Dr. Bruno Zeller [**]
This article does not look specifically at language as a tool for drafting legal texts or language in a literary sense. Instead, it will focus on the construction of international conventions, specifically the United Nations Convention on Contracts for the International Sale of Goods (CISG). It is hoped that the article will stimulate discussion and contribute to the recognition of the existence of a "global language" which is necessary for the success of any international uniform law.
This article presents the thesis that the CISG managed to introduce a language that spans all legal families, thus creating its own rhetorical community. Furthermore, the language is conducive to introduce concepts, which are also universal in character. In sum, the CISG uses language and concepts which "take into account the different social, economic and legal systems [and therefore] contribute to the removal of legal barriers in international trade and promote the development of international trade."
The CISG has promoted the development of international trade by recognizing that articles and concepts must be drafted in such a way that they can adapt to change and are capable of adjustments. As Ernst Rabel commented, the articles are not "caught" in legal phrases, which, become frozen in history. Significantly, Rabel argued that an international trade law [page 39] cannot be derived from domestic principles, which are unique, and more importantly, are built on concepts and expressed in a language that is focused on that particular country's history. In other words, municipal concepts and language must be "unpacked" and "remodeled" in such a way that they become universally acceptable and create their own international history.
Part I of this article will map the territory and provide an overview of the CISG. Part II examines the problems confronted by the drafters of the Convention and explains how language and concepts are used to overcome these obstacles. Part III demonstrates that the CISG has been interpreted and applied uniformly and hence has achieved its stated goals as expressed in its preamble.
I. MAPPING THE TERRITORY
Rabel, as early as the 1930's, recognized that municipal laws are not very useful in regulating international trade. Very simply, differences among legal traditions are sometimes irreconcilable and, furthermore, an international sale is not merely a domestic sale with incidental foreign elements.
Sensitivity to differences, whether cultural or legal, is of little value if the most important factor, namely the deeply political nature of a convention's uniformity, is not solved. As an example, the Romanian delegate in the debate in the Sixth Committee of the General Assembly noted that "... it was necessary to establish rules that would facilitate commercial transactions on the basis of respect for sovereignty and national independence, non-intervention in the domestic affairs of States and mutual benefit ..." Two obvious solutions to achieve uniformity would have been to either introduce a definitional section into the Convention or to create an international tribunal similar to that created by World Trade Organization (WTO) legislation to solve potential disputes.
The Convention did not vest interpretational authority with an international tribunal, nor has any editorial board been created to amend the CISG as the need arises. Two contrary examples are worth noting. First, in [page 40] the United States, an editorial board meets regularly with a view to amend, if necessary, the Uniform Commercial Code (UCC). Secondly, the European Court of Justice (EC) interprets the Brussels Convention on Recognition and Enforcement of Judgments, and its decisions are binding on all member states of the European Court. The obvious advantage of not having similar practices in place is that it has a bearing on the sovereignty of Contracting States. The alternative would have been politically unacceptable. It is doubtful if many States would have accepted the CISG if a court like the European Court of Justice would have influenced the domestic law of Contracting States with its decisions.
A very good example should be noted. In 1992, Switzerland had the opportunity to join the European Economic Zone (EEZ), which would have been the first step in joining the EC. The people rejected the initiative and in 1999 the seven bilateral agreements with the EC were accepted by parliament and ratified by referendum in 2000 (2000 Acceptance). The main reason for the 1992 rejection was that the contract with the EEZ contained an automatic right to changes in law. If the EC changes legal rules, these changes apply automatically to all member States. Even in retrospect it is still recognized that a loss of sovereign self-determination was unacceptable, as Switzerland would have been subjected to a rule from Brussels.[l1] The 2000 Acceptance was heavily influenced by the fact that Switzerland has no obligation to adjust or accept European Union legal changes. The loss of sovereignty influenced Switzerland to reject such a partnership and the country would do so again. By analogy the same arguments would be advanced by many States if the CISG would have interpretational authority vested in an international tribunal.
