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CISG
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LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

Summary Records of Meetings of the First Committee

4th meeting

Thursday, 13 March 1980, at 10 a.m.

Chairman: Mr. LOEWE (Austria)

The meeting was called to order at 10.05 a.m.

CONSIDERATION OF ARTICLES 1-82 OF THE DRAFT CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND OF DRAFT ARTICLE "DECLARATIONS RELATING TO CONTRACTS IN WRITING" IN THE DRAFT PROVISIONS PREPARED BY THE SECRETARY-GENERAL CONCERNING IMPLEMENTATION, DECLARATIONS, RESERVATIONS AND OTHER FINAL CLAUSES FOR THE DRAFT CONVENTION (agenda item 3) (A/CONF.97/5) (continued)
6
Article 5 [became CISG article 6 ] (continued)
(A/CONF.97/C.1/L.8, L.41, L.45)

1. The CHAIRMAN said, in reply to questions put to him by delegations the previous day, that the Drafting Committee would consider only those texts which had been specifically sent to it by the Committee and that it was not the Drafting Committee's task to draw up any new text, which might give rise to discussions within the Committee and delay its work. It would be clearly indicated in the summary records which texts had been sent to the Drafting Committee.

2. Mr. ROGNLIEN (Norway) said that his country had proposed some substantive changes as well as purely drafting amendments. In view of the Chairman's explanations, he wondered whether his proposal should in fact be sent to the Drafting Committee.

3. The CHAIRMAN said that the Norwegian proposal should be sent to the Drafting Committee, which would then be entitled to resubmit it to Committee I if the text should give rise to questions outside its mandate.

4. He recalled that there were three draft amendments to article 5 [became CISG article 6 ] of the draft Convention submitted by the United Kingdom (A/CONF.97/C.1/L.8), Belgium (A/CONF.97/C.1/L.41) and Pakistan (A/CONF.97/C.1/L.45) respectively. For his own part he considered that exclusion of the application of the Convention, derogation from its provisions or variation of their effect could be either express or implied, that was also apparently the conclusion which had emerged from the preparatory work. The United Kingdom and Belgian proposals tended in that direction, while the Pakistani proposal envisaged express exclusion only. Since the Belgian and United Kingdom proposals both started from the same viewpoint, he wondered if it would not be possible to merge them.

5. Mr. DABIN (Belgium) pointed out that there was a slight difference of approach between the Belgian proposal and that of the United Kingdom. The existing text of article 5 [became CISG article 6 ] did not specify how the will of the parties was to be made known, but the Secretariat's commentary explained why the second sentence of ULIS, article 3, providing that "such exclusion may be express or implied", had not been reproduced in the draft Convention under consideration. The Belgian proposal also excluded the use of the word "implied" but, like the draft EEC Convention on legislation governing contractual obligations, provided that exclusion, derogation or variation must definitely result from the circumstances of the case, unless such measures were specifically provided for in writing, in order that the judge or arbitrator might be precluded from attributing to the parties an intention they did not have. Recourse to a standard contract or general conditions drawn up by reference to one or more specific legal systems would leave no doubt as to the choice made previously by the parties and would constitute an indisputable criterion. The principle of autonomy of the parties was thus maintained.

6. The CHAIRMAN asked the representative of the United Kingdom if she was able to concur in the Belgian proposal.

7. Miss O'FLYNN (United Kingdom) said she agreed that the United Kingdom and the Belgian proposals had a number of points in common but that did not mean that they were identical. The existing text did not indicate how the parties might exclude the application of the Convention or derogate from or vary the effect of any of its provisions, and her delegation felt that the matter must be clarified since, in the absence of specific provisions it might be assumed that exclusion, derogation or variation must necessarily be express. Her delegation had submitted its amendment, based on the ULIS provisions, in order to eliminate any uncertainty on that point and would like to maintain it.

