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Reproduced with permission from Revue de droit uniforme/Uniform Law Review (1997) 385-395

excerpt from

The U.N. Convention on the International Sale of Goods: A Critical Analysis of Current International Case Law - 1997 (Part 1)

Michael Joachim Bonell [*] and Fabio Liguori [**]

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2. Sphere of Application Ratione Materiae

2.1 Contracts similar to sales contracts

As the substantive sphere of application of CISG covers certain types of contracts which in some domestic laws do not correspond to the traditional notion of "sales" contracts, it is not always easy to ascertain which contracts fall within the sphere of application of CISG.[17]

(a) Distribution agreements

A situation frequently examined in international case law is that of distribution agreements where individual sales contracts are concluded between a seller and a buyer who are parties to a master agreement relating to a series of orders and deliveries. Recent judgments confirm the tendency not to apply CISG to the distribution agreement as such, where agency aspects prevail, but to consider each individual sales contract concluded under a distribution agreement to fall within the scope of the Convention.[18]

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3. Territorial Scope of Application

3.1 Applicability under the rules of private international law

The trend in the case law -- both arbitral awards and State court decisions -- to apply the Convention on the basis of the criterion laid down in article 1(1)(b) also in cases where the forum is that of a non-Contracting State, by now appears sufficiently established.[44]

Recent examples are two judgments of the Tribunal de Commerce of Brussels, both concerning disputes arising between Italian sellers and Belgian buyers.[45]

Although at that time Belgium was not yet a Contracting State, the court applied CISG on the grounds that the Belgian rules of private international law (in the cases at hand the 1955 Hague Convention on the Law Applicable to International Sales of Goods) led to the application of Italian law, and the Convention had already entered into force for Italy. It should also be noted that in one case the contract contained a clause making express reference to Italian law.

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Go to entire text of Bonell/Liguori commentary


FOOTNOTES

* Professor, Law Faculty, University of Rome 1 "La Sapienza"; Legal Consultant, Unidroit.

** Attorney in Rome; Research fellow, University of Rome 1 "La Sapienza".

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17. For an overview of the different opinions in legal writings see F. Ferrari, Vendita internazionale di beni mobili (Tomo 1, Artt. 1 -13). Commentario Scialoja-Branca (Bologna, 1994) at 47 et seq.

18. Oberlandesgericht Düsseldorf, 11 July 1996, n. 6 U 152/9S, in Recht der Internationalen Wirtschaft (1996) 958. The Convention does not apply to an exclusive distribution agreement also according to the Metropolitan Court Budapest, 19 March 1996, n. 12.G.75.556/1994/36, unpublished, but see CLOUT Case 126. Other conforming precedents may be found in M.J. Bonell - F. Liguori, The U.N. Convention, cit., 147, note 14.

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44. For the other conforming precedents on this issue see M.J. Bonell - F. Liguori, The U.N. Convention, cit., at 153.

45. Tribunal de Commerce de Bruxelles, 11ème ch., 13 November 1992, n. RG 4.825/91, in UNILEX 1996; Tribunal de Commerce de Bruxelles, 7ème ch., 5 October 1994, n. RG 1.205/93, in UNILEX 1996.

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