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Reproduced with permission of 11 Vindobona Journal of International Commercial Law & Arbitration (2/2007) 133-146

New Developments under the CISG

Burghard Piltz [a1]

  1. Introduction
  2. Contracting States
  3. New publications
  4. Case law
    4.1     Scope of the application of the CISG
    4.2     Conclusion of the contract
    4.3     Primary duties of the seller and buyer
    4.4     Breach of contract by the seller
    4.5     Breach of contract by the buyer
    4.6     Damages

1. INTRODUCTION

As of 1 May 2007, seventy States have ratified the United Nations Convention on Contracts for the International Sale of Goods ('CISG'). More importantly, as regards its application from a German perspective, the CISG is applicable to virtually all export contracts and nearly eighty per cent of all imports. It is also increasingly recognised that the non-unified German law [1] is generally less favourable for exporters than the CISG, in particular for the sale of consumer products. This article provides an update on the number of States that have ratified the Convention, lists new publications, and, in line with the author's foregoing articles,[2] summarises new national and international case law. [page 133]

2. CONTRACTING STATES

The CISG dated 11 April 1980,[3] was ratified and accepted by seventy States as of 1 May 2007.[4] Since 1 April 2005,[5] the following further Contracting States have been added:

   -    Montenegro (in effect as of 3 June 2006);
   -    Liberia (in effect as of 1 October 2006);
   -    Paraguay (in effect as of 1 February 2007); and
   -    El Salvador (in effect as of 1 December 2007).
 

   -    Macedonia declared the CISG applicable as of 17 November 1991.

3. NEW PUBLICATIONS

Since 2005, further commentaries and handbooks, as well as standard forms of contract regarding the CISG have been published, in particular:

   -    Gelzer, P., Kaufvertrag nach Wiener Kaufrecht, in: Münch, P., Böhringer, P., Kasper, S. and Probst, F. (eds.), Schweizer Vertragshandbuch, First Edition, 2007, Helbing & Lichtenhahn.
 
   -    Hartmann, U. and Schäfer, J., Internationale Muster-Exportverträge, looseleaf, as of April 2007, ks Forum.
 
   -    Piltz, B., Export Contract (Exportvertrag-Maschine), in: Schütze, R. A. and Weipert, L., Münchener Vertragshandbuch, Band 4 (Wirtschaftsrecht III), Sixth Edition, 2007, C. H. Beck.
 
   -    Verweyen, U., Foerster, V. and Toufar, O., Handbuch des Internationalen Warenkaufs UN-Kaufrecht, 2007, Boorberg.
 
   -    Schlechtriem, P., Internationales UN-Kaufrecht, Third Edition, 2005, Mohr Siebeck.
 
   -    Schlechtriem, P. and Schwenzer, I., Commentary on the UN Convention on the International Sale of Goods (CISG), Second Edition, 2005, Oxford University Press. [page 135]

   -    Magnus, U. and Martinek, M., Wiener UN-KaufR (CISG), in Staudinger, J. (ed), Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen, 2005, Sellier/de Gruyter.

In addition, there are a number of useful CISG online databases, in particular:

   -    <http://www.uncitral.org>: UNCITRAL database including the most current status of ratification.
 
   -    <http://www.cisg.law.pace.edu>: Materials and commentaries, extensive collection of literature and case law, and other links ('CISG-Pace').
 
   -    <http://www.cisg-online.ch>: Comprehensive database, with some court decisions in full text ('CISG-online').
 
   -    <http://www.cisg-france.org/>: French case law, some of which is in full text ('CISG-France').
 
   -    <http://www.uc3m.es/cisg>: Decisions in Spanish ('CISG-Carlos III').
 
   -    <http://www.cisg.at>: Austrian case law, predominantly in full text ('CISG-Austria').
 
   -    <http://www.law.kuleuven.be/ipr/eng/cisg/index.php?form_type=basic&language=en>: Belgian decisions, some of which is in full-text ('CISG-Belgium').

4. CASE LAW

4.1 Scope of the application of the CISG

The CISG applies to contracts for the sale of goods: Art. 1(1). Contracts for the sale of goods are characterised by the seller's obligation to deliver the goods and to transfer title to the goods on the one hand, and the buyer's obligation to pay the price on the other hand. Assumptions of debt [6] as well as barter contracts without any monetary consideration [7] (not to be confused with counter-purchase contracts), therefore, do not fall under the CISG.