8. Mr. INAAMULLAH (Pakistan) explained that his delegation had submitted amendment A/CONF.97/C.1/L.47 because it felt that the existing text of article 5 [became CISG article 6 ] allowed the parties too much freedom, particularly if it was taken in conjunction with articles 7 and 11 [became CISG article 8 and CISG article 12 ], which provided for subjective as well as objective criteria, the result of which might be disagreements as to whether the provisions of the Convention were in fact applicable or whether there had been derogation from any of its provisions. Such uncertainty could be avoided only by specifying that exclusion or variation should be the result of an express agreement between the parties.

9. Mr. BENNETT (Australia) endorsed the comments made by the representative of the United Kingdom, whose proposal would make it possible to avoid too restrictive an interpretation of the text.

10. Mr. FARNSWORTH (United States of America) said that, for his part, he could see no reason why the existing text of article 5 [became CISG article 6 ] should not be retained, although he would be able to support the United Kingdom proposal which added a useful degree of precision to the text.

11. Mr. ROGNLIEN (Norway) said that he was in favour of retaining the existing text which, in his view, meant that derogation might be express or tacit. If one or other of the additions to article 5 [became CISG article 6 ] proposed by the United Kingdom or Belgium were adopted, it might be deduced a contrario that other provisions of the Convention were to be interpreted in a restrictive sense. The determining factor must always be the intention of the parties at the moment of concluding the contract, whether or not such intention had been express or implied in article 7 [became CISG article 8 ].

12. Mr. KHOO LEANG HUAT (Singapore) said he too was in favour of keeping the existing text.

13. Mr. PLANTARD (France) said that he preferred the new paragraph 2 proposed by Belgium.

14. Mr. REISHOFER (Austria) supported the United Kingdom proposal. In his opinion, it should be specified how parties might exclude application of the Convention or derogate from any of its provisions.

15. Mr. WAGNER (German Democratic Republic) said that parties should not be encouraged to derogate from the provisions of the Convention. Parties might exclude application of the Convention in two ways: they could agree not to apply certain provisions or they could choose a different law for the contract, but in either case there must be an express agreement. That was why his delegation was strongly opposed to the United Kingdom proposal, which left the matter too uncertain. The Belgian proposal seemed capable of providing a clearer solution, but it was not entirely satisfactory to his delegation, which was against implied derogations and in favour of keeping the existing text.

16. Mr. HERBER (Federal Republic of Germany) said that it should be specifically stated whether exclusion of provisions of the Convention must be express or could be implied. He was unable to support the proposal by the representative of Pakistan because he considered it to be too rigid and thought it did not allow for the fact that business practice did not always take legal considerations into account at the time of concluding contracts. The United Kingdom proposal left too wide a latitude to the courts in determining what had been the will of the parties and did not attach sufficient importance to the circumstance of the case.

17. Mr. HJERNER (Sweden) said he agreed with the representative of the United States that the existing text was acceptable but was able to support the United Kingdom proposal.

18. Mr. MICHlDA (Japan) recalled that the UNCITRAL Working Group responsible for preparing the draft Convention had decided to remove the words "such exclusion may be express or implied", which appeared in article 3 of ULIS, since it feared that reference to implied exclusion might encourage courts to conclude, on insufficient grounds, that application of the Convention had been entirely excluded. That had been the prevailing opinion for 10 years and he could see no reason to change the existing text of article 5 [became CISG article 6 ] along the lines proposed by the United Kingdom or Belgium.

19. Mr. EYZAGUIRRE (Chile) endorsed the views expressed by the representative of Japan. Article 5 of the draft Convention [became CISG article 6 ] seemed to him to be sufficiently explicit. In his view, the proposals of the United Kingdom and Belgium were reviving a dead debate.

20. Mr. MEDVEDEV (Union of Soviet Socialist Republics) said that he associated himself with the comments made by the representative of Japan. The United Kingdom proposal changed the very basis of the provisions of the Convention. The existing text was sufficiently clear and did not require any modification.

21. Mr. PLUNKETT (Ireland) said that the existing text of article 5 [became CISG article 6 ] could be interpreted in different ways. In his opinion, it should be transmitted to the Drafting Committee since, if retained in its existing form, it could well give rise to legal disputes. He supported the United Kingdom amendment which made it quite clear that implied derogations were permitted.

