uniformity.

Further, since national traders must conform to a predetermined governmental plan at the macro-economic level, socialist countries objected to the conclusion of contracts where the price was left open.[93] Delegates from developing countries also supported this view, arguing that open-price terms favour developed nations with large corporations who can afford to leave the price and quantity of goods open to be adjusted if changes in the market meant it beneficial. It has been argued such contracts are unfavourable to developing countries trading primarily in raw materials with fluctuating prices, as opposed to more stable manufactured goods produced by developed countries.[94] The solution to this problem certainly lacks clarity. Article 14(1) requires the offeror to either expressly or implicitly fix the price, before the contract is deemed to be "sufficiently definite".[95] However, it is unclear what is required to satisfy this requirement as Article 14(1) is offset by the incorporation of Article 55, which provides that a contract may be "validly concluded" even if it "does not expressly or implicitly fix or make provision for determining the price".[96]

Inevitably there is disagreement amongst scholars as to whether open-price terms are permitted by the CISG. Honnold considers Article 55 to mean contracts with open-price terms may be validly concluded where they are deemed to be so by the applicable national law,[97] stating:

"In view of this over-all compromise, including the concession to the domestic law of those States that make provision for the price an element of contract validity, it is quite impossible to conclude that Article 14 imposed such a rule of invalidity on all States that adopt Part II of the Convention."[98]

Garro is of the opinion the "implicit" requirement of Article 14(1) is upheld by Article 55, which merely indicates open-prices are sufficiently implicit.[99] However, in the light of such scholarly debate, one cannot reasonably expect traders to predict how national courts would interpret open-price terms.

3.4 Textual Non-uniformity

Although the compromises outlined above lead to the formation of an agreed text, in itself a remarkable achievement, if only in diplomacy as opposed to law-making, problems still arise from the finalised texts which cast a shadow over the objective of uniformity.

There are six official language versions of the CISG broadly representing the different legal systems and political ideologies of the world. Although a broad range of official texts may have assisted in the spread, their translations are a source of non-uniformity as there is no such thing as a "perfectly transparent translation"[100] between two, let alone six, culturally diverse languages. No matter how much care is taken, there are bound to be differences in the meanings attached to certain terms, posing problems for those attempting to apply the provisions of the CISG uniformly.

While some scholars see the texts as equally authentic,[101] Zeller argues a hierarchy exists amongst the official texts, as all the meetings in Vienna were conducted in English or French. These languages should be given priority over the other texts as they best represent the intentions of the representatives at the Conferences.[102] Although Zeller's contention has some merit it fails to resolve the underlying problem definitively. Firstly, it presupposes that the intentions of the diplomats at the Conferences are readily discernible from the legislative history. This supposition is not necessarily correct, as individual statements of position about the meaning of an end-product compromise are often misleading.[103] Secondly, it serves little purpose in the event of a disparity between the English and French texts, as illustrated by Flechtner in relation to the standards found in Articles 71 and 72.

Article 72 requires the prospect of a more serious breach than the mere suspension of performance under Article 71. The English version of Article 72 requires the threat of a "fundamental breach of contract", whereas Art 71 requires only the possibility that a party would not perform a "substantial part of his obligations". Therefore two different phrases are used ("fundamental breach" and "substantial part of his obligations") and it is argued that these two different adjectives imply differing levels of severity. Conversely, the French text the uses the same adjective for both Article 71 and 72 ("essentielle"), despite the fact that an equivalent French adjective to the English "substantial" ("substantielle") existed for the drafters to use.[104] One might reasonably interpret the English and French texts as establishing different thresholds for the breach of contract in these articles. This example demonstrates that, despite the compromises reached in Vienna, a degree of textual non-uniformity exists between the official language versions of the Convention which may act as a barrier to the objective of uniformity.

In addition, CISG has being translated into a number of unofficial languages. Whilst these versions may yield to the authority of the six official versions, they are still regarded as important, since they constitute a primary source of CISG provisions for courts, tribunals and practitioners that work in unofficial languages. Yet, they constitute a further source of textual non-uniformity, which, in the absence of an official vetting procedure overseen by UNCITRAL, presumably increases the risk of deviations.[105]

However, Graveson argues that the problem of textual non-uniformity has been greatly exaggerated and that variances are only a problem if one adopts a literal approach to interpretation, emphasising the words as opposed to their meanings.[106]

3.5 Reservations

A further source of non-uniformity in the CISG arises out of five reservations authorised by Article 92-96.[107] Although Article 98 prohibits reservations other than those expressly provided for by the CISG, their existence is nonetheless counterproductive to the goal of uniformity and a source of substantial non-uniformity where adopting States have made such declarations.[108] This can be briefly demonstrated in reflecting upon the effects of Article 95 and 96 reservations.

States who have made the Article 95 reservation are "not bound by subparagraph (1)(b) of Article 1", which provides that the CISG is applicable to international transactions "[w]hen the rules of private international law lead to the application of the law of a Contracting State". Therefore, the effect of this reservation is that the CISG only applies when both parties to a transaction are located in Contracting States under Article 1(1)(a). This reservation, which has been made by five countries including China and the US, serves to limit the scope of the Convention. Indeed, the US declaration is an intriguing one as Article 95 was designed to accommodate those States that had already developed a set of rules to govern their international transactions.[109] As a consequence of the Article 95 reservation, the US Commercial Code [110], which ostensibly covers domestic sales, is to apply.

On the other hand, Article 96 effectively changes the text of the CISG by allowing States to exclude Part II of the CISG, including Article 11 and 29. An Article 96 reservation affects not only those within a reserving State, but also non-reserving States. In other words, whether the text of the CISG includes provisions eliminating writing requirements varies, even in a State that has not made the Article 96 reservation, depending on whether one of the parties is located in another State that made the reservation. [111]

A significant proportion of adopting States make reservations, some multiple, producing variations in the applicable text, which has a detrimental effect on uniformity. Moreover, as previously stated, unification is not a goal that can be compromised or classified in terms of degrees and as such the inclusion of the reservations in the text of the CISG serve as further evidence of desire for the conferences to bear fruit, seemingly at the expense of the clarity of their objective.

SUMMARY

The above examples have sought to demonstrate that although a final text of the CISG was agreed upon, the compromises struck clearly left a number of issues unresolved. These failings are consistent with Matteuci's criticisms of the use of conventions generally in the unification process, arguing their potential has been greatly overestimated by the supposition that the law-making body has the ability to form rules which are understandable to all parties, whilst the reluctance of national legislators to relinquish their national sovereignty is underestimated.[112] Consequently, there are a number of versions of the CISG in operation between States, meaning the CISG cannot be considered as having fulfilled the first requirement of the working definition of the unification of laws put forward by this paper - the substitution of a number of laws by a single body of norms. Further, these variations are of the up most importance as it is submitted that many of the problems with the CISG stem from the inability of the drafters to resolve their differences effectively and its deference to domestic law.[113]

CHAPTER 4: INTERPRETATION 7(1)

The creation of a unified text forms only part of the unification process. The success or failure of any attempt at the unification of laws depends on their uniform interpretation so that consistency of results is achieved.[114] Consideration will be given to the means of ensuring uniform interpretation generally and more specifically the method adopted by the CISG.

4.1 Methods of Ensuring Uniform Interpretation

There are a number of ways in which one might achieve uniform interpretation.[115] One method is to create an international court or tribunal, similar to the International Court of Justice, designed to finally determine the "true" interpretation of the law. This may require national courts to postpone their decision until the international body has decided the "true" interpretation and then decide the case in accordance with that judgement.[116] This body would require a principle not dissimilar to the common law concept of stare decisis to ensure its decisions were binding on future courts.[117] However, this method maybe ill-suited to commercial law where businessmen prefer quick, efficient and less costly means of settling disputes. Furthermore, Contracting States would be politically opposed to a binding interpretative authority having bearing on their sovereignty, raising doubts whether many States would have ratified the CISG had such an authority, potentially able to influence domestic law, been established.[118]

Alternatively, the CISG might have included a section of defined terms. However, the desire to ensure simplicity of the language in the CISG so that it is accessible to businessmen and lawyers alike necessitates a "broad and conversational" approach to interpretation. Accordingly this option was rejected in favour of general principles supplemented by limited definitions contained within the text of the CISG itself, for example Article 14. This leads of greater difficulties in interpreting individual provisions than a more limited, technical approach.[119]

The drafters of the Convention rejected both of these methods, favouring instead a decentralised enforcement mechanism whereby the interpretation and application of the uniform law is entrusted to national courts and international arbitrators without transnational review.[120] Such a mechanism requires as a prerequisite, the creation of an international interpretive methodology, in order to ensure uniformity. Regrettably no such methodology exists and the courts in civil and common law countries employ differing styles of interpretation to the cases before them. The civil law approach may be classed as purposive, based on an understanding that guiding principles of a legal text must be found within its design and structure. Conversely, it has been argued that common law lawyers, more adept at the application of the common law, adopt a more literal approach to the interpretation of legal texts.[121]

However, the decision of the House of Lords in Fothergill v. Monarch Airlines casts doubt over this assumption and marks a departure from the traditional common law method of interpretation.[122] In Forthergill the House of Lords dealt with the interpretation of the term "damage" in the Warsaw Convention on the Liability of Air Carriers. This case is important as it represents the courts recognition of the "international character" of conventions and describes the appropriate method of interpretation. In the Court of Appeal Lord Denning MR. advocated that the traditional literal approach to interpretation should give way to a purposive approach, which requires the courts to have regard to the travaux préparatoires.[123] This position was reaffirmed in the House of Lords who concluded that a literal approach to interpretation conflicts with the purpose of the Convention. The significance of the decision in Forthergill is that the courts must take a purposive approach to the interpretation of international conventions in general,[124] and in so doing consideration must be given to the travaux préparatoires, foreign case law and scholarly writing.

However, recourse to such interpretative aims must be carefully considered. The travaux préparatoires must be carefully examined so that they do not reflect the views of the few,[125] whilst the authority of the court and the accuracy of the reporting must be considered when reflecting on foreign judgements. In addition, Lord Diplock stated that although greater reliance was paid to scholarly writing in European states, they must be regarded as have only persuasive value.[126] One important reason for the restricted role of scholarly writings is that authors often fail to detach themselves completely from the legal background with which they are familiar.

4.2 Article 7

To overcome the problem posed by differences in interpretative methodology, the drafters included a general interpretative provision in the form of Article 7. Article 7 has been described as "arguably the single most important provision in ensuring the future success of the Convention".[127] Nevertheless, the interpretative rules of Article 7 must themselves be interpreted and as such, are a potential source of non-uniformity.

Article 7 contains two paragraphs, which despite being supplementary in nature deserve separate treatment. This chapter is primarily concerned with Article 7(1), which lays down the interpretative rules of the CISG whilst Article 7(2), which provides the rules for gap-filling, will be considered subsequently.

Article 7(1) states:

"In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."

Article 7(1) can be divided into three parts: (a) regard for the "international character" of the Convention; (b) the "need to promote uniformity in its application" and (c) the "observance of good faith in international trade". Parts (a) and (b) are probably the most important parts of the tripartite classification of Article 7(1) as they not only stress the character of the Convention and its underlying goal of uniformity, but also describe the "process by which those called upon to apply the Convention to a particular case ascertain the meaning and legal effect to be given to its individual articles."[128] On the other hand, the inclusion of good faith within the Convention's interpretive aims is regarded as more controversial. These issues will now be discussed in turn.

4.3 "international character"

To have regard to the "international character" of the CISG involves recognition of the fact that it is a piece of international legislation that remains an autonomous body of law, even after formal incorporation into national legal systems. It is therefore self-executing and should be viewed as "part of international law in the broad sense and ... entitled to international, rather than national interpretation."[129] Bonell describes the appropriate method of interpretation as one whereby:

"Instead of sticking to its literal and grammatical meaning, courts are expected to take a ... more liberal and flexible attitude and look, wherever possible, to the underlying purposes and policies of the individual provisions as well as of the Convention as a whole."[130]

In other words, the CISG must be interpreted autonomously, i.e. it should not depend on principles and concepts derived from any particular legal system.[131] The negative consequences of a "nationalistic" interpretation have also been recognised by the courts in Scruttons Ltd. v.Midland Silicones Ltd the House of Lords stated:

"it would be deplorable if the nations, after protracted negotiations, reach agreement ... and that their several courts should then disagree as to the meaning of what they appeared to agree upon."[132]

Moreover, since the CISG is drafted in neutral language; for example, one of the basic concepts of sales law - delivery - is replaced at certain points by the term "hand over",[133] it follows that domestic methods of interpretation are unsuitable and must be replaced by a new, autonomous approach. However, autonomous interpretation is not "new" in the sense that a completely new method is devised; rather it indicates a novel view of how interpretation is perceived. As Gebauer states:

"Autonomous interpretation is not a method of interpretation in addition to other methods such as literal, historical, teleological or systematic interpretation. Rather, it would seem to be a principle of interpretation that gives preference to a particular kind of teleological and systematic argument in interpreting a legal text."[134]

Therefore, "autonomous interpretation" requires the CISG's principles be determined by references to its own system and objectives [135] and that great care is taken to avoid the "homeward trend",[136] the "temptation for judges and the parties settling disputes ... to look at what is familiar [i.e. domestic law] especially as it appears to be so at first glance."[137]

This approach was demonstrated by a decision of the U.S. Circuit Court in the case of Delchi Carrier S.p.A. v. Rotorex Corp., concerning the provision of damages pursuant to Article 74 of the Convention, where the Court noted, "The CISG requires that damages be limited by the familiar principle of foreseeability established in Hadley."[138] Whilst similarities may exist between Article 74 CISG and the principle of foreseeability, the latter is a domestic concept and as such the Court was patently wrong in expressing such a view. Indeed, such a statement is curious given that an earlier American case had clearly established that when interpreting the CISG there should be no room left to apply "functionally equivalent, but differently construed national rules."[139] The decision in Delchi is a clear example of the Court succumbing to the "homeward trend", thereby failing to interpret the CISG autonomously as the duty to recognise the "international character" requires.