Secondly, the Convention could have included a definitional section to explain significant terms. However, this option was not accepted. Instead, the drafters chose to introduce general principles as well as limited definitions within the text of the CISG. For example, Article 14 states, "[a] proposal for concluding a contract addressed to one or [more] specific persons constitutes [page 41] an offer ..." Therefore the reader cannot rely on a self-contained text where words are given a limited but technical meaning, Instead, the CISG "encourages a broad and conversational interpretation of the words of the text, leading to greater depth and complexities in the interpretation of individual provisions.
As a solution, the drafting of the CISG was driven by the idea that unification of rules requires the use of a common legal language in its formation. This was achieved by a three-pronged solution. First, the language chosen was devoid of technical legal terms. Second, concepts were introduced which were not based on municipal practices. Third, and most important, the CISG introduced an interpretative article into its regime, namely Article 7.
II. LANGUAGE AND CONCEPTS
The mere fact that a Convention has been written and ratified by diverse countries does not in itself guarantee the desire and purpose to be uniform. The text of the Convention must be capable of being understood and applied in a uniform manner. Such uniformity is only possible if it addresses the needs of a community and creates a legal system of its own. Amy Kastely suggested that the CISG introduced a rhetorical community in which the readers "first assent to the language and values of the text itself, and then use the language and values to inform their relations with one another."
The Convention, therefore, has unique values compared with domestic law. It has a common language reflecting values that are understood irrespective of the cultural or legal background of those who, apply the Convention, because the CISG defines the values of its own community.
The foundation of every domestic legal system is that laws are an expression of the culture of a society. A society or community gives meaning to concepts, which are unique to a particular community. By analogy, the [page 42] CISG created a community, namely, the international business community, which is also bound together by a common language and common concepts.
It is language which creates particular words that in turn give rise to concepts. Concepts cannot exist without a history or heritage. It is argued that the CISG -- through the choice of its language -- drafted concepts that create a common legal theory and practice. Such a theory is not national but a-national or international in character; it is understood by the international community. In sum, an international community has been created, united by the use of a common legal language, which finds expression in unique concepts.
Thus one can argue that the constitutive nature of language and of a particular text must be evaluated and that this analysis must focus "... attention on the nature of the community formed by a text, on its points of coherence and on its potential vulnerabilities."
B. Multilingual Implications
Drafters of domestic legislation need to consider the choice and clarity of their words. Drafters of international legislation, in addition, need to consider the effects of translation on the meaning of their words, as most conventions are not only written in one language. This gives rise to a new method of interpretation when meaning must be given to words. A consultation of a translation of the same word or article in different languages is needed to find a possible answer to the original question.
Article 3(l) of the CISG can be used to illustrate this. The particular issue is that the buyer can supply a "substantial" part of material. What is the meaning of substantial? The German and French translations of the CISG use the words "Wesentlich," and "un part essentielle." "Wesentlich" does not exactly match the French or English translation. It corresponds better with "un part essentielle" rather than the English "substantial." It is not debated that substantial or essential can be used to translate "Wesentlich." However, the German legislature uses "Wesentlich" to mean "essential." Hence, to [page 43] look at "substantial" as found in Article 3(1), the word "essential" must be kept in mind and may help to overcome any ambiguities that may otherwise arise.
There is another factor that is important. Namely, what is the authentic language of the text? Texts which are not authentic cannot be used authoritatively and must be given only persuasive status. The authentic texts of the CISG are Arabic, Chinese, English, French, Russian and Spanish. All other languages are not authentic as they are unofficial translations only. Considering that all meetings in Vienna were conducted in English or French, these languages should be given priority over other authentic texts as they best represent the intentions of the representatives at the 1980 Diplomatic Conference. Hence, looking at the above comparison between the English, French and German translations, the German carries less weight than the other two. It must also be noted that even between the authentic translations of the CISG, solutions to unclear meanings of words is difficult especially, if differences need to be understood.