22. Mr. BOGGIANO (Argentina) said that the principle of autonomy of the parties, which should be respected, would be weakened if there was reference to express agreement only. From that standpoint the Belgian proposal, which authorized implied derogations while specifying that they must result from the circumstances of the case, seemed to him to be satisfactory.

23. Miss O'FLYNN (United Kingdom) said she was surprised that her amendment had triggered off such a wide-ranging debate. With regard to the concern expressed by the Norwegian representative that the amendment might indirectly lead to a restrictive interpretation of the other provisions of the Convention, she thought that a provision might be inserted at the end of the Convention stating that, whenever there was an agreement on a particular point between the parties, such agreement might be express or implied.

24. As for the objection raised by the representative of the German Democratic Republic that her delegation's proposal was too uncertain, she considered that the comments which had been made indicated that the existing text of article 5 [became CISG article 6 ] was open to more than one interpretation; her delegation's proposal was intended to make the position more certain.

25. Lastly, with regard to the points raised by the representative of Japan, her delegation had borne in mind the Secretariat's commentary on article 5 [became CISG article 6 ] and the possibility that the reference to implied exclusion might encourage courts to be too hasty in concluding that the application of the Convention had been excluded. However, courts would not come to that conclusion in the absence of a clear indication that the parties had wished to exclude the Convention. On the other hand, it was not necessary for the parties to indicate expressly that they had decided to exclude the provisions of the Convention and to apply another legal regime, as the existing text of article 5 [became CISG article 6 ] might lead one to believe. To avoid any misunderstanding on that point it was essential that the existing text of article 5 [became CISG article 6 ] should be changed.

26. Mr. DABIN (Belgium) said that it was a question not of a purely drafting matter but of a very important substantive matter. It was not in fact possible to hold to an express exclusion because a glance at what actually happened in day-to-day business revealed that, in trade negotiations, legal clauses were often the last thing that the parties were concerned about. Moreover, it was not always possible to provide for an express exclusion.

27. The United Kingdom proposal would have the effect of making the meaning of article 5 [became CISG article 6 ] clearer but it also introduced a degree of woolliness in that, as could be seen from national case law, judges were often tempted to give a purely hypothetical interpretation of the will of the parties.

28. The Belgian proposal was an attempt to add an element of security by providing that, where the will of the parties was not expressly declared in writing, it must be clearly apparent from all the circumstances of the case.

29. Mr. KIM (Republic of Korea) said that, if the parties chose the law of one of the Contracting States, it was possible that the implied exclusion might be contrary to the provisions of article 1 [became CISG article 1 ], paragraph 1(b) of the Convention.

30. The CHAIRMAN put to the vote the proposals by Pakistan (A/CONF.97/C.1/L.45), Belgium (A/CONF.97/C.1/L.41) and the United Kingdom (A/CONF.97/C.1/L.8).

31. All three proposals were rejected.

32. The CHAIRMAN drew the attention of the members of the Committee to the amendments proposed by Belgium (A/CONF.97/C.1/L.41, second part) and Canada (A/CONF.97/C.1/L.10, paragraph 2), which had some points in common.

33. Mr. VISCHER (Switzerland) said he wondered whether those amendments were not contrary to the provisions in article 1 [became CISG article 1 ], paragraph (1)(b) and whether there might not be a danger of confusion in interpreting those articles.

34. Mr. GORBANOV (Bulgaria) said that his delegation was unable to accept those proposals because, if the parties had chosen the law of a Contracting State, the proposed provisions would be contrary to article 1 [became CISG article 1 ], paragraph (1)(b) while, on the other hand, if the parties had chosen the law of a non-Contracting State, the proposed amendment was unnecessary because the question was already covered by the provisions of article 5 [became CISG article 6 ], paragraph (1).

35. Mr. SHAFIK (Egypt) said that he too thought that the proposed texts were contrary to article 1 [became CISG article 1 ], paragraph (1)(b), because the provisions of the Convention were incorporated in the national law of a Contracting State.