Yet the Convention applies to framework delivery contracts [8] and continuous delivery contracts,[9] on the condition that they provide for the delivery and the transfer of title with a sufficient degree of determinability. A contractual obligation to re-stock the goods is of subordinate importance and does not affect the [page 135] application of the CISG: Art. 3(2).[10] On the contrary, a customer preservation agreement, signed separately and under a separate date in order to supplement a sales contact, has to be treated as a separate contract and does not fall under the CISG.[11] Likewise, distributor contracts and other distribution arrangements [12] which provide for a framework for distribution-orientated co-operations are generally not regarded as sales contracts.[13]

The object of a sales contract under the CISG must be the delivery of goods. The CISG does not apply to sales contracts for items which are not goods or which are excluded by virtue of Art. 2. It is established practice that the CISG applies to the sale of livestock [14] as well as the permanent licensing of software stored on a data carrier.[15] However, according to Art. 2(e), ships and vessels are excluded from its application. This exception also applies to flat-bottomed ships.[16]

The CISG applies to international sales contracts with a connection to at least one Contracting State: Arts. 1(1) and (2). A sales contract is international if both the buyer's and the seller's place of business are in different states. The place of conclusion [17] of the contract or the place of the performance of delivery [18] is of no significance to determine whether a contract is an international contract under the terms of the CISG. In addition, a connection to one Contracting State is established if both the buyer and the seller have their places of business in CISG Contracting States: Art. 1(1)(a). Insofar as this precondition (which in practice is unproblematic) is not fulfilled, the CISG nevertheless applies if rules of private international law lead to the application of the law of a contracting member state: Art. 1(1)(b).[19] This alternative regularly leads to the CISG's application to export [page 136] contracts from Germany to states which are not Contracting States of the Convention.[20] However, the result differs for countries such as the USA which have declared a reservation pursuant to Art. 95, according to which Art. 1(1)(b) is not applicable.[21]

In cases where the CISG applies according to Art. 1, the parties are still free to exclude its application: Art. 6. A valid exclusion, however, requires that the parties are aware of the international nature of their contract and still wish to apply national, non-unified law.[22] The general choice of the law of a Contracting State (e.g. 'German law shall apply') has continuously been held to constitute an implied exclusion of the application of the CISG.[23] Similarly, the application of the CISG is not excluded if general terms and conditions exclude the application of the Hague Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods ('ULF') and the Hague Convention relating to a Uniform Law on the International Sale of Goods ('ULIS')[24] or if individual provisions of the CISG are modified.[25]

The CISG regulates the formation of a sales contract, its form requirements, and the buyer's and the seller's rights and obligations arising out of such contracts: Arts. 4, 11 and 29(1). As far as choice of forum clauses or arbitration clauses require a substantive contract, the formation of such a contract is also determined by the CISG.[26] Likewise, the inclusion of general terms and conditions is subject [page 137] to the CISG.[27] In particular, the CISG governs the consequences of a breach of a sales contract. Recourse to national laws, including national rules of mistake is excluded under the CISG.[28] Additionally, the CISG governs, at least indirectly, the burden of proof.[29]

Within its scope of application, the CISG precludes the application of non-uniform national law.[30] Furthermore, the provisions of the CISG have to be interpreted autonomously, that is without recourse to the interpretation of national law; notably German case law on section 459 of the German Civil Code [31] may not be applied to Arts. 35 and 36.[32] However, the validity of contractual clauses such as clauses limiting liability [33] or penalty clauses [34] is subject to national law: Art. 4(a). Lastly, the scope of application of the CISG does not extend to set-offs [35] and limitation periods,[36] which are governed by national law.

4.2 Conclusion of the contract

In general, the conclusion of a contract presupposes an offer. The inter-relationship between the principle of price determination under Art. 14(1) and Art. 55 is still occupying the courts. An agreement providing for the price of marketable goods (Morello cherries) to be fixed by the parties at a later point in time during the season is sufficient to exclude the application of Art. 14(1), and to free the way to [page 138] the formation of a valid contract and the application of Art. 55.[37] On the other hand, an offer without any pricing provisions does not lead to the conclusion of a valid contract, even if the parties subsequently agree on an 'open clearance' or profit sharing arrangement.[38] Proposals made 'subject to change' do not constitute offers, because they lack an intention to be legally bound: Art. 14(1).[39]

Problems with regard to the acceptance of an offer arise, in particular, when multiple statements are exchanged between the parties. Typically, the taking of delivery constitutes implied acceptance in such cases.[40] But also the sending of requested documents or a notice of postponement of delivery as a reaction to a statement of the other party may lead to the conclusion of a contract.[41]

