Cases on the CISG
Debunking a myth and expanding our outreach
"There are hardly any cases on the CISG." While it is
true that most cases on the CISG are located at sources many people
are not used to accessing, there are in fact many cases on the
CISG. We report over 2,500 such cases and believe that there have been
more than double this number of rulings on the uniform international sales law.
"More than 90% of international commercial disputes are . . .
decided by international arbitral tribunals." Berger, "The
Creeping Codification of the Lex Mercatoria", Kluwer (1999) 65.
The confidentiality of arbitration has always distinguished the
arbitral process from adjudication by domestic courts. "Also,
awards by international arbitral tribunals [have been] frequently
handed over from one practitioner to another in an informal way
instead of being published in official collections." Id.
at 62. There is evidence of improvements upon this practice. Id.
at 62-64. However, instead of reporting 90% arbitral awards and 10%
court decisions, the preponderance of CISG cases we currently present
are judicial rulings. This evidences a need to expand our outreach to
practitioners to help us expand the number of CISG arbitral awards we
present.
We receive encouraging reports of judicial attention to rulings on
the CISG by tribunals and scholars of other jurisdictions.
- Italy has taken the lead: see Tribunale di Vigevano 12 July 2000 and Tribunale di Rimini 26 November 2002. This followed encouraging developments in Switzerland, the United States and Germany: see Obergericht Canton Luzern 8 January 1997; see Medical
Marketing v. Internazionale Medico Scientifica, 17 May 1999
(comments on this U.S. case are quoted in the following paragraph); see
also MCC-Marble
v. Ceramica Nuova, 29 June 1998 (U.S. Circuit Court of Appeals
example of Internet source application to ensure thorough CISG
research of case law from other jurisdictions); see BGH
24 March 1999 (German Supreme Court case citing CISG
authorities from England, France, Switzerland, and the United
States).
- For an update of this listing of cases that are to be emulated, see the added citations of court
decisions from America, Australia, Denmark, France, Germany, Italy, Netherlands, Poland, Serbia,
Spain and Switzerland, and of awards by arbitral tribunals of the American Arbitration Association,
International Chamber of Commerce and Stockholm Chamber of Commercem provided in Camilla
Andersen, "The Global Jurisconsultorium of the CISG Revisited", 13 Vindobona Journal of
International Commercial Law and Arbitration (1/2009) 43-70. For additional citations, see the 28
January 2009 award of the Foreign Trade Court of Arbitration attached to the Serbian Chamber of
Commerce in Belgrade and the 17 March 2009 decision of the Supreme Court of Israel.
- "The U.S. federal court regards a foreign court decision as
precedent, or at least as 'authority' and thus treats uniform
international law similar to American law with the -- for American
courts self-understood -- consideration given to decisions of
neighboring states under the (American) common law. In other
words, it treated the CISG as a kind of international common law,
the application and development of which is in the hands of the
courts of all nations party to the Convention, which courts must
therefore also give consideration to decisions in other
countries." Peter Schlechtriem, Commentary on Medical
Marketing v. Internationale Medico Scientifica [translated
text of commentary], Praxis des International Privat- und
Verfahrensrechts (1999) 791.
The European Court of Justice witnessed a reference to our
database by an agent for the European Commission. The case of MCC-Marble
v. Ceramica Nuova that we cite refers to our database as a
"promising source" for "persuasive authority from
courts of other States party to the CISG." We would like to
improve this source of such authority. Because of the importance of
case law -- to jurists and arbitrators, to attorneys who plead before
them and counsel their clients, and to scholars -- we extend an
invitation: Attorneys involved in CISG arbitral or judicial
proceedings and others interested in the CISG who learn of cases we
have not yet identified, we hope our database is of help to you. Help
us expand our collection of CISG cases so we can be of further
help to the persons from 161 countries who draw on the database.
Overview description of our case material
The CISG
Case Schedule lists the court and arbitral rulings on the CISG we
have identified. The CISG
Case Search Form helps you tailor your access to them. Go to search
mechanisms for guidance in the use of the Case Schedule and Search
Form.
We identify proceedings before each court or tribunal of every
reported jurisdiction (1st instance, appellate court, highest court).
It is our intent to enable you to follow the progress of each case
where we have records of an appeal.
