(A/CONF.97/C.1/L.8, L.41, L.45)
1. The CHAIRMAN said, in reply to questions put to him by delegations the previous day, that the Drafting Committee would consider only those texts which had been specifically sent to it by the Committee and that it was not the Drafting Committee's task to draw up any new text, which might give rise to discussions within the Committee and delay its work. It would be clearly indicated in the summary records which texts had been sent to the Drafting Committee.
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[United Kingdom (A/CONF.97/C.1/L.8):
Add the following sentence to article 5 [became CISG article 6]:
"Such exclusion , derogation or variation may be express or implied."]
Add a new paragraph (2):
"Such exclusion, derogation or variation may be express or derive with certainty from the circumstances of the case."
Add a new paragraph (3):
"The application of this Convention shall be excluded if the parties have stated that their contract is subject to a specific national law."]
The word "expressly" may be added after the words "the parties may."]
4. He recalled that there were three draft amendments to article 5 [became CISG article 6 ] of the draft Convention submitted by the United Kingdom (A/CONF.97/C.1/L.8), Belgium (A/CONF.97/C.1/L.41) and Pakistan (A/CONF.97/C.1/L.45) respectively. For his own part he considered that exclusion of the application of the Convention, derogation from its provisions or variation of their effect could be either express or implied, that was also apparently the conclusion which had emerged from the preparatory work. The United Kingdom and Belgian proposals tended in that direction, while the Pakistani proposal envisaged express exclusion only. Since the Belgian and United Kingdom proposals both started from the same viewpoint, he wondered if it would not be possible to merge them.
5. Mr. DABIN (Belgium) pointed out that there was a slight difference of approach between the Belgian proposal and that of the United Kingdom. The existing text of article 5 [became CISG article 6 ] did not specify how the will of the parties was to be made known, but the Secretariat's commentary explained why the second sentence of ULIS, article 3, providing that "such exclusion may be express or implied", had not been reproduced in the draft Convention under consideration. The Belgian proposal also excluded the use of the word "implied" but, like the draft EEC Convention on legislation governing contractual obligations, provided that exclusion, derogation or variation must definitely result from the circumstances of the case, unless such measures were specifically provided for in writing, in order that the judge or arbitrator might be precluded from attributing to the parties an intention they did not have. Recourse to a standard contract or general conditions drawn up by reference to one or more specific legal systems would leave no doubt as to the choice made previously by the parties and would constitute an indisputable criterion. The principle of autonomy of the parties was thus maintained.
6. The CHAIRMAN asked the representative of the United Kingdom if she was able to concur in the Belgian proposal.
7. Miss O'FLYNN (United Kingdom) said she agreed that the United Kingdom and the Belgian proposals had a number of points in common but that did not mean that they were identical. The existing text did not indicate how the parties might exclude the application of the Convention or derogate from or vary the effect of any of its provisions, and her delegation felt that the matter must be clarified since, in the absence of specific provisions it might be assumed that exclusion, derogation or variation must necessarily be express. Her delegation had submitted its amendment, based on the ULIS provisions, in order to eliminate any uncertainty on that point and would like to maintain it.
8. Mr. INAAMULLAH (Pakistan) explained that his delegation had submitted amendment A/CONF.97/C.1/L.47 because it felt that the existing text of article 5 [became CISG article 6 ] allowed the parties too much freedom, particularly if it was taken in conjunction with articles 7 and 11 [became CISG article 8 and CISG article 12 ], which provided for subjective as well as objective criteria, the result of which might be disagreements as to whether the provisions of the Convention were in fact applicable or whether there had been derogation from any of its provisions. Such uncertainty could be avoided only by specifying that exclusion or variation should be the result of an express agreement between the parties.
9. Mr. BENNETT (Australia) endorsed the comments made by the representative of the United Kingdom, whose proposal would make it possible to avoid too restrictive an interpretation of the text.
10. Mr. FARNSWORTH (United States of America) said that, for his part, he could see no reason why the existing text of article 5 [became CISG article 6 ] should not be retained, although he would be able to support the United Kingdom proposal which added a useful degree of precision to the text.
11. Mr. ROGNLIEN (Norway) said that he was in favour of retaining the existing text which, in his view, meant that derogation might be express or tacit. If one or other of the additions to article 5 [became CISG article 6 ] proposed by the United Kingdom or Belgium were adopted, it might be deduced a contrario that other provisions of the Convention were to be interpreted in a restrictive sense. The determining factor must always be the intention of the parties at the moment of concluding the contract, whether or not such intention had been express or implied in article 7 [became CISG article 8 ].
12. Mr. KHOO LEANG HUAT (Singapore) said he too was in favour of keeping the existing text.
13. Mr. PLANTARD (France) said that he preferred the new paragraph 2 proposed by Belgium.
14. Mr. REISHOFER (Austria) supported the United Kingdom proposal. In his opinion, it should be specified how parties might exclude application of the Convention or derogate from any of its provisions.
