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Growth of the CISG with Changing Contract Technology:
"Writing" in Light of the UNIDROIT Principles and CISG-Advisory Council Opinion no. 1

Andrea L. Charters [1a]
October, 2004

  1. Introduction
  2. Context for interpreting Article 13 in light of UNIDROIT Principles Article 1.10
  3. a. Interpretations contemporary to adoption of the CISG are silent or raise questions about Article 13
    b. Practical needs of traders using electronic media
    c. Recent scholarship on the CISG endorses the use of electronic communication
    d. UNCITRAL Model Law - Avoid anomaly
  4. Article 13 presents a monolithic definition of "writing" that may not be sufficiently flexible for all uses
  5. a. Legislative history introduced examples of electronic communication and made "writing" a definition
    b. Article 13 does not address burden of proof or presumptions; sparse case law
  6. Current electronic means of communication pose technological dilemmas
  7. Practitioners' approach as a springboard into default rules
  8. Interpretation in light of UNIDROIT Principles by CISG-Advisory Council Opinion no. 1 addresses the challenges of flexibility, fairness and efficiency
  9. a. Private organization, interpretive, not authoritative
    b. The commentary builds on the Principles approach to "writing"
    c. A Presumption, related to Article 9 trade usages
  10. Conclusion

I. Introduction

Article 13 of the Convention on Contracts for the International Sale of Goods (the "CISG"),[1] defining a writing, raises particular questions of interpretation given the technological advances that have occurred since its drafting in 1980. CISG Article 13 states that:

"For the purpose of this Convention 'writing' includes telegram and telex."[2]

From both a common sense and a syntactical approach, this provision must be interpreted flexibly because of the use of "includes" and the omission of paper and ink.[3]

With this demand for flexibility, many reasons for looking at the application of the UNIDROIT Principles of International Commercial Contracts (the "Principles")[4] to the interpretation of Article 13 of the CISG come into view. Principles Article 1.10 uses a functional approach to define "writing":

"'writing means any mode of communication that preserves a record of the information contained therein and is capable of being reproduced in tangible form.'"[5]

These stark differences in definitional style reflect not a different philosophy of drafting, but different technological environments at the time of drafting. The Principles, after all, define "court" not as an organization that "means" something, but as it "includes an arbitral tribunal".[6] By 1994, however, electronic commerce had grown in media and significance and was becoming a growth area in the law.[7] Thus, listing examples of "writing" or even of electronic commerce could only have been doomed to obsolescence by the time of drafting of the Principles.[8] Not only facsimile, electronic data interchange, the Internet and e-mail had come into common use, but also combinations of services were appearing; new products were inevitable.[9]

Thus, a functional approach was a logical choice for an international provision, the aim of which was to maintain flexibility for the future by being open-ended.[10]

The Principles have in turn prompted a new CISG commentary, as discussed in Section VI below, CISG-Advisory Council Opinion no. 1,[11] which adopts a functional approach similar to that of the Principles:

"The term 'writing' in CISG also includes any electronic communication retrievable in perceivable form."[12]

Thus, the Principles provisions of "preserve a record" and "retrievable in perceivable form" are condensed in the more detailed provision "retrievable in perceivable form," adding the requirement that the information must be "perceivable."

A number of detailed reasons to consider the interpretation of the CISG writing definition in light of that in the Principles follow upon this brief introduction.

II. Context for interpreting Article 13 in light of UNIDROIT Principles Article 1.10

The context for interpreting Article 13 in light of UNIDROIT Principles Article 1.10 has several aspects: the historical changes in interpretations of Article 13 of the CISG, the electronic environment and the need to avoid an anomalous result with an UNCITRAL model law.

a. Interpretations contemporary to adoption of the CISG are silent or raise questions about Article 13

The interpretations of Article 13 which were contemporary to adoption of the CISG were silent or raised questions with regard to this now problematic provision, a timely reflection on the unproblematic nature of its provisions at the time. There is no Secretariat Commentary on Article 13, nor any pre-UNCITRAL legislative history.[13] The UNCITRAL legislative history is sparse[14] and reflects little debate.[15] Examples of restricting the view of electronic communication to telegram and telex abound. Gyula Eörsi summed up Article 13 in 1984, shortly after the 1980 adoption of the Convention, in a major commentary: "This Article needs no comment."[16] In 1986, Kazuaki Sono wrote that an Article 96 reservation in favor of requiring writing, sought mainly by Socialist countries, "would in most cases not result in much practical difference" from no writing requirement, since telegram and telex are included as examples in Article 13.[17] J. Rajski, in a Bianca and Bonell 1987 treatise, reviewed some then-recent East European statutes on what constituted "writing".[18] Jacob S. Ziegel raised two questions about Article 13 in 1981: whether electronic means would be included, or whether a paper record would be required, and whether the requirements of Articles 12 and 96 would have been met "where the domestic law of the declarant state has a narrower definition of writing;" the answer to the latter question was "presumably no", since Article 12 was designed to enable states to retain their own writing requirements.[19] Commenting on the legislative history, Peter Schlechtriem praised the initiative by the Federal Republic of Germany of adding the telegram and telex provisions to facilitate quick decisions in commerce, and further argued the conclusion reached by Professor Ziegel with regard to Article 96 reservations.[20]