The Case Schedule is a notice of case rulings. When we learn of new
cases, we enter them in the Case Schedule. We then prepare Case
presentations that report additional information on the proceedings.
The Case Schedule is an automated index with links to Case
presentations. The Case presentation format is:
- Case identification
- Case abstract
- Classification of issues present
- Editorial remarks
- Citations to case abstracts, texts and commentaries
- Case text (including English translation if available)
- Case commentaries
Every Case presentation is indexed and, as each entry is a link,
you may go directly to the material of most interest to you. Where we
include with our Case presentations the texts of commentaries on a
case, they also are indexed with similar links provided.
Each CISG article identified in a Case presentation is linked to an
annotated text of that article which contains much additional
information on the article: guides to the issues it addresses, texts
of scholarly writings on these issues, legislative history texts,
cross-reference editorial analyses, words and phrases annotations,
links to related articles, match-ups with provisions of the UNIDROIT
Principles of International Commercial Contracts where such match-ups
appear appropriate, etc.
Each annotated article also contains a case law cross-check. To
access this material, go to the Table of Contents to the Annotated Text of the CISG.
We present many case abstracts and provide Internet access to full
original-language texts of a large number of the cases -- in English,
French, German, Italian and Spanish. With the help of colleagues from
many countries (see
Autonomous Network of CISG Websites), we are expanding this
collection of case texts. We are also expanding our case translation
program. For a schedule of English texts and English translations of
texts in other languages, go to Full
English Texts of CISG Cases.
As we obtain new information on cases, we add it to our Case
Schedule and refine our Case presentations. We
invite you to help us maintain as current a Case Schedule as possible
and to expand our case presentations. If our database helps you
prepare pleadings, let us know when a decision on your case is handed
down. Also, please call to our attention other desired additions or
corrections to our reports. We wish to present on the Internet English
translations of all important CISG decisions. If you have
language fluencies, here too your help would be welcome. Ours is a
collegial service to our profession. Join us in this work!
Search mechanisms
The volume of material that has been written on the CISG is
monumental -- more has been written on it than on any other new sales
code. Scholarly writings abound and case law is growing rapidly. The
challenge is to enable you to pluck from this mass of material the
cases, writings and other items that are of interest to you. To serve
you, we built into our electronic database multiple search mechanisms
-- to enable you to obtain the information you want in a variety of
ways, each with its own virtues.
We call to your attention a new feature of our website, a Google search button at the upper left-hand
corner of our site's homepage, on the upper left-hand corner of each of our case presentation pages,
and on the upper left-hand corner of many of our other pages. This is a Google search button tailored
to the contents of the Pace website. Alternative methods for searching for material on our website are
set forth below. Under many circumstances, you will find use of this Google search button a more
user-friendly method of searching for material on our site than any of those approaches.
We set these alternative approaches forth, nevertheless, in keeping with our view that when searching
for needed material, "belt and suspenders" is not a bad technique to follow. In keeping with that, we
also encourage Unilex searches. We code our cases in accordance with a methodology outlined in the
UNCITRAL Thesaurus. Unilex codes its cases and other material according to a different
methodology.
Case searches
Our Country Case Schedule
[access material from a comprehensive listing]
You may identify cases of interest and link to presentations on
them by scrolling through the Case
Schedule. The "Find" button on your computer may also be
of help. To identify cases dealing with an article, click on
"Find" and type in the number of the article, followed by a
comma. For instance, to identify cases that have dealt with CISG
Article 74, type: 74,
Our Case Search Form
[access material in the Case presentation subset]
You may also search for cases in a more sophisticated manner by
going to the CISG
Case Search Form. This form permits you to access cases not only
by article number but also by country, court, tribunal, case name,
date, goods involved, etc.
A companion search mechanism
[case data in context with other relevant information]
For a companion case search mechanism, go to the Table
of Contents to Annotated Text of the CISG. It contains a chart of
the articles of the CISG. Click on the article of interest. We provide
a homepage for each article of the CISG. Each homepage contains an
automated "case button" permitting you to access case law
interpretations -- in the context of data on legislative history and
scholarly writings. As with the Case Search Form, case links enable you to access case citations and case annotations for each article of the CISG: see 2,500 cases 10,000 case annotations.
