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Guide to the Pace Database on the CISG and
International Commercial Law
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The United Nations Convention on Contracts for the
International Sale of Goods (CISG) is the uniform
international sales law of countries that account for
two-thirds of all world trade. As a service to the world trade
community, the Pace University School of Law offers an
annotated electronic library on the CISG on the World-Wide
Web. We present a guide to the contents of this database.
Underlined items in this guide identify website links.
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The challenge to CISG researchers is not a shortage of materials on
the subject, far more has been written on the CISG than on any other
new sales law. The challenges are locating the material you need (many
law libraries do not have an extensive collection of CISG material)
and getting to it expeditiously. The database is designed to help on both counts.
The database has been referred to as "a promising source"
for "persuasive authority from courts of other States party to
the CISG." MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova
D'Agostina, S.p.A., 144 F.3d 1384 n.14 (11th
Cir. 1998).
As interest in the CISG has grown, so too have Internet
"hits" on the site -- from 100,000 per month during 1999, to
over 30,000 "hits" per day during the last quarter of 2004. The persons who have accessed the site during 2004 are from 161 countries.
Initial research
- Begin with the Text
of the treaty. If the CISG is new to you, proceed to the
section of the database entitled, Introductions
to the CISG. It contains primers on the CISG for persons of
common law and civil law backgrounds.
A fundamental rule
- "In the interpretation of this Convention, regard is to be
had to its international character and to the need to promote
uniformity in its application." Article 7(1) of the CISG.
- "Judges and arbitrators are bound . . . to look beyond
local precedents and local modes of thought".[1]
Scholars are obligated to help the Bar and the bench by analyzing
the legislative history (travaux préparatoires) of the CISG and
its literature (doctrine) and case law (jurisprudence) as
thoroughly as possible in order to present the full picture of
interpretations and opinions to attorneys and jurists.[2]
The Annotated Electronic Library utilizes computer technology to
help make their responses available to you. These responses are
analyses of:
Case law, scholarly writings and legislative history
- Case law (jurisprudence) , scholarly writings (doctrine), and
legislative history (travaux préparatoires) are aids to
interpretation of the CISG. To research these aids to
interpretation, go
to our Annotated text of the CISG. For each article, the
annotated text contains links to material on its legislative
history, scholary writings, and case law. We provide an outline of
each article of the CISG, in many cases backed by a
"book" of material on the subjects it addresses.
- Each outline begins with a guide to the article. The Secretariat
Commentary is highlighted as it is the closest available
counterpart to an official commentary on the CISG. Under the
legislative history sections of the annotated texts, the
highlighted entry is a Chronology of the development of the
article at the 1980 Vienna Diplomatic Conference, the conference
at which the final text of the CISG was promulgated. Other
sections of the annotated texts contain "buttons" that
take you to case presentations, "buttons" that lead to
citations to doctrine on the CISG and, in many instances, full
texts of scholarly writings on this Convention. We also provide
words and phrases annotations, cross-reference editorial analyses,
links to related articles, and other relevant material.
- For further legislative history research, go to the legislative
history sections of the annotated articles and to the section of
the database entitled, Diplomatic
Conference texts and to the Diplomatic
Conference search form. For further access to scholarly
writings on subjects of interest, go to the Bibliography
and to its Search
form. Over 7,000 bibliography citations and over 800 full
texts of scholarly writings on the CISG are presented.
- For case law research, go to the Schedule
of cases by country and Search
form for cases of interest. Over 1,600 CISG cases are presented.
We also have initiated a case translation program. For data on the
status of this program, go
to full English texts of cases. Our Case presentation format
is: Case identification; Case abstract; Classification of issues
present; Editorial remarks; Citations to other material on the
case; Case text (including English translation where available);
Case commentaries. Not all of our Case presentations are as
complete as we would like them to be; we are working on this.
- The database identifies the countries
that have adopted the CISG with effective dates and
reservations where they apply. Texts
of antecedent uniform laws and Links
to other international trade law databases are provided. You
may also go to our collection of Full-texts
of scholarly writings on the CISG and the UNIDROIT Principles of
International Commercial Contracts.
Spirit of this database
- An important audience is the attorney who seeks to put his
client's best foot forward in a litigation. Where different
interpretations of a provision are available, we seek to present
them -- each in the author's own words. Counsel can select as he
sees fit. If he pleads a minority view, he is forewarned and can
conduct himself accordingly.
Caveats and search tips
- No statute can address specifically all situations that may
arise. For matters governed by this Convention which are not
expressly settled in it, the CISG's response is reliance on its
general principles (Article 7(2)). Its reliance on such principles
is greater than would be usual under the U.S. Uniform Commercial
Code but lesser than under many civilian codes. This means, look
not solely at individual articles of the CISG; examine each also
in the context of the entire text of the CISG. Common lawyers who
may be less used to reliance upon general principles can find this
more of a challenge than civilians.
