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The Preliminary Application of Private International Law

In the majority of cases applying the CISG, the CISG is reached through the preliminary application of international law. This is of particular interest in light of the fact that Article 1(1)(b) was the subject of much controversy, leading the drafters to decide to permit Contracting States to opt out of it.[6]

Witz confronts the problem of courts inappropriately applying or failing to apply the CISG, as where (1) a German court failed to apply the CISG in a 1989 case [LG Bielfeld 23 June 1989],[7] applying instead the 1964 Hague Convention relating to a Uniform Law on the International Sale of Goods, despite the CISG's having replaced that Convention at the time the contract was concluded[8] (p. 25); (2) another German court in a 1993 case [OLG Düsseldorf 2 July 1993] [9] incorrectly applied the CISG to a dispute involving a U.S. seller and a German buyer, simply ignoring the fact that the U.S. has opted out of Article 1(1)(b), precluding a legitimate application of the CISG by way of private international law (p. 25 ); and (3) the Paris Court of Appeals in 1992 [Cour d'appel de Paris 22 April 1992] [10] erroneously applied the CISG where private international law led to its application, but where the parties did not have their places of business in different states. The court thus ignored the preliminary condition of different states set forth in the first sentence of Article 1 (pp. 28-31).

While the failure to apply and the inappropriate application of the CISG produce undesirable precedents, they do not present conceptual difficulties. More complicated is the situation, also arising under Article 1(1)(b), in which an action is brought in a country whose conflicts of laws rules designate the law of a CISG Contracting State, but where the latter's private international law would require the court to apply the law of a country which has not ratified, and therefore would not apply, the CISG. Witz suggests that judges in Contracting States should not apply the national law of a non-Contracting State in such cases, on the ground that CISG Article 1(1)(b) refers to substantive law, to the exclusion of conflicts of laws rules (pp. 26-29).[11]

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FOOTNOTES

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6. No European state has opted out of the provision, although both the United States and China have (p. 24 n.1).

7. LG Bielefeld, 23-06-1989, IPRax 1990, 316.

8. The Convention relating to a Uniform Law on the International Sale of Goods was appended to international conventions adopted at The Hague in 1964 [hereinafter "ULIS"], and was superseded by the CISG. See Peter Winship, The U.N. Sales Convention: A Bibliography of English-Language Publications, 28 Int'l Law. 401, 403 (1994).

9. OLG Düsseldorf, 02-07-1993, RIW 1993, 845 et seq., EWIR 1993, 1075 et seq., obs. P. Schlechtriem.

10. Paris, 22-04-1992. The English translation of this case, along with the English translation of an extensive commentary of the case by Witz, will appear in Volume 16, Issue 1 of this journal.

11. In support of this argument, Witz cites the CISG drafters' wish to confer the widest possible scope to Article 1 § 1(b), as well as the view that unification of the law precludes the application of the law of non-Contracting States (p. 29).

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