During the time period covered by this article, the courts repeatedly had to deal with general terms and conditions in sales contracts under the CISG. Unless there are other business practices,[42] general terms and conditions become part of the contract provided that they are handed over to the other party in the language in which the contract had been negotiated, the offer expressly refers to the application of these general terms and conditions and the other party accepts the offer without dissenting to their inclusion and without proposing their own general terms and conditions.[43] Consequently, the supplier of general terms and conditions has to provide an express indication, outside the terms and conditions, that general terms and conditions are to be included as part of the agreement between the parties. Such indication has to be communicated at the time of conclusion of the contract at the latest [44] and it has to be a language in which the other party must engage. While a simple reference to the incorporation is sufficient for business contracts within Germany, CISG contracts further require that the text of the general terms and conditions is handed over prior to conclusion of the contract at the latest.[45] Therefore, general terms and conditions do not apply when the other party still [page 139] needs to obtain the text. Also, the text of the general terms and conditions has to be drafted in either the language which the other party used when negotiating the contract or in the other party's native language.[46] Unlike German law, according to prevailing opinion, the acceptance of an offer with reference to own, deviating general terms and conditions constitutes a counter-offer (Art. 19), which in turn requires an acceptance to lead to the conclusion of a contract.[47]

4.3 Primary duties of the seller and buyer

The seller's primary obligations are to deliver the goods and to transfer title to the goods. Article 5 Nr. 1 lit. b of the EC Council Regulation 44/2001 [48] has a much greater effect on the determination of the place of delivery than it previously had. As a general rule, the seller has to deliver the goods at the place where the goods are handed over to the first carrier for transmission to the buyer: Art. 31(a). However, the parties may agree on a different place of delivery. Terms such as 'delivery free construction site' [49] or the mere specification of a delivery address [50] do not alter the place of delivery within the meaning of Art. 31(a). On the other hand, a different place of delivery can be the result of an implied agreement, for example, where the seller has an obligation to set up the sold product at the buyer's place of business.[51]

The buyer's obligation is to pay the purchase price. Where it is doubtful whether a sales contract committing the buyer to pay a purchase price has been concluded at all, the seller bears the burden of proof. The dispatch of goods and the issuance of an invoice do not rebut the defendant's objection that the goods were a free sample collection.[52] The price is due when the goods are at the buyer's disposition: Art. 58(1). If the parties have agreed that payment is to be made '14 days net', the payment is due only 14 days after the invoice has been rendered.[53] It may also be derived from specific circumstances that payment is only due after a proper invoice has been rendered.[54] Without taking into consideration relevant case law [page 140] and scholarly writing, two courts held that the currency in which payments had to be made was not regulated by the CISG and that, consequently, rules of private international law were to be applied to determine the law applicable to the currency issue.[55]

According to Art. 71, the buyer and the seller may be entitled to suspend performance of their obligations under the contract. It is the author's opinion that there is no need to assume a general right to suspend performance if the goods delivered are not in conformity with the contract.[56] The notice under Art. 71(3) is not a precondition for exercising the right to suspend performance,[57] but only an obligation for the suspending party. Unless it is entitled to suspend performance or it is relieved from its obligations pursuant to Art. 80, a party will be held liable for its failure to perform its obligations under the contract. Yet under narrow requirements set out in Art. 79, a party may be relieved from its obligation to pay damages for a breach of contract. However, Art. 79 does not apply in cases where the seller is abandoned by its sub-supplier. Subject to special arrangements between the parties, the seller is liable to compensate damages, because his responsibility for the supplier is part of the seller's general procurement risk.[58]

4.4 Breach of contract by the seller

Once the buyer has accepted the goods without any reservation, it is for him to prove that they do not conform with the contract; it is not for the seller to prove that they conform with the contract.[59] Whether the goods are in conformity with the contract depends on the point in time when the risk passes from the seller to the buyer, even though the non-conformity becomes apparent only after that time.[60] Any deviation from the condition of the goods as owed by the seller is a lack of conformity within the meaning of Art. 35. This includes deviations in quantity [61] and defects resulting from inadequate packaging.[62] If the parties agree [page 141] on the delivery of a machine 'as good as new', this means that the machine has to be functional. In international trade, goods are only fit for the ordinary purpose if they are resaleable;[63] comestible goods must not be harmful to health.[64] Incidentally, the fitness of goods for the ordinary purpose is determined by the standards that apply in the seller's country.[65]