As will be shown in subsection "c" below, within five years scholarship had shifted to arguing for inclusion of other electronic means within the definition of "writing", in response to the growing practical need to accommodate the use of other electronic means of communication.

b. Practical needs of traders using electronic media

The practical need to accommodate the growing use of other electronic means of communication has affected both the lives of traders and the growth of the CISG. The day-to-day life of a lawyer or legal scholar attests to the prevalence and growth of these means of communication.[21] The prevalence of electronic forms as contract media also abounds in the growth of laws and legal literature about these forms.[22] The development of CISG law also requires that the CISG accommodate these forms, in order to avoid being "petrified" and "unable to change or be changed as needed," and thus, in fact, electronic communications are an "assay" for whether the CISG can grow.[23]

c. Recent scholarship on the CISG endorses the use of electronic communication

The recent scholarship on the CISG endorses the use of electronic communication. Just five years later than his early phase comments of 1986, regarding the Article 96 reservation and the necessity of telegraph and telex, in 1991/92, Peter Schlechtriem further argued that fax should be included as "writing".[24] An internal gap in the CISG should be filled pursuant to Article 7(2), since fax "was unknown when the Convention was drafted."[25] Fritz Enderlein and Dietrich Maskow in 1992 focused on the 1988 Factoring Convention approach to "telecommunication capable of being reproduced in tangible form",[26] another functional approach. The PECL approach, adopted six years later, was to look to four examples of electronic communication, telegram, telex, telefax and electronic mail, and "other means of communication capable of providing a readable record of the statement on both sides", thus a liberalization of the "reproduction" language and also, in part, a functional approach.[27] In his comparative analysis of CISG Article 13 and the counterpart provisions in the PECL, Ulrich Schroeter analyzes four means of contemporary communication, two of which are PECL examples:[28] telefax, electronic data interchange, electronic mail, the Internet and World Wide Web, under the CISG and the Principles of European Contract Law.[29] John Honnold in the 1999 edition of his treatise, Uniform Law for International Sales Under the 1980 United Nations Convention, identified facsimiles and electronic data interchange as major means of electronic communication, along with telegram and telex.[30]

d. UNCITRAL Model Law - Avoid anomaly

It would be anomalous for an UNCITRAL Convention, the CISG, to include provisions inconsistent with an UNCITRAL Model Law. The UNCITRAL Model Law on Electronic Commerce (1996) provides in Article 6 that the requirement of "writing" is met "by a data message if the information contained therein is accessible so as to be usable for subsequent reference."[31] The "subsequent reference" language is parallel to the "readable record" of the PECL,[32] and the "retriev[al] in perceivable form" of the CISG-AC Opinion no. 1.[33] "Data message" is defined as "information generated, sent, received or stored by electronic, optical or similar means including, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy."[34] Thus, the Model Law definition is consistent with the interpretations advanced in the recent era of scholarship on the CISG and it would be anomalous for it to be otherwise.

With this context at hand, it is important to turn to the characteristics of the definition of "writing." The first major feature of the definition of "writing" is just that, it is a definition. How this affects the need for interpretation will be seen below.

III. Article 13 presents a monolithic definition of "writing" that may not be sufficiently flexible for all uses

"Writing" is defined in both the CISG and the UNIDROIT Principles in a monolithic manner that may not be sufficient for all purposes, as seen in subsection b. and Section VI below. As a definition, "writing" applies to all uses of the term.

a. Legislative history introduced examples of electronic communication and made "writing" a definition

The legislative history reflects introduction of the two then prevalent means of electronic communication, telegraph and telex,[35] and assurance that "writing" remained a definition.[36]

b. Article 13 does not address burden of proof or presumptions; sparse case law

As a definition that specifies the inclusion of telegram and telex, the definition of "writing" does not address burdens of proof or presumptions; this tends to create a bias against the inclusion of modern electronic communication in the definition of "writing". From a litigation perspective, a party favoring exclusion of modern means of communication from the definition of "writing" could argue post-transaction that the specific reference to "telegraph" and "telex" indicated a preference for these means over other electronic means. This would be a textual argument, simple to make, concise to argue. This point could be raised out of litigation strategy, not out of a genuine preference for these dated media. Similar arguments have long plagued the Common Law Statute of Frauds.[37]

The party arguing for inclusion of modern media would face a much more fact-based argument in favor of practicality and common sense, absent scholarship and comparison to the Principles. How this burden of proof and presumption problem is treated in the CISG-AC Opinion no. 1 is addressed in Part VI.