36. Mr. DABIN (Belgium) said that he did not agree that the paragraph proposed by his delegation was contrary to article 1 [became CISG article 1 ], paragraph (1)(b). Although the rules of private international law might lead to the application of a national law, there was still some uncertainty. In that connection, he reminded the Committee that the ULIS clause on the application of a specific national law had given rise to different interpretations, some people maintaining that the applicable national law was the original domestic law and others considering that it was the Uniform Law incorporated in that domestic law. In private international law, it was normal, if the law in question was that of the State ratifying the Convention, for the latter to apply, at least if it was considered better than the earlier legislation. However, a degree of caution was necessary. The ignorance of the parties, who could belong to different non-Contracting States was, at the international level, entirely excusable. Their good faith could not be questioned. No one could boast of being conversant, at every turn, with the list of ratifications of an international convention. He also reminded the Committee that a reference to national law was often the result of traditions which were difficult to overcome and that the aim of the Belgium amendment was precisely to remove those uncertainties. Its wording could, however, be improved, in particular by incorporating the amendment proposed by Canada.

37. Mr. MAKAREVITCH (Ukrainian Soviet Socialist Republic) said that his delegation was unable to support the Belgian and Canadian amendments and that it considered the existing wording of article 5 [became CISG article 6 ] to be satisfactory.

38. Mr. ROGNLIEN (Norway) said that it was obvious that the parties could derogate from the application of article 1(1) [became CISG article 1(1) ], and that would be in keeping with article 5 [became CISG article 6 ]. In this view, therefore, there was no contradiction between the Belgian proposal and article 1 [became CISG article 1 ], but the proposal seemed a superfluous one. That was on the understanding that the parties had chosen the municipal law of a Contracting State, e.g. by referring to the title of such a law.

39. However the Canadian proposal was in fact contrary to article 1 [became CISG article 1 ] in that it assumed that, if the parties chose the law of a particular State, the application of the Convention was automatically excluded even if that was not the intention of the parties.

40. Mr. PLANTARD (France) said he regretted that he was unable to support the Belgian proposal. Any State which had become a party to the Convention had introduced into its law, in addition to its traditional law governing domestic sales, a second specific and parallel law for international sales, namely, the Convention. That solution was both logical and sound because when a State had the Convention ratified by its Parliament, it decided by the same action to incorporate the rules into its legal system. It could not be otherwise, unless the parties clearly wished to refer to the law governing domestic sales. Moreover, when the parties selected a legal system, they usually meant an entire legislation and only rarely a particular set of rules.

41. The current wording of article 5 [became CISG article 6 ] was perhaps ambiguous, and his delegation was prepared to support any proposal diametrically opposed to the tenor of the amendment proposed by the Belgian delegation.

42. Mr. BOGGIANO (Argentina) said that, when the parties subjected their contract to a national law, the application of the Convention should be excluded only if they referred explicitly to the law on domestic sales. The proposed provisions were therefore useless in practice.

43. Mr. WAGNER (German Democratic Republic) said that his delegation interpreted article 1 [became CISG article 1 ], paragraph(1)(b) to mean that the contracts of parties whose places of business were in Contracting State were in all cases subject to the Convention. It was therefore not in favour of the Belgian and Canadian proposals. On the other hand, it considered that, if one of the parties did not belong to a Contracting State, the Convention would apply only if the rules of private international law so provided, including cases where the parties had decided to apply the law of a Contracting State. He recognized that the application of that rule could cause difficulties, and was able to accept the Canadian proposal if it applied to cases in which the partners belonged to non-Contracting States. In that case it would be necessary to add to that proposal the phrase: "unless the parties to the contract have their places of business exclusively in Contracting States", or any other similar formula which could be refined by the Drafting Committee.

44. The CHAIRMAN asked the Canadian delegation if it was prepared to accept the subamendment proposed by the delegation of the German Democratic Republic.

45. Mr. SHORE (Canada) replied that, while his delegation did not insist on the wording of its amendment being maintained unchanged, it would prefer that it should retain the original content.

46. Mr. SEVÓN (Finland) said that both amendments had their merits in that they assumed that, when the parties referred to a national law, they probably meant the part of that law which was not constituted by the Convention. However, the proposals raised certain difficulties in that, for instance, some legislations provided for the application of non-mandatory law. However, his delegation did not think it necessary to raise that problem, and was in favour of maintaining article 5 [became CISG article 6 ] in its existing form.

