CASE ANNOTATIONS: UNCITRAL DIGEST CASES PLUS ADDED CASES
UNCITRAL has identified relevant cases in Digests containing case annotations for each article of the CISG. UNCITRAL cites 34 cases in its Digest of Art. 9 case law:
| Argentina |
2 |
European Court |
1 |
Italy |
1 |
| Austria |
5 |
Finland |
1 |
Russian Federation |
2 |
| Belgium |
3 |
France |
2 |
Switzerland |
2 |
| China |
1 |
Germany |
7 |
United States |
2 |
| Denmark |
1 |
ICC |
4 |
TOTAL |
34 |
Presented below is a composite list of Art. 9 cases reporting UNCITRAL Digest cases and other Art. 9 cases. All cases are listed in chronological sequence, commencing with the most recent. Asterisks identify the UNCITRAL Digest cases, commencing with the 10 May 2002 citation reported below. Cases are coded to the UNCITRAL Thesaurus.
English texts and full-text English translations of cases are provided as indicated. In most
instances researchers can also access from this list UNCITRAL abstracts and link to
Unilex abstracts and full-text original-language case texts sourced from Internet websites
and other data, including commentaries by scholars, to the extent available.
There are scholars who believe that there are circumstances in which the UNIDROIT Principles of International Commercial Contracts may be used to interpret or supplement this Article of the CISG. See match-up of this Article with counterpart provisions of the Principles and commentary on this subject. To the extent this reasoning fits, cases on the counterpart provisions of the UNIDROIT Principles may be relevant. To the extent available, such cases may be found on the Unilex website.
United States 15 April 2009 U.S. District Court [New Jersey] (San Lucia S.r.l. v. Import & Storage Services, LLC) 9D1
Italy 11 December 2008 Tribunale di Forli [District Court] (Mitias v. Solidea S.r.l.) [translation available]
Slovak Republic 12 November 2008 Supreme Court (Baked and confectionary goods case) 9C [translation available]
Australia 24 October 2008 Federal Court [South Australia District] (Hannaford v Australian Farmlink Pty Ltd)
Slovak Republic 19 June 2008 Supreme Court (Health care products case) 9B [translation available]
Germany 12 June 2008 Landgericht [District Court] Landshut (Metalic slabs case) 9D1 [translation available]
Netherlands 22 May 2008 Gerechtshof [Appellate Court] 's-Gravenhage (Tes Installatietechniek B.V. v. Miron N.V and R. Dillen N.V.)
Switzerland 19 May 2008 Cour supreme du canton [Appellate Court] Berne
United States 9 May 2008 U.S. District Court [Delaware] (Solae, LLC v. Hershey Canada, Inc.) 9C
Slovak Republic 30 April 2008 Supreme Court (Health care products case) 9C [translation available]
Australia 14 March 2008 Supreme Court of South Australia (Vetreria Etruscia S.r.l. v Kingston Estate Wines Pty Ltd)
Netherlands 27 February 2008 Rechtbank [District Court] Breda (Interland Chemie BV v. Tessenderlo Chemie NV)
Slovak Republic 25 October 2007 Regional Court [District Court] Zilina (Elastic fitness clothing case) 9C [translation available]
American Arbitration Association 23 October 2007 [Interim Award] (Macromex Srl. v. Globex International Inc.) 9C
Australia 12 October 2007 District Court of South Australia (Kingston Estate Wines Pty Ltd v Vetreria Etruscia S.r.l.)
Slovak Republic 18 June 2007 Regional Court Zilina (Baked and confectionary goods case) 9C [translation available]
Netherlands 29 May 2007 Gerechtshof [Appellate Court] 's-Hertogenbosch 9C [translation available]
Germany 17 January 2007 Oberlandesgericht [Appellate Court] Saarbrücken (Marble panel case) 9C [translation available]
Netherlands 17 January 2007 Rechtbank [District Court] Arnhem (Hibro Compensatoren B.V. v. Trelleborg Industri Aktiebolag) 9C [translation available]
France 22 December 2006 Tribunal de grande instance [District Court] Strasbourg (Cathode ray tube case) 9C [translation available]
Germany 23 October 2006 Landgericht [District Court] Bamberg (Plants case) [translation available]
United States 12 September 2006 Federal Appellate Court [11th Circuit Court of Appeals] (Treibacher Industrie, A.G. v. Allegheny Technologies, Inc.) 9B ; 9C
Germany 29 June 2006 Landgericht [District Court] Gera (Laser system case) 9C [translation available]
Belgium 24 April 2006 Hof van Beroep [Appellate Court] Antwerpen (GmbH Lothringer Gunther Grosshandelsgesellschaft für Bauelemente und Holzwerkstoffe v. NV Fepco International) 9D [translation available]
Russia 13 April 2006 Arbitration Award 105/2005 9B ; 9C [translation available]
United States 13 April 2006 Federal District Court [State of Washington] (Barbara Berry, S.A. de C.V. v. Ken M. Spooner Farms, Inc.)
United States 7 February 2006 Federal District Court [Texas] (China North Chemical Industries v. Beston Chemical Corporation)
China February 2006 CIETAC Arbitration Award [CISG 2006/16] (Fluorite case) 9C [translation available]
Germany 21 December 2005 Oberlandesgericht [Appellate Court] Köln (Trade usage case) 9B ; 9C [translation available]
China 7 December 2005 CIETAC Arbitration Award [CISG/2005/05] (Heaters case) 9D [translation available]
Germany 6 December 2005 Oberlandesgericht [Appellate Court] Hamm (Used motorcar parts case) 9C [translation available]
Canada 28 October 2005 Superior Court of Justice, Ontario (Chateau des Charmes Ltd v. Sabaté USA Inc. et al.)