Yet even within one language difficulties may arise. The German text is not the only translation between English and German but also the result of a joint drafting of Austria, Germany, the former German Democratic Republic, and Switzerland. As such, it can be argued that within the German-speaking group of nations, a translation was achieved that takes into consideration the "heritage of legal doctrine." However, at the same time, one may argue that:
"[it] can lead to an inevitable choice between precise adherence to the original text in the translation with the risk that the rendering of the translation is inelegant or out of harmony with linguistic usage, or a freer rendering which responds to the structure and usage of the second language but at the sacrifice of legal accuracy."
Rabel anticipated such a problem in translation and suggested that the translation of difficult passages should not be attempted according to [page 44] legislative language (Gesetzessprache), but according to legal language (Rechstsprache).
The conclusion which can be drawn is that words to be included in a unified law must be chosen very carefully. Otherwise, both the words themselves and the concepts they express may be subject to translation.
C. Concept of Choice of Words
The approach to the choice of words suggested above also fits into the policy of uniform interpretation, as it views words not in a national but in an international context. It also overcomes the problem John Honnold describes as literary "deconstruction."
Such considerations make the choice of words more difficult and require a special solution. The drafters of the CISG solved this particular problem and consciously "rooted out words with domestic legal connotations in favor of non-legal earthy words to refer to physical acts." In sum, the CISG must and has used words that refer to typical events of international transactions and "in which the community can conceive relationships and resolve conflicts."
To illustrate the above point, one may ask, how does the CISG define goods? Article 2 does not positively describe the meaning of goods. Instead, it states and lists exclusions. At first glance, the definition of goods is everything not excluded from Article 2. Further reading of the CISG results in a more narrowly defined description. Article 35 mentions goods as required by the contract and "which are contained or packaged" in the manner [page 45] required by the contract. Article 46(3) requires that, if goods do not conform to the contract, the seller may be required to remedy the lack of conformity by "repair." Articles 85 through 88 regulate the preservation of goods and Article 87 specifically mentions "warehousing" of goods. What conclusions can be drawn from this? If there is uncertainty as to whether a particular item can be classified as goods, a court can ask additional questions such as whether the item in question is movable, tangible property that can be packaged, repaired if necessary, and warehoused if necessary.
Another example is the passing of risk. In domestic legislation, whenever passing of risk is examined, phrases are used such as, "title or property passes to the buyer or seller." The CISG, on the other hand, uses the words "[goods] handed over," or goods taken over. Such phraseology helps in the determination of the meaning of words and hence articles. The CISG repeats in essence what the great judge Lord Mansfield C.J. observed in 1761:
"The daily negotiations and property of merchants ought not to depend upon subtleties and niceties, but upon rules easily learned and easily retained because they are the dictate of common sense."
However, it must be said that other cultural groups -- such as countries where Shari'ah law is dominant -- are currently making efforts to reconcile their domestic laws with the CISG and other international conventions where compatibility cannot be achieved otherwise.
III. CONCEPTS AND LANGUAGE
The CISG includes concepts in its regime through the incorporation of principles pursuant to Article 7(2). The problem is, how can principles transcend national borders? In essence, "study not of contract law but rather of contract practice is the key to understanding the economic properties of [page 46] contracting that are necessary to work out sensible uniform laws for commercial purposes."
What then is the difference between "contract law" and "contract practice?" It is implicit in the description that contract law is tied to a system of law based on a national or domestic body of law. Through that particular municipal system, contract law would have evolved based on known and understood principles. However, contract practices are looking beyond a legal system and the law in general. Practices transcend legal, social and economic thoughts and processes and have become universal. That is, there are common elements that transcend borders.
It might be argued that, once contract practices have been identified, an international law can be implemented. Looking at this question, Honnold asked, "Can clear, predictable international law be made from the divergent rules of dozens of domestic legal systems, rules built with local idioms for which there are no equivalent terms in other languages?" The answer he noted was, "unhappily no, but that is not the end of the story." It must be remembered that any kind of legal regulation is a potential source of unpredictability, but the transnational nature of international business provides an additional source or dimension to the difficulty of securing predictability.
Ulrich Drobnig illustrates the transnational nature of international business by pointing to the fact that it is bound up with the Roman division between leges and jus. Such a distinction was also used within Article 7(2) of the CISG  Drobnig observed that: "It is almost of the essence of 'general principles of law' that they are not laid down by any legislative action. They are nowhere readily formulated -- rather they have to be elaborated."
