CROSS-REFERENCES AND EDITORIAL ANALYSIS

CROSS-REFERENCES AND EDITORIAL ANALYSIS

Article 90


Editor:

Julio A. Baez [*]


Multilateral treaties contain two types of provisions: substantive and final. The substantive provisions cover the subject matter which is the object and purpose of a treaty (see footnote 1). The final provisions generally address issues such as participation, designation of depositary, entry into force, declarations, reservations, amendments, annexes, revision, and denunciation (see footnote 2). The relation between the treaty and other treaties is also an important matter dealt with in the final provisions of a treaty.

Although the final clauses of a treaty do not directly affect its object and purpose, a close nexus exists between the final and substantive provisions (see footnote 3). Such a connection is clearly manifested upon the formulation of declarations and reservations, proposals for amendment and revision and, often, in the wording of the final clause itself.

Article 90 of the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG) deals with the relation between the CISG and other international agreements. The manner in which this Article has been drafted is indicative of the close nexus with substantive provisions as well as with other final clauses of the CISG, i.e., Articles 1, 4, 6, 7(2), 92, 94(1)(2) and 99 (3)(4)(5)(6).

Article 90 states that the CISG ". . . does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement."

The purpose of Article 90 is to avoid conflicts with other treaties in the same manner that there are rules on conflict of laws under private international law (see footnote 4). Such a provision is unlikely to be found in a bilateral treaty, as in a treaty between only two parties a conflict situation of the type alluded to by Article 90 is either extremely rare or greatly minimized. A variety of multilateral treaties deposited with the Secretary-General of the United Nations as well as various private international law treaties contain one of four types of "relation with other treaties" clauses. The treaty either (a) replaces, (b) prevails over, (c) does not modify or (d) shall not affect another treaty(ies) (see footnote 5). A number of private international law treaties, however, are silent on the issue (see footnote 6).

The intent of CISG Article 90

"does not prevail over". This phrase indicates that the provisions of the CISG would not be dispositive in case of a conflict with similar provisions in other international agreements. The phrase is not precatory; its wording is clear, direct, unambiguous and imperative. In view of the generally accepted rule that treaties either override domestic law or become part thereof (see footnote 7), it would appear that the drafters were not compelled to refer to municipal law in this context; rather, Article 90 was drafted to limit the scope of possible conflicts to other international agreements covering the same matter. CISG Article 1(1)(b) refers to the possibility that "the rules of private international law lead to the application of the law of a Contracting State". Such "law of a Contracting State" or municipal law would naturally encompass the binding treaty obligations of a Contracting State.

"any international agreement". Although the CISG does not define this phrase, it would seem that "international agreement" is used generically and applies to both bilateral and multilateral treaties. There is no cogent difference in international law between the terms "international agreement" and "treaty" or "convention" (see footnote 8). Paragraph 1(a), Article 2, of the 1969 Vienna Convention on the Law of Treaties, which entered into force on 27 January 1980 (see footnote 9) states: "`treaty' means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation."

"which has already been or may be entered into". This phrase refers to other treaties that CISG Contracting States have concluded or may conclude in the future. The other treaty must be in force at the time the issue arises in order to prevail over the CISG. CISG Article 99(3)(4)(5)(6) is germane in this respect. It should be noted that any treaty conflict that could arise between the CISG and the 1986 Hague Convention on the Law Applicable to Contracts for the International Sale of Goods is resolved ab initio by the latter's Articles 8(5), 22 and 23 (see footnote 10).

"and which contains provisions concerning the matters governed by this Convention". Pursuant to CISG Article 4, the "matters governed by this Convention" are "only the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such a contract . . ." To invoke CISG Article 90, the provisions of the other treaty must regulate the same matter. In case of a conflict with another treaty which regulates the same matter as the CISG, the CISG will not control. Specific provisions of the CISG will also not control pursuant to a declaration by a Contracting State in accordance with CISG Article 98, or in the case of a derogation or exclusion by the contracting parties pursuant to CISG Article 6.

"provided that the parties have their places of business in States parties to such agreement". CISG Article 1(1) states that "This Convention applies to contracts of sale of goods between parties whose places of business are in different States . . ." In other words, X, buyer, and Y, seller, from States A and B, have entered into a contract for the sale of goods. Assume the existence of treaty Z. Pursuant to CISG Article 90, if A and B have their relevant places of business in States parties to treaty Z, the Z treaty must be considered in applying the Convention.

FOOTNOTES

* Julio A. Baez [Born Santo Domingo, 1954] is a Dominican-born American who is presently an attorney with the International Trade Law Branch, Office of Legal Affairs (OLA) (United Nations Secretariat) in Vienna, Austria. The Branch services the United Nations Commission on International Trade Law. Prior professional activities include other attorney positions at the UN Centre for Transnational Corporations and OLA at UN Headquarters in New York, Office of the Legal Counsel, FAO (Rome), United Nations War Crimes Commission for the former Yugoslavia (Geneva) as well as with the Independent Jurist for the Referendum in Western Sahara. Education: Trained in the civil law in France and member of the Madrid Bar. Languages: Fluent in English, French, Italian and Spanish; currently learning German. Memberships: International Bar Association, International Association of Lawyers and New York State Bar Association.