Andersen suggests that the courts difficulty in upholding the "international character" of the Convention is due to a difference in the mindset of the judges when applying private commercial law as opposed to public international law. Whereas private commercial law governs contracts between individuals, the scale of public international law is much larger and thus the "international" requirement invariably carries more weight.[140] Therefore, whilst the theoretical requirement of the CISG's "international character" seem clear i.e. it must be interpreted autonomously, in practice the courts have struggled to fulfil this condition.

4.4 "uniform application"

Some scholars argue that the first two parts of the Article 7(1) classification are not independent of each other,[141] rather "the second is a logical consequence of the first."[142] Therefore, autonomous interpretation is related to the second principle that of uniform application, as the autonomous interpretation of uniform law promotes uniformity in application.

However, scholarly opinion is divided over the precise nature of this relationship. Autonomous interpretation does not guarantee uniform application, because in difficult cases, different courts may give different autonomous interpretations to the same rules.[143] Conversely, uniform application is not always based on autonomous interpretation, and sometimes autonomous interpretation requires more than merely trying to reach a uniform solution.[144]

For some, autonomous interpretation must always be subordinate to uniform interpretation, as the latter facilitates the production of uniform results and uniformity is the main goal of the Convention.[145] Proponents of this view argue Article 7(1) uses "urgent language", which gives a sense of priority when referring to the need to promote uniformity in the application of the Convention.[146] Others argue to the contrary, claiming uniformity of results is neither the sole objective, nor the supreme goal of interpreting uniform law.[147] Fletchner is of the opinion that the purpose of Article 7(1) is merely to promote uniformity rather than ensure it, arguing uniformity is one of several co-existing principles within Article 7(1) and rejecting the view there is anything in the provision, which gives precedence to that principle over others, such as "promoting good faith" or "recognising the international character."[148] However Flechtner's argument is based on a literal, as opposed to an autonomous reading of Article 7(1); hence he seemingly fails to recognise that the other elements of the tripartite classification of Article 7(1) facilitate the advancement of uniformity as the overarching goal of the Convention.

Additionally, Gerhart maintains the interpretation of the Convention must be guided by two goals: uniformity and interpretative legitimacy i.e. the desire to achieve the right solution to a given case.[149] However, these goals may conflict. As Canaris states:

"[T]the pursuit of legal unification [is] of no higher order ... than the search for an optimal - i.e. legally sound and equitable - solution; on the contrary [it should] in principle take second place."[150]

This view is premised on a belief that to emphasise only the goal of uniformity does a disservice to the CISG in the long-term as the international commercial community will be unlikely to utilise a convention that supplies uniform but "unjust" results and therefore the uniform law would become redundant. Whilst this view has undoubted merit, it is inconsistent with the results-orientated drafting approach outlined above by Honnold.[151]

Scholars have argued that the creation of uniform substantive law that is applied uniformly will help avoid "forum shopping".[152] Forum shopping refers to a party's incentive to have a case tried in a particular jurisdiction where one determines that they will receive the most favourable judgement or verdict.[153] However, this view has been rejected by some commentators and tribunals who argue that the creation of a uniform substantive law is not enough per se to prevent parties from forum shopping.[154] Forum shopping can take place for a number of reasons including; differences in procedural rules i.e. in the rules on evidence, speed of the judicial process, the reputation and enforceability of the decision and cost.[155] However, Ferrari considers the most important reason why parties will continue to forum shop is the existence of different interpretations of the Convention that leads to inconsistent results being reached on substantive issues.[156] In chapter 3 we concluded that, as a consequence of the compromises struck during the drafting process, the inclusion of reservations and lack of textual uniformity between the official and unofficial language versions, the Convention does not represent a single uniform law. Accordingly, there is potential for forum shopping to take place under some of the Convention's provisions, for example the availability of specific performance pursuant to Article 28. Forum shopping on this basis has far greater implications insofar as it clearly demonstrates that uniform law is failing to achieve its underlying objective.

4.4.1 Foreign Judgements

The "need to promote uniformity in [the Convention's] application ..." in order to minimise the tendency for parties to forum shop requires more than simply the autonomous interpretation of its provisions. Rather uniform application can only be ensured if courts and tribunals consider cases from other jurisdictions. If a specific issue has been dealt with in one jurisdiction, regard ought to be given to the approach adopted and outcome of that case.[157] Indeed, Andersen goes further by imposing a "duty" on judges to consider foreign case law.[158] However, it is important to note that uniformity in application will only be enhanced through recourse to foreign case law where the decisions considered are truly international and do not favour particular groups of nations or legal systems. We must now consider whether the courts have fulfilled this "duty" to consider foreign decisions.

Recourse to foreign case law raises methodological and practical issues. The basic methodological problem concerns the weight that should be attached to such cases i.e. whether they should be considered binding, given "considerable weight",[159] simply be regarded as persuasive [160] or viewed as "inspirational".[161]

Dimatteo argues that to ensure uniformity, foreign case law should have the effect of binding precedent. This would mean the first position taken on a specific issue would shape all successive case law in that area, therefore creating "supranational stare decisis". He argues this could be achieved if civil law judges "search other cases throughout the world and follow precedent in much the same way that the common law judge does within their national system."[162] However this view cannot be correct, as the creation of "supranational stare decisis" was not the intention of the delegate at the Conference. Moreover, it disregards the rigid hierarchical structure of court systems in which "national" stare decisis is embedded. It would be both practically and politically impossible to create a similar structure at the international level.[163] Ferrari illustrates the practical problems in creating an international hierarchy as follows:

"[H]ow should one decide whether a specific court is, from a hierarchical point of view, a lower court in respect to the court of a different country? And where ... would arbitral tribunals fit into the hierarchy? Are they to be considered hierarchically superior to courts of first instances, appellate courts or even supreme courts? And what about the courts of Non-Contracting States? Should their decisions be taken into account at all?"[164]

In addition, Zeller notes Contracting States would be politically opposed to the creation of a "supranational stare decisis".[165]

Therefore, whilst one might be forced to concede absolute uniformity in the application of the Convention can only be achieved through the creation of a "supranational stare decisis", for practical and political reasons this is simply unattainable. The creation of "supranational stare decisis" does not solve the issue at hand, it simple creates new problems. What if the "first" court gets the decision wrong or is overturned by a superior court? Potentially "bad" law or interpretations may be followed which could be difficult to reverse, especially in relation to commercial transactions. As such the view that foreign case law should have the effect of binding precedent must be discounted.

Alternatively, Ferrari is of the opinion that foreign case law should be considered as having merely persuasive value, serving as "a source from which to draw either arguments of counter-arguments."[166] This view is supported by a decision of the Tribunale di Vigevano, which clearly stated that, "foreign case law, contrary to what a minority of authorities have argued, is not binding on this Tribunal. It must nevertheless be considered in order to ... promote ... uniform application."[167] Even if one accepts that a foreign decision should be regarded as merely persuasive, the issue of weight still remains. In other words, how are the courts and tribunals to determine how persuasive a given case might be?

Lookofsky and Flechtner suggest a number of factors that ought to be taken into account when determining the weight to be attached to foreign cases.[168] Firstly, the stature of the tribunal rendering the decision and the extent to which the decision is in accord with other decisions.[169] Secondly, the persuasive force of the reasoning in the decision, in particular, the extent to which the decision complies with the interpretive rules set out in Article 7(1).[170] Finally, the soundness of the outcome should be considered.[171] Flechtner cautiously adds another factor: the level of international trade in the jurisdiction of the tribunal or court rendering the decision.[172] However, this appears to be a matter to be considered when determining the stature of the tribunal, rather than a factor in its own right.

Although, according only persuasive weight to foreign case law will not achieve absolute uniformity, it will nevertheless provide a useful level of certainty for both courts and traders.[173] This outcome is likely to be more acceptable to Contracting States than compromising their sovereignty through binding precedent. Moreover, an established body of case law from different jurisdictions on a given issue is something which the courts should be strongly criticised for overlooking,[174] rendering the duty to consult such case law more onerous and accordingly giving it a binding quality "through the back door".[175]

In addition, requiring judges to weigh foreign decisions creates practical difficulties. Foreign case law is often difficult to obtain as many cases go unreported; and is often written in a language unfamiliar to the judge and therefore requires translation.[176]

Nevertheless, there are practical solutions to these problems. UNCITRAL has adopted a process whereby decisions rendered on the application of the Convention are now systematically gathered by national correspondents who send them to UNCITRAL where they are disseminated into various versions in a report called CLOUT (Case Law on the UNCITRAL Texts).[177] Although this process should, over time improve the availability of foreign case law, it must be noted that the cases are still gathered by national correspondents and hence there might be a lack of standardisation in reporting.

In addition to the CLOUT reports, internet databases such as the excellent CISG W3 database run by the PACE Institute of International Commercial Law <http://www.cisg.law.pace.edu> make a significant contribution to the spread of CISG caselaw. Furthermore, collaboration with the Queen Mary Case Translation programme helps to remove the ambiguities of language by providing full-text English translations of cases.[178] However, notwithstanding the remarkable achievements of the case translation programme, it is still prudent to offer a word of caution in exercising its use. The benefits of brought by such a programme must be treated carefully and with respect. There is no such thing as a perfectly congruent translation from one language to another - especially when considering legal terminology. One must take great care to avoid the nuances and syntax that can permeate even the most deliberate legal translation.[179]

Another significant source is the UNILEX database from the Institute of Commercial Law in Rome, which provides detailed abstracts, translations and full text judgements of many important CISG cases from courts and arbitral tribunals worldwide and includes references to relevant literature and commentaries.[180] Having begun as an annually updated CD-ROM the UNILEX database is now available on the internet, allowing for greater accessibility and a higher frequency of updating.[181]

One of the most remarkable examples of a judge complying with the obligation to look to international CISG precedents is yet another Italian judgment, this one from Vigevano.[182] In the interpretation of non-conformity and notice rules under the CISG (Arts. 35 and 39) the judge examined cases from the Austrian, Dutch, French, German, Italian, US and Swiss Courts, as well as Arbitral Awards from the ICC. He also referred to two CISG websites and the UNILEX database on the CISG. Furthermore, a decision by the Tribunale di Rimini,[183] improves on the efforts of Vigevano, quoting a total of 37 international CISG precedents in the determination of various provisions concerning non-conforming goods.

The ideal is best explained by the judgements from Vigevano and Rimi, demonstrating what is necessary to fulfil both the "international character" and "uniform application" requirements of Article 7(1) and as such, should serve as a benchmark for other courts and tribunals interpreting the CISG. However, cases supporting the growth of international case law precedents are in the minority,[184] particularly in the US where the judiciary demonstrate the most extraordinary level of parochialism.

For example, the decision by a U.S. federal court in Raw Materials Inc. v. Manfred Forberich GmbH,[185] concerning Article 79, has been described as the "worst" decision in the Conventions history, insofar as it represents the very worst example of the "homeward trend".[186] After noting that the parties agreed that the CISG was the applicable law, and that the defendant's force majeure defence was governed by Article 79, the court endorsed the plaintiff's assertion that case law on U.S. domestic sales (found in Article 2 of the Uniform Commercial Code)[187] could be used for "guidance" in applying the Convention. That, in fact, was the court's final mention of Article 79 and the CISG. No reference was made to foreign case law, commentaries, or to any other recognised source of guidance on the CISG. Instead the court dwelt on domestic cases analysing the application of s. 2-615 UCC before concluding that the plaintiff's summary judgment motion should be dismissed because it might be possible for the defendant, at trial, to establish the elements necessary in order to be exempted from liability for its non-performance. The court's approach treats the exemption provision of Article 79 as if it were indistinguishable from U.S. domestic law. As one commentator states:

"Not one word ... would have to be changed if UCC ... had actually been the applied. A more flagrant and depressing example of a court ignoring its obligations under CISG article 7(1) and indulging - nay, wallowing in - the homeward trend is hard to imagine. The court's methodology should mean that its analysis will properly be ignored by other courts - both U.S. and foreign - that are called upon to apply CISG article 79 ... The only good that could come of the Manfred Forberich decision, in this author's view, is if it became an example of what to avoid when interpreting the CISG."[188]

However, although there are several cases and a quote from the Solicitor General to support the recognition and growth of international CISG case law precedents in the U.S., not all cases follow suit.[189] Regrettably, the cases which do refer to foreign decisions, both in the U.S. and internationally are still a minority. Whilst this is an unfortunate position, it is not beyond rescue. As we have seen, great strides have been made through the PACE web site, CLOUT and UNILEX to increase the availability and accessibility of foreign case law. The ongoing expansion of such schemes will remove the practical barriers to the use of foreign case law. However, the removal of practical barriers alone is insufficient, and the judiciary must be educated and show a willingness to embrace the internationality of the CISG in order to further uniformity in its application and its results.