The translation of words that form parts of concepts or principles is also fraught with difficulty. Kastely stated:
"[W]ords used in one language ... carry implications different from those in another ... The terms 'offer' and 'acceptance' provide powerful examples of this. In English these [page 47] words carry a rich heritage of legal doctrine, and their equivalents in the Western European languages have similar depth ... Yet the translations of these words used in the other official versions, such as Chinese and Arabic, do not carry similar implications."
As stated above, the CISG uses "non legal earthy words," but care must also be taken so that these words do not disguise domestic concepts that could be unknown to the other party. Two examples are illustrative. The notion of consideration, vital in common law, is totally absent from the CISG. The Convention also eliminated the French concept of "délivrance" which combines both delivery and conformity. The word which instead was chosen is "livraison" or in English, "delivery." These words convey the same connotation or concept. Other concepts such as "offer and acceptance" or contractual commitment cannot be avoided. These are essential in any contract irrespective of where these concepts are used. The CISG offers a solution and explains the concept of contractual commitment within the text of the Convention rather than giving a specific rule of offer and acceptance.
It is argued that, because of the particular choice of words, legislative interpretation requires an approach different from the one traditionally adopted by the legal profession. Indeed, to appreciate the full meaning of words and to resolve many ambiguities, they must be read within the context of the CISG. In other words, the meaning must be elicited within the "four corners" of the Convention. The reason is that the Convention, due to language constraints, incorporated concepts into the text as principles. Some principles are clearly stated, such as the principle of good faith, but others are contained within the four corners of the Convention. In addition to principles, simpler concepts such as definitional questions are also interspersed within the Convention.
Kastely put special emphasis on four values, which are included but are not exclusive in the CISG. They include contractual commitment, forthright communication between parties, good faith and trust, and the forgiveness of human error. [page 48]
However, it cannot be argued that the CISG is genuinely free from national connotations and therefore truly an instrument of an international community. As the CISG is a deeply political document, some countries -- despite objections of others -- introduced petty and nationalistic elements into the Convention. Article 28 is such an example. It states that if a party is entitled to require performance of an obligation by another party, "a court is not bound to enter a judgement for specific performance unless the court would do so under its own law in respect of similar contracts of sale not governed by this [C]onvention." Despite the objections of delegates, the United States and the United Kingdom won the concession and had their amendments included in Article 28. This inclusion is based largely on historical reasons. "[T]he right to obtain specific performance is uncongenial to common law lawyers." It is significant that the United Kingdom took a leading role in the development of the CISG and then turned around and did not ratify the instrument. It appears that one of the stumbling blocks or criticisms of the CISG "is that it does not match up to English standards of precision and drafting." Such views exhibit the inability to understand the necessity to write the CISG in a "new language" and with "new concepts" as it addresses an international community and not a domestic one. It appears that the United Kingdom has not grasped the significance of an international community and still remains in splendid isolation.
How successful is the CISG? Unfortunately, the whole international rhetorical community has not embraced the CISG with equal enthusiasm. Therefore, the success of the CISG has been mixed. Judges and arbitrators have understood the language and concepts of the CISG and the jurisprudence exhibits remarkable uniformity. However, anecdotally, many legal advisors still suggest that their clients not include the CISG in their legal dealings. Therefore, Laszlo Réczei, in his assessment, would have been correct if he [page 49] suggested that, "legal advisers [but not judges] are unable to forget the law that they have learned.
However, from an institutional point of view, the CISG has been successful. It has been ratified by  countries and potentially has become the de facto sales law in Europe. Arguably, England, the last bastion of conservatism, in their slow approach to "Europeasation" will also ratify the CISG through necessity. The CISG spawned many model laws such as the Principles of European Contract Law. Further, many conventions have adopted Article 7 either totally or in part. It has been shown that the CISG, through its choice of words and concepts, created a language that is common to its rhetorical community and hence forms the basic element on which an interpretation of detailed provisions of the text can rely. Article 7 injects a particular loyalty to an international community. Arguably, readers and users of the CISG are aware that linguistic and conceptual differences between an international document and domestic law require a different mindset when interpreting the CISG.
