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Published in Galston & Smit ed., International Sales: The United Nations Convention on Contracts for the International Sale of Goods, Matthew Bender (1984), Ch. 10, pages 10-1 to 10-7. Reproduction authorized by Juris Publishing.

Prospects for Adoption in the United States

by Peter H. Pfund

"Prospects for Adoption in the United States" is a somewhat touchy subject, particularly if one has become a believer in Murphy's basic law after twenty-five years in government. Any evaluation of prospects I utter are mine. I think it best that the Department, as such, not have any views. After all, the President and the Secretary of State are the seekers of Senate advice and consent to ratification.

If I say prospects for U.S. ratification are good, I could be proven wrong in the next few months or years. On the other hand, if I should say that the prospects are uncertain, and my view makes any difference at all, this may prompt many not inclined seriously to examine the Convention for its merits to put it aside -- the last thing I want. There are, however, a number of things I can say.

A lot of effort has gone into this Convention by experts, some of whom have spoken as participants in this conference. The effort continues, as witnessed by their participation here from many other countries presently examining the CISG for possible adoption, or which, like France and Hungary, have already adopted it. Incidentally, the percentage of total world trade represented by the United States, Canada, the UK, France, the Federal Republic of Germany, Hungary and Japan, the countries from which experts have spoken here, is undoubtedly considerable. The United States' share of the effort that produced this Convention is [page 10-1] also considerable. John Honnold and Allan Farnsworth have been involved from the very beginning. John was involved from 1969 to 1974 in a capacity other than as U.S. expert. As mentioned earlier, he was Chief of the International Trade Law Branch, i.e. the Secretariat of UNCITRAL, and one of Professor Sono's predecessors during the years that CISG began to take shape.

I should reiterate here the Department's satisfaction that because of UNCITRAL's mandate to unify the law of international trade and the broad agreement among UNCITRAL's member states at any given time that barriers to trade resulting from differences in laws should be removed, the work of this Commission is spared the East-West, North-South confrontations that one frequently associates with UN bodies. The collegial and professional work. climate of the Commission and the quality of the Secretariat staff account for the excellence of its work products to date and for our high expectations concerning its work now in progress.

The Secretary of State's Advisory Committee on Private International Law has been consulted regularly on work concerning the CISG from the very beginning. Members of that Committee are representatives of major U.S. national legal organizations interested in private international law, including the National Conference of Commissioners on Uniform State Laws, ABA, ALI and seven other organizations.

Particularly charged with helping the Department on this project to unify international sales law was a study group consisting of about twenty sales and contract law experts, about half of them law professors, the other half being leading private attorneys, counsel for several Fortune 500 corporations, and representatives of the National Foreign Trade Council. This Study Group provided the sales law expertise and contact with the potentially affected parts of the private sector. Its several meetings were intended to ensure that the experts sitting for the United States on [page 10-2] UNCITRAL's Working Group meetings were in touch with the "real world." Those Study Group members that were also members of state law revision commissions and the Advisory Committee members representing the National Conference of Commissioners on Uniform State Laws, the ABA and other organizations helped to ensure that due consideration was given to the interests of the states and to the Uniform Commercial Code as enacted in the states.

Let me note here in passing, as was mentioned yesterday and this morning, that with the exception of several in-depth studies undertaken as Department external research projects, the contributions of all of these distinguished legal experts were, and continue on other projects to be, made available to the Department without compensation and frequently without even reimbursement of some out-of-pocket costs. The Department is much envied in many other countries for the voluntary response of the U.S. legal profession to the United States Government's request for their free services and help. I have come to expect that reponse, but the Department and I do not take it for granted and the willingness of legal experts to be helpful is very heartening for someone in my position.

That participation of the legal profession throughout work on this project from 1968 to 1980 accounts for the relative ease with which the Convention was endorsed by the ABA in August, 1981 for U.S. signature and ratification. The endorsement was also based on the excellent report prepared for the ABA's International Law Section by Peter Winship.

Upon U.S. signature of the Convention in late August, 1981, we entered into another stage -- the process of bringing the CISG to the attention of the potentially affected and benefited parts of the private sector in this country. I can recall discussions in the Advisory Committee about how best to do this, the problem being that the CISG, by covering international sales generally, does not stand to affect a narrow and specialized area for which any single [page 10-3] close-knit or organized interest group exists in the United States.

Peter Winship started the broad education process for the legal profession by his article in the October, 1982 issue of the ABA Journal, which reached the homes or offices of about 350,000 attorneys throughout the United States. John Honnold in his treatise on the CISG, published in May, 1982, produced the most thorough presently available analysis and background study of the Convention in English. The sales of John's red book will undoubtedly pick up during the next few years. Law review articles and notes began to appear, as well as some regional programs at which the CISG was discussed. National awareness of the CISG in the legal profession was heightened by the showcased panel discussion of it on August 1 at the ABA's annual meeting in Atlanta, at which the fullness of the program did not leave time for Q's and A's from the public -- something that this conference fortunately has made possible.