Austria 31 August 2005 Oberster Gerichtshof [Supreme Court] (Tantalum case) 9C [translation available]
Austria 8 August 2005 Oberlandesgericht [Appellate Court] Linz (Spacers for insulation glass case) [translation available]
Switzerland 5 July 2005 Obergericht [Appellate Court] Zug (Diesel oil case) [translation available]
United States 27 April 2005 U.S. District Court [Alabama] (Treibacher Industrie, A.G. v. TDY Industries, Inc.) 9A ; 9B ; 9C
Mexico 10 March 2005 Primer Tribunal Colegiado en Materia Civil del Primer Circuito [Appellate Court] (Kolmar Petrochemicals v. Idesa Petroquímica) 9A [translation available]
China 21 February 2005 CIETAC Arbitration Award [CISG 2005/14] (Equipment case) 9C [translation available]
Netherlands 10 February 2005 Netherland Arbitration Institute (interim award) 9C [English text]
Austria 1 February 2005 Oberlandesgericht [Appellate Court] Innsbruck (Powdered tantalum case) 9D2 [translation available]
Belgium 25 January 2005 Rechtbank van Koophandel [District Court] Tongeren (Scaforn International BV & Orion Metal BVBA v. Exma CPI SA) 9A ; 9C [translation available]
Austria 14 December 2004 Oberster Gerichtshof [Supreme Court] 9C [translation available]
China 2 December 2004 Higher People's Court [Appellate Court] of Jiangsu Province (China Changzhou Kairui Weaving and Printing Company v. Taiwan Junlong Machinery Company)
Belgium 11 October 2004 Hof van Beroep [Appellate Court] Ghent (NV Frans Bijttebier-Bouckaert v. BV Nooteboom International) 9C [translation available]
Switzerland 11 October 2004 Kantonsgericht [Canton Court] Freiburg 9C [translation available]
Germany 6 October 2004 Oberlandesgericht [Appellate Court] Frankfurt 9C [translation available]
Germany 27 July 2004 Landgericht [District Court] Kiel (Fat for frying case) 9D2 [translation available]
Austria 9 July 2004 Landesgericht [District Court] Innsbruck
Germany 1 June 2004 Landgericht [District Court] Saarbrücken (Pallets case) [translation available]
Italy 31 March 2004 Tribunale [District Court] Padova [translation available]
Belgium 24 March 2004 Rechtbank van Koophandel [Commercial Court] Brussel
Netherlands 17 March 2004 Rechtbank [District Court] Arnhem 9C [translation available]
Italy 25 February 2004 Tribunale [District Court] Padova [translation available]
Russia 16 February 2004 Arbitration Award 107/2002 9D2 [translation available]
Germany 30 January 2004 Oberlandesgericht [Appellate Court] Düsseldorf
Belgium 27 January 2004 Cour d'appel [Appellate Court] Liège (Reinfenrath Geflugel GmbH v. SA Herelixha) 9C [translation available]
Austria 17 December 2003 Oberster Gerichtshof [Supreme Court] 9C [translation available]
China 10 December 2003 CIETAC Arbitration Award [CISG 2003/04] (Agricultural tools dumped products case) 9C [translation available]
Switzerland 24 October 2003 Handelsgericht [Commercial Court] Zürich 9C [translation available]
France 10 September 2003 Cour d’appel [Appellate Court] Paris
Switzerland 4 August 2003 Bundesgericht [Federal Supreme Court] 9C [translation available]
Argentina 2 July 2003 Commercial Court of Original Jurisdiction, Buenos Aires (Arbatax S.A. Reorganization Proceeding) 9B [translation available]
United States 11 June 2003 U.S. Circuit Court of Appeals [5th Cir.] (BP Oil International v. Empresa Estatal Petroleos de Ecuador) 9B
Russia 6 June 2003 Arbitration Award No. 97/2002 9C [translation available]
Belgium 28 April 2003 Cour d’appel [Appellate Court] Liège 9C ; 9D [translation available]
Netherlands 23 April 2003 Gerechtshof [Appellate Court] 's-Gravenhage 9B [translation available]
Argentina April 2003 Juzgado Comercial [Commercial Court] Buenos Aires (Loma S.A. v. Cosvega SL)
Belgium 19 March 2003 Rechtbank van Koophandel [District Court] Veurne
Argentina 17 March 2003 Juzgado Comercial [Commercial Court] Buenos Aires (Wacker-Polymer Systems GmbH v. Glaube S.A. et al.)
