Schlechtriem-95

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Published by Manz, Vienna: 1986. Reproduced with their permission.

excerpt from

Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods

Univ. Prof. Dr. Peter Schlechtriem [*]

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The Sphere of Application

A. Initial Questions (Article 1(1)) [and Article 95]

As Article 1 indicates, the Convention applies to contracts of sale (for the exceptions, see Articles 2-5); barter contracts are not governed by the Convention.[41b] The Convention combines applicability on the basis of "autonomous" requirements [42] with the lex fori's rules of private international law. First, under the "autonomous" requirements, the Uniform Law for International Sales is applicable, under Article 1(1)(a), when the parties to the contract have their places of business - or alternatively, their habitual residence (Article 10(b)) - in different Contracting States. The Convention, however, does not eliminate party autonomy, since, according to Article 6, parties may opt out of the Convention completely, either by choosing a particular domestic law or by allowing the forum's rules of private international law to determine the appropriate law. Second, private international law may direct the application of the Convention when, even though the parties have their places of business in different states, the requirement that these are Contracting States is not met. It would then be sufficient that the forum's conflict-of-law rules point to the law of a Contracting State. It is clear that the Convention applies in those cases where both parties have their places of business in different Contracting States but find themselves in a court of a non-Contracting State whose rules of private international law point to the law of a Contracting State.[43] Article 1(1)(b) also leads to the application of the Convention in cases when the private international law rules of the forum state,[44] whether or not it is a Contracting State, would apply the law of a Contracting State, as long as the basic requirement of Article 1(1) is met, namely, that the parties' places of business are in different states.[45] Of course, Article 1(1)(b) considerably enlarges [page 24] the sphere of application of the Convention.[46] Views on the solution differ. The rule was very controversial in Vienna [47], and the opposition to it finally led to the reservation clause in Article 95.

The pros and cons of this provision must be judged from several standpoints. First, it is advantageous for Contracting States to apply the Uniform Law for International Sales in international transactions not only when their own law is applicable by virtue of Article 1(1)(a), but also when it applies by virtue of private international law, since decisions based on the modern law of the Convention, developed under the auspices of the United Nations and tailored to the intricacies of international sales transactions, often will be far more acceptable to both parties than one party's domestic law that often is entirely alien to the other.[48] Application of the Convention is even more desirable when the private international law of a non-Contracting State invokes the law of a Contracting State. Then, in effect, the court would refer to the Convention rather than to domestic law. It would certainly be easier for the courts of non-Contracting States to understand and apply the Convention than it would be for them to apply the domestic sales law of a foreign country.[48a] Finally, the fact that Contracting States are bound to apply the Convention, even in relation to non-Contracting States which are not bound to do the same, should not influence the appraisal of these provisions.[49] The fact that Contracting States give more than they take cannot give rise to serious apprehensions that this will dissuade states from signing the Convention.

More understandable are the fears that Article 1(1)(b) could make the Convention more difficult to apply.[49a] For example, domestic rules of private [page 25] international law could apply one law to the formation of the contract and a different law to the substantive sales law. In such a case, only parts of the uniform sales law would be applicable.[50] However, a partial application, limited to the rights and obligations arising from the contract already formed, should not present insurmountable obstacles because the Convention was drafted in such a way that Part III (the substantive sales provisions), at least, is compatible with domestic formation-of-contract provisions.[51] The uncertainty which may arise from the parties' choice of law should also not be overestimated. If the parties have chosen the law of a Contracting State, then it is a matter of interpretation whether they meant the Convention or that state's local sales law. Moreover, not only Article 1(1)(b) gives rise to this question. Numerous German court decisions have had to decide the meaning of standard references to "German" law in cases where the requirements for the application of ULIS are met.[52]

Some delegations indicated that laws in their countries already make special provision for the regulation of foreign trade.[53] Despite this serious concern, the majority of delegations voted for the version of Article 1(1)(b) [54] as formulated, but the Plenary accepted the Czechoslovakian proposal [55] to include as a reservation clause - Article 95 - the option for Contracting States not to enact Article 1(1)(b).[56] A reservation under Article 95 restricts the meaning of "Contracting" in [page 26] the phrase "Contracting State" (Article 1(l)(b)). If the forum's conflicts law invokes the law of a Contracting State that has made the reservation, the forum must apply the domestic law of the reservation state and not the Convention.[56a]

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FOOTNOTES

* The author of this book participated at the Conference as a member of the delegation from the Federal Republic of Germany. The views expressed here are personal to the author and do not necessarily represent the position of the F.R.G. or its delegation.

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41b. UNCITRAL'S interest in barter and barter-like transactions indicates that they are regarded as outside the scope of the Convention. See Winship, Scope at 1-24; infra note 49a.

42. The question that was much debated in connection with ULIS, namely whether that and the supplementary provision, ULIS Article 2, "excluding" the application of private international law, really displace it, or whether it simply leads to a "hidden application" of private law rules in regard to the application of the uniform law, seems to be theoretical and fruitless. cf. P. Schlechtriem, Einheitliches Kaufrecht -Wissenschaftliches Modell oder praxisnahe Regelung? 14 et seq. (1978). See also Löwe, Anwendungsgebiet at 13.

43. In such a case the Hague Conventions are only invoked on the basis of domestic conflicts rules. Presumably the Convention would already be applicable on the basis of article 1(1)(a).

44. The Hague Convention on the Law Applicable to International Sale of Movable Goods of 1955 can thus also lead to application of the Convention. See A/Conf. 1979/C.2/SR.2 at 5 §§ 32-33 (= O.R. 440) (position of the observer from the Hague Conference for Private International Law).

45. In cases where both parties do not have their places of business in Contracting States, Article 1(1)(b) leads to the application of CISG not only by the courts of Contracting States but also by courts of non-Contracting States, provided the private international law of the non-Contracting States makes applicable the sales law of a Contracting State which applies Article 1(1)(b). Of course, this revives the specters which were raised in conjunction with the Hague Conventions: If two parties with places of business in different non-Contracting States form a contract in a Contracting State, and if disputes then arise in a third non-Contracting State whose conflicts rules make applicable the law of the state where the contract was formed, the court must apply the Convention, which is alien both to the court and to the parties. But the domestic sales law of the Contracting State would be even more alien. It is not CISG that is the stumbling-block but rather the weakness of the contact which determines the controlling law. The same difficulties may arise with the Hague Conventions and on the basis of Article 1(1)(a), even though to a considerably lesser extent. See supra note 43; contra Winship, Scope, at 1-28, 29 with references to the Secretariat's Commentary. Compare also Volken, Lausanner Kolloquium at 28.

46. Compare Huber at 424 (approval) with Herber at 603 ("a regrettable expansion"). cf. also Löwe, Lausanner Kolloquium at 15.

47. For the details of the discussion, see the summary reports of the Conference.

48a. Naón fears that Article 1(1)(b) will lead to forum shopping. This is unlikely. Forum shopping is favored by conflict-of-law rules that give the plaintiff the choice between several domestic laws. This choice would now include the Convention instead of the domestic law of the Contracting State. The "unforeseeability" of the applicable law (and of the applicability of the Convention) results rather from the uncertainty of national conflict-of-law rules.