4.5 "good faith"

According to the third part of Article 7(1), when interpreting the CISG one must have regard to the need of promoting the "observance of good faith in international trade." This provision represents a "hard-won" compromise between the representatives at the Vienna Conference, who "preferred a provision imposing directly on the parties the duty to act in good faith, and those who ... were opposed to any express reference to the principle of good faith in the Convention."[190]

The principle of good faith is undoubtedly appealing and offers a number of advantages to contracting parties. It reduces formalism by safeguarding the legitimate expectations of the parties by respecting and promoting the spirit of their agreement instead of insisting upon the observance of the literal wording of the contract.[191] As a consequence it can help to reduce costs and promote efficiency as parties need not contract to cover every possible eventuality where good faith can be relied upon to fill in unforeseen gaps.

However, the practical utility of good faith is greatly impaired by the concept's lack of definitional certainty. Good faith has been said to mean "different things to different people in different moods at different times in different places."[192] Powers defines good faith as "an expectation and obligation to act honestly and fairly in the performance of one's contractual duties."[193] Summers suggests the best way to define good faith is to do so indirectly, by reference to bad faith,[194] concluding "some words and phrases do not have a general positive meaning of their own within the contexts or realms of discourse in which they are at home."[195] As a consequence of this definitional uncertainty, the role of good faith in the interpretation and application of the CISG is controversial.

Some insist on a literal reading of Article 7(1), concluding the principle of good faith is nothing more than a criterion to be used by judges and arbitrators in the interpretation of the CISG,[196] to cancel out the danger of reaching inequitable results.[197] Proponents of this approach draw support from the legislative history of the provision,[198] and the fact that the concept of good faith is only expressly mentioned in Article 7(1). This provision confines the concept to merely an interpretative role. However, one must note that even if construed as a mere instrument of interpretation, good faith still causes difficulties in achieving uniform application due to its lack of definitional certainty. Consequently, the courts will be unable to develop a common definition which inevitably means that differing interpretations will be given to the CISG's uniform provisions.

Others favour a broader interpretation of Article 7(1), arguing that the duty to observe, "good faith in international trade is also necessarily directed to the parties to each individual contract of sale."[199] Bonell considers that even when good faith is conceived as simple interpretative aid, it may impact on the behaviour of the parties - for instance, in cases where a party is prevented from invoking rights and remedies normally available to him under the Convention.[200] This view is supported by Honnold's argument that a party to an international contract of sale governed by the CISG, who demands specific "performance within an additional period [according to Articles 47 or 63] may not, in good faith, refuse to accept the performance that he requested."[201] The view that contracting parties have a positive obligation to act in good faith during the course of their dealings has been endorsed by a decision of the French Court of Appeal.[202]

However, such an interpretation is fraught with danger as it implies that the interpreters of the CISG are not only judges, but the contracting parties as well. If Article 7 is addressed to the parties, it follows that they are able to exclude that provision pursuant to Article 6. Allowing parties to exclude the CISG's interpretative rules clearly hinders the uniform interpretation and application of the Convention. Felemegas criticises this view, firstly on the basis that it "[o]bliterates the distinction between interpretation by the court and performance of the contract by the parties."; and secondly because the inclusion of a provision imposing on the parties a general obligation to act in good faith was too vague and would inevitably lead to divergent interpretations of the CISG by national courts.[203] Accordingly, one must conclude that the provisions of article 7(1), particularly the good faith obligation, cannot be excluded by any agreement. Article 7(1) must be read as a whole. To do otherwise would not only conflict with the recognition of the "international character" and "uniform application" of the CISG but also undermine the Conventions ultimate goal of uniformity.

In light of the above, it is difficult to pick fault with Powers conclusion that: "The only thing that seems clear through all of these competing arguments is that the uniformity sought by the CISG is definitely lacking with respect to the existence and extent of a good faith obligation."[204]

SUMMARY

The courts in civil and common law jurisdictions have traditionally used different methods of interpretation. However the special nature of the CISG requires a novel approach. The CISG must be interpreted autonomously, with due regard to its international character and the persuasive value of foreign decisions, to ensure uniformity in its interpretation and application. Whilst the consultation of foreign decisions is a barrier to the uniform interpretation and application of the CISG, it is one which is being continually eroded by the endeavours such as the PACE web site, CLOUT and UNILEX. Accordingly, the main barrier to the uniform interpretation and application of the CISG is arguably the judicial mindset - in terms of their willingness to consult foreign decisions and thereby embrace the internationality of the CISG. Although the Italian decisions demonstrate this approach is achievable, the majority of courts have thus far failed to adjust their mindset to meet the requirements of Article 7(1) thereby producing divergent interpretations. Therefore, a change in this mindset is obviously desirable if uniformity is to be achieved. Moreover, it is not only desirable but readily achievable by educating the judiciary in the merits of such an approach as one cannot accept the authority of the CISG and then be selective over which aspects it embraces - rather the CISG (and Article 7(1)) must be taken as whole.

CHAPTER 5: INTERPRETATION 7(2)

In chapter 2 it was noted that the CISG represents only a "partial codification" of international sales law.[205] Accordingly, it does not provide solutions to all the problems that might occur during an international sale. This limitation gives rise to problems relating to the need to fill the gaps that exist in any incomplete code. A gap is an intentional or unintentional incompleteness in a code that can only arise where the code was intended to replace all pre-existing law in a particular area. Gaps in the CISG pose a particular threat to the goal of uniformity where interpreters lose sight of its "international character" and fall back on domestic rules. As Eörsi notes, "one way to follow the homeward trend is to find gaps in the law."[206]

The methodology for filling gaps is set out in Article 7(2):

"Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based, or in the absence of such general principles, in conformity with the law applicable by virtue of the rules of private international law."[207]

5.1 Legislative History

Article 7(2) is based on two provisions in the ULIS. The first stated:

"Rules of private international law shall be excluded for the purpose of the application of the present Law, subject to any provision to the contrary in the said Law."[208]

The second provision referred expressly to the problem of gap filling, stating:

"Questions concerning matters governed by this Law which are not expressly settled in it are to be settled in conformity with the general principles on which the present Law is based."[209]

These provisions indicate the ULIS was intended to create a self-contained sales law, independent of national laws.[210] By excluding any reference to the use of national laws the drafters of the ULIS brought certainty to international sales by increasing the likelihood that uniform interpretation and application of the laws would take place. However this approach was strongly criticised within UNCITRAL during the drafting of the CISG.[211] Consequently a compromise allowing recourse to national law was approved, but only as a last resort. Some commentators regard the drafting of Article 7(2) as a compromise favouring the proponents of Article 17 ULIS insofar as it checks the ability of the interpreters to apply national laws.[212] Proponents of this viewpoint argue that the CISG was not meant to be complementary to national laws; rather it was intended to replace all existing domestic statutes and case law to form an exhaustive body of law.[213] However, such a reading appears to underplay the extent to which the goal of uniformity is undermined by any reference to national rules within the interpretative provisions of the CISG and as such adds weight to the argument that uniformity is not the main goal of the Convention. If it were, there would be no need to resort to principles of private international law.[214]

5.2 Application of Article 7(2)

Before the gap-filling rule in Article 7(2) can be put into operation, the matters to which the rule applies must be identified. Firstly whether the matter is governed by the CISG. If it is not, for example those set out in Articles 4 and 5, then there is an external or "intra legem" gap in the CISG. These matters have been left to the competence of non-unified domestic law to resolve.[215] Where the matter is governed, the second question is whether it is expressly settled. A matter will be "expressly settled" by the CISG if it can be seen that the drafters intended the provision(s) to be the exclusive and comprehensive law governing that matter.[216] For example, Article 33 provides that if a date of delivery is fixed by the contract, the seller must deliver the goods on that date. If no date is fixed, the seller must deliver "within a reasonable time after conclusion of the contract".[217] Failure to do so enables the buyer to exercise their rights under Section III of the CISG, which include the right to fix an additional time for delivery,[218] to declare the contract avoided[219] and to seek damages.[220] Where there is no such intention on the part of the drafters and the matter is not expressly resolved, the possibility of an internal gap or gap "praeter legem" in the CISG arises.[221] Article 7(2) directs interpreters in the first instance, to fill gaps "praeter legem" autonomously by recourse to "the general principles on which it [CISG] is based". Only where gaps cannot be filled by recourse to general principles can the interpreters resolve the matter by applying the law applicable by virtue of the rules of private international law.

5.3 General Gap-filling Methodologies

Three different approaches exist to fill gaps "praeter legem" in international Conventions. Firstly, the "true code approach" requires that a court, when faced with a gap in a Code, only looks to the Code itself, including its purpose and underlying policies, but no further. For the "true code approach" to be effective it requires the general principles to be applied are discovered uniformly.[222] It assumes the courts in different jurisdictions are equally adept at not only uncovering and applying the general principles on which the Convention is based, but also ascribing the same meanings to those principles.[223] Secondly, the "meta-code approach",[224] relies on the use of external legal principles to fill gaps, centred on a belief that external principles should supplement the provisions of the Code, unless it expressly prevents their use. The third approach is a combination of the above, according to which, one is supposed to first apply the general principles of the Convention, with eventual recourse to the rules of private international law.[225] Article 7(2) of the CISG represents a combination of the "true code" and "meta code" approaches.

5.4 Gap-Filling and Domestic Laws

Civil law lawyers will be more familiar with the principle-based approach to gap filling advocated by Article 7(2) than their common law counterparts. The use of general principles constitutes a well-known method of gap filling in civil law countries.[226] Civil Codes are "designed to displace the entire body of pre-existing law"[227] and are interpreted broadly, having full regard to the spirit of the Code in order that it has the desired effect. This approach is clearly consistent with the requirement that the CISG be interpreted in an autonomous manner.

In contrast, common law statutes do not replace the entire pre-existing body of case law and are interpreted narrowly. Indeed the House of Lords has determined that to do otherwise would involve the courts' usurping the powers of the legislature.[228] For that reason, it has been argued that common law judges are less adept at using general principles than civil law judges.[229] However, this view is mistaken, as in the event that a statute does not govern a question, the common law judge can fill the gap by drawing on general principles contained in the appropriate case law rather than resorting to teleological reasoning. Therefore, both civil and common law judges are familiar with using general principles to fill gaps, however these principles are drawn from different sources. Our analysis must now turn to a consideration of whether the gap-filling methodology adopted by the CISG has produced the necessary consistency of results required by a uniform law. This will be illustrated by examining how the interest rate is determined under Article 78.

5.5 Article 78 Interest Rate Study

Article 78 is the product of an uneasy compromise between those delegates who were altogether opposed to the inclusion of an interest provision and those pressing for its inclusion.[230] Accordingly, it provides an excellent example of the difficulties faced by courts and tribunals when interpreting and applying the CISG uniformly.[231] Article 78 states:

"If a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it without prejudice to any claim for damages recoverable under Article 74."

Article 78 clearly establishes a general entitlement to interest if a party fails to pay the price or any other sum in arrears regardless of fault. However, the ambiguity of the language used means a number of questions remain unanswered. Firstly whether interest is available on claims for damages. Secondly, it fails to provide any guidance regarding the rate of interest to be applied. The approach adopted under Article 83 ULIS was to apply the official discount rate of the creditor's country. However this method was opposed on the basis that it is not an internationally valid indicator of the capital costs of individual countries. Similarly, no agreement could be reached over whether the cost of credit should be based on the prevailing interest rate in the debtor's or the creditor's country.[232] Consequently, a party will be able to point towards Article 78 to justify their entitlement to interest, but will be unable to determine the amount of interest they are entitled to. Given these uncertainties, Ziegel declares Article 78 as "more conspicuous for the questions it fails to answer than the questions it answers."[233]

Whilst the debates surrounding these questions are interesting, providing an extensive body of material for a paper in their own right, our interest lies not in definitively resolving these issues, rather examining the methodology of interpretation used by courts and tribunals in order to develop our characterisation of the CISG as a unifying or harmonising measure.

The first issue to be addressed by the courts is whether the absence of a stipulated rate of interest constitutes a gap "intra legem" or "praeter legem".[234] Given the importance of this first step, it is unfortunate that the CISG provides no guidance on this matter, as the classification of the aforementioned gaps will lead to diverging solutions, since they must be dealt with differently.

