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Uniform interpretation of UNCITRAL texts: digest of case law on the United Nations Convention on Contracts for the International Sale of Goods (Vienna 1980)

UNCITRAL digest of CISG article 6 case law

UNCITRAL digests are "summaries of case law presented with a view to fostering uniform interpretation." Doc. A/CN.9/948. Dist.: General 26 April 2001. Note by the Secretariat, para. 4.

This is a presentation of the UNCITRAL digest of CISG article 6 case law in the cited document. The digest reviews interpretations of article 6 by courts and arbitral tribunals from the following jurisdictions.

1989-1994
1995-2000
Totals
Austria
2
3
5
France
-
3
3
Germany
8
22
30
Hungary
-
1
1
ICC arbitration
3
2
5
Italy
2
1
3
Netherlands
-
1
1
Switzerland
1
4
5
United States
 1 
 1 
 2 
     Totals
18
37
55

Reproduced with the permission of UNCITRAL, we have inserted in [brackets] additional citation information.  We also inserted accession numbers to enable researchers to jump to further uniform law materials on article 6 and on the cases cited in the notes to the UNCITRAL text.  Translations of texts of cases cited in the UNCITRAL digest are identified in bold type.


[UNCITRAL case digest]

Article 6 [<http://www.cisg.law.pace.edu/cisg/text/e-text-06.html>]

The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary any of its provisions.

Introduction

1. According to article 6 of the Convention, the parties may exclude the Convention's application (totally or partially) or derogate from its provisions. Therefore, even if the Convention is otherwise applicable, one must nevertheless determine whether the parties have excluded it or derogated from its provisions in order to conclude that the Convention applies in a particular case.[4]

2. By allowing the parties to exclude the Convention and derogate from its provisions, the drafters affirmed the principle according to which the primary source of the rules governing international sales contracts is party autonomy.[5] In doing so, the drafters clearly acknowledged the Convention's non-mandatory nature [6] and the central role that party autonomy plays in international commerce and, in particular, in international sales.[7]

Derogation

3. Article 6 makes a distinction between the exclusion of the application of the Convention and the derogation from some of its provisions. Whereas the former does not encounter any limitations, the latter does. Where one of the parties to the contract for the international sale of goods has its place of business in a State that has made a reservation under article 96,[8] the parties may not derogate from or vary the effect of article 12. In those cases, any provision "that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply" (art. 12). All other provisions may be derogated from.[9]

4. Although the Convention does not expressly mention it, there are other provisions that the parties cannot derogate from, more specifically, the public international law provisions (i.e. arts. 89-101). This is due to the fact that those provisions address issues relevant to contracting States rather than private parties. It should be noted that this issue has not yet been addressed by case law.

Express exclusion

5. The applicability of the Convention can be expressly excluded by the parties. In respect of this kind of exclusion, two lines of cases have to be distinguished: the exclusion with and the exclusion without any indication by the parties of the law applicable to the contract between the parties. In those cases in which the Convention's application is excluded with an indication of the applicable law, which in some countries can be made in the course of the legal proceedings,[10] the law applicable will be that applicable by virtue of the rules of private international law of the forum,[11] which in most countries makes applicable the law chosen by the parties.[12] Where the Convention is expressly excluded without an indication of the applicable law, the applicable law is to be identified by means of the private international law rules of the forum. Whenever these rules refer to the law of a contracting State, it appears that the domestic sales law and not the Convention should apply.

Implicit exclusion

6. A number of courts have considered the question of whether the Convention's applicability can be excluded implicitly. According to many courts,[13] the lack of an express reference to the possibility of implicitly excluding the Convention does not preclude it. This view is supported by a reference in the Official Records, which shows that the majority of delegations was opposed to the proposal advanced during the diplomatic conference according to which a total or partial exclusion of the Convention could only be made "expressly".[14] The express reference in the Convention to the possibility of an implicit exclusion merely "has been eliminated lest the special reference to 'implied' exclusion might encourage courts to conclude, on insufficient grounds, that the Convention had been wholly excluded".[15] According to few court decisions, however, the Convention cannot be excluded implicitly, on the grounds that the Convention does not expressly provide for that possibility.[16]