The buyer is held to give notice to the seller of a lack of conformity of the goods after he has discovered it [66] or ought to have discovered it: Art. 39. In order to discover any unobvious deviations at once, the buyer has to examine the goods within a short period of time: Art. 38. One to two weeks were held to be a short period of time,[67] as regards trees, however, an examination must be carried out immediately upon receipt.[68] Three months were held to be too late in all cases.[69] Where a sufficient number of random samples shows that each sample does not conform with the contract, the remaining units of a delivery of 25,000 units require no further examination.[70]

The buyer has to give notice to the seller specifying the lack of conformity within a reasonable time: Art. 39. In general, more than one month has been held to be unreasonable.[71] Some consider as a rule of thumb a period of one month.[72] Others consider an aggregate time period of 14 days, including the time for examination and notice, to be reasonable.[73] With regard to the lack of conformity of trees, notice has to be given within five to six days.[74] For clothing, six days are regarded [page 142] as reasonable.[75] The notice is governed by Art. 27; accordingly, the buyer only has to prove that the notice was duly sent by appropriate means; the seller bears the risk of loss of the notice.[76]

A buyer who fails to give notice to the seller loses his warranty rights unless he can, by way of exception,[77] excuse his failure to give notice according to Art. 44 or plead bad faith and lack of information [78] on the part of the seller. Bad faith is established when the seller intentionally conceals the lack of conformity of the goods with the contract by holding back a test certificate.[79] The seller has to provide the respective information to the buyer not later than at the time of delivery of the goods.[80]

Contrary to German domestic law, the CISG also requires that notices of defects of title are given within a reasonable period of time. In order to determine the length of a reasonable time period, the circumstances of each individual case and the type of defect have to be taken into consideration.[81] The notice has to specify the identity of the third party and the steps which that third party has undertaken.[82]

In case of an event of default by the seller, the buyer may rely on the remedies mentioned in Art. 45. The remedy of avoidance of contract -- as ultima ratio -- for delivering goods that do not conform with the contract is only possible if the lack of conformity amounts to a fundamental breach of contract. Practically, the delivered goods have to be 'worthless' and 'de facto of no use' to the buyer.[83] Not only is it not sufficient that the deviation may not be remedied under conditions that are reasonable for the buyer, but also it is required that the non-conforming goods may not be used at all.[84] If non-conforming goods may be resold,[85] no fundamental breach of contract is likely to have been committed. Moreover, the buyer has to be able to return the non-conforming goods substantially in the [page 143] condition in which he received them: Art. 82. Hence, if the buyer uses the goods after having discovered that they do not conform with the contract, he normally loses the right to avoid the contract.[86]

In addition to avoidance, the buyer may as an alternative right [87] claim a reduction of the price: Art. 50. If the seller agrees to the buyer trying to sell the non-conforming goods at the best possible conditions, he thereby also agrees to a corresponding price reduction.[88] Where there is no alternative use for the goods, a price reduction to zero may also be claimed.[89]

4.5 Breach of contract by the buyer

Improper payments are generally not regarded as fundamental breaches of contract within the meaning of Art. 64(1)(a).[90] However, the seller is entitled to declare the contract avoided if, after setting an additional time period of reasonable length to allow the buyer to meet his payment obligations, the buyer fails to make payment within or upon expiry of such additional period of time: Art. 64(1)(b). Seven days were held to be a reasonable additional period of time for payment requests.[91] Moreover, the seller may fix such additional period of time in the same letter in which he renders the payment due provided that the buyer is given sufficient time to meet his payment obligations; in the case in question, nine days were regarded as a sufficient period of time.[92]

According to Art. 78, the seller is entitled to request payment of interest on any outstanding amounts. It is only required that payment is due;[93] it is not necessary that the debtor is in default as is the case under some national laws. However, Art. 78 only stipulates a legal obligation for the payment of interest but not the amount of interest that is to be paid. As to interest rates, the courts are predominantly applying the interest rates of the national law which the relevant [page 144] rules of private international law determine to be applicable.[94] However, other courts apply the interest rates under the law of the debtor's place of business,[95] or the forum,[96] or refer to the wide scope of discretion of arbitral tribunals.[97]

4.6 Damages

In general under the CISG, subject to an exemption under Art. 79, any breach of contractual obligations entitles the creditor to claim damages: Arts. 45 and 61. The party who declares the contract avoided is entitled to conclude a substitute transaction and recover the difference between the contract price and the price in the substitute transaction as damages.

