Reproduced with permission from 15 Journal of Law and Commerce (1995) 175-199

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Contractual Exclusion of the CISG

Article 6 explicitly defers to the will of contracting parties who agree to eliminate or modify the application of the CISG to their contracts.[19] Contract provisions stating that the law of a Contracting State rather than the CISG will apply, or that the law of a Contracting State with respect to domestic sales will apply, have not proved controversial (p. 44). Less clear are contract provisions which designate the law of a Contracting State which has not opted out of Article 1(b) by way of the reservation in Article 95.[20] In other words, there have been differences of opinion as to whether the CISG or national law governs where the parties' contractual choice of law provision merely designates the law of a Contracting State, and does not explicitly exclude the CISG. Article 6 does not address this issue.

Witz signals the drafters' intent that the CISG might be excluded by tacit agreement of the parties (p. 44).[21] He also points out that the validity of an implicit exclusion of the CISG nevertheless depends on the parties' intent to exclude the CISG being certain, such that in case of doubt as to the parties' intent, the CISG will apply. Witz concludes that, consequently, " the application of the CISG is not subordinated to the intention of the parties. It is the 'opting out' rather than the 'opting in' system that the CISG drafters retained" (p. 44).[22] In support of this conclusion, Witz refers to three decisions in which clauses providing for the application of the laws of a specified country were deemed to require application of the CISG where those countries were Contracting States (pp. 44-45). It seems clear, however, that the reasoning which led to the application of the CISG in all three situations was that, in choosing the law of a Contracting State, the parties were choosing the CISG, since the Contracting State's law required the application of the CISG.

Thus, the arbitrator in one of those cases stated that "since January 1, 1988 the French law of international sales is the U.N. Convention on Contracts for the International Sale of Goods. . . ."[23] Moreover, the arbitrator explicitly reasoned that "the parties' intent to choose French law corresponds to the provisions of the CISG, an integral part of their countries' respective national laws."[24] The contract choice of law clause specified that the arbitrator was to apply "the substantive laws of France." Accordingly, the arbitrator applied the CISG only in its substantive scope. Witz criticizes the arbitrator for reasoning that the parties' agreement to be governed by French national law mandated the application of national law to all questions not specifically regulated by the CISG, such as matters of proof, general contract theory and, if need be, internal sales law (p. 45) [ICC Arbitration No. 6653 of 1993]. [25] Witz emphasizes in this context the CISG principle that the CISG is to apply unless not even a general underlying CISG principle exists that can offer guidance.

The arbitrator's reasoning would seem to emanate from Article 6's deferring in matters of choice of law to the contracting parties, whereas Witz's reasoning would seem to derive from an assumption that the parties' intent does not take precedence over the CISG, despite the language of Article 6.[26] The arbitrator's decision certainly can be criticized for giving more extensive application to Article 6 than is warranted. Witz's criticism, however, suggests that he may accord less weight to the ability of contracting parties to exclude the CISG in whole or in part than the spirit of the CISG and the language of Article 6 would allow.

Courts have also confronted the issue of whether the CISG applies when the parties have stipulated that the law of a Contracting State applies, but when the contract was concluded before the CISG had taken effect in the country in question. Witz cites with approval a German court dealing with a contract that provided for French law to govern. The court did not apply the CISG to a distribution contract because that contract was concluded before the CISG had taken effect, but did not apply the CISG to subsequent derivative sales contracts that had been formed after the CISG came into effect in France. The opinion noted that the CISG was in effect when the delivery took place. [OLG Koblenz 17 September 1993]. [27] Witz correctly tempers his approval by commenting that the court should have measured the applicability of the CISG as of the time of the conclusion of the contract, rather than the time of delivery (pp. 46-47).

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FOOTNOTES

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19. Article 6 provides that "[t]he parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions."

20. Article 95 provides that "[a]ny State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1)(b) of article 1 of this Convention."

21. For more on the drafters' intent with respect to the validity of implicit CISG exclusion, see Claude Witz, L'exclusion de la Convention de Vienne par la volonté des parties, D. 1990, Chron. 107 et seq. (cited on p. 44 n.85).

22. Witz's text reads as follows in the original: "[L]'application de la Convention n'est en effet pas subordonnée à la volonté des parties. C'est le système du 'opting out' et non du 'opting in' qui a été retenu par les rédacteurs de la Convention." (p. 44).

23. Cited by Witz in the original: "[D]epuis le 1er janvier 1988, le droit français de la vente internationale est constituée par la Convention des Nations unies sur les contrats de vente internationale des marchandises . . . ." (p. 45).

24. Id.

25. Affaire 6653, 1993, JDI 1993, p. 1040, obs. J.-J. A. Witz cites to the following original language of the decision: "La volonté des parties de se référer au droit français conduit le tribunal arbitral, pour toutes les questions non couvertes par la Convention de Vienne, à retenir le droit français en matière de preuve, de théorie générale des obligations et, le cas échéant, de droit interne de la vente." (p. 45).

26. See supra note 19.

27. OLG Koblenz, 17-09-1993, RIW 1993, p. 934 et seq.

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