7. A variety of ways of implicitly excluding the Convention have been suggested. One possibility is for the parties to choose the law [17] of a non-contracting State as the law applicable to their contract.[18]

8. The choice of the law of a contracting State as the law governing the contract poses more difficult problems. It has been suggested in an arbitral award [19] and several court decisions [20] that the choice of the law of a contracting State ought to amount to an implicit exclusion of the Convention's application, since otherwise the choice of the parties would have no practical meaning. Most court decisions [21] and arbitral awards,[22] however, take a different view. The grounds for that view may be summarized as follows: on the one hand, the Convention is part of the law of the contracting State chosen by the parties and, on the other, the choice of the law of the contracting State functions to identify the law by which the gaps in the Convention must be filled. According to this line of decisions, the choice of the law of a contracting State, if made without particular reference to the domestic law of that State, does not appear to exclude the Convention's applicability.

9. The choice of a forum may also lead to the implicit exclusion of the Convention's applicability. In those cases, however, where the forum chosen is located in a contracting State and there is evidence that the parties wanted to apply the law of the forum, two arbitral tribunals have applied the Convention.[23]

10. The question has arisen of whether the Convention's application is also excluded where the parties argue a case on the sole basis of a domestic law despite the fact that all of the Convention's criteria of applicability are met. In those countries where the judge must always apply the correct law even if the parties based their arguments on a law that does not apply in the case (jura novit curia), the mere fact that the parties argue on the sole basis of a domestic law does not in itself lead to the exclusion of the Convention.[24] If the parties are not aware of the Convention's applicability and argue on the basis of a domestic law merely because they believe that this law is applicable, the judges will nevertheless have to apply the Convention.[25] In one country where the principle jura novit curia is not acknowledged, when the parties argued their case by reference to a domestic law of sales, a court applied that domestic law.[26]

Opting in

11. While the Convention expressly provides the parties with the possibility of excluding its application either in whole or in part, it does not address the issue of whether the parties may make the Convention applicable when it would not otherwise apply. This issue was expressly dealt with by the 1964 Hague Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods, which contained a provision, article 4, that expressly provided the parties with the possibility of "opting in". The fact that the Convention does not contain a provision comparable to that article does not necessarily mean that the parties are not allowed to "opt in". This view is also supported by the fact that a proposal made during the diplomatic conference (by the former German Democratic Republic) [27] according to which the Convention should apply even where the preconditions for its application are not met, as long as the parties wanted it to be applicable, was rejected on the ground that, to allow the parties to "opt in", an express provision was unnecessary, because of the existence of the principle of the party autonomy.


FOOTNOTES

[...]

4. See [Tribunale (Regional Court) di Vigevano, Rheinland Versicherungen v. S.r.l. Atlarex, 12 July 2000] CLOUT case No. 378, Italy [for further data on the case, see http://cisgw3.law.pace.edu/cases/000712i3.html]; [Oberlandesgericht (Court of Appeal) Hamm 23 June 1998] CLOUT case No338, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cisg/text/draft/980623case.html]; [Cour d'appel (Court of Appeal) de Paris, SARL Sodime-La Rosa v. Sté Softlife design Ltd. et autre, 15 October 1997] CLOUT case No223, France [for further data on the case, see http://cisgw3.law.pace.edu/cases/971015f1.html]; [Oberlandesgericht (Court of Appeal) Karlsruhe 25 June 1997] CLOUT case No. 230, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cisg/text/draft/970625case.html]; [Oberster Gerichtshof (Supreme Court) 11 February 1997] CLOUT Case No. 190, Austria [for further data on the case, see http://cisgw3.law.pace.edu/cases/970211a3.html]; [Oberlandesgericht (Court of Appeal) Köln 8 January 1997] CLOUT case No. 311, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/970108g1.html]; [Tribunal cantonal (Court of Appeal) Vaud 11 March 1996, Docket No. 01 93 1061 (163/96/BA and 164/96BA)] CLOUT case No. 211, Switzerland [for English translation of the text of this case, see http://cisgw3.law.pace.edu/cases/960311s2.html]; [Landgericht (Regional Court) Trier 12 October 1995] CLOUT case No. 170, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/951012g1.html]; See [Oberster Gerichtshof (Supreme Court) 10 November 1994] CLOUT case No106, Austria [for English translation of the text of this case, see http://cisgw3.law.pace.edu/cases/941110a3.html]; [Tribunal cantonal (Court of Appeal) du Valais, Bonaldo S.p.A. v. A.F., 29 June 1994] CLOUT case No. 199, Switzerland [for further data on the case, see http://cisgw3.law.pace.edu/cases/940629s1.html]; [Oberlandesgericht (Court of Appeal) Karlsruhe 20 November 1992] CLOUT case No317, Germany [for further data on the case, see http://cisgw3.law.pace.edu/cases/921120g1.html].