In principle, Art. 75 presupposes that the contract has been avoided.[98] However, if the debtor declares unambiguously and definitely that he will not perform his obligations under the contract, according to Art. 75, damages may be recovered without a prior declaration of avoidance.[99]

Damages are recoverable to the extent that they are foreseeable: Art. 74. If the seller delivers in instalments contrary to its contractual obligations, the additional costs for transport are foreseeable damages.[100]

If the seller delivers non-conforming goods which are not fit for resale, and if the buyer is an intermediate trader, not only the loss of profit, but also payments of the buyer to compensate his customers for their substitute purchases as well as the loss of future profits following the termination of business relationships by customers of the buyer are foreseeable and thus recoverable. If the buyer does not pay in time, the costs of an international debt collection agency and the fees of a foreign attorney are foreseeable and recoverable.[101] Given that such costs are not always [page 145] regarded as recoverable,[102] it is advised to provide for a contractual clause which ensures their recoverability. [page 146]


FOOTNOTES

a1. Professor Dr. Burghard Piltz is attorney-at-law and notary public in Gütersloh, Germany; he is honorary professor of law at the University of Bielefeld. This article is an English translation by Felix Lautenschlager and Arno L. Eisen, both of the Institute for the Legal Profession at the Humboldt-University of Berlin. The original German version of the author's article is cited as 'Neue Entwicklungen im UN-Kaufrecht' (2007) Neue Juristische Wochenschrift (NJW) 2159.

1. This comprises in particular the German Civil Code (BGB) and the German Commercial Code (HGB).

2. Piltz, B., 'New Developments in the CISG' (2006) 10 The Vindobona Journal of International Commercial Law and Arbitration 215; Piltz, B., 'Neue Entwicklungen im UN-Kaufrecht' (2005) NJW 2126; Piltz, B., 'Neue Entwicklungen im UN-Kaufrecht' (2003) NJW 2056; Piltz, B., 'Neue Entwicklungen im UN-Kaufrecht' (2000) 553; Piltz, B., 'Neue Entwicklungen im UN-Kaufrecht' (1996) NJW 2768; Piltz, B., 'Neue Entwicklungen im UN-Kaufrecht' (1994) NJW 1101.

3. German legal gazette BGBl. 1989 II, 586; articles without further reference are those of the CISG.

4. A list of all contracting states is available at: <http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html> and in (2007) Internationales Handelsrecht ('IHR'), at p. 87.

5. For the Contracting States as of 1 April 2005, see Piltz, B., 'New Developments in the CISG' (2006) 10 The Vindobona Journal of International Commercial Law and Arbitration 216; Piltz, B., 'Neue Entwicklungen im UN-Kaufrecht' (2005) NJW 2126.

6. Regional Court (LG = Landgericht) Heidelberg, decision dated 2 November 2005, CISG-Pace.

7. Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Case No. 65/2003, CISG-Pace.

8. Higher Regional Court (OLG = Oberlandgericht) Frankfurt, decision dated 6 October 2004, CISG-online.

9. Polish Supreme Court, decision dated 27 January 2006, CISG-Pace.

10. Commercial Court (HG = Handelsgericht) Aargau, 2006 IHR, at p. 34 ff. (Switzerland).

11. District Court (KG = Kantonsgericht) Schaffhausen, 2005 IHR, at p. 206 ff. and p. 210.

12. United States District Court, Southern District of New York, decision dated 1 June 2006, CISG-Pace.

13. For a different view, see Italian Supreme Court of Cassation (Corte Suprema di Cassazione), decision dated 20 April 2004, CISG-Pace.

14. Appelate Court (Audiencia Provincial de) Cuenca, regarding calves, decision dated 31 January 2005, CISG-Carlos III.

15. Austrian Supreme Court (OGH = Oberster Gerichtshof), 2005 IHR, at p. 195 ff.

16. District Court (Rechtbank) Arnhem, decision dated 12 September 2006, CISG-Pace.

17. ICC Arbitration Case No. 9781 of 2000, (2005) Yearbook Commercial Arbitration XXX, at p. 22 ff.

18. United States District Court for the Southern District of Iowa, Central Division, decision dated 25 January 2005, CISG-Pace.

19. Higher Regional Court (Oberlandgericht) Düsseldorf, 2005 IHR, at p. 24 ff. (Israel); Higher Regional Court (Oberlandgericht) Braunschweig, decision dated 25 April 2002, available at: <http://www.jurisweb.de> (United Kingdom); Tribunale di Modena, decision dated 9 December 2005, CISG-online (Nigeria); District Appeal Court (Hof) Leeuwarden, decision dated 31 August 2005, CISG-Pace; and Higher District Court (Obergericht des Kantons) Zug, decision dated 5 July 2005, CISG-online (in this case Isle of Man).