The Secretary of State on August 30 signed the letter submitting the CISG to the President, who signed his Letter of Transmittal to the Senate on September 21. With the speed with which the Government Printing Office continues to amaze me, it produced within a day or so Senate Treaty Doc. No. 98-9, a copy of which has made available to all conference participants. That document includes, as you know, the Legal Analysis referencing the provisions of UCC that correspond to the CISG provisions that it discusses. The Department had this unusually long analysis prepared because of the direct effect that this Convention will have on the law applicable to international sales contracts. This direct effect made us believe that the Senate needed to understand the extent to which the provisions of the CISG are similar in their purpose and/or result to those of the UCC particular to U.S. lawyers in the sales field. We were mindful, too, of the help that such an analysis would provide for corporate counsel, private attorneys and the various national organizations that provide services to international [page 10-4] traders. We hope that the analysis will successfully serve its intended purpose. Let me ask you when you return to your home towns to let potentially interested attorneys know that the Department can send them a copy of this analysis in response to (preferably written) requests to me (L/PIL, Department of State, Washington, D.C., 20520). We have, however, also asked the Government Printing Office to carry the treaty document for sale in its bookstores throughout the United States, and the ASIL will publish the Legal Analysis and the Letters of Submittal and Transmittal in International Legal Materials, which reproduced the CISG text in 19 ILM (1980). I understand from Hans Smit that Matthew Bender will include the entire treaty document as an annex to its publication containing these proceedings.

The favorable reception of the Convention apparent so far, and the absence of any declared opposition to its ratification is, of course, encouraging to those that have worked on it, particularly those who have nursed this project along during its early years. It would provide pretty good reason to harbor optimism about the chances for U.S. ratification.

However, the establishment of the Lawyers' Committee for the Convention, under the chairmanship of Peter Kaskell, and the most effective supportive efforts of Peter on behalf of his Committee, almost make me confident that the CISG will be ratified by the United States. It is heartening indeed to know that the distinguished members of that Committee support the Government from the vantage of the lawyers standing to be benefited by the CISG. Peter Kaskell has asked me to remind you, now that you know more about CISG than most of your brethren who have not attended a program such as this one, of his call for supportive action on your part and the importance of such action -- a plea that I myself cannot properly make as a government official.

I remain just short of confident, because an innovative project of this kind is fragile, requires the favorable vote of two-thirds of the Senators voting, and it could take very little [page 10-5] to derail it and deprive U.S. international traders of its benefits. It will require adjustment to a new legal situation and option, and some may prefer the status quo to adjusting to something new, whatever its merits. If Senate hearings should take place in 1984, an election year, general political nervousness could give any opponents of U.S. ratification or those with doubts a heightened chance to get the Convention shelved. Once that occurs, it would take a strong renewed effort after 1984 to get it off the shelf and back before the Senate.

Nothing would please me and my predecessor, Dick Kearney, more than U.S. ratification of this Convention. Since we first obtained Congressional authorization in late 1963 for the United States to become a member of the Hague Conference on Private International Law and UNIDROIT, and thus belatedly to participate fully in international efforts to unify private law, U. S. experts have participated very actively in the work of these bodies, as well as UNCITRAL after its establishment a couple of years later. Yet United States adoption of the conventions produced by these organizations has been modest:

  --     the 1965 Hague Convention on the Service of Process Abroad;[1]
  --     the 1970 Hague Convention on the Taking of Evidence Abroad;[2] and
  --     the 1961 Hague Convention Abolishing the Requirement of Legalization for Foreign Public documents.[3]

All are procedural. None of those adopted by the United States sets out unified substantive rules. CISG would be the [page 10-6] first and would deal with important aspects of law governing the most fundamental transaction for international trade.

As a number of non-American experts have said it to me on many occasions, it is not immodest, I think, to say that U.S. ratification of the CISG would cause many countries now hanging back to accelerate their review of the CISG for possible ratification. U.S. ratification, it seems, would have a multiplier effect, perhaps because so few other governments have expected it. The effect is certainly welcome, and in turn would make U.S. ratification more desirable and potentially more beneficial to U.S. traders and their lawyers. It should make us feel good to assume a position of leadership in the adoption of such a convention. Our ratification should also enhance the standing of the United States in the international organizations I named earlier. It would dispel at least some of the current doubts about the seriousness of our participation in international private law unification work.

Let me close by thanking Hans Smit, the Parker School, and the cooperating law schools and the AACSL for this helpful program in the educational process of bringing the Convention to the attention of the private legal sector. The federal government's role in that process can only be supportive -- the basic responsibility for it must lie in the private sector. Thanks also to the other speakers, so many of whom are from major trading partners of the United States. I hope they will return to their countries, and Professor Sono to the UNCITRAL Secretariat, convinced that we are serious in the United States about ratifying this Convention. [page 10-7]


FOOTNOTES

1. 20 UST 361, TIAS 6638, 658 UNTS 163, in force for the United States, February 10, 1969.

2. 23 UST 255, TIAS 7444, in force for the United States October 7, 1972.

3. TIAS 10072, 527 UNTS 189, in force for the United States October 15, 1981.


Pace Law School Institute of International Commercial Law - Last updated December 13, 2004
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