Case chronologies
Case translations
We also offer case yearbooks that list case citations in chronological sequence: see YB 2010-2000; YB 1999-1995; YB 1994-1990; and YB pre-1990.
Most CISG cases are in languages other than English. Over 1,500 of these cases have been translated. Additional translations are underway: see Schedule of translated cases.
Other searches
Legislative history searches
The database contains significant elements of the legislative
history of the CISG: the Secretariat Commentary (the closest
counterpart to an Official Commentary on the CISG) and the Summary
Records of the proceedings at the 1980 Vienna Diplomatic Conference at
which the CISG was promulgated.
The legislative history of this Convention is so complex that
ability to navigate the travaux préparatoires of the CISG has
been difficult. The computer can help. We, of course, like the aid to
mining legislative history that Prof. John Honnold prepared (we refer
to his "Documentary History" of the CISG). Honnold prepared
that text because finding what he wanted in thousands of pages of
unindexed and difficult-to-find documents (some of which have been out
of print) had been for him like "looking for a needle in a
haystack". We who were not a part of the creation of this
Convention have had more difficulty. We have utilized the computer in
an effort to improve upon Honnold's presentation -- by permitting
anyone to click a button and obtain data on the Diplomatic Conference
legislative history of each article of the CISG in chronological
sequence.
Scholarly writings on your subject
[our Bibliography and Bibliography Search Form]
When conducting a case search, you often need much related
information. Our Bibliography contains thousands of entries. For
extensive information on CISG doctrine, go to the Bibliography
homepage, select the language folios of interest and scroll
through their contents, or go to the Bibliography
Search Form.
If the case of interest is, for example, Filanto v. Chilewich,
enter the case name in the Bibliography Search Form or the Case Search
Form and you can access commentaries on it. A special feature of the
Bibliography Search Form is the ability to enter requests by author of
a journal article or text, by title, or by date or subject. Subject
requests can be highly relevant to case research. If the subject of
your case is, for example, battle of the forms (a subject of the Filanto
case) or perhaps passage of risk under the CISG (a subject of
other cases), enter "battle of the forms" or "passage
of risk" on the Bibliography Search Form. The computer will
provide pages of citations to scholarly writings on your subject.
In our Full-text
Archives, you will in addition be able to obtain the texts of many
of these writings. We express appreciation to the Boards of Editors of
the many law journals that have granted us permission to present the
full texts of scholarly writings on the CISG that they have published.
A further service we will be providing is to present in our Archives
the full texts of Masters and Doctoral theses on the CISG (see our invitation
to authors). When this program is in place, if a participating
scholar has written a thesis on your subject, you will be able to read
it on the Internet.
Commentary on CISG case law
"Uniform law requires . . . a new common law" in which
"[f]oreign precedents would not be precedents of a foreign
law but of uniform law" (Antonio Boggiano
[Argentina], note 1). Governmental legislation sets in place
uniform law, but "[i]n reality, uniform law is not the work of
governmental legislation. It is a creation of jurists, a kind of jurisconsultorium"
(Gino Gorla [Italy], note 2). "[C]ourts . .
. have to develop their jurisprudence in company with the courts of
other countries from case to case" (Lord Scarman
[United Kingdom], note 3).
Interpretations of an international convention by sister
signatories are entitled to considerable weight (Air
France v. Saks [United States], note 4); they are to be taken into
account "in a comparative and critical manner" (Boggiano, op.
cit.), with the "integrative force of a judgment . . . based
on the persuasive reasoning which the decisions of the Court bring to
bear on the problem at hand" (Jürgen Schwarze
[Germany], note 5).
"To be able to take account of decisions from
other countries one has first to be aware of them" (Leif
Sevón [Finland], note 6). The goal of our Case
Schedule and the companion Case
Search Form is to assist in the prolific interaction of judicial
and arbitral rulings on the Uniform Law.
Case law (jurisprudence) is one of several
aids to interpretation (see note 7, The
Comparative Precedent Project, 1992-97, for illustrative comments
on precedent as "a major form of law recognized in one way or
another" in common law and civil law legal systems). Uniform Law doctrine
(scholarly writings) and legislative history (travaux préparatoires)
should also be considered. For data on CISG doctrine, see our Bibliography
and Archives;
for data on the legislative history of the Uniform Law, see
the Annotated
Table of Contents (one may link from it to material on the travaux
préparatoires of each article of the CISG).