20. Ibid, Higher Regional Courts (Oberlandgerichte) Düsseldorf and Braunschweig.

21. United States District Court for the Western District of Washington, 2006 IHR, at p. 259 ff.

22. Court of Cassation (Cour de Cassation, France), decision dated 25 October 2005, CISG-France; and Appeal District Court (Hof's-) Hertogenbosch, decision dated 2 January 2007, available at: <http://zoeken.rechtspraak.nl>.

23. District Court (Rechtbank) van Koophandel te Hasselt, decision dated 15 February 2006, CISG-Belgium; District Court (Rechtbank) Arnhem, decision dated 28 June 2006, CISG-Pace; Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Case No. 4/2004, CISG-Pace; United States District Court, Minnesota, decision dated 31 January 2007, CISG-Pace; and United States District Court, M. D. Pennsylvania, decision dated 6 January 2006, CISG-Pace.

24. Higher Regional Court (Oberlandgericht) Munich, 2007 IHR, at p. 30 ff.

25. ICC Arbitration Case No. 11849 of 2003, (2006) Yearbook Commercial Arbitration XXXI, at p. 117 ff.

26. Higher Regional Court (Oberlandgericht) Frankfurt, 2007 IHR, at p. 42 ff.; Higher Regional Court (Oberlandgericht) Stuttgart, 2007 IHR, at p. 72 ff.; Regional Court (Landgericht) Neubrandenburg, 2006 IHR, at p. 26 ff.; District Court (Rechtbank) Arnhem (Netherlands), decision dated 17 January 2007, available at: <http://zoeken.rechtspraak.nl>; and for a different view, see District Court (Kantonsgericht) Zug, 2005 IHR, at p. 119 ff.

27. Higher Regional Court (Oberlandgericht) Düsseldorf, 2005 IHR, at p. 24 ff.; Hoge Raad (Council Lords, Netherlands), decision dated 28 January 2005, CISG-Pace; and for a different view, see District Court (Rechtbank) van Koophandel te Hasselt, decision dated I June 2005, CISG-Belgium.

28. District Court (Rechtbank) van Koophandel te Hasselt, decision dated 19 April 2006, CISG-Belgium.

29. Appeal Court (Appelationshof) Bern, 2006 IHR, at p. 149 ff.; and District Court (Kantonsgericht) Wallis, decision dated 27 May 2005, CISG-online.

30. Sixth Civil Court Tijuana, decision dated 30 August 2005, CISG-Pace.

31. Section 459 of the German Civil Code (BGB).

32. German Supreme Court (BGH = Bundesgerichtshof), (2005) Neue Juristische Wochenschrift-Rechtsprechungsreport (NJW-RR), at p. 1218 ff.

33. United States District Court, Western District Washington at Tacoma, decision dated 13 April 2006, CISG-Pace.

34. China International Economic and Trade Arbitration Commission (CIETAC), arbitral award dated 9 November 2005, CISG-Pace.

35. Higher Regional Court (Oberlandgericht) Cologne, 2006 IHR, at p. 145 ff.; Higher Regional Court (Oberlandgericht) Stuttgart, decision dated 20 December 2004, CISG-Pace; Swiss Supreme Court (Bundesgericht), decision dated 20 December 2006, CISG-Pace; and Commercial Court (Handelsgericht) Zürich, 2006 IHR, at p. 161; and for a different opinion see District Court (Rechtbank) Arnhem, decision dated 1 March 2006, CISG-Pace.

36. Higher Regional Court (Oberlandgericht) Cologne, 2006 IHR, at p. 145 ff.

37. Regional Court (Landgericht) Neubrandenburg, 2006 IHR, at p. 26 ff. and p. 30.

38. District Court (Kantonsgericht) Freiburg, 2005 IHR, at p. 72 ff. and p. 74.

39. District Court (Kantonsgericht), 2006 IHR, at p. 158 ff.

40. Ibid.

41. Swiss Supreme Court (Bundesgericht), 2005 IHR, at p. 204 ff.

42. See Austrian Supreme Court (Oberster Gerichtshof), 2006 IHR, at p. 31 ff.

43. Austrian Supreme Court (Oberster Gerichtshof), decision dated 29 November 2005, CISG-Austria.

44. For a different view see Regional Court (Landgericht) Coburg, 2007 IHR, at p. 117 ff.

45. Higher Regional Court (Oberlandgericht) Cologne, decision dated 21 December 2005, available at: <http://www.justiz.nrw.de>; Regional Court (Landgericht) Neubrandenburg, 2006 IHR, at p. 26 ff.; District Court (Rechtbank) van Koophandel te Kortrijk, 2005 IHR, at p. 114 ff.; Supreme Court of British Columbia, decision dated 21 August 2003, CISG-Pace; Higher Regional Court Linz, 2005 IHR, at p. 249 ff.; District Court (Kantonsgericht) Jura, decision dated 3 November 2004, CISG-online; and incorrect Regional Court (Landgericht) Coburg, 2007 IHR, at p. 117 ff. and p. 119.