Austria 27 February 2003 Oberster Gerichtshof [Supreme Court] 9B ; 9C [translation available]
Netherlands 22 January 2003 Rechtbank [District Court] Zwolle
Australia 17 January 2003 Supreme Court of Western Australia (Ginza Pte Ltd v Vista Corporation Pty Ltd) 9C
Spain 8 January 2003 Audiencia Provincial [Appellate Court] Barcelona
ICC 2003 International Court of Arbitration Case 12097 (CISG / Unidroit Principles case)
Russia 20 December 2002 Arbitration Court [Appellate Court] for the Volgo-Vyatsky Region 9C [translation available]
Italy 26 November 2002 Tribunale [District Court] Rimini [translation available]
Germany 25 November 2002 Oberlandesgericht [Appellate Court] Saarbrücken [translation available]
China 4 November 2002 CIETAC Arbitration Award [CISG 2002/08] (Beech log case) 9B [translation available]
Netherlands 16 October 2002 Gerechtshof [Appellate Court] 's-Hertogenbosch 9B
Netherlands 15 October 2002 Netherlands Arbitration Institute Case No. 2319 [English text]
China 9 October 2002 CIETAC Arbitration Award [CISG 2002/13] (Elevator case) 9C [translation available]
United States 21 August 2002 U.S. District Court [Southern Dist. NY] (Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc.) 9D1
* United States 10 May 2002 U.S. District Court [Southern Dist. NY] (Geneva Pharmaceuticals
Tech. Corp. v. Barr Labs. Inc.) 9D1
Finland 12 April 2002 Hovrätt [Appellate Court] Turku 9D1 [translation available]
* United States 26 March 2002 U.S District Court [Southern Dist. NY] (St. Paul Insurance v. Neuromed) 9D2
Austria 7 March 2002 Oberlandesgericht [Appellate Court] Graz 9A [translation available]
Germany 20 February 2002 [District Court] München 9D2 [translation available]
* Belgium 18 February 2002 Rechtbank van Koophandel [District Court] Ieper 9C
Denmark 31 January 2002 Sø og Handelsretten [Maritime and Trade Court] 9D1 [translation available]
United States 17 December 2001 U.S. District Court [Michigan] (Shuttle Packaging v. Tsonakis) 9C
Germany 12 November 2001 Oberlandesgericht [Appellate Court] Hamm (Memory module case) 9D2 [translation available]
* Austria 22 October 2001 Oberster Gerichtshof [Supreme Court] 9E [translation available]
Belgium 3 October 2001 Rechtbank van Koophandel [District Court] Kortrijk 9C
Russia 17 September 2001 Arbitration Award No. 16/1999 9A [translation available]
United States 18 July 2001 U.S. District Court [Illinois] (Zapata v. Hearthside) 9C
Russia 30 May 2001 Arbitration Award No. 185/2000 9C [translation available]
* Belgium 25 April 2001 Rechtbank van Koophandel [District Court] Veurne 9C [translation available]
* Denmark 15 February 2001 Højesteret [Supreme Court] 9C [translation available]
Germany 14 February 2001 Oberlandesgericht [Appellate Court] Saarbrücken 9B [translation available]
Germany 31 January 2001 Landgericht [District Court] Hamburg (Frozen pork and apple blinies case) 9C [translation available]
* Belgium 29 January 2001 Rechtbank van Koophandel [District Court] Ieper
Finland 26 October 2000 Helsingin hoviokeus [Helsinki Court of Appeals] 9A ; 9B ; 9C ; 9D [translation available]
* Russia 6 June 2000 Arbitration award 406/1998 9B [translation available]
Belgium 13 April 2000 Rechtbank van Koophandel [District Court]
* Germany 13 April 2000 Amtsgericht [Lower Court] Duisburg 9C [translation available]
Germany 6 April 2000 Landgericht [District Court] München 9C [translation available]
Lithuania 27 March 2000 Lietuvos Apeliacinio [Appellate Court]
* Austria 21 March 2000 Oberster Gerichtshof [Supreme Court] 9D [translation available]
Russia 24 January 2000 Arbitration award 54/1999 9C [translation available]
Russia 17 January 2000 Arbitration award 28/1998 [translation available]
China 31 December 1999 CIETAC Arbitration Award 9A [translation available]
* France 21 October 1999 Cour d'appel [Appellate Court] Grenoble 9C [translation available]
Switzerland 5 October 1999 Obergericht [Appellate Court] Basel [translation available]
Belgium 4 October 1999 Rechtbank van Koophandel [District Court] Hasselt 9C
ICC August 1999 International Court of Arbitration, Case 9083 9D1 [translation available]
China 30 June 1999 CIETAC Arbitration Award [CISG/1999/30] (Peppermint oil case) 9A [translation available]
Russia 10 June 1999 Arbitration award 55/1998 9C [translation available]
China June 1999 PRC Arbitration award 9C [translation available]
China 21 May 1999 CIETAC Arbitration Award [CISG/1999/26] (Excavator case) 9A ; 9C [translation available]
Switzerland 8 April 1999 Handelsgericht [Commercial Court] Zürich 9C [translation available]
China 30 March 1999 CIETAC Arbitration Award [CISG/1999/16] (Flanges case) 9B [translation available]
China 30 March 1999 CIETAC Arbitration Award [CISG/1999/17] (Electric heater case) 9B [translation available]
* Germany 19 March 1999 Landgericht [District Court] Zwickau
European Court of Justice 16 March 1999 (Transporti Castelleti v. Hugo Trumpy) 9B
China 13 January 1999 CIETAC Arbitration Award [CISG/1999/05] (Latex gloves case) 9C [translation available]
ICC 1999 International Court of Arbitration, Case 9773 9D
Germany 29 December 1998 Hamburg Arbitration award [translation available]
China 15 December 1998 CIETAC Arbitration Award [CISG/1998/09] (Shirt case) 9A [translation available]
Germany 24 November 1998 Landgericht [District Court] Bielefeld 9C [translation available]
Switzerland 5 November 1998 Bezirksgericht [District Court] Sissach 9D [translation available]
* Austria 15 October 1998 Oberster Gerichtshof [Supreme Court] 9B ; 9D [translation available]
Germany 5 October 1998 Oberlandesgericht [Appellate Court] Hamburg 9B [translation available]
* ICC October 1998 International Court of Arbitration, Case 9333 [translation available]