15. Mr. WAGNER (German Democratic Republic) said that parties should not be encouraged to derogate from the provisions of the Convention. Parties might exclude application of the Convention in two ways: they could agree not to apply certain provisions or they could choose a different law for the contract, but in either case there must be an express agreement. That was why his delegation was strongly opposed to the United Kingdom proposal, which left the matter too uncertain. The Belgian proposal seemed capable of providing a clearer solution, but it was not entirely satisfactory to his delegation, which was against implied derogations and in favour of keeping the existing text.
16. Mr. HERBER (Federal Republic of Germany) said that it should be specifically stated whether exclusion of provisions of the Convention must be express or could be implied. He was unable to support the proposal by the representative of Pakistan because he considered it to be too rigid and thought it did not allow for the fact that business practice did not always take legal considerations into account at the time of concluding contracts. The United Kingdom proposal left too wide a latitude to the courts in determining what had been the will of the parties and did not attach sufficient importance to the circumstance of the case.
17. Mr. HJERNER (Sweden) said he agreed with the representative of the United States that the existing text was acceptable but was able to support the United Kingdom proposal.
18. Mr. MICHlDA (Japan) recalled that the UNCITRAL Working Group responsible for preparing the draft Convention had decided to remove the words "such exclusion may be express or implied", which appeared in article 3 of ULIS, since it feared that reference to implied exclusion might encourage courts to conclude, on insufficient grounds, that application of the Convention had been entirely excluded. That had been the prevailing opinion for 10 years and he could see no reason to change the existing text of article 5 [became CISG article 6 ] along the lines proposed by the United Kingdom or Belgium.
19. Mr. EYZAGUIRRE (Chile) endorsed the views expressed by the representative of Japan. Article 5 of the draft Convention [became CISG article 6 ] seemed to him to be sufficiently explicit. In his view, the proposals of the United Kingdom and Belgium were reviving a dead debate.
20. Mr. MEDVEDEV (Union of Soviet Socialist Republics) said that he associated himself with the comments made by the representative of Japan. The United Kingdom proposal changed the very basis of the provisions of the Convention. The existing text was sufficiently clear and did not require any modification.
21. Mr. PLUNKETT (Ireland) said that the existing text of article 5 [became CISG article 6 ] could be interpreted in different ways. In his opinion, it should be transmitted to the Drafting Committee since, if retained in its existing form, it could well give rise to legal disputes. He supported the United Kingdom amendment which made it quite clear that implied derogations were permitted.
22. Mr. BOGGIANO (Argentina) said that the principle of autonomy of the parties, which should be respected, would be weakened if there was reference to express agreement only. From that standpoint the Belgian proposal, which authorized implied derogations while specifying that they must result from the circumstances of the case, seemed to him to be satisfactory.
23. Miss O'FLYNN (United Kingdom) said she was surprised that her amendment had triggered off such a wide-ranging debate. With regard to the concern expressed by the Norwegian representative that the amendment might indirectly lead to a restrictive interpretation of the other provisions of the Convention, she thought that a provision might be inserted at the end of the Convention stating that, whenever there was an agreement on a particular point between the parties, such agreement might be express or implied.
24. As for the objection raised by the representative of the German Democratic Republic that her delegation's proposal was too uncertain, she considered that the comments which had been made indicated that the existing text of article 5 [became CISG article 6 ] was open to more than one interpretation; her delegation's proposal was intended to make the position more certain.
25. Lastly, with regard to the points raised by the representative of Japan, her delegation had borne in mind the Secretariat's commentary on article 5 [became CISG article 6 ] and the possibility that the reference to implied exclusion might encourage courts to be too hasty in concluding that the application of the Convention had been excluded. However, courts would not come to that conclusion in the absence of a clear indication that the parties had wished to exclude the Convention. On the other hand, it was not necessary for the parties to indicate expressly that they had decided to exclude the provisions of the Convention and to apply another legal regime, as the existing text of article 5 [became CISG article 6 ] might lead one to believe. To avoid any misunderstanding on that point it was essential that the existing text of article 5 [became CISG article 6 ] should be changed.
26. Mr. DABIN (Belgium) said that it was a question not of a purely drafting matter but of a very important substantive matter. It was not in fact possible to hold to an express exclusion because a glance at what actually happened in day-to-day business revealed that, in trade negotiations, legal clauses were often the last thing that the parties were concerned about. Moreover, it was not always possible to provide for an express exclusion.
27. The United Kingdom proposal would have the effect of making the meaning of article 5 [became CISG article 6 ] clearer but it also introduced a degree of woolliness in that, as could be seen from national case law, judges were often tempted to give a purely hypothetical interpretation of the will of the parties.
28. The Belgian proposal was an attempt to add an element of security by providing that, where the will of the parties was not expressly declared in writing, it must be clearly apparent from all the circumstances of the case.
29. Mr. KIM (Republic of Korea) said that, if the parties chose the law of one of the Contracting States, it was possible that the implied exclusion might be contrary to the provisions of article 1 [became CISG article 1 ], paragraph 1(b) of the Convention.
30. The CHAIRMAN put to the vote the proposals by Pakistan (A/CONF.97/C.1/L.45), Belgium (A/CONF.97/C.1/L.41) and the United Kingdom (A/CONF.97/C.1/L.8).
31. All three proposals were rejected.
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