- An example of the way the CISG works can be found in a review of
Josef Esser's classic text, Grundsatz und Norm in der
richterlichen Forbildung des Privatrechts: Rechtsvergleichende
Beitrage zur Rechtsquellen- und Interpretationslehre [see
Bibliography for translation of title and citation]: "A
promissor will thus be held to be bound not only to what he has
promised expressly but also to numerous 'auxiliary duties' of
protecting the interest of the obligee. The latter in turn has
been held to be bound to exercise his rights so as not
unnecessearily to burden the obligor." Max Rheinstein, 24
University of Chicago Law Review (1957) 602.
- The caveat by Honnold is: "[The CISG] presents a delicate
balance between (1) developing the Convention's general principles
and (2) recourse to domestic law -- a choice that inevitably will
be influenced by the traditions and mind-set of the tribunal. . .
. [C]ivil law practice is generally hospitable to the first
alternative and common law to the second. Which is more compatible
with the objectives of the Convention? This writer, although
nurtured in the common law, has come to believe that international
unification calls for us to re-examine our traditional
approach."[3]
- The CISG does not purport to answer all questions that can arise
in a transaction involving the international sale of goods.
Articles 1 through 5 identify the scope of the CISG and exclusions
from its coverage. Gaps include, inter alia, rights of third
parties, agency matters, competency of parties,
"validity" issues not expressly resolved in the CISG,
and the passing of property in goods sold. See especially
the Annotated Text of Article 4 for discussions of most of these
subjects. Because these subjects are not covered by the CISG, one
must turn to the gap-filling law, the law determined to be
applicable by virtue of the rules of private international law.
This means that for such subjects, one will not find answers in
the Annotated Electronic Library on the CISG.
- You will encounter words and phrases of the CISG that can be
confusing. For example, this Convention does not define
"avoidance" as one's dictionary does. Domestic analogs
to the CISG's "avoidance" include
"cancellation", "termination" or
"remission". The drafters of the CISG did not use such
domestic analogs because they did not want to carry them forward
with their domestic baggage. The legislative intent is to have the
CISG interpreted autonomously, without reference to such baggage.
Even so, domestic analogs can be helpful in your use of our
database search forms. For example, if you are searching for
commentaries on the CISG's term "avoidance", it would be
prudent also to enter search terms such as
"cancellation", "termination", and
"rescission" -- commentators sometimes use these more
familiar words in the titles to their articles. To further
illustrate the search-form benefits one can derive from the use of
domestic analogs, "force majeure" is a phrase nowhere
encountered in the CISG; the CISG talks instead in terms of
"exemptions" and "impediments". Nevertheless,
commentaries on these CISG terms often contain the phrase
"force majeure" in their titles. It is the same with
"warranties". The CISG does not refer to them. Its
phrase is "conformity with the contract".
- Other search tips (also illustrated in our annotated texts of
the CISG): Sometimes it is appropriate to enter "stem"
words on the Bibliography search form, e.g., warrant* which
captures both "warranty" and "warranties" in
commentary titles, or cancel* which captures both
"cancellation" (U.S. spelling) and "cancelation"
(British spelling). Also, when searching for phrases use the entry
place pre/1 business for "place of business", and
battle pre/2 forms for "battle of the forms" --
pre/1 for three-word phrases with preposition or article omitted;
pre/2 for four-word phrases with preposition and article omitted.
For further search tips, go to the section of the database
entitled, Search
mechanisms. Explanatory links also accompany each of our
search forms.
- Some provisions of the CISG were carried forward from a uniform
law antecedent. For example, Article 74, the CISG's general rule
on damages, is a carry-forward of Article 82 of the 1964 Hague
Uniform Law on International Sales (ULIS). When the CISG's
legislators carried forward a concept such as this in a similar
setting, it can be logically asserted that they intended to carry
it forward with the prior uniform law meaning attached to it.
There can be instances in which mining the travaux préparatoires,
doctrine and jurisprudence of CISG antecedents can help one
interpret the CISG. As stated by Audit, " The international
character of the Convention should encourage courts to refer to
the Convention's legislative history and prior instruments (i.e.,
the ULIS and [ULF]) in order to ascertain the most likely intent
underlying the wording of a given provision."[4]
We have included match-ups with CISG antecedents in our annotated
texts of the CISG.
- The CISG was promulgated in 1980. The UNIDROIT Principles of
International Commercial Contracts is a 1994 reference that can be
helpful. Researchers who are familiar with U.S. Restatements
should regard the Principles as akin to them. The Principles were
promulgated after the CISG. Therefore, they obviously cannot be
read retroactively into the minds of the drafters of the CISG.
Even so, the UNIDROIT Principles are being used increasingly by
arbitrators and others to resolve issues of interpretation not
clarified in the CISG.[5].
The Principles are accompanied by commentaries that contain
helpful illustrations. And, considering the eminent authorship of
the Principles, where they adopt a CISG concept -- which is often
the case -- the Principles would seem to be citable in CISG briefs
as illustrative of probable CISG intent. Where it seemed
appropriate, we have provided match-ups of the CISG with the
Principles.
An added feature of the database
Good luck with your research!
Albert H. Kritzer
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