47. Mr. FOKKEMA (Netherlands) said that, in short, the parties could decide that the contract should be subject to a national law or to the Convention if it had been incorporated in the law of a State. If they decided that the law applicable was that of a specific State which had ratified the Convention, that would be ambiguous and the judge would have to take a decision. In most cases the solution proposed by Belgium would be chosen, but it was preferable to leave it for the judge to decide.

48. The CHAIRMAN asked the Belgian and Canadian delegations if they wished their amendments to be put to the vote.

49. Mr. SHORE (Canada) said that he would like his delegation's proposal to be put to the vote, because the existing wording of article 5 [became CISG article 6 ] was not sufficiently precise. In any case, he would like the article to be submitted to the Drafting Committee.

50. The CHAIRMAN pointed out that if none of the proposed amendments was accepted, it would not be possible to submit the text to the Drafting Committee.

51. The Canadian draft amendment was rejected.

52. Mr. SHORE (Canada) said that, at very least, he would like the Committee to express its opinion on the need to clarify the wording of article 5 [became CISG article 6 ].

53. Mr. WAITITU (Kenya) said that he too considered it would be useful to ask the Drafting Committee to study the draft article and give its opinion on what clarifications should be made.

54. Mr. HERBER (Federal Republic of Germany) said he was against postponing a decision on the subject and sending the text to the Drafting Committee for study. That Committee was not a working group and could not be asked to do such work. Two draft amendments had already been rejected and, if some delegations considered it useful, they could submit further amendments.

55. Mr. VISCHER (Switzerland) said that it would be enough to clear up the uncertainties concerning article 5 [became CISG article 6 ] in the Committee's report.

56. Mr. DABIN (Belgium) said that, while he shared the opinion of the representative of the Federal Republic of Germany, he noted that the discussion had shown that the meaning of article 5 [became CISG article 6 ] in its present wording was not clear. Since it was a substantive question, the Committee should make it clear how the parties could exclude application of the Convention in whole or in part, so that any subsequent litigation could be avoided.

57. The CHAIRMAN agreed that a delegation or group of delegations could submit new proposals to clarify the meaning of article 5 [became CISG article 6 ], but he refused to submit the present text to the Drafting Committee without further explanation.

58. He then drew the attention of members of the Committee to the draft amendments submitted by the German Democratic Republic (A/CONF.97/C.1/L.32).

59. Mr. WAGNER (German Democratic Republic) said that he had noted that not all delegations were agreed as to the scope of the Convention. Divergences of views had arisen in particular with regard to article 2(e) and article 3 [became CISG article 3 ]. The aim of his delegation's proposal was to enable the parties to broaden the scope of the Convention. He reminded the Committee that the Convention was just as important as a law and did not consist of mere general provisions.

60. Mr. SHAFIK (Egypt) said that the draft amendment was an attractive one but was unnecessary because of the principle of the autonomy of the will of the parties. If the latter agreed to apply the Convention, even in cases where it would not normally apply, their wish should be respected. Naturally, if the applicable law did not admit certain provisions of the Convention, that law would prevail. But it was not for the Convention to settle that question.

61. Mr. KIM (Republic of Korea) said he agreed that the provision proposed by the German Democratic Republic was not necessary because of the principle of the autonomy of the will of the parties. It was thus always permissible for the parties to decide to apply the Convention, even in the cases covered by articles 2 and 3 [became CISG article 2 and CISG article 3 ].

62. Mr. TARKO (Austria) said that he was in favour of the proposal by the German Democratic Republic, which expressly stated that it was always possible to apply the Convention, even if the parties lived in non-Contracting States. Consequently, that proposal would enable possible conflicts of laws to be avoided.