The sparse case law and arbitral decisions regarding the definition of "writing" under the CISG do not resolve this litigation dilemma. One case merely recited the CISG definition.[38] Another two cases are reported in English to have ruled out application of the CISG definition to leases, which are not sale of goods transactions.[39] Two Russian arbitrations provide some direction as to how an arbitral tribunal, at least in Russia, might look at Article 13. The first tribunal ruled on a case involving telex messages, noted the Article 13 provision, and bolstered the reference with a citation of the New York Convention on Recognition and Enforcement of Foreign Arbitral Awards 1958.[40] The second tribunal looked to domestic law to accept facsimile changes to an agreement.[41] One scholar has noted that this last arbitration apparently accepted looking to domestic law under Article 13.[42]

Before turning to the comparative law answer to this litigation dilemma in Part VI, let us compound the problem.

IV. Current electronic means of communication pose technological dilemmas

Many security, retrieval and storage concerns plague electronic communications media; these raise the specter of exotic, hard to trace fraud and mistakes; modern e-mail may be tampered with and messages may be lost through confusion with "Spam".[43]

"Writing", in the UNCITRAL Model Law, or in scholarship about the CISG, is designed to permit perceiving and storing information,[44] a limited means of preventing fraud.[45]

This new purpose is grounded in a reasonable[46] approach to communications in general. No one has a quantification of how easy it is to commit fraud with paper and ink, vs. telegram, telex, facsimile, email, electronic data interchange or other mechanisms.[47] Even telex has been subject to serious fraud, partly through human policy and procedure error.[48]

Given the extent of these problems, our answer is to turn, initially, to the deal lawyer's approach.

V. Practitioners' approach as a springboard into default rules

The reality of all these means of communication is that from a prospective position, where a lawyer is advising a client, particularly on a large transaction or a series of transactions, the counseling interaction between the lawyer and client is the critical story for security, retrieval of data and record storage. All of these issues are neither purely business nor purely legal issues. New products are available all the time to better secure electronic communications.[49] A practitioner thus has to work with clients on appropriate choices of communications media for contracts,[50] retrieval systems, record storage and security.[51] It does no good to have sent that notice timely and not be able to find the Postal System certified mail receipt and copy of the letter. Business, information technology and legal knowledge all need to be integrated to have the best approach. The client needs a team that can satisfy its needs.

What follows from this is that prospectively, in drafting a contract, a definition of a writing requirement, such as for amendments of the contract and for notice, must be crafted to the deal by the attorney and client in negotiation with their counterparts. Relying on default rules will not do the job for the lawyered contract. For example, would a certain brand of "certified e-mail" be an acceptable means of communication, while perhaps fax and other brands of "certified e-mail"[52] would not be? A facsimile is subject to loss in the office system, after all, while a "certified e-mail" could be sent to multiple company officers, with an opportunity for the sender to receive a confirmation when any of them had opened the message.

Model contracts for use in CISG transactions already include model provisions for choosing among media for "writing".[53] Under Article 6 of the CISG, the parties may derogate from the provisions of the CISG in their contract to be able to adopt the means of communication they choose.[54] CISG jurisprudence has demonstrated that the agreement of the parties will be honored, even if it is contrary to expected norms of commercial behavior, as demonstrated in MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino.[55]

MCC-Marble is a second springboard, however, into the jurisprudence of default rules. For the CISG is ultimately a law for the trader who does not always have time or a large enough transaction to go to her lawyer, such as in the MCC-Marble transaction at a trade show.[56] When faced with another party's invoice, the trader experiences the default rules as the critical issue for fairness under the CISG.

This is then the scholar's job, to guide court decisions that will protect the trader in the un-lawyered transaction. A major purpose of the CISG, without a traditional parol evidence rule or traditional writing requirement,[57] is to handle these true agreements by merchants at the trade show and in quick meetings. Today, these are often agreements over the e-mail circuits.[58] A great advantage of e-mail is that potential trading partners can find each other over the Internet and build a relationship with e-mails about very small transactions until their relationship warrants investing in travel and personal meetings. They may also wish to attend international trade shows and work with introducing parties, but there is no substitute for the Internet and e-mail.[59]

The importance of these means of contracting is indicated by the efforts of the International Chamber of Commerce Electronic Commerce Project to bolster the ability of traders to rely on electronic means of contracting.[60] The Project is focusing on the ability of traders to undertake the following tasks: "conducting their negotiations, making contracts, arranging for finance, transport or insurance on-line" for the reasons that "most of the rules that apply to international trade still presume the use of paper. Given that paper has certain inherent weaknesses as an information carrier, these rules create barriers that are unnecessary in the digital environment."[61]

Interpretation of the CISG, which applies to trade between nations that account for over two-thirds of world trade,[62] is thus essential to paving the way for traders to accomplish their trade goals along the lines just outlined. The CISG, as an international law, can be interpreted along the lines of both Common Law and Civil Law and a combination of the two that allows an autonomous interpretation of the CISG. Such an autonomous interpretation allows CISG Article 7(1)'s goal of an "international character"[63] to be fulfilled.[64] By looking to both of these techniques, scholars can assist the development of the law. This development may lead, rather than follow, case law. Traders, through reliance on lawyers and international bodies such as the International Chamber of Commerce that in turn rely on international bodies of scholarship,[65] look to the default rules elaborated by scholars for fairness where the code or statute leaves gaps.