UNCITRAL in its 38th session regarding future work in the field of electronic commerce referred to the CISG and concluded that: "[the CISG] was felt to constitute a readily acceptable framework for on-line contracts dealing with the sale of goods."
This conclusion demonstrates that the language and concepts of the CISG are "timeless" and are expressed in such a way that not only the international community understands, but that the CISG is also broad enough to absorb a changing business and technological environment. The CISG is a living document, as its language is adaptable, and its concepts are international in character. It has successfully avoided ethnocentric interpretation and application. The drafting parties specifically examined the formation of contracts and noted that the advantage of looking at the CISG is that the Convention has "demonstrated their workable character in an international environment ... due to their ability to transcend the traditional differences in the approaches taken by civil and common law."
In sum, it would be difficult to argue that a document that was written more than twenty years ago and which is considered capable of absorbing the [page 50] changes necessitated by electronic commerce is not written in a truly international language. In contrast, many domestic laws require amendments to absorb changes that are so naturally accommodated by the CISG. There is truly nothing more convincing than the above observations. [page 51]
* Editor's Note: Foreign source citations are based upon the author's recommendation. The Journal of Law and Commerce adheres to The Bluebook Uniform System of Citation, but the Journal of Law and Commerce has created uniform citations for certain sources not addressed by the Bluebook. Moreover, with respect to foreign language sources for which the Journal of Law and Commerce was not provided an English translation, the editors have relied on the author for the veracity of the statement drawn from such sources.
** Bruno Zeller is a Lecturer of Law, Victoria University, Melbourne, Australia, Law School. 1970 B. Commerce (The University of Melbourne), 1975 B. Education (The University of Melbourne), 1988 Master of International Trade and Finance Law (Deakin University), 2002 PhD in Law (The University of Melbourne).
1. Convention for International Sale of Goods, Feb. 17, 1983, Preamble.
2. ERNST RABEL, Der Entwurf eines einheitlichen Kaufgesetzes, 9 RABELS ZEITSCHRIFT 1, 2 (1935).
3. Id. at 5.
4. See RABEL, supra note 2.
5. Bernard Audit, The Vienna Sales Convention and the Lex Mercatoria, in LEX MERCATORIA AND ARBITRATION 173, 174 (Thomas E. Carbonneau ed., 1990).
6. Item 88, from Summary Records, 21 U.N. GAORC.6, 947th-955th meetings U.N. Doc.A./6594.
7. Phanesh Koneru, The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles, 6 MINN. J. GLOBAL TRADE 105 (1997).
8. Neue Zürcher Zeitung, Gleichwertigkeit der Rechtssysteme, Die Bilateralen Abkommen mit der EU (Sept. 16, 1999), available at <http://www.nzz.ch>.
9. Neue Zürcher Zeitung, Die Bilateralen Verträge im Vergleich zum EWR-Beitritt (Nov. 8, 2000), available at <http://www.nzz.ch>.
13. U.S. Ratification of 1980 United Nations Convention on Contracts for the International Sale of Goods: Official English Text, 52 FED. REG. 6262 (Mar. 2, 1987).
14. Amy H. Kastely, Unification and Community: A Rhetorical Analysis of the United Nation Sales Convention, 8 NW. J. INT'L L. & BUS. 574 (1988).
15. Michael J. Bonell, The UNIDROIT Initiative for the Progressive Codification of International Trade Law, 27 INT'L & COMP. L.Q. 413 (1978).
16. See Kastely, supra note 14, at 577.
17. See generally Kastely, supra note 14.
18. See Kastely, supra note 14, at 578.
19. Supra note 1. Article 3(1) states: "Contracts for the supply of goods to be manufactured or produced are to be considered sales unless the party who order(s) the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production."
20. Id. (referring to Article 3 generally).
21. See Murray J. Raff, German Real Property Law and the Conclusive Land Title Register (1999) (unpublished Ph.D. thesis, The University of Melbourne) (on file with author) (translation of German Civil Code concerning the words "wesentliche Bestandteile").