5. For a reference to this principle, see [Bundesgerichtshof (Federal Supreme Court) 4 December 1996] CLOUT case No229, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/961204g1.html].

6. For an express reference to the Convention's non-mandatory nature, see Oberster Gerichtshof [Supreme Court], Austria, 21 March 2000, Internationales Handelsrecht, 2001, p. 41 [for further data on the case, see http://cisgw3.law.pace.edu/cases/000321a3.html]; [Oberster Gerichtshof (Supreme Court) 15 October 1998] CLOUT case No. 240, Austria [for further data on the case, see http://cisgw3.law.pace.edu/cases/981015a3.html].

7. Landgericht [Regional Court] Stendal, Germany, 12 October 2000, Internationales Handelsrecht, 2001, p. 32 [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cisg/text/draft/001012case.html].

8. See article 96: "A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in that State."

9. Thus, it cannot surprise that a court has recently stated that article 55, relating to open-price contracts, is only applicable where the parties have not agreed to the contrary ([Cour d'appel (Court of Appeal) de Grenoble, Enterprise Alain Veyron v. Société E. Ambrosio, 26 April 1995] CLOUT case No. 151, France [for further data on the case, see http://cisgw3.law.pace.edu/cases/950426f1.html]). Neither is a court decision surprising which expressly states that article 39, relating to the notice requirement, is not mandatory and can be derogated from (Landgericht [Regional Court] Gießen, Germany, 5 July 1994, Neue Juristische Wochenschrift Rechtsprechungs-Report, 1995, p. 438 [for further data on the case, see http://cisgw3.law.pace.edu/cases/940705g1.html]). To take another example, according to the Austrian Supreme Court, article 57 also can be derogated from (See [Oberster Gerichtshof 10 November 1994] CLOUT case No. 106, Austria [for further data on the case, see http://cisgw3.law.pace.edu/cases/941110a3.html]).

10. This is true for instance in Germany, as pointed out in case law; see, for example, [Oberlandesgericht (Court of Appeal) Köln 26 August 1994] CLOUT case No. 122, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/940826g1.html]; [Oberlandesgericht (Court of Appeal) Saarbrücken 13 January 1993] CLOUT case No. 292, Germany [for further data on the case, see http://cisgw3.law.pace.edu/cases/930113g1.html].

11. See [Bundesgerichtshof (Federal Supreme Court) 23 July 1997] CLOUT case No. 231, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/970723g1.html]; Oberlandesgericht [Court of Appeal] Frankfurt, Germany, 15 March 1996, Neue Juristische Wochenschrift Rechtsprechungs-Report, 1997, pp. 170 ff. [for further data on the case, see http://cisgw3.law.pace.edu/cases/960315g1.html].

12. Where the rules of private international law of the forum are those laid down either in the 1955 Hague Convention on the Law Applicable to International Sales of Goods (United Nations publication, Sales No. 73.V.3), in the 1980 Rome Convention on the Law Applicable to Contractual Obligations (United Nations, Treaty Series, vol. 1605, No. 28023), or in the 1994 Inter-American Convention on the Law Applicable to Contractual Obligations, the law chosen by the parties will govern.

13. See [Tribunale (Regional Court) di Vigevano, Rheinland Versicherungen v. S.r.l. Atlarex, 12 July 2000] CLOUT case No. 378, Italy [for further data on the case, see http://cisgw3.law.pace.edu/cases/000712i3.html]; [Oberlandesgericht (Court of Appeal) München 9 July 1997] CLOUT case No. 273, Germany [for further data on the case, see http://cisgw3.law.pace.edu/cases/970709g1.html]; Landgericht [Regional Court] München, Germany, 29 May 1995, Neue Juristische Wochenschrift,1996, pp. 401 f. [for further data on the case, see http://cisgw3.law.pace.edu/cases/950529g1.html]; [Oberlandesgericht (Court of Appeal) Celle 24 May 1995] CLOUT case No. 136, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/950524g1.html].

14. Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), pp. 85-86.

15. Ibid., p. 17.

16. See Landgericht [Regional Court] Landshut, Germany, 5 April 1995, published on the Internet at: [http://www.jura.uni-freiburg.de/ipr1/cisg/urteile/text/193.htm] [for English translation of the text of this case, see http://cisgw3.law.pace.edu/cases/950405g1.html]; Orbisphere Corp. v. United States, United States of America [Court of International Trade], 726 Fed. Supp. 1344 [24 October 1989] [for further data on the case, see http://cisgw3.law.pace.edu/cases/891024u1.html].

17. Whether such a choice is to be acknowledged at all depends on the rules of private international law of the forum.

18. See [Oberlandesgericht (Court of Appeal) Düsseldorf 2 July 1993] CLOUT case No. 49, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/930702g1.html].

19. See [Ad hoc Tribunal, Florenz (Italy) 19 April 1994] CLOUT case No. 92, Arbitration [for English translation of the text of this case, see http://cisgw3.law.pace.edu/cases/940419i3.html].

20. See Cour d'Appel [Court of Appeal] Colmar, Sté Ceramique Culinaire de France v. Musgrave Ltd, France, 26 September 1995, published on the Internet at: http://Witz.jura.uni-sb.de/CISG/decisions/260995v.htm [for further data on the case, see http://cisgw3.law.pace.edu/cases/950926f1.html]; [Kantonsgericht (District Court) Zug 16 March 1995] CLOUT case No. 326, Switzerland [for further data on the case, see http://cisgw3.law.pace.edu/cases/950316s1.html]; [Tribunale Civile (Regional Court) di Monza, Nuovo Fucinati S.p.A. v. Fondmetall International, 14 January 1993] CLOUT case No. 54, Italy [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/930114i3.html].

21. See [Bundesgerichtshof (Federal Supreme Court) 25 November 1998] CLOUT case No. 270, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/981125g1.html]; [Oberlandesgericht (Court of Appeal) München 21 January 1998] CLOUT case No. 297, Germany [for further data on the case, see http://cisgw3.law.pace.edu/cases/980121g1.html]; [Kantonsgericht (District Court) Nidwalden 3 December 1997] CLOUT case No. 220, [Switzerland] [for further data on the case, see http://cisgw3.law.pace.edu/cases/971203s1.html]; [Bundesgerichtshof (Federal Supreme Court) 23 July 1997] CLOUT case No. 236, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/970723g2.html]; See [Oberlandesgericht (Court of Appeal) Hamm 6 May 1998] CLOUT case No. 287, Germany [for further data on the case, see http://cisgw3.law.pace.edu/cases/980506g1.html]; See [Oberlandesgericht (Court of Appeal) Karlsruhe 25 June 1997] CLOUT case No. 230, Germany [for English translation of the text of this case in process, go to http://cisgw3.law.pace.edu/cisg/text/draft/970625case.html]; [Handelsgericht (Commercial Court) des Kantons Zürich 5 February 1997] CLOUT case No. 214, [Switzerland] [for further data on the case, see http://cisgw3.law.pace.edu/cases/970205s1.html]; [Cour de Cassation [Supreme Court], Sté Ceramique Culinaire de France v. Sté Musgrave Ltd., 17 December 1996] CLOUT case No. 206, France [for English translation of the text of this case in process, go to http://cisgw3.law.pace.edu/cisg/text/draft/961217case.html]; Landgericht [Regional Court] Kassel, Germany, 15 February 1996, Neue Juristische Wochenschrift Rechtsprechungs-Report, 1996, pp. 1146 f. [for further data on the case, see http://cisgw3.law.pace.edu/cases/960215g1.html]; [Oberlandesgericht (Court of Appeal) Hamm 9 June 1995] CLOUT case No. 125, Germany [for English translation of the text of this case,go to http://cisgw3.law.pace.edu/cases/950609g1.html]; Rechtbank [District Court] 's-Gravenhage [Smits BV v. Jean Quetard], The Netherlands, 7 June 1995, Nederlands Internationaal Privaatrecht, 1995, No. 524 [for further data on the case, see http://cisgw3.law.pace.edu/cases/950607n1.html]; [Oberlandesgericht (Court of Appeal) München 8 February 1995 (Docket No. 7 U 3758/94)] CLOUT case No. 167, Germany [for further data on the case, see http://cisgw3.law.pace.edu/cases/950208g2.html]; [Oberlandesgericht (Court of Appeal) Köln 22 February 1994] CLOUT case No. 120, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/940222g1.html]; [Oberlandesgericht (Court of Appeal) Koblenz 17 September 1993] CLOUT case No. 281, Germany [for further data on the case, see http://cisgw3.law.pace.edu/cases/930917g1.html]; [Oberlandesgericht (Court of Appeal) Düsseldorf 8 January 1993] CLOUT case No. 48, Germany [for further data on the case, see http://cisgw3.law.pace.edu/cases/930108g1.html].