1. Paul Reuter, Introduction Au Droit des Traités, Collection U, Série "Relations et Institutions Internationales" (Librairie Armand Colin, Paris, 1972).

2. Peter Winship, "Final Provisions of UNCITRAL's International Commercial Law Conventions", 24 The International Lawyer 3 (1990).

3. Suzanne Bastid, Les Traités Dans la Vie Internationale - Conclusion et Effets, Collection Droit international (Ed. ÉCONOMICA, 1985).

4. Review of the Multilateral Treaty-Making Process, United Nations Legislative Series (ST/LEG/SER.B/21) United Nations Publication, 1985 (No. E/F.83.V.8), paragraph 49 at page 32.

5. See Article 37, 1951 Geneva Convention relating to the Status of Refugees; Article 9, 1958 Hague Convention on the Law Governing Transfer of Title in International Sales of Goods; Article 44, 1961 New York Single Convention on Narcotic Drugs; Article 73, 1963 Vienna Convention on Consular Relations; Articles I(3) & IV, 1964 Hague Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods; Article IV, 1964 Hague Convention relating to a Uniform Law on the International Sale of Goods; Articles 22, 23, 24 & 25, 1965 Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; Article 11, 1965 Hague Convention on the Choice of Court; Articles 29, 30, 31 & 32, 1970 Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters; Articles 21, 22, 24, 25 & 26, 1971 Hague Convention on the Recognition and Enforcement of Foreign Judgements in Civil and Commercial Matters; Paragraphs 6, 7 & 8, 1971 Hague Supplementary Protocol to The Hague Convention on the Recognition and Enforcement of Foreign Judgements in Civil and Commercial Matters; Article 15, 1973 Hague Convention on the Law Applicable to Products Liability; Articles 37 & 38, 1974 New York Convention on the Limitation Period in the International Sale of Goods; Article 44, 1975 New York Single Convention on Narcotic Drugs, 1961, as amended by the Protocol of 25 March 1972 amending the Single Convention on Narcotic Drugs, 1961; Article 22, 1978 Hague Convention on the Law Applicable to Agency; Article V, 1980 Vienna Protocol amending the Convention on the Limitation Period in the International Sale of Goods; Article 30, 1980 UN Convention on International Multimodal Transport of Goods; Article 311, 1982 UN Convention on the Law of the Sea; Articles 8(5), 22 & 23, 1986 Hague Convention on the Law Applicable to Contracts for the International Sale of Goods; Article 76(1), 1988 UN Convention on International Bills of Exchange and International Promissory Notes; Article 15, 1991 UN Convention on the Liability of Operators of Transport Terminals in International Trade; and Article 8(2), 1994 Paris Convention to Combat Desertification in those Countries Experiencing Serious Drought and/or Desertification, Particularly in Africa. Articles 30, 41 and 59 of the 1969 Vienna Convention on the Law of Treaties shed ample light on the question.

6. 1955 Hague Convention on the Law Applicable to International Sales of Goods, 1956 Hague Convention on the Recognition of the Legal Personality of Foreign Companies, Associations and Foundations and 1958 Hague Convention on the Jurisdiction of the Selected Forum in the Case of International Sales of Goods.

7. For example, Article VI(2) (the "supremacy clause") of the Constitution of the United States of America, Article 55 of the Constitution of France and Article 96 of the Constitution of Spain.

8. Statement of Treaties and International Agreements - Registered or filed and recorded with the Secretariat during the month of June 1994 (ST/LEG/SER.A/568) United Nations Publication, 1995, paragraph 6 at page vi.

9. 81 States parties as of 31 January 1997: Algeria, Argentina, Australia, Austria, Barbados, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Cameroon, Canada, Central African Republic, Chile, Colombia, Congo, Costa Rica, Croatia, Cyprus, Czech Republic, Denmark, Egypt, Estonia, Finland, Georgia, Germany, Greece, Haiti, Holy See, Honduras, Hungary, Italy, Jamaica, Japan, Kazakhstan, Kuwait, Latvia, Lesotho, Liberia, Liechtenstein, Lithuania, Malawi, Malaysia, Mauritius, Mexico, Mongolia, Morocco, Nauru, Netherlands, New Zealand, Niger, Nigeria, Oman, Panama, Paraguay, Philippines, Poland, Republic of Korea, Republic of Moldova, Russian Federation, Rwanda, Senegal, Slovakia, Slovenia, Solomon Islands, Spain, Sudan, Suriname, Sweden, Switzerland, Syrian Arab Republic, Tajikistan, Togo, Tunisia, Turkmenistan, Ukraine, United Kingdom, United Republic of Tanzania, Uruguay, Uzbekistan, Yugoslavia and Zaire.

10. John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, Kluwer Law International (2d ed. 1991) 591-592.


Pace Law School Institute of International Commercial Law - Last updated September 14, 1998