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Reproduced with permission of 17 Journal of Law and Commerce (1998) 187-217

excerpt from

The Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and other Challenges to the Uniformity Principle in Article 7(1)

Harry M. Flechtner [*]

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The reservation authorized by Article 96 is, by a considerable margin, the most popular of the CISG declarations. Ten countries -- Argentina, Belarus, Chile, China, Estonia, Hungary, Latvia, Lithuania, the Russian Federation and the Ukraine -- have opted for it.[33] To understand the consequences of an Article 96 reservation one must first be aware that Articles 11 and 29 of the Convention affirmatively eliminate any requirement that sales contracts governed by the CISG (or modifications thereof) be in writing in order to be enforceable.[34] The effect of an Article 96 reservation on this elimination of writing requirements is specified in Article 12: "Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement . . . to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention."[35]

To illustrate, assume a party located in the United States and a party located in Argentina orally agreed to a sales contract. Because Argentina has made the Article 96 reservation,[36] the provisions of Articles 11 and 29 dispensing with any writing requirement are called off by Article 12. That does not, however, mean that the transaction is subject to a writing requirement. The resolution of that issue will depend on a choice of law analysis. If private international law principles lead to the application of Argentinian law, the writing requirements of Argentinian domestic sales law will apply. If the rules of private international law designate U.S. law, then the writing requirements of U.S. domestic sales law will apply. The result in the latter situation is rather ironic. Because one party to the sale is from Argentina and Argentina has made an Article 96 reservation, the transaction becomes subject to the domestic U.S. Statute of Frauds requirements (most likely 2-201 of the Uniform Commercial Code as enacted in the jurisdiction whose law governs the transaction). And this is the case, even though the United States, by failing to make an Article 96 declaration, in effect declared its willingness to forego its Statute of Frauds rules and accept oral international sales contracts.

At any rate, my point is that the reservation permitted by Article 96 changes the text of the Convention by eliminating those aspects of Articles 11 and 29 (as well as anything in Part II of the CISG) that dispense with writing requirements. The Article 96 reservation has this effect, not just in countries making the reservation, but also in non-reserving countries, on a transaction-by-transaction basis. In other words, whether the text of the Convention includes provisions eliminating writing requirements varies, even in a State that has not made the Article 96 reservation, depending on whether one of the parties is located in another State that made the reservation. . . .

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* Professor, University of Pittsburg School of Law, A.B. 1973, Harvard College; A.M. 1975, Harvard University; J.D. 1981, Harvard University School of Law.

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33. See Table, supra note 30.

34. See CISG, supra note 1, arts. 11, 29.

35. Id. art. 12. Article 96 specifies that the reservation it authorizes is available only to "[a] Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by a writing." CISG, supra note 1, art. 96. Thus, a country whose domestic legislation imposes no writing requirements on sales contracts is forbidden (at least theoretically) from making an Article 96 reservation.

36. See Table, supra note 30.

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Pace Law School Institute of International Commercial Law - Last updated August 16, 1999

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