The majority of commentators and courts believe that the interest rate issue is not governed by the CISG and therefore suggest that domestic rules of private international law should fix the proper interest rate.[235] However, they appear unable to agree how to determine the applicable domestic law for deciding the rate of interest. Most European courts have determined the rate of interest according to the law that would otherwise govern the contract in the absence of the Convention. For example, in a decision from the Landgericht Hamburg, 26 September 1990, an Italian seller claimed the price plus interest from a German buyer, which was determined by reference to the Italian Codices Civil.[236] Conversely some courts have held that the issue of interest rates in governed by the law of the creditor's place of business,[237] whilst others have applied the law of the debtor's place of business.[238] Unfortunately, the courts have provided little or no justification for their approach in these cases. A notable exception comes from the Landgericht Stuttgart, where the court stated that, "it is suitable to rely on the law of the creditor ... since the consequences of non-fulfilment of the obligation arise there."[239] Furthermore, some tribunals have applied the rate of the currency of the contract.[240]

On the contrary, the minority of scholars regard the matter as one that should be resolved within the CISG itself by recourse to "general principles".[241] This view prompts the question, what, if any, general principles are applicable? Some argue that as only two provisions regulate interest,[242] each serving different purposes, it is impossible to find a general principle concerning interest.[243] Conversely, it is argued close scrutiny of the underlying themes of the CISG's articles provide a number of general principles, including those derived from Articles 74, 84, 55, 57, 75 and 76.[244]

Koneru considers there to be an "abundantly clear" answer to this question. "The general principle in relation to the payment of price and a failure to comply is to compensate the aggrieved party fully in order to restore the benefit of the bargain."[245] Further, in applying the general principle of full-compensation, the determination of the applicable interest rate is simply answered by whichever rate fully compensates the aggrieved party.[246] This approach views the obligation to pay interest as a form of damages.[247] Whilst this is not the case in some countries, the CISG excludes this discussion by emphasising in Article 78 it is "without prejudice to any claim for damages recoverable under Article 74."[248] Therefore it is irrelevant whether interest is considered part of damages, because the general principle of full compensation requires that interest should be paid on all amounts due.

However, Mazzotta criticises the use of full-compensation as a general principle, applicable to Article 78. He argues that although a party is generally entitled to interest, they are not necessarily entitled to damages, given that Article 78 expressly denies the proximity of this relationship. The separation of damages and interest in Sections II and III respectively, adds further weight to the view that two concepts are distinct.[249] Accordingly, a party may recover interest even when damages are excluded under Article 79.

Another approach views the obligation to pay interest primarily as a means to restitute benefits,[250] with the general principle underlying Article 78 being the prevention of undue enrichment of the debtor.[251] If so, the debtor should be prohibited from making use of the money that the creditor is entitled to, and the creditor should only receive interest at the rate that the debtor could normally invest the money, usually the rate in the debtors own country. Advocates cite Article 84(1), which obliges the seller to pay interest on the purchase price in case it is bound to refund it as support for this view.[252] However, this is questionable because, although Article 84(1) might be underpinned by a notion of unjust enrichment, it relates to interest owed on a payment during a time when it was not in arrears. Hence it operates on a different conceptual basis to Article 78.[253]

In the light of such scholarly dissonance it is unsurprising to find that the courts have seldom adopted a principle-based approach to the interest rate problem. Mazzotta is sympathetic to their predicament in stating:

"How can we expect that a court, overwhelmed by thousands of cases ... to figure out the meaning of Article 78 in the light of the general principles ... , given that, since its incorporation ... , no solution (even on general principles) has been agreed upon?"[254]

Indeed on those occasions where general principles have been applied they have produced divergent results, with one tribunal awarding the rate of the creditor's country based on full-compensation,[255] whilst another applied LIBOR rates (London International Bank Offered Rate).[256] Consequently, some tribunals have rejected the approach based on general principles, arguing that even during the CISG's drafting stage, the delegates could not agree on a uniform solution.[257]

Notwithstanding the uncertainty produced by a principle-based approach, Corterier argues that the interest rate issue may yet be resolved from within the CISG by the analogous application of Article 76. Having the same basic structure as Article 78, in so far as both award payments to deprived parties, Article 76 contains a method to calculate monetary obligations resulting from a deadline not being met and is independent of actual damages under Article 74.[258] Payment is calculated by comparing the contract value with the current market price of the goods at the time and place of delivery and as such, reflects the opportunity cost of a substitute purchase. Since Article 76 deals with goods not delivered whilst Article 78 CISG deals with money not paid, filling the gap in Article 78 requires extending the rule in Article 76 by equating money to "goods". Therefore, interest should equal the market rate for the sum and currency owed at the time and place the payment should have been made.[259]

Another related approach is to use the "substantive general principles" inferred from Article 9.[260] Therefore, if a relevant usage provides a specific interest, it should be used to supplement Article 78. However this approach has been followed in a very limited number of cases.[261]

In summary, the study of Article 78 clearly shows the threat posed to uniformity by gaps in the CISG, which can be filled by the application of numerous divergent substantive norms, in precisely the manner the adoption of the CISG was designed to prevent.[262] Accordingly, the CISG and those interpreting its provisions, fail to provide certainty by producing uniform solutions to difficult questions as required by the working definition of unification established at the outset of this paper. Therefore, we must develop a new method of gap filling that furthers the uniform interpretation and application of the CISG. This method, illustrated below, must be applied systematically and autonomously by the courts; and be based as far as possible, on the provisions and general principles of the CISG, whilst also reflecting the parallelism between Articles 7(2) and 7(1).

5.6 Furthering Uniform Interpretation and Application

5.6.1 Analogy

As previously noted, Article 7(2) expressly provides two methods of filling gaps in the Convention; first by recourse to the general principles of the Convention, and secondly by resorting to private international law. Aside from the use of general principles, there are a number of other methods that might be used in order to fill gaps in the Convention, for example analogous application of specific provisions. The question therefore is whether analogy can be used to fill gaps? Unfortunately Article 7(2) is silent on this matter and the answer to this question therefore depends on how narrowly or broadly it is interpreted. As Brandner states, a narrow interpretation suggests this question is answered negatively:

"The answer to this fundamental question is not self-evident, for it appears to me, prima facie, that recourse to general principles does not include analogy to a certain provision."[263]

However, the majority of scholars interpret Article 7(2) broadly, thereby affirming the use of analogy to fill gaps. For some scholars this is so obvious that the question is never even raised.[264] Bonell considers that the analogical application of specific provisions and the use of general principles are two "complementary" methods of gap filling allowed under Article 7(2).[265] He argues, quite correctly, that because recourse to general principles is allowed analogy must also be admissible, if not more so, since general principles "may be applied on a much wider scale"[266] and are "further away from the text of the Convention itself".[267]

Analogical gap filling refers to the application of certain rules, or solutions, taken from specific provisions of the CISG, to be applied in analogous cases in order to resolve legislative gaps. It is based on an awareness of the fact that the ratio legis of a certain provision also applies to a case not encompassed by the wording of that provision and is justified by the principle of equality i.e. two similar cases must be treated the same.[268]

The test for the application of an analogical approach is essentially one of proximity i.e. the relationship between the case to which a provision applies and case in question must be sufficiently proximate. According to Bonell, if the case expressly governed by the provision and the case in question are so analogous "that it would be inherently unjust not to adopt the same solution", the gap should be filled by applying that provision.[269] However, Rosenberg criticises the "inherently unjust" as subjective;[270] preferring instead Honnold's approach that focuses on whether the cases are so analogous that the drafters "would not have deliberately chosen discordant results".[271]

However, a number of the provisions of the CISG govern factually specific scenarios and therefore do not lend themselves to analogical application.[272] Accordingly, the interpreters must take great care to ensure that the case before them and the provisions of the Convention are sufficiently proximate. If a gap is unable to be filled by analogical application, resort may then be had to the use of general principles. Bonell explains the difference between gap filling by analogy and general principles as follows:

"Recourse to 'general principles' ... differs from ... analogy insofar as it constitutes an attempt to find a solution for the case ... not by mere extension of specific provisions dealing with analogous cases, but on the basis of principles and rules which because of their general character may be applied on a much wider scale."[273]

5.6.2 General Principles

Although Article 7(2) clearly provides for the use of general principles in filling gaps it fails to provide interpreters with any guidance as to the identification of those principles and the manner of their application. Brandner suggests that a general principle "must be so important that without it the Convention as a whole might crumble."[274]

Achieving uniformity in the application of the Convention through the use of general principles depends on whether the Convention supplies enough general principles, whether they are sufficiently distinct and coherent, and whether they are consistent.[275] Therefore, because the identification of general principles is itself an interpretative task, the identity of the general principles is controversial. Whilst the Convention's legislative history is a source of principles, commentators correctly point out the potential unreliability of its use, stating that individual statements of position about the meaning of a compromise provision might be misleading.[276] Hillman recognises four basic policies underlying the general principles; namely, "freedom of contract, promoting cooperation and reasonableness to enable each party to receive the fruits of the exchange, facilitate the successful completion of exchange even when something goes awry and compensating injured parties for breach."[277]

Some general principles are easily identifiable since they are expressly stated in the provisions of the Convention itself, for example the principle of good faith.[278] The principle of autonomy is another general principle expressly outlined in the CISG.[279] Indeed some commentators consider it to be the most important principle underpinning the Convention,[280] inferring that the CISG plays a subsidiary role providing solutions to cases that neither party contemplated.[281] On this basis it is clear that in the event of a conflict between the parties' autonomy and any other general principle of the CISG, party autonomy must prevail. Other expressly stated principles include: the principle that widely known usages must be taken into account;[282] the lack of formal requirement for agreements;[283] the dispatch rule;[284] the principle that a delay in payment entitles the party to pay interest.[285]

However, most general principles have not been expressly provided by the CISG, hence must be discovered by analysis of its specific provisions. One such principle is that of "reasonableness",[286] according to which the parties "must conduct themselves according to the standard of the reasonable person."[287] Accordingly, "reasonableness" represents a "general criterion for evaluating parties' behaviour to which one may resort in the absence of any specific regulation."[288]

Nevertheless, in discovering general principles such as "reasonableness" the courts must take great care not to impart principles and meanings derived from their domestic law as it is uncertain what kind of "reasonableness" one must take into account. In solving this difficulty the court must be mindful of the mandate in Article 7(1) that regard must be had to the "international character" of the CISG, and hence only international-based general principles and standards that are applied autonomously are suitable.[289]

Other implied principles are thought to include; the principle of pacta sunt servanda;[290] the principle that one may not contradict a representation on which the other party has reasonably relied;[291] the duty to cooperate and inform the other party;[292] the duty to take reasonable care to mitigate the loss resulting from a breach of contract.[293]

It is in keeping with the methodology proposed in this paper that to ensure the courts are consistent in their interpretation and application of general principles, foreign case law should be consulted. However, this view is not without its critics. Hillman argues that:

"[I]t is inconsistent to argue ... that the Convention's principles are an important source of law and that tribunals should prefer "true code" methodology and ... [then] ... call for the collection of a body of case law to resolve issues arising under the Convention."[294]

The present author is of the opinion that whatever methodology is applied, it must achieve the greatest degree of uniformity possible. Hillman's view appears to proceed on the assumption that the use of general principles and foreign case law are alternative methods of gap-filling rather than complementary methods. They are not, as Hillman implies mutually exclusive, rather they should be used in conjunction with one another to ensure that the greatest degree of uniformity in the application of the Convention is achieved.

5.6.3 The Rules of Private International Law

Only where a gap cannot be filled either in by the analogical application of a specific provision, or the use of general principles of the Convention may the court turn to domestic law as determined by private international law rules. This is because:

"[I]n international transactions reference to domestic law has special problems - the uncertainties of the rules of private international law, the difficulty of ascertaining foreign law and the possible incongruity between pieces of domestic law and the overall plan of the Convention."[295]

In accordance with the intent of Article 7(1) and 7(2), one should try to find an acceptable solution according to the rules of private international law only in absence of general principles of the Convention. One should first try to fill gaps by analogical application of specific provisions of the Convention, or by application of its general principles. If neither of those methods are suitable, the Convention permits, as the ultima ratio, to consult the choice-of-law rules to determine which law they will address.

SUMMARY

The degree of uniformity in the application of CISG can be greatly enhanced through an interpretative methodology that seeks to resolve disputes as far as possible from within the text of the CISG itself. Most importantly this methodology should take the form of systematically applied hierarchy based on the proximity to the text.[296] Reflecting the parallelism between Articles 7(1) and 7(2) this methodology must also be underpinned by reference to foreign decisions in order to further uniform interpretation and application.

CONCLUSION

Judged empirically, the CISG has undoubtedly been a success. However this does not mean it has achieved its goal of unification. One might argue that, given the multitude of interests that required balancing at the Conferences, the fact that the CISG came into being is itself a remarkable achievement. In light of these compromises it is reasonable to suggest that it is "probably as good as can be expected."[297] However, successful diplomacy should not be confused with successful law-making.

This paper has sought to test the CISG against a working definition of the unification of laws. Adopting a systematic approach unification has been defined for this purpose unification was defined as:

The intentional substitution of two or more jurisdictions by a single, international-based, body of norms, which is interpreted and applied uniformly so that, in any dispute, the same solutions are achieved.

This definition comprises three inter-related requirements: (i) the creation of a single law or text; (ii) the uniform application of the given law, and consequently (iii) the production of uniform results. This paper has sought to test the CISG against each element of this definition in order to determine whether it is meeting its objective in providing a uniform sales law.