When fairness is considered, having a default rule that encourages parties to plan, taking the rule into account, is also important. Thus, the rule chosen should not only be fair, but efficient.[66] Whether fairness and efficiency are in sync or at odds will be a question for the next Section.

Given the problematic nature of contemporary electronic communications, fairness and efficiency, should the CISG default rule be interpreted in light of the broad UNIDROIT standard, which would make essentially all electronic communications that could be reduced to a tangible form into CISG "writing", or should some middle ground be struck?

VI. Interpretation in light of UNIDROIT Principles, by CISG-Advisory Council Opinion no. 1, addresses the challenges of flexibility, fairness and efficiency

It is not necessary to take the influence of the Principles on interpretation of the CISG as a blunt instrument.

a. Private organization, interpretive, not authoritative

A private, collaborative, scholarly initiative has produced an interpretive commentary on just the issue of what constitutes "writing", and related issues, under the CISG. The CISG-Advisory Council, a private group of CISG scholars from around the world, has produced Opinion no. 1 regarding Electronic Communications.[67] The CISG-AC "is a private initiative supported by the Institute of International Commercial Law at Pace University School of Law and the Centre for Commercial Law Studies, Queen Mary, University of London."[68]

Although the text was prepared as a private initiative from partly pragmatic reasons,[69] a theoretical argument underpins the work. As a commentary that is not authoritative, it is ultimately flexible. It has the freedom of detailed interpretation that can be relied on without becoming ossified.[70] There is no governmental body of any type that must acknowledge change if a new interpretation is needed.

Thus, the benefit of detailed default rules can be had without the drawbacks of either having to spawn ever more detailed rules in order to change the law or having to rely on great discretion in the hands of judges, with a lack of predictability for parties and potential for manipulability.[71]

Some have called for an authoritative commentary and body like the United States Permanent Editorial Board of the Uniform Commercial Code, but sponsored by UNCITRAL for the CISG.[72] Given the pragmatic issues of international agreements, and the theoretically sound reasons for having a private commentary, the CISG-AC work is of great benefit to the CISG community. The CISG-AC is profound evidence of an international community of scholars. Communication among such a group is greatly facilitated by e-mail, one of the very subjects of Opinion no. 1.[73]

The choice of "writing" as a topic for the Advisory Council's Opinion no. 1 shows the benefit of a private, scholarly undertaking. There is little case law and little scholarship on Article 13 of the CISG,[74] yet a huge need to advance the law, given the rapid advance of technology beyond what was contemplated at the adoption of the CISG, as acknowledged by the International Chamber of Commerce.[75] The Advisory Council has thus filled a vacuum in the development of the law. This type of forward movement in the law can best be achieved by an independent group, free from the types of constituencies that surround a governmental or quasi-governmental body.

b. The commentary builds on the Principles approach to "writing"

The commentary builds on the Principles approach to the definition of "writing" and consists of two types of remarks regarding each affected section, Opinions and Commentaries.[76] The Opinion on Article 13 is built around the language of "retrievable in perceivable form" and thus uses the Principles approach to interpreting the CISG, where the Principles use the language "preserves a record" and is "capable of being reproduced in tangible form".[77]

The Opinion is not limited to this language. Two other features of the Opinion are critically important. There are three Comments to Article 13 and additional Opinions and Comments on related sections of the CISG text.[78] The related sections are treated in other chapters of this volume. Thus, the monolithic definition of "writing" has been separated into terms better suited for the particular uses to which the term is put.

The three Comments on Article 13 refer to the uses of the term "writing" and exclude the issue of Article 96 reservations by states that wish to require writings under Article 12 for policy reasons.[79] Finally, the second Comment introduces the middle ground of a presumption into the interpretation of Article 13 "writing", another means of tailoring the monolith to the particular transaction.

c. A presumption, related to Article 9 trade usages

The middle ground traced by Comment 13.2, the second Comment under Article 13, is a presumption:

"Unless the parties have limited the notion of writing, there should be a presumption that electronic communications are included in the term 'writing'. This presumption could be strengthened or weakened in accordance to the parties' prior conduct or common usages (CISG Art. 9(1) and (2)."[80]

Thus, the presumption builds on trade usages,[81] for flexibility.

A default rule that has the flexibility of a presumption and the benefit of trade usages is thus an efficient default rule, one that requires a minimum of "planning around" the rule and a minimum of results contrary to what the parties would have agreed.[82]

This efficiency is not gained at the expense of fairness, as a court or arbitral tribunal is free to decide against the presumption, as well, if that is warranted, particularly based on the history of dealings between the parties. Having a presumption in favor of the contemporary means of electronic communication allows deciding tribunals to avoid the pitfalls of prior litigation over the Statute of Frauds, where the writing requirement became used for deleterious purposes.[83]

Having a presumption allows a default rule that is not overly rigid and does not create the problem of "ossification" of a trade statute.[84] Referring to Article 9 on trade usages further draws the tradition of agreed upon trade norms into the growing law of electronic commerce.

VII. Conclusion

CISG-AC Opinion no. 1 regarding Article 13 is thus an example of the CISG and trade norms closing circle in the hands of an institutional system of scholars, in a manner which tailors the "writing" definition to the transaction and achieves legal and policy objectives by preventing the definition from appearing monolithic.