Italy 7 August 1998 Corte di Cassazione [Supreme Court] 9C
* Germany 9 July 1998 Oberlandesgericht [Appellate Court] Dresden 9A ; 9C [translation available]
Russia 25 June 1998 Arbitration award 478/1996 9D2 [translation available]
United States 6 April 1998 Federal District Court [Southern Dist. NY] (Calzaturificio Claudia v. Olivieri Footwear) 9C
Austria 10 March 1998 Oberster Gerichtshof [Supreme Court] 9C [translation available]
ICC March 1998 International Court of Arbitration, Case 9117 9D1 [English text]
Spain 17 February 1998 Tribunal Supremo [Supreme Court] [3587/1996]
* Finland 29 January 1998 Helsingin hovioikeus [Appellate Court] Helsinki 9A ; 9B [translation available]
Germany 21 January 1998 Oberlandesgericht [Appellate Court] München (Insulating materials case) 9B [translation available]
Austria 10 December 1997 Vienna Arbitration award S 2/97 9A ; 9C [translation available]
* Switzerland 3 December 1997 Zivilgericht [District Court] Basel 9C ; 9D2 [translation available]
* ICC December 1997 International Court of Arbitration, Case 8817 9D1 [translation available]
Netherlands 7 November 1997 Hoge Raad [Supreme Court] 9C
Switzerland 26 September 1997 Handelsgericht [Commercial Court] Aargau (Cutlery case) 9C [translation available]
Germany 18 September 1997 Landgericht [District Court] Hamburg
China 5 August 1997 CIETAC Arbitration Award [CISG/1997/25] (Cold-rolled coils case) 9A [translation available]
China 31 July 1997 CIETAC Arbitration Award [CISG/1997/24] (Axle sleeves case) 9A ; 9C [translation available]
Germany 18 July 1997 Landgericht [District Court] Saarbrücken
China 25 June 1997 CIETAC Arbitration Award [CISG/1997/16] (Art paper case) 9A [translation available]
Germany 19 June 1997 Landgericht [District Court] Hamburg
* Russia 5 June 1997 Arbitration award 229/1996 9D2 [translation available]
China 7 May 1997 CIETAC Arbitration Award [CISG/1997/11] (Sanguinarine case) 9A [translation available]
Germany 17 April 1997 Landgericht [District Court] Frankenthal
China 15 April 1997 CIETAC Arbitration Award [CISG/1997/06] (Germanium case) 9A [translation available]
China 1 April 1997 CIETAC Arbitration Award [CISG/1997/02] (Fishmeal case) [translation available]
Netherlands 5 March 1997 Arrondissementsrechtbank [District Court] Zwolle 9B
Russia 21 February 1997 Arbitration award 373/1995 9C
* European Court of Justice 20 February 1997 (Mainschiffahrts-Genossenschaft v. Gravihres Rhinanes) 9D2
China 6 February 1997 CIETAC Arbitration Award [CISG/1997/38] (Silicon-carbide case) 9A [translation available]
* ICC 23 January 1997 International Court of Arbitration, Case 8611 9C [translation available]
Germany 8 January 1997 Oberlandesgericht [Appellate Court] Köln [translation available]
ICC January 1997 International Court of Arbitration, Case 8786 9C [English text]
Russia 25 December 1996 High Arbitration Court: Information Letter 10 9D [translation available]
China 23 December 1996 CIETAC Arbitration Award [CISG/1996/57] (Carbazole case) 9C [translation available]
China 17 December 1996 CIETAC Arbitration Award [CISG/1996/55] (Hot-rolled steel plates case) 9B [translation available]
Austria 9 December 1996 Bezirksgericht [District Court] Wels
China 17 October 1996 CIETAC Arbitration Award [CISG/1996/47] (Tinplate case) 9D [translation available]
Russia 26 September 1996 Arbitration award 433/1994 9C [translation available]
Germany 21 June 1996 Hamburg Arbitration award [translation available]
Netherlands 24 April 1996 Gerechtshof [Appellate Court] 's Hertogenbosch 9D1
Germany 17 April 1996 Landgericht [District Court] Duisburg [translation available]
Germany 28 February 1996 Landgericht [District Court] Oldenburg (Egg case) 9C [translation available]
* Austria 6 February 1996 Oberster Gerichtshof [Supreme Court] 9B ; 9D2[translation
available]
Hungary 5 December 1995 Budapest Arbitration award Vb 94131 9C [translation available]
* Austria 9 November 1995 Oberlandesgericht [Appellate Court] Graz 9B [translation available]
Argentina 31 October 1995 Cámara Nacional de Apelaciones en lo Comercial [Appellate
Court]
* France 13 September 1995 Cour d'appel [Appellate Court] Grenoble 9C [translation
available]
* Germany 5 July 1995 Oberlandesgericht [Appellate Court] Frankfurt 9B [translation available]
China 15 May 1995 CIETAC Arbitration Award [CISG/1995/09] (Copper cable case) 9B [translation available]
China 23 April 1995 CIETAC Arbitration Award [CISG/1995/07] (Australian raw wool case) 9B [translation available]
France 6 April 1995 Cour d'appel [Appellate Court] Paris 9A [translation available]
* Italy 24 March 1995 Cour di Appello [Appellate Court] Genova 9B [translation available]
China 10 March 1995 CIETAC Arbitration Award [CISG/1995/03] (Pellicle resin case) 8C [translation available]
ICC March 1995 International Court of Arbitration, Case 7645 9A ; 9B [English text]
ICC March 1995 International Court of Arbitration, Case 8213 9B [English text]
Germany 8 February 1995 Oberlandesgericht [Appellate Court] Hamm 9B [translation available]
* ICC 1995 International Court of Arbitration, Case 8324 9B ; 9D2 [translation available]
* Argentina 6 October 1994 Juzgado Nacional de Primera Instancia en lo Comercial [National Commercial Court of First Instance] 9D2 [translation available]
China 5 September 1994 Xiamen Intermediate People's Court Economic Chamber (Xiamen Trade v. Lian Zhong) 9D1
* Germany 6 July 1994 Landgericht [District Court] Frankfurt 9B
Netherlands 6 May 1994 Arrondissementsrechtbank [District Court] 's Hertogenbosch 9C
Argentina 18 March 1994 Juzgado Nacional de Primera Instancia en lo Comercial [National
Commercial Court of First Instance]
China 10 July 1993 CIETAC Arbitration Award [CISG/1993/09] (Heliotropin case) 9D [translation available]