Despite the failure of the Hague Uniform Laws to attract widespread acceptance, their failure served to demonstrate that attempts to unify the law on international sales will not realise their full potential unless they are inclusive of a wide range of interest and States. However, as our examination of the drafting process of the CISG has demonstrated, such an inclusive or "accomodationist" approach also required the diplomats to reach compromises striking a delicate balance between competing interests and viewpoints in order for the CISG to be realised. The net effect of these compromises is that the CISG cannot truly be considered "a single international-based body of norms". Instead there are, in effect several variations of the "uniform law" in operation between States, meaning the CISG has failed to fulfil the first requirement of the working definition of unification of laws adopted by this paper - the substitution of a number of laws by a single body of norms. The importance of these variations between the signatory States should not be undervalued, as this paper has consistently argued that many of the difficulties in interpreting and applying the CISG uniformly stem from the superficial compromises reached by the drafters.

This paper has consistently demonstrated that the CISG fails each element of the definition of unification provided herein. The compromises struck during the drafting process have created an internally inconsistent document. It has been clearly demonstrated that there are, in effect several variations of the uniform law in operation between States. Furthermore the courts appear to be somewhat reluctant to fully embrace the interpretative mandate of Article 7. Consequently, the courts have struggled to interpret and apply the CISG uniformly, frequently being lured by the familiar certainties of national law. The failure of the national courts to adjust their mindset and embrace the internationality of the CISG inevitably leads to the "re-nationalisation"[298] of the law on international trade and, as the case study on Article 78 clearly demonstrates, a lack of consistency in outcome where it is applied. Article 7 requires the CISG to be interpreted autonomously, with due regard to its international character and the persuasive value of foreign decisions. A court mindful of these requirements, as the Italian courts have shown, will enhance the uniform interpretation and application of the CISG, thereby furthering unification.

However, the CISG must not be regarded as an abject failure, instead it merely requires re-classifying. The CISG is best characterised as a harmonising measure and a stepping stone towards unification. At this juncture, Schmitthoff's assertion that we have completed the circle by producing uniform substantive law for international sales seems premature. However, despite its shortcomings the CISG serves a useful purpose and is preferable to no Convention at all.[299]

That said, it is possible to achieve a greater degree of uniformity in the interpretation and application than currently exists, through the creation of a common, international interpretative methodology, as opposed to hastily applying rules of private international law, which will only harm the goal of uniformity by producing divergent results. In the context of Article 7(2) this requires the systematic application of hierarchy of gap-filling measures. In the first instance, gaps should be filled by the analogical application of CISG provisions as these are closest to the text themselves. Where this is not possible, the second resort is to the general principles. Only where both of these methods fail to resolve the issue should the courts fall back on domestic rules as a last resort. It is fundamentally important that, in adopting this technique, the courts check their approach for consistencies with foreign case law. By following this method of filling gaps wherever possible from within the CISG itself, and verifying interpretations against foreign decisions, a greater level of uniformity should be attainable. The CISG is "work in progress" and whilst the substantial harmonisation it has achieved to-date is highly commendable, the CISG, and those who interpret and apply it, should continue to work towards the ultimate goal of unification because, whilst harmonisation is good - unification is better.


BIBLIOGRAPHY

Conventions & Conferences

ULFC - Uniform Law on the Formation of Contracts for the International Sale of Goods, annexed to the Convention Relating to a Uniform Law on the Formation on Contracts in the International Sale of Goods, adopted by the 1964 Hague Conference (in: 1964 Hague Conference Records, I, 349-354).

ULIS - Uniform Law on the International Sale of Goods, annexed to the Convention Relating to a uniform Law on the International Sale of Goods, adopted by the 1964 Hague Conference (in: 1964 Hague Conference Records, I, 333-348).

1980 United Nations Convention on Contracts for the International Sale of Goods, New York, UN Available at: <http://www.uncitral.org/uncitral/en/uncitral/uncitral_texts/sale_goods/19800CISG.html>
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Bogdan, M., (1994) Comparative Law, Deventer: Kluwer Law International

Carr, I., (2005) International Trade Law, 3rd Edn., London: Cavendish

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Enderlein, F. and Maskow, D., (1992) International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, New York: Oceana Publications

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Chapters

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Ferrari, F., 'CISG Case Law: A New Challenge for Interpreters?' (1999) 17 Journal of Law and Commerce 245 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/ferrari3.html>
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Flechtner, H.M., 'Recovering Attorneys' Fees as Damages Under the U.N. Sales Convention (CISG): The Role of Case Law in the New International Commercial Practice with comments on Zapata Hermanos v. Hearthside Baking Co.' (2002) 22 Northwestern Journal of International Law & Business 121 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/flechtner4.html>
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Forte, A., 'The United Nations Convention on Contracts for the International Sale of Goods: Reason or Unreason in the United Kingdom' (1997) 26 University of Baltimore Law Review 51 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/forte.html>
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Gabor, F, A., 'Emerging Unification of Conflict of Laws Rules Applicable to the International Sale of Goods: UNCITRAL and the New Hague Conference on Private International Law' (1986) 7 Nothwestern Journal of International Law & Business 699

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Last Accessed: 12/07/06           Last Modified: 05/07/01

Cases

Arbitration Awards

Arbitration Award VB/94131, Arbitration Court attached to the Hungarian Chamber of Commerce & Industry, 5 December 1995, (Hungary) Available at: <http://www.jura.uni-freiburg.de/ipr1/cisg/>
Last Accessed: 24/08/06           Last Modified: Unknown

ICC International Court of Arbitration, award No. 8769 [1996] Available at: <http://cisgw3.law.pace.edu/cases/968769i1.html>
Last Accessed: 24/08/06           Last Modified: 18/08/05

Argentina

Sacifia v. Bettcher Industries, Juzgado Nacional de Primera Instancia en lo Comercial, 20 May 1991, (Argentina)

Austria

Internationales Schiedsgericht der Bundeskammmer der gewerblichen Wirtschaft, Wien, SCH-4366, 15 June 1994, (Austria) Available at: <http://cisgw3.law.pace.edu/cases/940615a3.html>
Last Accessed: 19/07/06           Last Modified: 16/08/05

England

Fothergill v. Monarch Airlines [1980] 2 All E.R., 696

James Buchanan & Co. Ltd. v. Babco Forwarding and Shipping [1978] A.C., 141 (H.L.)

Scruttons Ltd. v. Midlands Silicones Ltd. [1962] A.C., 446

The Atlantic Star (1972) 3 All E.R., 705

United City Merchants (Investment) Ltd v Royal Bank of Canada (The American Accord) [1983] 1 AC 168

France

SARL Bri Production "Bonaventure" v Societé Pan African Export, Court d'Appel Grenoble, 22 February 1995 Available at: <http://cisgw3.law.pace.edu/cases/950222f1.html>
Last Accessed: 15/07/06           Last Modified: 14/05/01

Italy

Rheinland Versicherungen v. Atlarex S.r.l. District Court Vigevano, 12 July 2000, Available at: <http://cisgw3.law.pace.edu/cases/000712i3.html>
Last Accessed: 03/07/06           Last Modified: 20/11/00

Al Palazzo S.r.l. v. Bernardaud S.A Tribunale di Rimini 26 November 2002 Available at: <http://cisgw3.law.pace.edu/cases/021126i3.html>
Last Accessed: 03/07/06           Last Modified: 07/06/06

Germany

Landgericht Aachen 41 O 111/95, 20 July 1995

Langericht Frankfurt am Main 3/11 O 3/91, 16 September 1991

Landgericht Hamburg 5 O 543/88, 26 September 1990

Landgericht Stuttgart 3KfH O 97/89, 31 August 1989 Available at: <http://cisgw3.law.pace.edu/cases/890831g1.html>
Last Accessed: 11/08/06           Last Modified:02/12/05

Oberlandesgericht Frankfurt a.M., 5. Zivilsenat U 261/90, 13 June 1991 Available at: <http://cisgw3.law.pace.edu/cases/910613g1.html>
Last Accessed: 11/08/06           Last Modified: 10/08/05

Oberlandesgericht München 7 U 4419/93, 2 March 1994 Available at: <http://cisgw3.law.pace.edu/cases/940302g1.html>
Last Accessed: 11/08/06           Last Modified: 11/08/05

Switzerland

BGer 13 November 2003 (Used laundry machine case) Available at: <http://cisgw3.law.pace.edu/cases/031113s1.html>
Last Accessed: 05/03/07           Last Modified: 16/02/07

US

Chicago Prime Packers, Inc. v. Northam Food Trading Co., et al., 21 May 2004 Federal District Court the U.S. District Court, Northern District of Illinois, Eastern Division, Available at: <http://cisgw3.law.pace.edu/cases/040521u1.html>
Last Accessed: 5/03/07           Last Modified: 21/02/07

Delichi Carrier S.p.A. v. Roterex Corp. 6 December 1995, U.S. Circuit Court of Appeals (2nd Circuit) Available at: <http://cisgw3.law.pace.edu/cases/951206u1.html>
Last Accessed: 28/06/06           Last Modified: 05/12/05

Filanto S.p.A. v. Chilewich, 14 April 1992, U.S. Dist. Ct. Civ. 3253 (CLB) Available at: <http://cisgw3.law.pace.edu/cases/920414u1.html>
Last Accessed: 08/07/06           Last Modified: 16/08/05

Mallegan International v. Salzgitter Handel 7 December 1999 Fed. Dist. Court Illinios Available at: <http://cisgw3.law.pace.edu/cases/991207u1.html>
Last Accessed: 5/03/07           Last Modified: 21/02/07

MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino U.S. Federal Appellate Court [11th Circuit] 29 June 1998 Available at: <http://cisgw3.law.pace.edu/cases/980629u1.html>
Last Accessed: 05/03/07           Last Modified: 21/02/07

Medical Marketing v. Internazionale Medico Scientifica 17 May 1999 Federal District Court [Louisiana] Available at: <http://cisgw3.law.pace.edu/cases/990517u1.html>
Last Accessed: 05/03/07           Last Modified: 21/02/07

Raw Materials Inc. v. Manfred Forberich GmbH 2004 WL 1535839 (U.S. District Court for the Northern District of Illinois, 7 July 2004) Available at: <http://cisgw3.law.pace.edu/cases/040706u1.html>
Last Accessed: 10/07/06           Last Modified: 06/09/05

Usinor Industeel v. Leeco Steel Prod., 209 F. Supp. 2d 880, (E.D. 2002)

Electronic Resources

'CISG By State' Pace Law School [Internet] Available at: <http://www.cisg.law.pace.edu/cisg/cisgintro.html>
Last Accessed: 11/05/06           Last Modified: Unknown

PACE CISGW3 Database Available at: <http://cisgw3.law.pace.edu/>
Last Accessed: 05/03/07           Last Modified: Unknown

UNCITRAL Status - 1980 United Nations Convention on Contracts for the International Sale of Goods [Internet] Available at: <http://www.uncitral.org/en/uncitral_text/sale_goods/1980CISG_status.html>
Last Accessed: 11/05/06           Last Modified: Unknown

UNILEX Available at: <http://www.unilex.info/>?
Last Accessed: 11/05/06           Last Modified: Unknown


FOOTNOTES

* A Dissertation submitted in partial fulfilment of the requirements for the Degree of LLM International Business Law in the University of Hull

1. United Nations Convention on Contracts for the International Sale of Goods 1980 [hereinafter CISG]

2. Article 99(1)

3. UNCITRAL Status - 1980 United Nations Convention on Contracts for the International Sale of Goods [Internet] Available at: <http://www.uncitral.org/en/uncitral_text/sale_goods/1980CISG_status.html>
[Last Accessed: 11/05/06]

4. 'CISG By State' Pace Law School [Internet] Available at: <http://www.cisg.law.pace.edu/cisg/cisgintro.html>
[Last Accessed: 11/05/06]

5. Breman, H.J., and Kaufman, C., 'The Law of International Commercial Transactions (Lex Mercatoria)' (1978) 19 Harvard International Law Journal 221, p.229

6. United Nations Commission on International Trade Law [hereinafter UNCITRAL)

7. See General Assembly resolution 2205 (XXI) of 17 December 1966 (emphasis added)

8. See David, R., 'The International Unification of Private Law' in International Encyclopaedia of Comparative Law (1971) Vol.2, c.5; David, R., 'The Methods of Unification' (1968) 16 American Journal of Comparative Law 13; Boodman, M., 'The Myth of Harmonization of Laws' (1991) 39 American Journal of Comparative Law 699; Gutteridge, H.C., (1946) Comparative Law

9. Bogdan, M., (1994) Comparative Law, p.30 (emphasis added)

10. Kamba, W.J., 'Comparative Law' (1974) 23 International and Comparative Law Quarterly 485, p.501 (emphasis added)

11. David, R., (1971) above, note 8, p.6

12. Zeller, B., (2007) CISG and the Unification of International Trade Law, p.12

13. Kastely, A.H., 'Unification and Community: A Rhetorical Analysis of the United Nations Sales Convention' (1988) 8 Northwestern Journal of International and Business 574, pp.575-576

14. Mazzacano, P.J., 'Canadian Jurisprudence and the Uniform Application of the UN Convention on Contracts for the International Sale of Goods' (2006) 18 Pace International Law Review Available at: <http://cisgw3.law.pace.edu/cisg/biblio/mazzacano1.html#i> emphasis in original