The definition of "writing" has become a comparative law project. Not only has the definition from the Principles been used to interpret the older definition from the CISG, in addition, scholarship has amplified it and generated more functional default rules through the use of presumption and trade usage. This process has allowed filling a gap by reference within the CISG, for flexible rules, related to the trade history of the parties. Fairness and efficiency are not at odds, but operating consistently through the use of the presumption in favor of electronic commerce. Where parties have not contracted with each other regarding written terms, a presumption informed by Article 9 is the default rule they would want, in order to achieve flexibility and fit to their transaction.

This presumption should be in favor of electronic commerce, both based on the history of "writing" definitions across multiple laws and interpretations and on the prevalence of electronic commerce. It is not necessary to select examples of electronic commerce, which would inevitably create a presumption against those forms not listed. The details of these results thus again show how the scholarship has filled an internal gap in the CISG, using communication facilitated by the very media which are subject to the analysis of Article 13.

Providing a pathway for the traders the International Chamber of Commerce is serving thus advances scholarship in a practical, as well as theoretical, way that is aimed at allowing international trade to flourish, taking advantage of contemporary electronic communications media.


1a Adjunct Professor, Washington University School of Law, St. Louis, Missouri, U.S.A.; J.D. Harvard Law School, M.S.W. Washington University, A.B. Yale University.

1. United Nations Convention, adopted 1980, available at <http://cisgw3.law.pace.edu/cisg/text/treaty.html>.

2. CISG Article 13 (emphasis added).

3. On the generally held view that "includes" requires an expansive reading, see Ulrich G. Schroeter, "Interpretation of "writing": Comparison between provisions of CISG (Article 13) and counterpart provisions of the Principles of European Contract Law", 6 Vindobona J. Int'l Commercial L. and Arbitration (2002-1) 267-274, at Section 1, also available at <http://cisgw3.law.pace.edu/cisg/biblio/schroeter3.html>.

4. Adopted 1994 by UNIDROIT, available at <http://cisgw3.law.pace.edu/cisg/principles.html>.

5. Id. at Article 1.10 (emphasis added).

6. Principles Article 1.10, first definition (emphasis added). Other definitions include "place of business", "obligor" and "oblige" and use forms of the verb "to be" or "to refer" in simple declarative statements.

7. See generally, Benjamin Wright, The Law of Electronic Commerce, 2d ed. (1995) (a loose leaf service, the second volume of which became available not long after the Principles were adopted, this treatise discusses the types of electronic commerce, their function, needed business cautions in working with them, and developing law in the area).

8. See John O. Honnold regarding the CISG in Uniform Law for International Sales Under the 1980 United Nations Convention (3d ed. 1999) [hereafter "Honnold, 1999 Treatise"] at 222, where the author states: "Consequently, courts and codifiers have had to describe, in general terms, those understandings that would have been written into the contract if the parties had drafted a contract provision to deal specifically with the question that led to dispute." (Citations omitted.)

9. See Wright, supra note 7 at Chapters 2-3 (describing products, interactions of products and players, such as lawyers and accountants); see also infra note 43 and sources cited therein for further indication of movement in the email field.

10. Cf. Principles of European Contract Law (PECL) Article 1:301(6), which lists four examples, telegram, telex, telefax and electronic mail, and also "other means of communication capable of providing a readable record of the statement on both sides", available at <http://cisg3.law.pace.edu/cisg/text/peclcomp13.html>. See also, Schroeter, supra note 3 at Section 4 (describing current day use of facsimile, electronic mail, electronic data interchange, the Internet and World Wide Web).

11. CISG-AC Opinion no. 1, Electronic Communications under CISG, 15 August 2003. Rapporteur: Professor Christina Ramberg, Gothenburg, Sweden [hereafter "CISG-AC Opinion no. 1"], available at <http://cisgw3.law.pace.edu/cisg/CISG-AC-op1.html>.

12. Id., at CISG Art. 13 Opinion no. 1 (emphasis added).

13. Legislative History, Data on the Secretariat Commentary, and Data on the pre-UNCITRAL legislative history of the CISG, available at <http://cisgw3.law.pace.edu/cisg/text/roadmap/intro-13.html>.

14. See Legislative History, 1980 Vienna Diplomatic Conference, Chronological Record of Proceedings, CISG article 13, development of, available at <http://cisgw3.law.pace.edu/cisg/chronology/chrono13.html>.

15. See infra Section III.a (discussing addition of telegram and telex and emphasis on placement as a definition).

16. See Chapter 2.9, General Provisions, in N. M. Galston & H. Smit, International Sales: The United Nations Convention on Contracts for the International Sale of Goods (1984). (This was perhaps a reference for the CISG scholar to the legislative history, which tailored the introduction of these two forms to prior Soviet legislation. See infra note 35).