Germany 14 May 1993 Landgericht [District Court] Aachen [translation available]
Germany 8 February 1993 Landgericht [District Court] Verden
* Germany 13 January 1993 Oberlandesgericht [Appellate Court] Saarbrücken (Doors case) 9B [translation available]
ICC 1993 International Court of Arbitration, Case 6653 [translation available]
* Switzerland 21 December 1992 Zivilgericht [Civil Court] Basel 9C ; 9D2 [translation available]
Germany 20 November 1992 Oberlandesgericht [Appellate Court] Karlsruhe (Frozen chicken case) 9C [translation available]
Hungary 24 March 1992 Fovárosi Bíróság [Metropolitan Court] 9C
Germany 23 March 1992 Landgericht [District Court] Saarbrücken
ICC 1992 International Court of Arbitration, Case 7153 9C [translation available]
China 16 December 1991 CIETAC Arbitration Award [CISG/1991/05] (Cold-rolled steel plates case) 9A [translation available]
* Argentina 23 October 1991 Juzgado Nacional de Primera Instancia en lo Comercial [National Commercial Court of First Instance] 9B [translation available]
China 6 June 1991 [date claim filed] Shenzhen CIETAC Arbitration award 9A [translation available]
Argentina 20 May 1991 Juzgado Nacional de Primera Instancia en lo Comercial [National Commercial Court of First Instance] 9A [translation available]
* Germany 26 September 1990 Landgericht [District Court] Hamburg 9B
Austria 7 June 1990 Oberster Gerichtshof [Supreme Court] (Furniture case)
* China post-1989 [date claim filed] CIETAC Arbitration award (Contract #QFD890011) 9C [translation available]
ICC 1989 International Court of Arbitration, Case 5713 9B [English text]
ICC 1989 International Court of Arbitration, Case 6281
CASE DIGEST AND ANALYSIS
- UNCITRAL's case law digest; and
- An analysis of CISG jurisprudence
The UNCITRAL Digest of case law on the United
Nations Convention on the International Sale of Goods [*]
A/CN.9/SER.C/DIGEST/CISG/9 [8 June 2004]
Reproduced with the permission of UNCITRAL
[Text of Article 9
Digest of Article 9 case law
- Usages agreed to and practices established between the parties
- Binding international trade usages (Article 9, paragraph 2)
- Letter of confirmation, INCOTERMS and UNIDROIT Principles]
| ARTICLE 9
(1) The parties are bound by any usage to which they have agreed and by any
practices which they have established between themselves.
(2) The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.
|
DIGEST OF ARTICLE 9 CASE LAW
1. This provision describes the extent to which usages and practices established between the parties are binding on the parties to the contract.[1] In doing so, it makes a distinction between usages to which the parties have agreed and the practices which they have established (paragraph 1) on the one hand, and other relevant usages which bind the parties even in the absence of any agreement (paragraph 2) on the other hand.
2. Whether the usages that may bind the parties are valid, is an issue that falls outside the Convention's scope;[2] the Convention merely deals with their applicability;[3] consequently, the validity of usages is to be evaluated on the basis of the applicable domestic law.[4] Where the usages are valid, they prevail over the provisions of the Convention, independently of whether they bind the parties pursuant to article 9(1) or article 9(2).[5]
Usages agreed to and practices established between the parties
3. Pursuant to article 9(1), the parties are bound by any usage to which they have agreed. As far as this agreement is concerned, one court pointed out that it must not necessarily be made explicitly,[6] but that it can also be made implicitly.[7]
4. That court also pointed out that the usages article 9(1) refers to do not have to be usages that are internationally accepted, unlike under article 9(2); consequently, where the parties agree on local usages, these local usages bind the parties as much as international usages agreed to by them.[8] In a different case, that same court also stated that the usages the parties agree to do not have to be widely known in order to be binding pursuant to article 9(1).[9]
5. As expressly stated in article 9(1), the parties are also bound by practices established between themselves, a principle which according to one arbitral tribunal "was extended to all international commercial contracts by the UNIDROIT Principles. Principle 1.8 provides that "the parties are bound by any usage to which they have agreed and by any practices which they have established between themselves."[10]
6. As for examples of practices established between the parties are concerned, one arbitral tribunal stated for instance that "a prompt delivery of replacement parts had become normal practice as defined by article 9(1) of the [Convention]."[11] In another case,[12] a court held that since the Italian seller had been complying with the buyer's
orders for months without inquiring about the buyer's solvency, when the seller
decided to assign its foreign receivables by means of a factoring contract and
to suspend its business relationship with the buyer, it should have taken into
account the buyer's interest; as a consequence, the court found the seller
liable for abrupt discontinuance of business relations between parties bound by
long-standing practices. In a different case [13] (in which
the conclusion of the international sales contract was in dispute), after
pointing out that the seller had not proved, as it alleged, that it had not
received the orders from the buyer, that same court held that the seller could
not invoke the rule laid down in Art. 18 CISG (providing that silence does not
in itself amount to acceptance) because, according to the practices previously
established between the parties, the seller was used to performing the orders
without expressly accepting them.