22. See [Schiedsgericht der Handelskammer Hamburg 21 March 1996] CLOUT case No. 166, Arbitration [Germany] [for further data on the case, see http://cisgw3.law.pace.edu/cases/960321g1.html]; Arbitration Court attached to the Hungarian Chamber of Commerce and Industry, Hungary, 17 November 1995, UNILEX [for further data on the case, see http://cisgw3.law.pace.edu/cases/951117h1.html]; ICC International Court of Arbitration, France, award No. 8324 [of 1995], Journal du droit international, 1996, pp. 1019 ff. [for further data on the case, see http://cisgw3.law.pace.edu/cases/958234i1.html]; ICC International Court of Arbitration, France, award No. 7844 [of 1994], UNILEX [for further data on the case, see http://cisgw3.law.pace.edu/cases/947844i1.html]; ICC International Court of Arbitration, France, award No. 7660 [ of 1994], UNILEX [for further data on the case, see http://cisgw3.law.pace.edu/cases/947660i1.html]; ICC International Court of Arbitration, France, award No. 7565 [of 1994], Journal du droit international, 1995, pp. 1015 ff. [for further data on the case, see http://cisgw3.law.pace.edu/cases/947565i1.html]; [ICC International Court of Arbitration award No. 6653 of 1995] CLOUT case No. 103, Arbitration [for further data on the case, see http://cisgw3.law.pace.edu/cases/936653i1.html]; [Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft (SCH-4366) 15 June 1994] CLOUT case No. 93, Arbitration [Austria] [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/940615a3.html].

23. Schiedsgericht der Hamburger freundlichen Arbitrage [Arbitration], Germany, 29 December 1998, Internationales Handelsrecht, 2001, pp. 36-37 [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/981229g1.html]; See [Schiedsgericht der Handelskammer Hamburg 21 March 1996] CLOUT case No. 166, Arbitration [Germany] [for further data on the case, see http://cisgw3.law.pace.edu/cases/960321g1.html].

24. See [Tribunale (Regional Court) di Vigevano, Rheinland Versicherungen v. Atlarex S.r.l., 12 July 2000] CLOUT case No. 378, Italy [for English translation of the text of this case, see http://cisgw3.law.pace.edu/cases/000712i3.html]; [Oberlandesgericht (Court of Appeal) Hamm 9 June 1995] CLOUT case No. 125, Germany [for English translation of the text of this case, go to http://cisgw3.law.pace.edu/cases/cases/950609g1.html]; Landgericht [Regional Court] Landshut, Germany, 5 April 1995, UNILEX [for English translation of the text of this case, see http://cisgw3.law.pace.edu/cases/950405g1.html].

25. See [Oberlandesgericht (Court of Appeal) Celle 24 May 1995] CLOUT case No. 136, Germany [for English translation of the text of this case, see http://cisgw3.law.pace.edu/cases/cases/950524g1.html].

26. GPL Treatment Ltd. v. Louisiana-Pacific Group, United States of America, 133 Or. App. 633 [Appellate Court (State of Oregon) 12 April 1995] [for further data on the case, see http://cisgw3.law.pace.edu/cases/950412u1.html].

27. See Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980 (United Nations publication, Sales No. E.81.IV.3), p. 86.


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