17. Formation of International Contracts Under the Vienna Convention: A Shift Above the Comparative Law, in P. Sarcevic and P. Volken, eds., International Sale of Goods, Dubrovnik Lectures (1986), at 129-130 (Professor Sono stated the importance of written contracts for some States that "consider the requirement that contracts for the international sale of goods be in writing to be a matter of important public policy even in the context of the relation between the parties", at 129).

18. C. Bianca and M.J. Bonell, Commentary on the International Sales Law (CISG) (1987) at 128.

19. Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods, (July 1981), at Article 13 Comment, available at <http://cisgw3.law.pace.edu/cisg/text/ziegel13.html>; see infra Section III.a (legislative history).

20. Uniform Sales Law - The UN-Convention on Contracts for the International Sale of Goods, at 46 (1986) (citations omitted), available at <http://cisgw3.law.pace.edu/cisg/biblio/schlechtriem-13.html>.

21. As a participant observer in both fields, much information retrieval, as well as communication, has been obtained via these forms. Even five years ago, e-mail and the Internet were in their infancy. The growth rate of the electronic forms is staggering.

22. See generally, Wright, supra note 7 (compound forms and technological development); D. Reiter, E. Blumenfeld and M. Boulding, eds., Internet Law for the Business Lawyer (Section of Business Law, American Bar Association) (2001) (discussing regulation, taxation and jurisdiction, among other matters).

23. Siegfried Eiselen, Electronic commerce and the UN Convention on Contracts for the International Sale of Goods (CISG) 1980, 6 EDI Law Review (1999) at 21, also available at <http://cisgw3.law.pace.edu/cisg/biblio/eiselen1.html>.

24. See Uniform Sales Law - The Experience with Uniform Sales Laws in the Federal Republic of Germany, [at Article 13] reprinted with permission from Juridisk Tidskrift 1991/92, available at <http://cisgw3.law.pace.edu/cisg/text/schlechtriem13.html>; see also Peter Schlechtriem, Article 13, in Peter Schlechtriem, ed., Commentary on the UN Convention on the International Sale of Goods (CISG) 94-95 (1998) (trans. Geoffrey Thomas) [hereafter Schlechtriem, Article 13].

25. Id. and infra, subsection "d". "Internal gaps" are to be filled with reference to the CISG and its sources, rather than with regard to domestic law, as discussed in Franco Ferrari, Interpretation of the Convention and gap-filling: Article 7, in Franco Ferrari, Harry Flechtner and Ronald A. Brand, ed., The Draft UNCITRAL Digest and Beyond: Cases, Analyses and Unresolved Issues in the U.N. Sales Convention, at 138-171 (2004) [hereafter Draft UNCITRAL Digest].

26. International Sales Law, at Article 13 Commentary (1992), available at <http://cisg3.law.pace.edu/cisg/biblio/enderlein-art13.html>; see also UNIDROIT Convention on International Factoring (Ottawa, 28 May 1988), available at <http://www.unidroit.org/english/conventions/c-fact.htm>.

27. See PECL, supra note 10. Enumerating certain examples has the advantage of clarity but the disadvantage of creating a bias against any new technology.

28. See supra, note 3 (discussing these forms of contemporary contract media).

29. Supra note 10.

30. Honnold, 1999 Treatise, supra note 8 at 141; see also E. Allen Farnsworth, Farnsworth on Contracts, 3d ed., at Sections 1.7, 1.8a and 1.9 (2004) (reviewing electronic communications forms and laws, CISG and Principles).

31. Article 6, available at <http://www.uncitral.org/english/texts/electcom/ml-ecomm.htm>.

32. See PECL, supra note 10.

33. See supra Section I for comparison of CISG-AC Opinion no. 1 and Principles.

34. See supra note 31, Article 2.

35. Summary Records of Meetings of the First Committee, 7th meeting, Friday, 14 March 1980, paras 71-77, available at <http://cisgw3.law.pace.edu/cisg/firstcommittee/Meeting7.html> (in response to Soviet legislation that made these forms qualify as "writing"). The Draft UNCITRAL Digest notes the parallel in this provision to a provision in the 1974 UNCITRAL Convention on the Limitation Period in the International Sale of Goods. Draft UNCITRAL Digest, supra note 25 at 571. Peter Schlechtriem notes that the presence of such a provision in the Convention on Limitation facilitated the incorporation of telegram and telex into CISG Article 13. See Schlechtriem, Article 13, supra note 24.

36. Summary Records of Meetings of the First Committee, 35th meeting, Friday, 4 April 1980, para 63-67, available at <http://cisgw3.law.pace.edu/cisg/firstcommittee/Meeting7.html>.

37. See Michael Bridge, A Commentary on Articles 1-13 and 78, in Draft UNCITRAL Digest, supra note 25 at 256 ("It is well-known in those countries that have Statute of Frauds provisions that the objection raised by a party to the lack of formality is usually made, not for purist reasons, but rather to shroud the true, often, but by no means always, unmeritorious, reason for escaping from the contract.")