7. The
Convention does not state when it is possible to speak of "practices
established between the parties". According to some courts, for these practices
to be binding on the parties pursuant to article 9(1), it is necessary that the
parties' relationship lasts for some time and that it has led to the conclusion
of various contracts. One court expressly emphasized this requirement, as it
stated that the practice it had to decide upon "does not establish usage in the meaning of [article 9(1)], which would require a conduct regularly observed between the parties and thus requiring a certain duration and frequency [...]. Such duration and frequency does not exist where only two previous deliveries have been handled in that manner. The absolute number is too low".[14] This rationale also underlies a decision by a different court that dismissed the seller's allegation that the indication on the invoice of the seller's bank account established a practice between the parties under which the buyer was bound to pay at the seller's bank. Although the court left open the issue of whether the parties concluded one or two different contracts for the delivery of two ship cargoes, it held that under article 9(1) of the Convention two contracts were insufficient to establish a practice between the parties. According to the court, in order for a practice between the parties to be established, a long lasting contractual relationship involving more contracts of sale between the parties is required.[15] Similarly, another court stated that one prior dealing between the parties did not lead to "practices" in the sense of article 9(1).[16] According to yet another court, however, "[i]t is generally possible that intentions of one party, which are expressed in preliminary business conversations only and which are not expressly agreed upon by the parties, can become "practices" in the sense of article 9 of the Convention already at the beginning of a business relationship and thereby become part of the first contract between the parties. This, however, requires at least (article 8) that the business partner realizes from these circumstances that the other party is only willing to enter into a contract under certain conditions or in a certain form".[17]
8. As for the burden of proof, several courts stated that it is the party alleging the existence of practices established between themselves or usages agreed upon that bears it.[18]
Binding international trade usages (Article 9(2))
9. By virtue of article 9(2), even in the absence of any agreement of the parties to that effect, the parties to an international sales contract may nevertheless be bound by specific trade usages, as long as these trade usages are usages that the parties knew or ought to have known and which in international trade are widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned. One court construed article 9(2) differently, without limiting the applicable usages to the ones that meet the aforementioned requirements. According to that court, "the usages and practices of the parties or the industry are automatically incorporated into any agreement governed by the Convention, unless expressly excluded by the parties".[19]
10. In any case, usages that are binding on the parties pursuant to article 9(2) prevail over the conflicting provisions of the Convention.[20] In case of a conflict between the usages applicable by virtue of article 9(2) and clauses contained in the contract, these clauses prevail, as the primary source of the international sales subject to the Convention is party autonomy, as can also be derived from the introductory language of article 9(2).[21]
11. As mentioned above in para. 9, in order to be binding, any usage must or ought to be known by the parties, and must be widely known in the international trade and regularly observed. According to one court this does not mean that solely international usages can bind the parties. The court stated that it is also possible that, in certain circumstances, a local usage may be applicable to the contract. This is particularly the case with respect to usage applied within local commodity exchanges, fairs and warehouses, provided that such usage is regularly observed also with respect to businesses involving foreign dealers. The Court also stated that even a local usage applied only in a particular country may be applicable to a contract involving a foreign party, provided that the foreign party does business in the particular country on a regularly basis and that it has concluded several contracts of the same manner in the same particular country.[22]
12. As far as the requirement that any usage must be known or ought to be known to the parties in order to bind them is concerned, one court [23] stated that a usage can bind a party only if it either has its place of business in the geographical area where the usage is applicable, or if the party permanently deals within the area where the usage is applicable. In an earlier decision, that court had already made a similar statement:[24] according to the court, a party to an international sales contract has to be familiar only with those international trade usages that are commonly known and regularly observed by parties to contracts of that specific branch in the specific geographic area where the party in question has his or her place of business.
13. As for the burden of proof, there is no difference between these usages and the usages agreed upon by the parties or the practices established between them:[25] the party that alleges the existence of any binding usage has to prove it, at least in those legal systems that consider the issue as being one of fact.[26] Where the party that carries the burden of proof does not succeed in proving it, the usages will not be binding. In one case this led a court[27] to find that since the buyer had not proven that an international trade usage existed that says that silence to a commercial letter of confirmation is sufficient for the contract to be concluded with the content of that letter, the contract was concluded with a different contents. In another case, failure to prove an alleged usage led a court to affirm that it had no jurisdiction; which the claimant exclusively based on a trade usage which, if it existed, would have allowed the court to hear the case.[28] In yet another case,[29] a court noted that although usual requirements for the formation of a contract under the Convention could be modified by usages, a usage to conclude contracts on the basis of rules different from those to be found in articles 14 to 24 of the Convention had not been proven, consequently the court applied the formation rules of the Convention. Another court relied on the fact that the party alleging a trade usage by virtue of which the place of performance was located in that party's country could not prove the existence of such trade usage to state that the place of performance was in the seller's country.[30] The European Court of Justice also referred to the issue of burden of proof when stated that for silence in response to a letter of confirmation to amount to acceptance of the terms contained therein "it is necessary to prove the existence of such a usage on the basis of the criteria set out" in article 9(2) of the Convention.[31]
14. Several examples of courts resorting to usages should be mentioned. In one case,[32] an arbitral tribunal held that the revision of the price is a usage regularly observed by parties to contracts of the type involved in the particular trade (of minerals) concerned. In another case,[33] a court held that the bill of exchange given by the buyer had validly modified the contract according to article 29(1) of the Convention to the effect that the date of payment of the purchase price was postponed until the date when the bill of exchange was due. In reaching this conclusion, the court took into account the existence of an international trade usage to this effect and its relevance pursuant to article 9(2) of the Convention. In yet another case,[34] a court stated that a trade usage existed in the particular trade concerned in respect of the examination of the goods sold, according to which the buyer has to give the seller an opportunity to be present while checking the goods.