22. Concluding portion of the CISG, available at <http://www.cisg.law.pace.edu/cisg/text/concluding.html> (stating, "in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic").
23. Frank Diedrich, Maintaining Uniformity in International Uniform Law Via Autonomous Interpretation: Software Contracts and the CISG, 8 PACE L. REV. 303 (1996). For further information on the 1980 Diplomatic Conference, see the Pace University website, available at <http://www.cisg.law.pace.edu/cisg/conference.html>.
24. See infra note 47 (stating that the words in English, "carry a rich heritage of legal doctrine").
25. Roy M. Goode, Reflections on the Harmonization of Commercial Law, 1 UNIFORM L. REV. 71 n.36 (1991).
26. RABEL, supra note 2, at 7.
27. John Honnold, Uniform Laws for International Trade: Early "Care and Feeding "for Uniform Growth, 1 INT'L TRADE & BUS. L.J. 1 n.6 (1995).
28. Id. at 2.
29. See Kastely, supra note 14, at 591.
30. Supra note 1. Article 2 states:
31. See supra note 1, art. 35.
32. Id. at art. 46(3).
33. Id. at art. 85-88.
34. Id. at ch. IV.
35. Id. at art. 87.
36. Id. at arts. 67(1), 68.
37. Id. at art. 68(1-2).
38. Hamilton v. Mendes, 97 Eng. Rep. 787, 795 (K.B. 1761).
39. At a December 8-9, 2003 Conference, organized by Victoria University, Melbourne and the International Islamic University of Kuala Lumpur, several as yet unpublished papers were delivered which argued that Shari'ah law, Islamic law based on the Koran, is compatible with the CISG in most respects.
40. Ralph Amissah, The Autonomous Contract, Reflecting the Borderless Electronic-Commercial Environment in Contracting, Electronic Handel (1996), available at <http://www.cisg.law.pace.edu/cisg/biblio/amissah2.html>.
41. John Honnold, Goals of Unification-Process and Value of the Unification of Commercial Law: Lessons for the Future Drawn from the Past 25 Years, 25th UNCITRAL Congress 11, 11 (1992).
43. Supra note 40.
44. Ulrich Drobnig, General Principles of European Contract Law, in INTERNATIONAL SALE OF GOODS: DUBROVNIK LECTURES 305, 306 (Petar Sarcevic & Paul Volken eds., 1985).
46. Id. at 310.
47. Amy H. Kastely, Reflections on the International Unification of Sales Law: Unification and Community Rhetorical Analysis of the United Nations Sales Convention, 8 NW. J. INT'L L. & BUS. 574, 593 (1988) (footnotes omitted).
48. Supra note 5, at 180.
49. See, e.g., Articles 31, 37, and 46 of the French text of the CISG, available at <http://www.cisg.law.pace.edu/cisg/text/salecf.html#3>.
50. Supra note 5, at 180.
51. Kastely, supra note 47, at 595.
52. Supra note 1, art. 28.
53. See Report of the Working Group, 6th Session U.N. Document A/CN.9/100; see also Report on Art. 28 in U.N. Doc.A/CONF.97/11.
54. Alejandro M. Garro, Reconciliation of Legal Traditions in the U.N. Convention on Contracts for the International Sale of Goods, 23 INT'L LAW. 443, 459 (1989).
55. Alison B. Williams, Forecasting the Potential Impact of the Vienna Sales Convention on International Sales Law in the United Kingdom (Oct. 16, 2001), available at <http://www.cisg.law.pace.edu/cisg/biblio/williams.html>.
56. Laszlo Réczei, Process and Value of the Unification of Commercial Law: Lessons for the Future Drawn from the Past 25 Years, 25th UNCITRAL Congress 5-6, 1992.
57. Kastely, supra note 47, at 582.
58. Report of Working Group on Electronic Commerce, UNCITRAL, 38th Sess., at 2, U.N. Doc. A/CN.9/WG.IV/WP.91 (2001).
59. Id. at 12.