15. Rosset, A., 'Unification, Harmonization, Restatement, Codification and Reform in International Commercial Law' (1992) 40 American Journal of Comparative Law 683, p.687-8

16. Ferrari, F., 'Uniform Interpretation of the 1980 Uniform Sales Law' (1994) 24 Georgia Journal of International and Comparative Law 183 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/franco.html>

17. David, R., (1968) above, note, 8, p.14

18. See generally Boodman, M., (1991) above, note 8; also Gopalan, S., 'New Trends in the Making of International Commercial Law' (2004) 23 Journal of Law and Commerce 117

19. Bogdan, M., (1994) above, note 9, p.30

20. Cuming, R.C.C., 'Harmonisation of Law in Canada: An Overview', in Cuming, R.C.C. (ed.) (1985) Perspectives on the Harmonisation of Law in Canada, p.3

21. Goldring, J., 'Unification and Harmonization of the Rules of Law' (1978) 9 Federal Law Review 284, p.289

22. Glenn, P.H., 'Unification of Law, Harmonization of Law and Private International Law', in Liber Memorialis François Laurent (1989) 783, p.783 (emphasis added) - quoted in Boodman, M., (1991) above, note 8, p.706

23. See generally Stephan, P.B., 'The Futility of Unification and Harmonization in International Commercial Law' (1999) 39 Virginia Journal of International Law 743 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/stephan.html>

24. Hobhouse, J., 'International Conventions and Commercial Law' (1990) 106 Law Quarterly Review 530, p. 535

25. Nicholas, B., 'The United Kingdom and the Vienna Sales Convention: Another case of Splendid Isolation?' (1993) (Paper presented at Saggi, conferenze e Seminari, centro di studi e recherché di diritto comparator e straniero), Series No.9, 3 Available at: <http://soi.cnr.it/~crdcs/crdcs/nicholas.html>

26. Hay, P., 'The International Unification of Law: A Symposium' (1968) 16 American Journal of Comparative Law 1, p.3

27. Goldštajn, A., 'The New Law Merchant' [1961] Journal of Business Law 12 p.12

28. Graveson, R.H., 'The International Unification of Law' (1968) 16 American Journal of Comparative Law 4, p.9

29. Goode, R., 'Insularity or Leadership? The Role of the United Kingdom in the Harmonisation of Commercial Law' (2001) 50 International and Comparative Law Quarterly 751, p.758

30. Hobhouse, J., (1990) above, note 24, p.532

31. For further discussion see generally - Nadelmann, K.H., 'Uniform Legislation Versus International Conventions Revisited' (1968) American Journal of Comparative Law 28; Matteuci, M., 'The Unification of Commercial Law' [1960] Journal of Business Law 137; Hobhouse, J., (1990) above, note 24, David, R., (1971) above, note 8, Graveson, R.H., (1968) above, note 28

32. David, R., (1971) above, note 8, p.33

33. Mazzacano, P.J., (2006) above note 14

34. This trend has been criticised by some; see Graveson, R.H., (1968) above, note 28

35. See Schmitthoff, C.M., 'The Unification of the Law of International Trade' [1968] Journal of Business Law 105, p.105; Goldštajn, A., 'Lex Mercatoria and the CISG: The Global Law Merchant' in Sarcevic, P., and Volken, P., (eds.) The International Sale of Goods Revisited (2001) p.241

36. See Berman, H.J., and Kaufmann,C., (1978) above, note 5, p.225

37. Audit, B., 'The Vienna Sales Convention and the Lex Mercatoria' in Carbonneau, T.E., (ed.) Lex Mercatoria and Arbitration (1990) Available at: <http://cisgw3.law.pace.edu/cisg/biblio/audit.html>

38. Sealy, L., and Hooley, R.J.A., (2005) Commercial Law - Text, Cases and Materials, 3rd Edn., p.14

39. Schlesinger, R.B., (1960) Comparative Law, 2nd Edn., p.185

40. See Schmitthoff, C.M., in Cheng, C., (ed.)(1988) C.Schmitthoff's Select Essays on International Trade Law, p.25, citing Marx, A., (1911) Die Franzosiche Handelsgesetzgebung, p.1

41. Schmitthoff, C.M., [1968] above note 35 at, p.107

42. See Schmitthoff, C.M., in Cheng, C., (ed.)(1988) C.Schmitthoff's Select Essays on International Trade Law, p.26

43. Lord Mansfield in Pelly v. Royal Exchange Assurance Co. (1757) Burr. 341, at 347

44. Sealy, L., and Hooley, R.J.A., (2005) above note 38 at., p.17

45. Schmitthoff, C.M., 'Modern Trends in English Commercial Law' in Tidskrift Utgiven av Jurisdiska Foreningen Finland (1957), p.354 - quoted in Schmitthoff, C.M., [1968] above, note 32, p.108

46. Goldštajn, A., 'International Conventions and Standard Contracts as Means of Escaping from the Application of Municipal Law' in Schmitthoff, C.M., (ed) (1964) Sources of the Law of International Trade, p.109; See also Schmitthoff, C.M., [1968] above, note 35, p.107

47. Bonell, M.J., 'General Provisions', in Bianca-Bonell (eds.) Commentary on the International Sale Law (1987)

48. Goode, R., (2005) 'Rule, Practice and Pragmatism in Transnational Commercial Law' 54 ICLQ 539, p.547

49. However see Dalhuisen who argues that the general principles underlying the CISG differ in nature to the general principles that form the new law merchant - Dalhuisen, J., (2004) Dalhuisen on International Commercial, Financial and Trade Law, 2nd Edn., p. 374 and Ch.1

50. Goode, R., (2005) above note 48 at p.548

51. Article 9 CISG

52. Audit, B., (1990) above note 37, p.176; For a further discussion see also Goldštajn, A., 'Usages of Trade and Other Autonomous Rules of International Trade According to the UN (1980) Sales Convention' in Sarcevic, P., and Volken, P., (eds) (1986) International Sale of Goods: Dubrovnick Lectures, p.97 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/goldstajn.html>

53. For a more detailed account see Sono, K., 'The Vienna Sales Convention: History and Perspective' in Sarcevic, P., and Volken., P., (eds.) (1986) International Sale of Goods; Dubrovnik Lectures Ch.1. Available at: <http://www.cisg.law.pace.edu/cisg/biblio/sono.html>; Farnsworth, A.E., 'The Vienna Convention: History and Scope' (1984) 18 International Lawyer 17

54. Bonell, M.J., 'Introduction to the Convention', in Bianca-Bonell, Commentary on the International Sale Law (1987), p.3

55. Hereinafter referred to as The Uniform Laws unless otherwise stated

56. Feltham, J.D., 'The United Nations Convention on Contracts for the International Sale of Goods' [1981] Journal of Business Law 346

57. Goode, R., (2004) Commercial Law, 3rd Edn., p.914; See also Nicholas, B., 'The Vienna Convention on International Sales Law' (1989) 105 Law Quarterly Review 201, p.202; Ziegel, J.S., 'The Future of the International Sales Convention from a Common Law Perspective' (2000) 6 New Zealand Business Law Quarterly 336 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/ziegel3.html>

58. Gabor, F, A., 'Emerging Unification of Conflict of Laws Rules Applicable to the International Sale of Goods: UNCITRAL and the New Hague Conference on Private International Law' (1986) 7 Northwestern Journal of International Law and Business 699

59. Hackney, P., 'Is the United Nations Convention on the International Sale of Goods Achieving Uniformity?' (2001) 61 Louisiana Law Review 473 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/hackney.html>

60. McNamara, T., 'U.N. Sale of Goods Convention: Finally Coming of Age?' (2003) Colorado Lawyer (February); See also Sono, K., (1986) above, note 53

61. See Honnold, J. O., 'The Uniform Law for the International Sale of Goods: the Hague Conventions of 1964' (1965) 30 Law & Contemporary Problems 326; Ndulo, M., 'The Vienna Convention 1980 and The Hague Uniform Laws on International Sale of Goods 1964: A Comparative Analysis' (1989) 38 International and Comparative Law Quarterly 1

62. Schmitthoff, C.M., [1968] above, note 35, p.118

63. Honnold, J.O., (1999) Uniform Law for International Sales, 3rd Edn.; Nicholas, B., (1989) above, note 57; Bianca- Bonell (1987) Commentary of the International Sales Law: The 1980 Vienna Sales Convention; Schlechtriem, P., (1986) Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, Manzsche Verlags-und Univeritätsbuchhandlung Available at: <http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem.html#a10>

64. Dalhuisen, J., (2004) above, note 49, p.363 (emphasis in original)

65. Article 4; For a further discussion see Carr, I., (2005) International Trade Law, 3rd Edn., p.67; See also Nicholas, B., (1989) above, note 57, p.207

66. Article 2

67. Article 6

68. Ziegel, J.S., (2000) above, note 57, p.338 (emphasis in original)

69. Murphy, M.T., (1989) 'United Nations Convention on Contracts for the International Sale of Goods: Creating Uniformity in International Sales Law' 12 Fordham International Law Journal 727 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/murphy.html>; see also May 29, 1995, 21 O 23363/94 [http://cisgw3.law.pace.edu/cases/950529g1.html]

70. Nicholas, B., (1989) above, note 57, p.204

71. See Ndulo, M., (1989) above, note 61

72. Keily, T., 'Harmonisation and the United Nations Convention on Contracts for the International Sale of Goods' (2003) 1 Nordic Journal of Commercial Law Available at: <http://www.cisg.law.pace.edu/cisg/biblio/keily3.html>

73. Allot, A.N., (1965) 'Towards Unification of Laws in Africa' 14 ICLQ 389

74. Bell, K., 'The Sphere of Application of the Vienna Convention on Contracts for the International Sale of Goods' (1996) 8 Pace International Law Review 237, p.243 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/bell.html>

75. Farnsworth, A.E., 'Developing International Trade Law' (1979) 9 California Western International Law Journal 461, p.463; See also Keily, T., above, note 72

76. Eörsi, G., 'A Propos For The 1980 Vienna Convention On Contracts For The International Sale Of Goods' (1983) 31 The American Journal of Comparative Law 333, pp.352-355

77. Kastely, A.H., 'The Right to Require Performance in International Sales: Towards an International Interpretation of the Vienna Convention' (1988) 63 Washington Law Review 607 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/kastely1.html>

78. Keily, T., (2003) above note 72

79. Garro, A.M., 'Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods' (1989) 23 International Lawyer 443 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/garro1.html>

80. Feltham, J.D., [1981] above, note 56, p.361

81. Eörsi, G., (1983) above, note 76, p.335; See also Garro, A.M., 'Unification and Harmonization of Private Law in Latin America' (1992) 40 American Journal of Comparative Law (1992) 587 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/garro3.html#6>

82. Garro, A.M., (1989) above, note 79

83. Eörsi, G., (1979) 'Problems of Unifying the Law on the Formation of Contracts for the International Sale of Goods' 27 American Journal of Comparative Law 311, p.315 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/eorsi.html>

84. Garro, A.M., (1989) above, note 79

85. Gonzalez, O., 'Remedies Under The U.N. Convention for the International Sale of Goods' (1984) 1 International Tax and Business Law 79, p.81

86. Kastely, A.H., (1988), above, note 77, p.629

87. Article 28

88. Herman, S., 'Specific Performance; a Comparative Analysis' (2003) 7 Edinburgh Law Review p.5

89. Eörsi, G., (1983) above, note 76, p.346

90. Magellan International v. Salzgitter Handel 7 December 1999 Fed. Dist. Court Illinois Available at: < http://cisgw3.law.pace.edu/cases/991207u1.html>

91. Rosset, A., 'Critical Reflections on the United Nations Convention for the International Sale of Goods' (1984) 45 Ohio State Law Journal 265, p.285 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/rossett.html>; See also Eörsi, G., (1983) above, note 63, p.342

92. Garro, A.M., (1989) above, note 79

93. Rosset, A., (1984) above, note 91, p.289

94. Dat-Bah, S.K., 'The Convention on the International Sale of Goods from the Perspective of the Developing Countries' in La Vendita Internazionale, La Convenzione di Vienna dell' 11 Aprile 1980 25-38 (Milan: A. Giuffre Editore, 1981) p.28; For an opposing view see Feltham, J.D., [1981] above, note 56

95. Article 14(1)

96. Article 55

97. Honnold, J.O., Uniform Law for International Sales under the 1980 United Nations Convention, 3rd Edn. (1999), p.355 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/honnold.html#133>

98. Honnold, J.O., (1999) above note 97, p.154

99. Garro, A.M., (1989) above, note 79

100. Flechtner, H.M., '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)' (1998) 17 Journal of Law and Commerce 187 Available at: <http://www.cisgw3.law.pace.edu/cisg/biblio/flecht1.html>

101. Cook, S.V., 'The Need for Uniform Interpretation of the 1980 United Nations Convention on Contracts for the International Sale of Goods' (1988) 50 University of Pittsburgh Law Review 197 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/cook2.html>

102. Zeller, B., 'International Trade Law - Problems of Language and Concepts?' (2003) 23 Journal of Law and Commerce 39, p.43 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/zeller7.html>

103. Hillman, R.A., 'Applying the United Nations Convention on Contracts for the International Sale of Goods: The Elusive Goal of Uniformity' (1995) Cornell Review of the Convention on Contracts for the International Sale of Goods 21 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/hillman1.html>