38. See Finland 26 October 2000 Helsinki Court of Appeals [Helsingin hoviokeus], Case presentation and English translation available at <http://cisgw3.law.pace.edu/cases/001026f5.html> (5th paragraph under "Law" heading) (also addressed the "principle of loyalty" to the contractual relationship, "widely recognized in scholarly writings" -- a principle which was also addressed in a Pace case commentary excerpt from Larry A. DiMatteo et al, 34 Northwestern J. Int'l L. & Bus. (Winter 2004) 299-440 at 316-317 and 326).

39. See Draft UNCITRAL Digest, supra note 25 at 571-572, citing two decisions of the Austrian Supreme Court [Oberster Gerichtshof]:

- Austria 2 July 1993 Supreme Court, case presentation available at <http://cisgw3.law.pace.edu/cases/930702a3.html> and

- Austria 26 April 1997 Supreme Court, case presentation available at <http://cisgw3.law.pace.edu/cases/970426a3.html>.

40. See Russia 28 April 1995 Arbitration proceeding 400/1993, case presentation and English translation available at <http://cisgw3.law.pace.edu/cases/950428r1.html>, at 3.4 (buyer lost claim of lack of authority of its representative; interest was applied).

41. See Russia 10 June 1999 Arbitration proceeding 55/1998, case presentation and English translation available at <http://cisgw3.law.pace.edu/cases990610r1.html>, at 3.5 (another claim by a buyer of failures by its representative; buyer lost the claim).

42. See Djakhongir Saidov, Cases on CISG Decided in the Russian Federation, 7 Vindobona J. Int'l Comm. L. & Arbitration 1 at 11-12 (2003) (citations omitted) (canvassing Russian arbitrations), available at <http://cisgw3.law.pace.edu/cisg/biblio/saidov1.html>.

43. See, e.g., the colorful advertisements on the Internet that humorously describe the common problems most of us have experienced. The titles capture the themes of the advertisements. Postal Service Offers Certified E-mail, May 18, 2000 ("Fact is, the e-mail simply does not always go through. The recent 'Love Bug' virus resulted in the loss of untold thousands of email messages around the world."), available at <http://usgovinfo.about.com/library/egov/aa051800a.htm> [last visited 10/12/2004]; Combatting Spam using Certificates of Approval - Draft v1.0 of 03/14/03, available at <http://www.madoverlord.com/Projects/SPAMIDEA.t> [last visited 10/12/2004]; Email tracing basic seminar, <http://www.pimall.com/nais/emailtracing.html> [last visited 10/12/2004]; IzyDelivers Certified eMail[TM], available at <http://izymail.com/id_default.aspx?> [last visited 10/12/2004].

44. See supra Sections I and II.d.

45. Cf. E. Allen Farnsworth, Farnsworth on Contracts, 3rd ed., at Section 6.1 (2004) (history and functions of the Statute of Frauds).

46. See Albert H. Kritzer, ed., Reasonableness, January 23, 2001, available at <http://cisgw3.law.pace.edu/cisg/text/reason.html> ("reasonableness" specifically mentioned in 37 CISG provisions and clearly alluded to in others).

47. Cf. Wright, supra note 7, at Section 4.7 (people have long tolerated imperfect controls and record-keeping with paper and telexes).

48. See Id. at Section 4.2 (citations omitted) (policy control omissions contributed to $13.5 million fraud on Chase Manhattan Bank).

49. See supra note 43 citations as examples of products claiming superior email performance, including "certified" email, which provides a receipt indicating whether email has been "opened."

50. Cf. William F. Fox, Jr., International Commercial Agreements: A Primer on Drafting, Negotiating and Resolving Disputes, 2d ed. at 48 (1992) ("In international trade, parties to an agreement almost always execute a writing of some sort to establish a contract enforceable at law to remove uncertainty and to reduce risk.")

51. See Wright, supra note 7 at Section 4.7 (not just the contract itself, but these other business systems are critical for securing electronic information, or any other information).

52. See supra note 43 and accompanying text.

53. See John P. McMahon, Guide for Managers and Counsel: Drafting CISG Contracts and Documents and Compliance Tips for Traders, January 2004, available at <http://cisgw3.law.pace.edu/cisg/contracts.html> and sources cited therein.

54. CISG, supra note 1, at Article 6 ("the parties may derogate from or vary the effect of any of [the Convention's] provisions.").

55. United States 29 June 1998 Federal Appellate Court [11th Circuit] (MCC-Marble Ceramic Center v. Ceramica Nuova D'Agostino), case presentation available at <http://cisgw3.law.pace.edu/cases/980629u1.html> (holding that traditional notions of parol evidence did not apply under the CISG per its terms, even where an American business person signed a document claiming not to have read the reverse side terms, which were in a language he did not understand, and affidavits stated that there had never been any contractual intent on either side to abide by the reverse side terms).

56. See id.

57. In contrast to the model Uniform Commercial Code $500 limit for transactions without a statute of frauds, the CISG provides in Article 11 that: "A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses." The UCC provision is found at Section 2-201(1) of the American Bar Association, The Portable UCC, 3d ed. (2000): "Except as otherwise provided in this Section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made . "

58. I take myself as a participant observer on this point.

59. Id.

60. International Chamber of Commerce, The ICC Electronic Commerce Project (ECP), available at <http://www.iccwbo.org/home/electronic_commerce/electronic_commerce_project.asp>, [last visited 10/17/2004].