63. Mr. BONELL (Italy) said that he too could accept in principle the proposal submitted by the German Democratic Republic, even though he considered that the principle of the autonomy of will of the parties was sufficiently clear. The provisions of articles 2 and 3 [became CISG article 2 and CISG article 3 ] did, however, raise problems. If the parties chose to apply the Convention to the cases referred to in those articles, it should be clearly stated that the mandatory provisions of national law should be respected and could not be excluded by the parties. He therefore proposed that the following provision, based on article 4 of the annex to ULIS, should be added to the wording proposed by the German Democratic Republic: "Even if this Convention is not applicable in accordance with articles 2 and 3 [became CISG article 2 and CISG article 3 ], it shall apply if it has been validly chosen by the parties, to the extent that it does not affect the application of any mandatory provisions of law which would have been applicable if the parties had not chosen this Convention".

The meeting was suspended at 11.45 a.m. and resumed at 12.10 p.m.

64. Mr. HJERNER (Sweden) said that, while the draft amendment by the German Democratic Republic was not without interest, its wording was unsatisfactory. For example, he would prefer the text drafted by the Working Group on the International Sale of Goods at the sixth session of UNCITRAL (A/36/17, annex I, paragraph 44), which had not, however, been adopted.

65. Mr. PLANTARD (France) said that he could agree to the text submitted by the German Democratic Republic, provided that it did not apply to article 2(a) [became CISG article 2(a) ]. If the Convention applied to sales to consumers, it would then be possible to evade the rules designed to protect them.

66. Mr. BOGGIANO (Argentina) said that the proposal by the German Democratic Republic was a reasonable one but that he did not think it could be accepted, because it would cast doubt on the application of mandatory national laws, such as those concerning sales to consumers or the sales covered by article 2 [became CISG article 2 ] (e) and (f). The Italian proposal, although interesting, also posed problems because it was difficult to specify what mandatory law should be maintained if the Convention could also be applied to the sales covered by articles 2 and 3 [became CISG article 2 and CISG article 3 ] . In the other cases, the principle of the autonomy of will of the parties seemed adequate. He thus did not support either of the proposals.

67. Mr. HERBER (Federal Republic of Germany) said that the parties were free to agree whether or not to apply the provisions of the Convention. If the proposal by the German Democratic Republic was to make the Convention prevail over mandatory law, he did not approve it and would prefer to leave the text as it stood. The Italian amendment also seemed to him superfluous.

68. The CHAIRMAN asked the representative of the German Democratic Republic if he would be prepared to exclude article 2(a) [became CISG article 2(a) ] from the scope of his proposed amendment, as requested by the representative of France. He would also like the Committee to decide, if that proposal was adopted, whether or not the text of article 5 [became CISG article 6 ] should be sent to the Drafting Committee.

69. Mr. WAGNER, (German Democratic Republic) said he accepted the suggestion by the representative of France. His proposal was intended to apply only to subparagraphs (b), (d), (e) and (f) of article 2 [became CISG article 2 ] ; he also had no objection to adopting the wording drafted by the Working Group on the International Sale of Goods at the sixth session of UNCITRAL. On the other hand, the limitations imposed by the Italian proposal appeared excessive. What was important to his delegation was not the wording of the proposal but the idea it expressed, and it was quite prepared to submit the text of the article to the Drafting Committee.

70. Mr. FOKKEMA (Netherlands) said that he could support the proposal of the German Democratic Republic, supplemented by that of the Italian delegation. On the other hand, the French representative's proposal seemed dangerous, because there were other mandatory provisions relating to other cases which should likewise be respected.

71. Mr. HJERNER (Sweden), speaking on a point of order, requested that the Italian amendment should be voted on separately, since it related to the substance of the article.

72. Mr. BONELL (Italy) said that he had submitted his proposal because that by the German Democratic Republic could make it possible to derogate from the mandatory provisions of a national law.

73. Mr. WAGNER (German Democratic Republic) reiterated that he could accept the subamendment proposed by the French delegation, but not that proposed by the Italian delegation.

74. Mr. EYZAGUIRRE (Chile) said he considered that the proposal by the German Democratic Republic was superfluous. Whether or not it was accepted, the autonomy of the parties would remain the same. However, if it was accepted, he would like it to be supplemented by the Italian amendment.