46. For a different opinion, see Higher Regional Court (Oberlandesgericht) Innsbruck, decision dated 1 February 2005, CISG-online (German is a world language).

47. Higher Regional Court (Oberlandgericht) Cologne, 2006 IHR, at p. 147 ff.; and Higher Regional Court (Oberlandesgericht) Linz, 2007 IHR, at p. 123 ff.

48. Council Regulation (EC) No. 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

49. Regional Court (Landgericht) Munich II, 2005 IP Rax, at p. 143 ff.

50. District Court (Kantonsgericht) Zug, 2005 IHR, at p. 119 ff.; and for a different opinion, see Appeal District Court (Hof's-) Gravenhage, decision dated 29 September 2006, CISG-Pace.

51. Higher Regional Court (Oberlandgericht) Cologne, 2006 IHR, at p. 86 ff.

52. Commercial Court (Handelsgericht) Zürich, 2006 IHR, at p. 161 ff.

53. District Court (Kantonsgericht) Zug, 2006 IHR, at p. 158 ff.

54. Higher Regional Court (Oberlandgericht) Cologne, 2006 JMBI-NRW, at p. 246 ff.

55. Commercial Court (Juzgado Comercial) Buenos Aires, decision dated 2 July 2003, CISG-Carlos III; and District Court (Kantonsgericht) Wallis, decision dated 27 May 2005, CISG-online.

56. Austrian Supreme Court (Oberster Gerichtshof), 2006 IHR, at p. 87 ff.

57. For a different opinion, see Tribunal of International Commercial Arbitration, Ukrainian Chamber of Commerce & Trade, arbitral award dated 1 January 2005, CISG-online.

58. Swiss Supreme Court (Bundesgericht), decision dated 12 June 2006, available at: <http://www.bger.ch>.

59. Higher Regional Court (Oberlandgericht) Karlsruhe, 2006 IHR, at p. 106 ff.; District Court (Rechtbank) van Koophandel te Hasselt, decision dated 19 April 2006, CISG-Belgium; United States Court of Appeals for the 7th Circuit, decision dated 23 May 2005, CISG-Pace; and for a different opinion, see Appeal Court (Appelationshof) Bern, 2006 IHR, at p. 149 ff.

60. German Supreme Court (BGH = Bundesgerichtshof) (2005) NJW-RR, at p. 1218 ff.

61. Appeal Court (Appelationshof) Bern, 2006 IHR, at p. 149 ff.

62. Higher Regional Court (Oberlandgericht) Koblenz, 2007 IHR, at p. 36 ff.

63. China International Economic and Trade Arbitration Commission (CIETAC), arbitral award dated 3 June 2003, CISG-Pace.

64. See fn 60.

65. Austrian Supreme Court (Oberster Gerichtshof), 2006 IHR, at p. 110 ff.

66. See fn 61.

67. Higher Court (Obergericht) Zug, decision dated 19 December 2006, CISG-Pace; and Appeal Court (Appelationshof) Bern, 2006 IHR, at p. 149 ff.

68. Appeal District Court (Hof's-) Hertogenbosch, decision dated 2 January 2007, available at: <http://zoeken.rechtspraak.nl>.

69. Regional Court (Landgericht) Frankfurt, 2005 IHR, at p. 163 ff.

70. Higher Regional Court (Oberlandgericht) Koblenz, decision dated 19 October 2006, CISG-online.

71. District Court (Rechtbank) van Koophandel te Hasselt, decision dated 20 September 2005, CISG-Belgium; Appeal Court (Cour d'Appel de) Aix-en-Provence, decision dated I July 2005, CISG-France; District Appeal Court (Hof) Arnhem, decision dated 18 July 2006, available at: <http://www.rechtspraak.nl>; and District Appeal Court (Hof's-) Hertogenbosch, decision dated 11 October 2005, CISG-Pace.