15. Several courts referred to usages to solve the issue of what interest rate should be applied to late payments. One and the same court expressly referred to international trade usages on the basis of article 9(2) of the Convention to solve the issue. In one case, the court stated that payment of interest "at an internationally known and used rate such as the Prime Rate" constituted "an accepted usage in international trade, even when it is not expressly agreed between the parties".[35] In another case, that court held the same view, but in doing so it also stated that the "Convention attributes [to international trade usages] a hierarchical position higher than that of the provisions of the Convention."[36]
Letter of confirmation, INCOTERMS and UNIDROIT Principles
16. Several cases dealt with the issue of whether silence in response to a letter of confirmation signifies agreement to the terms contained in that letter of confirmation. One court [37] stated that "due to the requirement of internationality referred to in article 9(2), it is not sufficient for the recognition of a certain trade usage if it is only valid in one of the two Contracting States. Therefore, [in order to bind the parties], the rules on commercial letters of confirmation would have to be recognized in both Contracting States and it would have to be concluded that both parties knew the consequences [...]. It is not sufficient that the trade usage pertaining to commercial letters of confirmation exists only at the location of the recipient of the letter." Since, however, the law of one of the States involved did not acknowledge the contractual effects of silence in response to a letter of confirmation, the court found that the terms contained in the letter of confirmation had not become part of the contract. In doing so, the court pointed out, however, that although there was no room for rules on silence in response to a letter of confirmation, "a letter of confirmation can have considerable importance in the evaluation of the evidence". Another court,[38] after holding that the letter of confirmation "only has contractual effect in the meaning of the Convention, if this form of contract formation can be qualified as commercial practice under article 9 of the Convention", stated that a commercial usage in the sense of article 9(2) existed, since in the countries in which the parties had their places of business "the contractual effect of commercial communications of confirmation (in domestic contractual relations) is not denied" and since the "parties recognized the legal effects of such a communication and also had to take into account that they might be held to those legal effects."[39] Yet another court rejected the idea that the aforementioned rules on the effects of silence to a letter of confirmation may be relevant where the Convention is applicable.[40]
17. One court dealt with the relationship between the article 9(2) and INCOTERMS.[41] After observing that "the aim of INCOTERMS, which stands for international commercial terms, is to provide a set of international rules for the interpretation of the most commonly used trade terms in foreign trade" and that "these trade terms are used to allocate the costs of freight and insurance in addition to designating the point in time when the risk of loss passes to the purchaser", the court stated that INCOTERMS are incorporated into the Convention through Article 9(2)". The court further stated that pursuant to article 9(2) of the Convention, "INCOTERMS definitions should be applied to the contract despite the lack of an explicit INCOTERMS reference in the contract"; consequently, the court held that where "a contract refers to CIF-delivery, the parties refer to the INCOTERMS",[42] even where an explicit reference to the INCOTERMS is lacking. As far as the latter issue is concerned, a similar statement can be found in a different arbitral award,[43] as well as in the decision of a State court;[44] on that occasion, the court interpreted the clause FOB in the light of the INCOTERMS, although a reference to the INCOTERMS was lacking.
18. One court held that the UNIDROIT Principles on International Commercial Contracts constitute usages of the kind referred to in article 9(2) of the Convention.[45] Similarly, an arbitral tribunal stated that they echo international trade usages under article 9(2).[46]
FOOTNOTES
* The present text was prepared using the full text of the decisions cited in the Case Law on UNCITRAL Texts (CLOUT) abstracts and other citations listed in the footnotes. The abstracts are intended to serve only as summaries of the underlying decisions and may not reflect all the points made in the digest. Readers are advised to consult the full texts of the listed court and arbitral decisions rather than relying solely on the CLOUT abstracts.
[Citations to cisgw3 case presentations have been substituted [in brackets] for the case citations provided in the UNCITRAL Digest. This substitution has been made to facilitate online access to CLOUT abstracts, original texts of court and arbitral decisions, and full text English translations of these texts (available in most but not all cases). For citations UNCITRAL had used, go to <http://www.uncitral.org/english/clout/digest_cisg_e.htm>.]
1. See also United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March - 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committee, 1981, 19.
2. [AUSTRIA Oberster Gerichtshof [Supreme Court] 22 October 2001, available online at <http://cisgw3.law.pace.edu/cases/011022a4.html>].
3. [AUSTRIA Oberster Gerichtshof [Supreme Court] 21 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000321a3.html>].
4. [AUSTRIA Oberster Gerichtshof [Supreme Court] 21 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000321a3.html>]; CLOUT case No. 240 [AUSTRIA Oberster Gerichtshof [Supreme Court] 15 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981015a3.html>] (see full text of the decision).
5. [BELGIUM Rechtbank [District Court] Ieper 18 February 2002, available online at <http://cisgw3.law.pace.edu/cases/020218b1.html>];
[BELGIUM Rechtbank [District Court] Veurne 25 April 2001, available online at <http://cisgw3.law.pace.edu/cases/010425b1.html>];
[BELGIUM Rechtbank [District Court] Ieper 29 January 2001, available online at <http://cisgw3.law.pace.edu/cases/010129b1.html>];
[AUSTRIA Oberster Gerichtshof [Supreme Court] 21 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000321a3.html>];
[ARGENTINA Juzgado Nacional de Primera Instancia en lo Comercial No. 10 [National Commercial Court of First Instance] Buenos Aires 6 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941006a1.html>.
6. For a case in which the parties expressly chose to be bound by trade usages, see
[CHINA Arbitration award Contract #QFD890011, CIETAC post-1989, available online at <http://cisgw3.law.pace.edu/cases/900000c1.html>] (in the case at hand the parties chose to be bound by a FOB clause).
7. [AUSTRIA Oberster Gerichtshof [Supreme Court] 21 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000321a3.html>].
8. Id.
9. CLOUT case No. 240 [AUSTRIA Oberster Gerichtshof [Supreme Court] 15 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981015a3.html>] (see full text of the decision).
10. [ICC Court of Arbitration, case No. 8817 of December 1997, available online at <http://cisgw3.law.pace.edu/cases/978817i1.html>].
11. [ICC Court of Arbitration, case No. 8611/HV/JK of 23 January 1997, available online at <http://cisgw3.law.pace.edu/cases/978611i1.html>].
12. CLOUT case No. 202 [FRANCE Cour d'appel [Court] Grenoble 13 September 1995, available online at <http://cisgw3.law.pace.edu/cases/950913f1.html>] (see full text of the decision).
13. CLOUT case No. 313 [FRANCE Cour d'appel [Court] Grenoble 21 October 1999, available online at <http://cisgw3.law.pace.edu/cases/991021f1.html>] (see full text of the decision).
14. CLOUT case No. 360 [GERMANY Amtsgericht [Lower Court] Duisburg 13 April 2000, available online at <http://cisgw3.law.pace.edu/cases/000413g1.html>] (see full text of the decision).