104. Flechtner, H.M., (1998) above, note 100

105. Ibid; See also BGer 13 November 2003 Available at: <http://cisgw3.law.pace.edu/cases/031113s1.html> which concerned the requirements as to content of a notification of defects under Art. 39(1) CISG and in particular the differences between the more generous English and French versions of Article 39(1), requiring a general as opposed to a "precise" requirement on lack of conformity under the German version

106. Graveson, R.H., (1968) above, note 28, p.11; See below Chapter 4 at p.29

107. Bailey, J. E., 'Facing the Truth: Seeing The Convention on Contracts for the International Sale of Goods as an Obstacle to a Uniform Law of International Sales' (1999) 32 Cornell International Law Journal 273, p.311

108. Rhodes, D.J., 'The United Nations Convention on Contracts for the International Law of Goods: Encouraging the use of Uniform International Law' (1992) 5 Transnational Lawyer 387, p.404

109. Rhodes, D.J., (1992) above, note 108, p.406

110. US Commercial Code [hereinafter UCC]

111. Flechtner, H.M., (1998) above, note 100

112. Matteuci, M., [1960] above, note 31, p.142

113. Rosett, A., (1984) above, note 91, p.275

114. Munday, R.J.C., 'The Uniform Interpretation of International Conventions' (1978) 27 International and Comparative Law Quarterly 450, p.450

115. See Felemegas, J., 'The United Nations Convention on Contracts for the International Sale of Goods: Article 7 and Uniform Interpretation' (2001) Available at: <http://cisgw3.law.pace.edu/cisg/biblio/felemegas.html>

116. Bonell, M.J., (1987) above note 47 at p.88

117. Hackney, P., (2001) above, note 59, p.478

118. Zeller, B., (2003) above, note 102

119. Kastely, A.H., (1988) above, note 13

120. Gerhart, P.M., 'The Sales Convention in Courts: Uniformity, adaptability and adoptability' in Sarcevic, P., and Volken, P., (eds.) The International Sale of Goods Revisited (2001), p.77

121. Markesinis, B., (ed), The Clifford Chance Millenium Lectures, the Coming Together of the Common Law and the Civil Law (2000), p.80 - Referenced in Zeller, B., (2003) 'Four Corners - The Methodology for Interpretation and Application of the UN Convention on Contracts for the International Sale of Goods' (2003) at note 167 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/4corners.html>

122. Fothergill v. Monarch Airlines [1980] 2 All E.R. 696; [1980] 3 W.L.R. 209

123. Forthergill v. Monarch Airlines [1979] 3 All ER 445 p.451

124. Another example concerning the Uniform Customs and Practice for Documentary Credits 1993 is United City Merchants (Investment) Ltd v Royal Bank of Canada (The American Accord) [1983] 1 AC 168 in which it was held that the interpretation of UCP should be based on UCP itself and needs of commerce, rather than domestic law

125. For example, Bruno Zeller suggests that the voting history of Article 7 was - 17 in favour, 14 against with 11 abstentions, he therefore states that it is reasonable to suggest that there were more people who "disliked" the article than who liked it. If we accept Zeller's suggestion, then the 'split' decisions in the legislative history of other articles call into question the utility of the legislative history of the CISG as a guide to its purpose. Zeller, B., (2007) above note 12 pp.32-33

126. Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] 1 All ER 810, 708

127. Koneru, P., 'The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles' (1997) 6 Minnesota Journal of Global Trade 105 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/koneru.html>

128. Bonell, M.J., (1987) above, note 47, p.88

129. Felemegas, J., (2001) above, note 115

130. Bonell, M.J., (1987) above, note 47, p.73

131. Hellner, J., 'Gap Filling by Analogy - Art. 7 of the U.N. Sales Convention in Its Historical Context' (1990) Available at: <http://www.cisg.law.pace.edu/cisg/text/hellner.html>

132. Scruttons Ltd. v.Midland Silicones Ltd. (1962) A.C. 446, at 471 (HL)

133. Bridge, M., 'Uniformity and Diversity in the Law of International Sales' (2003) 15 Pace International Law Review 55 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/bridge.html>

134. Gebauer, M., 'Uniform Law, General Principles and Autonomous Interpretation' (2000) Uniform Law Review 683, p.686 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/gebauer.html>

135. Roth, M., and Happ, R 'Interpretation of the CISG According to Principles of International Law' ., (1999) Vol. IV International Trade and Business Law Annual, 1, p.3

136. Honnold, J.O., (1982) Uniform Law for the International Sale under the 1980 Vienna Convention, p.163-4

137. Zeller, B., 'The UN Convention on Contracts for the International Sale of Goods (CISG) - A Leap Forward Towards Unified Sales Laws' (2000) 12 Pace International Law Review 79, p.88 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/zeller7.html>

138. Delchi S.p.A. v. Roterex Corp. (1995) U.S. Circuit Court of Appeals (2d.Cir), 6 December 1995, Available at: <http://cisgw3.law.pace.edu/cases/951206ul.html>

139. Filanto S.p.A. v. Chilewich International Corp. (1992) U.S. Dist. Ct., 14 April 1992, Available at: <http://cisgw3.law.pace.edu/cases/920414ul.html>

140. Andersen, C.B., 'The Uniform Sales Law and the Global Jurisconsultorium' (2005) 24 Journal of Law and Commerce 159, p.163 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/andersen3.html>

141. Honnold, J.O., (1982) above, note 136, p.135

142. Bonell, M.J., (1987) above note 47, p.72

143. Ferrari, F., (1994) above, note 16, p.204

144. Gebauer, M., (2000) above, note 134, p.686

145. Zeller, B., (2003) 'Four Corners' above, note 121

146. Cook, S.V., (1988) above, note 101

147. See Gerhart, P.M., (2001) above, note 120, p.89 ; Flechtner, H.M., (1998) above, note 100, p.189

148. Flechtner, H.M., (1998) above, note 100, p.189 (emphasis added)

149. Gerhart, P.M., (2001) above, note 120, p.80

150. Canaris, C.W., 'Die Bedeutung allgemeiner Auslegungsund Rechtfortbildungskriterien im Wechselrecht' (1987) Juristenzeitung 543, p.549, Referenced in Gebauer, M., (2000) above, note 134 Referenced at note 56

151. See Chapter 3, above at p. 23

152. Goode, R., (2005) above, note 48, pp.545-6; See also Zeller, B., (2003) 'Four Corners' above, note 121

153. Brown, G.D., 'The Ideologies of Forum Shopping -Why Doesn't a Conservative Court Protect Defendants?' (1993) 71 North Carolina Law Review 649, p.654

154. Al Palazzo S.r.I. v. Bernardaud di Limoges S.A. (Tribunale di Rimini Nov. 26, 2002) Available at: <http://cisgw3.law.pace.edu/cases/021126i3.html> [hereinafter Tribunale di Rimini]

155. ibid; See also Lord Denning, in The Atlantic Star (1972) 3 All ER 705, 709

156. Ferrari, F., 'International Sale Law and the Inevitability of Forum Shopping: A Comment on Tribunale Di Rimi, 26 November 2002' (2004) 23 Journal of Law and Commerce 169

157. Schlechtriem, P., 'Uniform Sales Law - the Experience with Uniform Sales Law in the Federal Republic of Germany' (1991) in 2 JURIDISK TIDKRIFT 1, p.27 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/schlech2.html>; See also Winship, P., 'Changing Contract Practices in the Light of the United Nations Sales Convention: A Guide for Practitioners' (1995) 29 International Lawyer 525, p.528 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/winship.html>; Cook, S.V., 'The U.N. Convention on Contracts for the International Sale of Goods: A Mandate to Abandon Legal Ethnocentricity' (1997) 16 Journal of Law and Commerce 257, p.261 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/1cook.html>

158. Andersen, C.B., (2005) above, note 140, p.165

159. Cook, S.V., (1988) above, note 101

160. Ziegel, J.S., (2000) above, note 57; See also Ferrari, F., 'The CISG's Uniform Interpretation by Courts -- An Update' (2005) 9 Vindobona Journal of International Commercial Law & Arbitration 233

161. Andersen, C.B., Uniform Application of the International Sales Law: Understanding uniformity, the global jurisconsultorium and the examination and notification provisions of the CISG., Kluwer Law International [forthcoming] at page p.77. My thanks to Albert Kritzer for kindly allowing me advanced sight of the manuscript

162. Dimatteo, L.A., 'The CISG and the Presumption of Enforceability: Unintended Contractual Liability in International Business Dealings' (1997) 22 Yale Journal of International Law 111, p.133 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/dimatteo.html>

163. Ferrari, F., 'CISG Case Law: A New Challenge for Interpreters?' (1999) 17 Journal of Law and Commerce 245, pp.258-259 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/ferrari3.html>; See also Ferrari, F., 'Applying the ClSG in a Truly Uniform Manner' [2000-1]Uniform Law Review 203, p.208 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/ferrari4.html>

164. Ferrari, F., (2005) above, note 160

165. Zeller, B., (2003) above, note 102, p.40

166. Ferrari, F., (1999) above, note 163, p.259

167. Rheinland Verischerungen v. S.r.l. Atlarex, Tribunale di Vigevano, 12 July 2000, n. 405 (Italy), Available at: <http://www.cisg.law.pace.edu/cases/000712i3.html>. [hereinafter Tribunale di Vigevano]

168. Lookofsky, J., and Flechtner H.M., 'Nominating Manfred Forberich: The Worst CISG Decision in 25 Years?' (2005) 9 Vindobona Journal of International Commercial Law & Arbitration 199

169. Lookofsky, J., 'Digesting CISG Case Law: How much Regard Should We Have?' (2004) 8 Vindobona Journal of International Commercial Law & Arbitration 181, p.187 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/lookofsky9.html>; Flechtner, H.M., 'Recovering Attorneys' Fees as Damages Under the U.N. Sales Convention (CISG): The Role of Case Law in the New International Commercial Practice with comments on Zapata Hermanos v. Hearthside Baking' (2002) 22 Northwestern Journal of International Law and Business 121, p.143-44 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/flechtner4.html>

170. Flechtner, H.M., (2002) above, note 169, pp.145-6

171. Lookofsky, J., (2004) above, note 169, p.187

172. Flechtner, H.M., (2002) above, note 169, pp.145-6

173. Hackney, P., (2001) above, note 59, p.479

174. Bonell in Bianca & Bonell (eds.) "Commentary on the International Sales Law", p. 91

175. Andersen, C.B., above note 161, p.79

176. Ferrari, F., (1999) above, note 163, p.253

177. Bonnell, M.J., 'International Uniform Law in Practice - Or, Where the Real Trouble Begins' (1990) 38 American Journal of Comparative Law 865, p. 878 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/bonell2.html>; See also Andersen, C.B., 'Furthering Uniform Application of the CISG: Sources of Law on the Internet' (1998) 10 Pace International Law Review 403 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/andersen1.html>

178. Since its inception in 2000, the Queen Mary Case Translation programme has helped translate over 1,000 CISG cases.

179. Flechtner, H.M., (1998) above note 100

180. http://www.unilex.info/

181. For a fuller discussion of the various sources of CISG caselaw see Andersen, C.B., above footnote 161

182. Tribunale di Vigevano, above, note 167

183. Tribunale di Rimini, above, note 154

184. Usinor Industeel v. Leeco Steel Prod., 209 F. Supp. 2d 880,886 (E.D. Ill. 2002)

However, it is important to note that treatment of U.S. case law on the CISG has not been quite so shameful in its disregard for the interpretative mandate of the Convention, and there are cases which have demonstrated that the judiciary have been more receptive. For example see MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino U.S. Federal Appellate Court [11th Circuit] 29 June 1998 Available at: <http://cisgw3.law.pace.edu/cases/980629u1.html> which, at footnote 14 actively encourages the consideration of foreign judgements. Better still, the decision of the Federal District Court of Louisiana in the case of Medical Marketing v. Internazionale Medico Scientifica 17 May 1999 Federal District Court [Louisiana] Available at: <http://cisgw3.law.pace.edu/cases/990517u1.html> cited the decision of the Supreme Court of Germany in the New Zealand mussels case. Most importantly, in its decision Chicago Prime Packers, Inc. v. Northam Food Trading Co., et al., 21 May 2004 Federal District Court the U.S. District Court, Northern District of Illinois, Eastern Division, cited 7 foreign decisions, including German, Italian and Dutch citations, all of which taken from the UNILEX database. Available at: <http://cisgw3.law.pace.edu/cases/040521u1.html>.The Chicago Prime Packers decision therefore stands as the best effort, to date, by an American court to recognise the importance of foreign caselaw

185. Raw Materials Inc. v. Manfred Forberich GmbH 2004 WL 1535839 (U.S. District Court for the Northern District of Illinois, July 7, 2004)

186. Lookofsky, J., and Flechtner, H.M., (2005) above, note 168

187. Uniform Commercial Code (hereinafter UCC)

188. Flechtner, H.M., 'The CISG in American Courts: The Evolution (and Devolution) of the Methodology of Interpretation', in Ferrari, F (ed), Quo Vadis CISG (Brussels/Paris/Munich, forthcoming,) - quoted in Lookofsky, J., and Flechtner, H.M., (2005) above, note 168