75. The CHAIRMAN invited the Committee to vote on the amendment proposed by the German Democratic Republic (A/CONF.97/C.1/L.32), with the subamendment proposed by France.

76. The amendment (A/CONF.97/C.1/L.32), as amended, was rejected.

77. Mr. MICCIO (Italy) withdrew his proposal, which had become pointless since the amendment proposed by the German Democratic Republic had been rejected.

78. The CHAIRMAN requested the representative of the Netherlands to submit his draft amendment, which had the same purport as that proposed by the Italian delegation but went less far.

79. Mr. FOKKEMA (Netherlands) read out his draft amendment to article 5 [became CISG article 6 ], which took into account the French proposal: "Even if this Convention is not applicable in accordance with the provisions of subparagraphs (b), (c), (d), (e) and (f) of article 2 [became CISG article 2 ] or those of article 3 [became CISG article 3 ] it shall apply if it has been validly chosen by the parties, to the extent that it does not affect the application of any mandatory provisions of law which would have been applicable if the parties had not chosen this Convention."

80. The CHAIRMAN invited the Committee to vote on the Netherlands draft amendment.

81. The Netherlands draft amendment was rejected.

82. The CHAIRMAN said that as a result of those votes, he understood that the Committee wished to retain the original text of article 5 [became CISG article 6 ].

83. Mr. DABIN (Belgium) proposed that a working group should be established to decide how article 5 [became CISG article 6 ] should be interpreted.

84. Mr. KOPAC (Czechoslovakia) said that the wording of article 5 [became CISG article 6 ] was acceptable, but the exceptions given in article 11 [became CISG article 12 ] were inadequate. Attention might subsequently be drawn to other mandatory provisions, in which case it would be necessary to revert to article 5 [became CISG article 6 ] at the end of the discussion.

85. The CHAIRMAN pointed out that the Belgian proposal raised a procedural question. It also assumed that only a minority of delegations was satisfied with the present text of article 5 [became CISG article 6 ]; and that did not seem to be the case, since all the amendments submitted had been rejected.

86. It was also possible, as the representative of Czechoslovakia had suggested, that other mandatory provisions might arise from the discussion, but there would still be time to take account of them in article 5 [became CISG article 6 ]. Anything was possible with regard to article 11 [became CISG article 12 ], since it had not yet been considered.

87. Miss O'FLYNN (United Kingdom), Mr. SHAFIK (Egypt) and Mr. SHORE (Canada) supported the Belgian representative's proposal.

88. Mr. HJERNER (Sweden) and Mr. MASKOW (German Democratic Republic) said they opposed the idea of establishing a working group, because the discussion on article 5 [became CISG article 6 ] was closed and, if such a working group was established, it could not revert to amendments which had already been rejected.

89. Mr. PLANTARD (France) endorsed the opinion of the two preceding speakers but suggested that the delegations for which article 5 [became CISG article 6 ] posed problems should meet to draft proposals which they could submit, if they saw fit, in a plenary meeting and which would be put to the vote during the second reading of article 5 [became CISG article 6 ].

90. The CHAIRMAN said that delegations were indeed free to submit amendments in a plenary meeting, but that it was not possible to set up an official working group to study an article, the wording of which had been maintained despite several draft amendments.

91. Mr. WANG Tian ming (China) said that he was in favour of the Belgian proposal, but would not insist on its adoption.

92. Mr. DABIN (Belgium) explained that, in his opinion, it was not a question of rediscussing the amendments but of deciding on the meaning of article 5 [became CISG article 6 ] and the interpretation to be given to it.

93. The CHAIRMAN suggested that even though the discussion was closed, all those who were not satisfied with article 5 [became CISG article 6 ] should meet to draft a clearer wording which would be considered at a later stage.

94. Mr. GORBANOV (Bulgaria) said that that suggestion was tantamount to reconsidering a matter on which the Committee had already taken a decision.

95. Mr. SHAFIK (Egypt) pointed out that, although the amendments had been rejected, the article had not yet been adopted, and that left delegations which wished to do so free to draft new proposals.

The meeting rose at 1.05 p.m.


Pace Law School Institute of International Commercial Law - Last updated January 29, 1999
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