15. CLOUT case No. 221 [SWITZERLAND Zivilgericht [Civil Court] Basel-Stadt 3 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971203s2.html>] (see full text of the decision).
16. [GERMANY Landgericht [District Court] Zwickau 19 March 1999, available online at <http://cisgw3.law.pace.edu/cases/990319g1.html>].
17. CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Supreme Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (see full text of the decision).
18. CLOUT case No. 360 [GERMANY Amtsgericht [Lower Court] Duisburg 13 April 2000, available online at <http://cisgw3.law.pace.edu/cases/000413g1.html>] (see full text of the decision); CLOUT case No. 347 [GERMANY Oberlandesgericht [Appellate Court] Dresden 9 July 1998, available online at <http://cisgw3.law.pace.edu/cases/980709g1.html>].
19. [UNITED STATES Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc. Federal District Court [New York] 10 May 2002, available online at <http://cisgw3.law.pace.edu/cases/020510u1.html>].
20. [AUSTRIA Oberster Gerichtshof [Supreme Court] 21 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000321a3.html>]; CLOUT case No. 240 [AUSTRIA Oberster Gerichtshof [Supreme Court] 15 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981015a3.html>].
21. For this solution, see CLOUT case No. 292 [GERMANY Oberlandesgericht [Appellate Court] Saarbrücken 13 January 1993, available online at <http://cisgw3.law.pace.edu/cases/930113g1.html>] (see full text of the decision).
22. CLOUT case No. 175 [AUSTRIA Oberlandesgericht [Appellate Court] Graz 9 November 1995, available online at <http://cisgw3.law.pace.edu/cases/951109a3.html>].
23. [AUSTRIA Oberster Gerichtshof [Supreme Court] 21 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000321a3.html>].
24. CLOUT case No. 240 [AUSTRIA Oberster Gerichtshof [Supreme Court] 15 October 1998, available online at <http://cisgw3.law.pace.edu/cases/981015a3.html>] (see full text of the decision).
25. See supra paragraph 8.
26. [AUSTRIA Oberster Gerichtshof [Supreme Court] 21 March 2000, available online at <http://cisgw3.law.pace.edu/cases/000321a3.html>]
27. See CLOUT case No. 347 [GERMANY Oberlandesgericht [Appellate Court] Dresden 9 July 1998, available online at <http://cisgw3.law.pace.edu/cases/980709g1.html>].
28. CLOUT case No. 221 [SWITZERLAND Zivilgericht [Civil Court] Basel-Stadt 3 December 1997, available online at <http://cisgw3.law.pace.edu/cases/971203s2.html>].
29. CLOUT case No. 176 [AUSTRIA Oberster Gerichtshof [Supreme Court] 6 February 1996, available online at <http://cisgw3.law.pace.edu/cases/960206a3.html>] (see full text of the decision).
30. [DENMARK Højesteret [Supreme Court] 15 February 2001, available online at <http://cisgw3.law.pace.edu/cases/010215d1.html>].
31. [ EUROPEAN COURT OF JUSTICE Mainschiffahrts-Genossenschaft eb (MSG) v. Les Gravihres Rhinanes SARL 20 February 1997, available online at <http://www.cisg.law.pace.edu/cisg/wais/db/cases2/970220eu.html>].
32. [ICC Court of Arbitration case No. 8324 of 1995, available online at <http://cisgw3.law.pace.edu/cases/958324i1.html>].
33. CLOUT case No. 5 [GERMANY Landgericht [District Court] Hamburg 26 September 1990, available online at <http://cisgw3.law.pace.edu/cases/900926g1.html>] (see full text of the decision).
34. [FINLAND Helsingfors hovrätt [Appellate Court] Helsinki 29 January 1998, available online at <http://cisgw3.law.pace.edu/cases/980129f5.html>].
35. [ARGENTINA Juzgado Nacional de Primera Instancia en lo Comercial No. 10 [National Commercial Court of First Instance] Buenos Aires 23 October 1991, available online at <http://cisgw3.law.pace.edu/cases/911023a1.html>].
36. [ARGENTINA Juzgado Nacional de Primera Instancia en lo Comercial No. 10 [National Commercial Court of First Instance] Buenos Aires 6 October 1994, available online at <http://cisgw3.law.pace.edu/cases/941006a1.html>].
37. CLOUT case No. 276 [GERMANY Oberlandesgericht [Appellate Court] Frankfurt 12 Month 2000, available online at <http://cisgw3.law.pace.edu/cases/950705g1.html>].
38. CLOUT case No. 95 [SWITZERLAND Zivilgericht [Civil Court] Basel 21 December 1992, available online at <http://cisgw3.law.pace.edu/cases/921221s1.html>].
39. Id.
40. [GERMANY Landgericht [Court] Frankfurt 6 July 1994, available online at <http://cisgw3.law.pace.edu/cases/940706g1.html>].
41. [UNITED STATES St. Paul Insurance Company et al. v. Neuromed Medical Systems & Support et al. Federal District Court [New York] 26 March 2002, available online at <http://cisgw3.law.pace.edu/cases/020326u1.html>].
42. Id.
43. [RUSSIA Arbitration award No. 406/1998 6 June 2000, available online at <http://cisgw3.law.pace.edu/cases/000606r1.html>].
44. [ITALY Corte d'appello [Appellate Court] Genova 24 March 1995, available online at <http://cisgw3.law.pace.edu/cases/950324i3.html>].
45. [RUSSIA Arbitration award No. 229/1996 of 5 June 1997, available online at <http://cisgw3.law.pace.edu/cases/970605i1.html>].
46. [ICC Court of Arbitration, case No. 9333 of October 1998, available online at <http://cisgw3.law.pace.edu/cases/989333i1.html>].
Pace Law School
Institute of International Commercial Law - Last updated September 14, 2009