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Reproduced with permission of 17 Journal of Law and Commerce (1998) 187-217

excerpt from

The Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and other Challenges to the Uniformity Principle in Article 7(1)

Harry M. Flechtner [*]

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The reservation authorized by Article 95 has been made by an interesting grouping of five countries: China, the Czech Republic, Singapore, Slovakia and the United States.[30] By their reservations, these countries have declared that they are "not bound by subparagraph (l)(b) of Article 1." Article l(l)(b) provides that CISG applies to international sales transactions "[w]hen the rules of private international law lead to the application of the law of a Contracting State."[31] The complexities of applying this reservation have been explored elsewhere.[32] For the purposes of this article it is sufficient to note that the effect of the reservation is to remove a critical scope provision from the text of the CISG that is in force in five countries, including the United States. The version of the Convention in force in those countries provides that the CISG applies only when the requirements of Article l(l)(a) are met -- i.e., when both parties to a sales transaction are located in Contracting States.

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* Professor, University of Pittsburg School of Law, A.B. 1973, Harvard College; A.M. 1975, Harvard University; J.D. 1981, Harvard University School of Law.

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30. At the time it acceded to the CISG, Canada combined the authority granted by Article 93 (the "federal State" clause) and Article 95 by making an Article 95 reservation that applied only to one province -- British Columbia. Canada later withdrew this "provincial" Article 95 reservation. See CISG Contracting States and Declarations Table, 17 J.L. & Com. 449 (1998) [hereinafter Table].

31. CISG, supra note 1, art. 1(1)(b). Germany's ratification of the CISG includes an "observation" that, in its view, States that have made an Article 95 reservation are not to be considered "Contracting States" for purposes of Article 1(1)(b) of the Convention. See Table, supra note 30. The effect of this position is that Germany, which has not made the Article 95 reservation and thus is bound by Article 1(1)(b), would not be forced to apply the Convention pursuant to Article 1(1)(b) if private international law rules lead to the application of a Contracting State that has made an Article 95 reservation (such as the United States). Since in this situation the State whose law is designated by private international law rules would not itself apply the CISG (because of its Article 95 reservation), the German position seems eminently sensible. On the other hand, the German "observation" -- which amounts to a particular interpretation of the text of the Convention -- is not one of the reservations authorized by the Convention, and thus its legal status is unclear.

32. For an especially thorough treatment see Honnold Treatise, supra note 12, 47-47.5.

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

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