It makes sense to set in place "channels for
the collection and sharing of judicial decisions and bibliographic
material". "The development of a homogenous body of law
under the Convention depends on [this] so that experience in each
country can be evaluated and followed or rejected in other
jurisdictions" (John O. Honnold [United
States], note 8). "There is a need for an international
clearing-house to collect and disseminate experience on the
Convention" (note 9). Our database was
created to help respond to this need. The intent of the case law
segments of the database is to have "[w]hatever a national court
[or an arbitral tribunal] decides become internationally known . . .
to add to the body of experience on the Convention" (Ralph
Amissah [Ghana/Norway], note 10). The medium of the presentations
is the computer.
The world is a community. It works better when we work together. We
invite you to help us improve our case offerings.
FOOTNOTES
1. Antonio Boggiano, "The Experience
of Latin American States", in: International Uniform Law
in Practice/Le droit uniform international dans la pratique [Acts and
Proceedings of the 3rd Congress on Private Law held by the
International Institute for the Unification of Private Law (Rome 7-10
September 1997)], Oceana: New York (1988) 47.
2. Gino Gorla, "Observations,"
in: International Uniform Law in Practice, supra note 1
at 304.
3. Lord Scarman, 2 All E.R. (1980) 696,
715. Sevón elaborates: A judge ought to be "obliged to search
for and to take into consideration foreign judgments and doctrine,
at least the judgments from other Contracting States, when he is faced
with a problem of interpretation of an international convention".
Leif Sevón, "Observations", in: International
Uniform Law in Practice, supra note 1 at 135.
4. Air France v. Saks, 470 U.S.
392, 404 (1985).
5. Jürgen Schwarze, "The Role of
the European Court of Justice (ECJ) in the Interpretation of Uniform
Law among the Member States of the European Communities", in:
International Uniform Law in Practice, supra note 1 at 221.
6. Sevón, supra note 3. In the
same vein, "Proper reporting of decisions [is an] essential
prerequisite for the proper working [of the rule of precedent]".
René David, "The Legal Systems of the world, in:
International Encyclopedia of Comparative Law (Martinus Nijhoff, The
Hague 1984) 133
7. Robert S. Summers, "The
Comparative Precedent Project, 1992-97", in: Cornell Law
Forum (July 1997) 17-20, a review of a new text, Interpreting
Precedents - A Comparative Study, Dartmouth Press (1997); see
also René David, supra note 3 at 111-137. For comments on
challenges associated with "the transmutation of an interpreted
norm from precedent to pending case", see Vivian G.
Curran, "The Interpretive Challenge to Uniformity", 15 Journal
of Law and Commerce (1995) 175 [review of Claude Witz, "Les
Premières applications jurisprudentielles du droit uniforme de la
vente internationale" (LGDJ Paris 1995)].
8. John O. Honnold, "Uniform
Words and Uniform Application. The 1980 Sales Convention and
International Juridical Practice", in: Einheitliches
Kaufrecht und nationales Obligationenrecht (Baden-Baden 1987) 127-128.
9. Id. at 128.
10. Ralph Amissah, "On the Net and
the liberation of information that wants to be free", in:
Fra institutt til facultet: Jubileumsskrift i anledning av at IRV ved
Universitetet i Tromsø feirer 10 år og er blitt til Det juridiske
facultet, Skoghøy ed. (Tromsø 20 February 1997) 70.
An invitation
The case law segment of the database is a sharing of data on case
law. We are grateful to have been able to draw upon the work products
of the members of the autonomous
network of CISG websites, as well as case material published by UNCITRAL
and Unilex.
Assistance requested. When a CISG case comes to your
attention that has not been entered in this database, please advise
the Institute of it.
Vikki Rogers, Director
Institute of International Commercial Law
Pace University School of Law
78 North Broadway
White Plains, NY 10603, U.S.A.
Phone: +1 (914) 422-4002
Fax: +1 (914) 422-4405
e-mail: vrogers@law.pace.edu
Added assistance invited. Where you can help us advance our
case translation program, a contact with the Director of
the Institute would be most appreciated.