72. Higher Court (Obergericht) Zug, decision dated 19 December 2006, CISG-Pace.

73. Regional Court (Landesgericht) Linz, 2005 IHR, at p. 252 ff.

74. Appeal District Court (Hof's-) Hertogenbosch, decision dated 2 January 2007, available at: <http://zoeken.rechtspraak.nl>; and decision dated 19 September 2006, CISG-Pace.

75. Higher Regional Court (Oberlandgericht) Koblenz, decision dated 19 October 2006, CISG-online.

76. Austrian Supreme Court (Oberster Gerichtshof), 2005 IHR, at p. 249.

77. For a narrow interpretation see German Supreme Court (BGH = Bundesgerichtshof) in 2006 Europäische Zeitschrift für Wirtschaftsrecht ('EuZW'), at p. 222 ff.

78. Appeal District Court (Hof) van Beroep te Gent, decision dated 4 October 2004, CISG-Belgium.

79. Cour de Cassation, decision dated 4 October 2005, CISG-France.

80. Austrian Supreme Court (Oberster Gerichtshof), 2007 IHR, at p. 74 ff.

81. German Supreme Court (Bundesgerichtshof), 2006 EuZW, at p. 222 ff.

82. Ibid.

83. Austrian Supreme Court (Oberster Gerichtshof), 2005 IHR, at p. 195 ff.

84. Higher Regional Court (Oberlandgericht) Cologne, 2007 IHR, at p. 71 ff.; Regional Court (Landgericht) Munich, (2007) Recht der Internationalen Wirtschaft, at p. 146 ff.; and the innaccurate decision of the District Court (Kantonsgericht) Wallis, 2006 IHR, at p. 155 ff.

85. Appeal Court (Audiencia Provincial de) Palencia, decision dated 26 September 2005, CISG-Carlos III.

86. ICC Arbitration Case No. 10377 of 2002, Yearbook Commercial Arbitration XXXI, 2006, at p. 72 ff.; and Higher Regional Court (Oberlandesgericht) Linz, 23 January 2006, CISG-online.

87. Austrian Supreme Court (Oberster Gerichtshof), 2005 IHR, at p. 165 ff.

88. Higher Regional Court (Oberlandgericht) Cologne, 2007 IHR, at p. 68 ff.

89. German Supreme Court (Bundesgerichtshof), (2005) NJW-RR, at p. 1218 ff.; Austrian Supreme Court (Oberster Gerichtshof), 2005 IHR, at p. 165 ff.; cf. also Higher Regional Court (Oberlandgericht) Koblenz, 2007 IHR, at p. 36 ff.

90. Higher Regional Court (Oberlandgericht) Düsseldorf, 2005 IHR, at p. 29 ff.

91. Tribunal of International Commercial Arbitration, Ukrainian Chamber of Commerce & Trade, arbitral award dated 19 September 2005, CISG-Pace.

92. Higher Regional Court (Oberlandgericht) Munich, 2007 IHR, at p. 30 ff.

93. District Court (Rechtbank) van Koophandel te Hasselt, decision dated 31 January 2005 and decision dated 10 May 2006, both CISG-Belgium.

94. Regional Court (Landgericht) Coburg, 2007 IHR, at p. 117 ff.; District Appeal Court (Hof's-) Hertogenbosch, decision dated 11 October 2005, CISG-Pace; District Court (Kantonsgericht) Wallis, decision dated 27 May 2005, CISG-online; and District Court (Kantonsgericht) Schaffhausen, 2005 IHR, at p. 206 ff.

95. Regional Court (Landgericht) Heidelberg, decision dated 2 November 2005, CISG-Pace; and Regional Court (Landgericht) Bamberg, decision dated 13 April 2005, CISG-online.

96. United States District Court for the Northern District of Alabama, Northeastern Division, decision dated 27 April 2005, CISG-Pace.

97. ICC Arbitration Case No. 11849 of 2003, Yearbook Commercial Arbitration XXXI, 2006, at p. 148 ff.

98. Court of Appeal (Audiencia Provincial de) Valencia, decision dated 31 March 2005, CISG-Carlos III.

99. Higher Regional Court (Oberlandgericht) Munich, (2005) Recht der Internationalen Wirtschaft at p. 627 ff.

100. China International Economic and Trade Arbitration Commission (CIETAC), arbitral award dated 9 November 2005, CISG-Pace.

101. District Court (Rechtbank) van Koophandel te Hasselt, decision dated 12 January 2005, CISG-Belgium.

102. See the author's previous publications on the subject mentioned in fn 2.


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