61. Id.

62. Pace Law School Institute, CISG by State, CISG Database, (2002) at <http://cisgw3.law.pace.edu/cisg/cisgintro.html>.

63. CISG, supra note 1, Article 7(1): "In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade."

64. Pace CISG Database, Taming the Dragons of Uniform Law Case Law: Sharing the reasoning of courts and arbitral tribunals, available at <http://cisgw3.law.pace.edu/cisg/text/schedule.html>.

(The editor invites translators to "tame the dragons" of disparate languages in the world's cases, in addition to making a theoretical and practical argument. Contacts are Albert H. Kritzer, Executive Secretary of the Pace CISG Database and Loukas A. Mistelis, Secretary of the CISG-AC, at email addresses listed on this web page.)

65. The International Chamber of Commerce website cries out for the CISG-AC development of law on electronic commerce: "Today, buyers and [sic] sellers in different parts of the world have no legal framework . " Supra note 60.

66. See David Charny, "Hypothetical Bargains: The Normative Structure of Contract Interpretation", 89 Mich. L. Rev. 1815 , 1820-1821 (1991) (setting forth a four space matrix for determining what forms of market analysis should be used for various types of cases); Clayton P. Gillette, "The Law Merchant in the Modern Age: Institutional Design and International Usages under the CISG", 5 Chicago J. Int'l L. 157 (2004) (putting a premium on efficient adjudication); and Avery Wiener Katz, "The Relative Costs of Incorporating Trade Usage into Domestic Versus International Sales Contracts: Comments on Clayton Gillette 'Institutional Design and International usages under the CISG'." 5 Chicago J. Int'l L. 181 (2004) (Commenting on the former).

67. Supra, note 11. Members conferring on Opinion no. 1 were: Peter Schlechtriem, Chair; Eric E. Bergsten; Michael Joachim Bonell; Alejandro M. Garro; Roy M. Goode; Sergei N. Lebedev; Pilar Perales Viscasillas; Jan Ramberg; Ingeborg Schwenzer; Hiroo Sono; Claude Witz; Loukas A. Mistelis, Secretary; and Christina Ramberg, Rapporteur. Albert H. Kritzer, Executive Secretary of the Pace CISG Database, was also present. Loukas Mistelis, CISG-AC Publishes First Opinions (2004), available at <http://cisgw3.law.pace.edu/cisg/CISG-AC.html> [last visited 10/17/04].

68. Id. at note 1.

69. E-mail exchange between myself and the Secretary of the CISG-AC, Dr. Loukas Mistelis, 10/13/04-10/15/04 (perhaps ironically, paper copy on file with the author).

70. Harold J. Berman has written in favor of common customary practices for international trade, and the avoidance of codification. See, e.g., Harold J. Berman, "The Law of International Commercial Transactions (Lex Mercatoria)", 2 Emory J. Int'l Disp. Resol. 235, 235 (1988) (such practices are widespread); Peter B. Maggs, "International Trade and Commerce, A Conference on the Work of Harold J. Berman", Essay, 42 Emory L.J. 449, 466 (1993) (codification can freeze the law); James E. Bailey, "Facing the Truth: Seeing the Convention on Contracts for the International Sale of Goods as an Obstacle to a Uniform Law of International Sales", 32 Cornell Int'l L.J. 273, 275 (1999) (the title conveys the conclusion of the argument).

71. The points made in this paragraph are both subjects of vast literatures in the United States and also to common conversation. For a look into this literature and more detailed analyses of these issues, see generally a classic article, Duncan Kennedy, Form and Substance in Private Law Adjudication, L. R, 89 Harv. L. Rev. 1685 (1976).

72. John E. Murray, Jr., "The Neglect of CISG: A Workable Solution", 17 J. L. & Com. 365, 375 (1998) (calling for such a body, following the suggestion of Michael Joachim Bonell in 1987, and extending the work of the body to interpretations and illustrations of the CISG, with non-binding comments).

73. One can e-mail the Secretary of the CISG-AC, Loukas A. Mistelis, or Albert H. Kritzer, the Executive Secretary of the Pace Law School CISG Database at the addresses given on the CISG web pages, for example.

74. See supra Sections II and III.a.

75. See supra notes 60 to 61 and accompanying text.

76. Opinion no. 1, supra note 11.

77. See supra notes 4 to 12 and accompanying text.

78. Opinion no. 1, Article 13, supra note 11.

79. See supra notes 35-36 and accompanying text. (Such reasons apply primarily to Socialist states in which economic actors have strong government ties.).

80. Comment 13.2, Opinion no. 1, supra note 11.

81. See generally Gillette, supra note 66 and Katz, supra note 66 for discussions of the literature and theory behind Article 9 and to the sources in note 70 for a discussion of the norms of international trade custom.

82. See generally Charny, supra note 66 and accompanying text.

83. See supra note 37 and accompanying text.

84. See supra note 70 and accompanying text.

Pace Law School Institute of International Commercial Law - Last updated November 2, 2004
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