189. Andersen C, B., above note 161

190. Bonell, M.J., (1987) above note 47, pp.87-88

191. Sim, D., 'The Scope and Application of Good Faith in the Vienna Convention on Contracts for the International Sale of Goods' (2001) Available at: <http://cisgw3.law.pace.edu/cisg/biblio/sim1.html>

192. Bridge, M.G., 'Does Anglo-Canadian contract law need a doctrine of good faith?' (1984) 9 Canadian Business Law Journal 385, p.407

193. Powers, P.J., 'Defining the Undefinable: Good Faith and the United Nations Convention on Contracts for the International Sale of Goods' (1999) 18 Journal of Law and Commerce 333 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/powers.html>

194. Summers, R.S., 'The General Duty of Good Faith - Its Recognition and Conceptualization' (1982) 67 Cornell Law Review 810, p.818 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/summers.html>

195. ibid

196. Winship P., (1995) above, note 157; Koneru, P., (1997) above, note 127, p.120

197. Eörsi, G., 'General Provisions' in Galston, N.M., and Smit, H., (eds.) (1984) International Sales: The United Nations Convention on Contracts for the International Sale of Goods, Ch.2 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/eorsi1.html>

198. Keily, T., 'Good Faith and the Vienna Convention on Contracts for the International Sale of Goods (CISG)' (1999) 3 Vindobona Journal of International Commercial Law and Arbitration, Issue 1 15-40 Available at: <http://cisgw3.law.pace.edu/cisg/biblio/keily.html>; Felemegas, J., (2001) above, note 99

199. Bonell, M.J., (1987), above, note 47, p.84; For similar views see also; Eörsi, G., (1984) above, note 170; Povrzenic, N. 'Interpretation and Gap-filling under the United Nations Convention on Contracts for the International Sale of Goods' (1997) Available at: <http://cisgw3.law.pace.edu/cisg/biblio/gap-fill.html>; Rosset, A., (1984) above, note 76

200. Bonell, M.J., (1987), above, note 47, p.84

201. Honnold, J.O., (1982) above, note 136, p.125

202. SARL BRi Production "Bonaventure" v. Society Pan African Export Case number 93/3275. Cour d'appel (Appeal Court), Grenoble, France. Decided on 22 February 1995. Available at: <http://cisgw3.law.pace.edu/cases/950222f1.html>

203. Felemegas, J., (2001) above, note 115

204. Powers, P.J., (1999) above, note 194

205. See Chapter 2, above at p.20

206. Eörsi, G., (1984) above, note 198

207. Article 7(2)

208. ULIS Article 2

209. ULIS Article 17

210. Bonell, M.J., (1987), above, note 47, p.66

211. ibid

212. Van Alstine, M.P., 'Dynamic Treaty Interpretation' (1998) 146 University of Pennsylvania Law Review 687, p.729 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/alstine2.html>

213. Felemegas, J., (2001) above, note 115

214. Gerhart, P.M., (2001) above, note 120, p.82

215. Bonell, M.J., (1987), above, note 47, p.75

216. Rosenberg, M.N., 'The Vienna Convention: Uniformity in Interpretation for Gap-filling - An Analysis and Application' (1992) 20 Australian Business Law Review 442, p.447

217. Article 33(c)

218. Article 47

219. Article 49

220. Articles 74-77

221. Ferrari, F., (1994) above, note 16, p.217

222. Zeller, B., (2003) 'Four-Corners' above, note, 121: <http://cisgw3.law.pace.edu/cisg/biblio/4corners.html>

223. Bonell, M.J., (1987), above, note 47, pp.88-89

224. For this expression see Nickles, S.H., 'Problems of Sources of Law Relationships Under the Uniform Commercial Code - Part I: The Methodological Problem and The Civil Law Approach' (1977) 31 Arkansas Law Review 1

225. See Kritzer, A.H., (1989) Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods, p.117 (Kluwer, Deventer & Boston, 1989)

226. Honnold, J.O., (1991) Uniform Law for International Sales under the 1980 United Nations Convention, 2nd Edn., p.149

227. Honnold, J.O., (1991) above, at note 227, p.96

228. James Buchanan & Co. Ltd. v Babco Forwarding & Shipping (U.K.) Ltd. [1977] Q.B. 208; [1978] A.C. 141 (H.L.) For an analysis of this case see Munday, R.J.C., (1978) above, note 98

229. Zeller, B., (2003) 'Four-Corners' above, note 121 However, in the U.S. the Uniform Commercial Code is a common law statute that appears to go both ways. Section 1-103 of the UCC states that "Unless displaced by the particular provisions of this Act, the provisions of law and equity, including the law merchant ... shall supplement its provisions" and has been construed as an application of the common law approach. Conversely, s.1-102(1) which states that: "This Act shall be liberally construed and applied to promote its underlying purposes and policies", can be viewed as an endorsement of the civil law approach, attempting to tie everything back to principles reflected in the Act

230. Ziegel, J.S., in 'Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods' (1981) Available at: <http://www.cisg.law.pace.edu/cisg/text/ziegel78.html>

231. Callaghan, J.J., 'U.N. Convention On Contracts for the International Sale of Goods: Examining the Gap-Filling Role of CISG in Two French Decisions' (1995) 14 Journal of Law and Commerce 183, p.200

232. Schlechtriem, P., (1986) Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods Available at: <http://www.cisg.law.pace.edu/cisg/biblio/schlechtriem.html#a10>

233. Ziegel, J.S., (1981) above, note 231

234. Behr, V., 'The Sales Convention in Europe: From Problems in Drafting to Problems in Practice' (1998) 17 Journal of Law and Commerce 263; Ferrari, F., 'Specific Topics of the CISG in the Light of Judicial Application and Scholarly Writing' (1995) 15 Journal of Law and Commerce 1 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/2ferrari.html>

235. Enderlein, F., and Maskow, D., (1992) International Sales Law: United Nations Convention on Contracts for the International Sale of Goods, p.312; Nicholas, B., 'Interest' in Bianca-Bonell Commentary on the International Sales Law: The 1980 Vienna Sales Convention (1987), p.570

236. Judgement 5 O 543/88, Landgericht Hamburg (26 September 1990) (Germany)

237. Judgement 3 KfH O 97/89, Landgericht Stuttgart ( 31 August 1989) (Germany) Available at: <http://cisgw3.law.pace.edu/cases/890831g1.html>; Judgment 3/11 O 3/91, Landgericht Frankfurt am Main (16 September 1991) (Germany), Available in UNILEX; Judgement 7 U 4419/93 OLG München (2 March 1994) (Germany), Available at: <http://cisgw3.law.pace.edu/cases/940302g1.html>

238. Corterier, A., 'A New Approach to Solving the Problem of the Interest Rate Under Article 78 CISG' (2000) 5 International Trade and Business Law Annual 33, p.37; See also Judgement 5 U 261/90 OLG Frankfurt (13 June 1991) (Germany) Available at: <http://cisgw3.law.pace.edu/cases/910613g1.html>

239. Judgement 3 KfH O 97/89, Landgericht Stuttgart ( 31 August 1989) (Germany) Available at: <http://cisgw3.law.pace.edu/cases/890831g1.html>

240. Arbitration Award VB/94131, Arbitration Court attached to the Hungarian Chamber of Commerce & Industry (5 December 1995) (Hungary), available in <http://www.jura.uni-freiburg.de/ipr1/cisg>

241. Chengwei, L., 'Remedies for Non-Performance: Perspectives from CISG, UNIDROIT Principles & PECL' (2003) Available at: <http://www.cisg.law.pace.edu/cisg/biblio/chengwei-78.html>; Mazzotta, F.G., 'CISG: Article 78: Endless disagreement among commentators, much less among courts' (2004) Available at: <http://www.cisg.law.pace.edu/cisg/biblio/mazzotta78.html>; Zoccolillo, A.F., 'Determination of the Interest Rate under the 1980 United Nations Convention on Contracts for the International Sale of Goods: General Principles vs. National Law' (1997) 1 Vindabona Journal of International Commercial Law and Arbitration 3 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/zoccolillo.html#5>

242. Articles 78 and 84

243. Corterier, A., 'Interest in Uniform Application - How to Solve the UN Sales Law's Interest Rate Problem Under Article 78 CISG and 84 CISG' [2004] Review of the Convention on Contracts for the International Sale of Goods 1, p.9 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/corterier1.html>

244. Chengwei, L., (2003) above, note 242

245. Koneru, P., (1997) above, note 127; See also Darkey, J.M., 'A U.S. Court's Interpretation of Damage Provisions under the U.N. Convention on Contracts for the International Sale of Goods: A Preliminary Step towards an International Jurisprudence of CISG or a Missed Opportunity?' (1995) 15 Journal of Law and Commerce 139, pp.150-152 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/darkey2.html#f72>

246. Koneru, P., (1997) above, note 127

247. Honnold, J.O., (1991) above, note 227, p.421

248. Article 78

249. Nicholas, B., (1987) above, note 236,p.570; See also Ferrari, F., (1995) above, note 235, p.122

250. Corterier, A., (2000) above, note 239, p.35

251. Neumayer, K.H., 'Offene Fragen zur Anwendung des Abkommens der Vereinten Nationen über den internationalen Warenkauf' (1994) 2 Recht der internationalen Wirtschaft 99, p.106 - Referenced in Thiele, C., 'Interest on Damages and Rate of Interest Under Article 78 of the U.N. Convention on Contracts for the International Sale of Goods' (1998) 2 Vindobona Journal of International Commercial Law and Arbitration 3 at note 137 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/thiele.html#N_137_>

252. Article 84(1)

253. Corterier, A., [2004] above, note 244, p.10

254. Mazzotta, F.G., (2004) above, note 242

255. See Internationales Schiedsgericht der Bundeskammmer der gewerblichen Wirtschaft, Wien, SCH-4366, 15 June 1994 (Austria), Available at: <http://cisgw3.law.pace.edu/cases/940615a3.html>

256. See ICC International Court of Arbitration, award No. 8769 [1996], Available at: <http://cisgw3.law.pace.edu/cases/968769i1.html>

257. Case 41 O 111/95 (Italy v. F.R.G.) Landgericht Aachen (July 20, 1995)

258. Corterier, A., (2000) above, note 239, p.41

259. ibid p.32-42 (emphasis added)

260. Article 9(2)

261. Sacifia v. Bettcher Industries, Juzgado Nacional de Primera Instancia en lo Comercial (20 May 1991) (Argentina), abstract available in UNILEX

262. Van Alstine, M.P., (1998) above, note 213, p.766

263. Brandner, G., 'Admissibility of Analogy in Gap-filling under the CISG' (1999) Available at: <http://www.cisg.law.pace.edu/cisg/biblio/brandner.html>

264. Honnold, J.O., (1991) above, note 227, p.102; See also Hellner, J., (1990) above, note 130

265. Bonell, M.J., (1987), above, note 47, p.78; See similarly Enderlein, F., Maskov, D. and Stargard, (1991) Internationales Kaufrecht

266. Bonell, M.J., 'General Provisions', above, note 100, p.80

267. Enderlein, F., Maskov, D. and Strohbach, H., (1991) Internationales Kaufrecht, p.64 - Referenced in Felemegas, J., (2001) above, note 115

268. Brandner, G., 'Admissibility of Analogy in Gap-filling under the CISG' (1999) Available at: <http://www.cisg.law.pace.edu/cisg/biblio/brandner.html>

269. Bonell, M.J., (1987), above, note 47, p.79

270. Rosenberg, M.N., (1992) above, note 217, p.450

271. Honnold, J.O., (1991) above, note 227, p.156

272. See Chapter 3, above at p.18

273. Bonell, M.J., (1987), above, note 47, p.80

274. Brandner, G., (1999) above, note 264

275. Hillman, R.A., (1995) above, note 103

276. Honnold, J.O., (1991) above, note 227, pp.141-142

277. Hillman, R.A., (1995) above, note 103

278. Article 7(1)

279. Article 6

280. Kritzer, A.H., (1989) Guide to Practical Application of the United Nations Convention on Contracts for The International Sale of Goods, p.114

281. Sono, K., (1986) above, note 53, p.13

282. Article 9

283. Articles 11 and 29

284. Article 27

285. Article 78

286. Povrzenic, N. (1997) above, note 200

287. Honnold, J.O., (1986) Uniform Sales Law, p.39

288. Bonell, M.J., (1987), above, note 47, p.81

289. ibid

290. Articles 30 and 53

291. Articles 16(2)(b), 29(2)

292. Articles 32(3), 48(2), 60(a), 65

293. Aricles 77, 85-88

294. Hillman, R.A., (1995) above, note 103

295. Honnold, J.O., (1991) above, note 227, p.153

296. Bailey, J. E., (1999) above, note 107, p.287

297. Nicholas, B., (1989) above, note 57, p.249

298. Forte, A., 'The United Nations Convention on Contracts for the International Sale of Goods: Reason or Unreason in the United Kingdom' (1997) 26 University of Baltimore Law Review 51 Available at: <http://www.cisg.law.pace.edu/cisg/biblio/forte.html>

299. Garro, A.M., (1989) above, note 79


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