International Sales Contracts: Practical Introduction to the CISG

Transcription

1 International Sales Contracts: Practical Introduction to the CISG Prof. Dr. Burghard PILTZ, Ahlers & Vogel Rechtsanwälte PartG mbb, Hamburg (Germany) Ignacio CORBERA DALE, Garrigues UK LLP, London (United Kingdom) Rome (Italy), 29 May 2015

2 Initial remarks Barcelona, 2 August 1990 This Agreement is governed exclusively by and construed in accordance with the laws of Spain, with express exclusion of the Vienna Convention on Contracts for the International Sale of Goods

3 General Introduction to the CISG The 1980 Vienna Convention on the International Sale of Goods, of April 11, 1980 ( CISG ), was promulgated by the United Nations Commission on International Trade Law ( UNCITRAL ), belonging to the United Nations. To date, 83 Contracting States have adhered to the CISG, some important exceptions being the United Kingdom, India and South Africa. The origin of the CISG must be sought in the exponential growth of international trade in the twentieth century, which showed that the various national legal systems needed to be unified to enable them to resolve the particular problems arisen from the volume of international transactions.

4 Prof. Dr. Burghard Piltz

5 General Introduction to the CISG (bis) CISG synthesizes different traditions of law (Common Law and Civil Law), in which there is a clear predominance of Common law. This predominance has become apparent, primarily, in: (i) (ii) (iii) (iv) (v) the importance conferred to the practical reality of the business sector; use of terms such as reasonable ; differentiation in the protection of the buyer in the event of different breaches by the seller; a favorable orientation toward maintaining the contract (and the resulting restrictive interpretation of fundamental breach ); and the establishment of a liability system built on objective rules.

6 CISG in foreign commerce exports Contracting State imports German law others CISG foreign laws Prof. Dr. Burghard Piltz

7 CISG- sphere of application subject matter 1. sales contract of goods 2. no exception according to Art. 2 or Art. 3 territorial 1. places of business in different States 2. contact with at least one Contracting State both places of business in Contracting States PIL of the forum leads to a Contracting State temporally formation of contract or offer to contract after CISG entering into force in the respective Contracting State Prof. Dr. Burghard Piltz

8 Negative examples All transactions & sales are subject to Swiss law Es gilt das Recht der Bundesrepublik Deutschland unter Ausschluss aller internationalen und supranationalen Rechtsordnungen, insbesondere das UN-Kaufrecht. The application of laws on international sale of movable objects and on international purchase contracts on movable objects is excluded Swiss internal law : CISG is Swiss internal and not foreign law, therefore CISG applies This contract will be governed by international law. Neither the Hague Convention Relating to a Uniform Law on the International Sale of Goods of July 1, 1964, nor the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, shall apply. Prof. Dr. Burghard Piltz

9 Issues covered by the CISG Formation of the contract Rights and obligations of the seller and buyer arising from such contract, among others (in case the parties do not agree otherwise): i. Delivery ii. iii. iv. Conformity of the good and third party claims Payment obligations Remedies in case of breach v. Passing the risk vi. Exceptions from liability on unforeseen circumstances-force majeure

10 Issues not covered by the CISG Validity of the contract or any of its provisions or of any usage The effect of the contract over the property of the goods sold Guarantees Contractual and product liability rules Validity of general terms of conditions Any other not expressly included in the CISG To be regulated in conformity with general principles or local law (by virtue of the rules of private international law)

11 Reasons for not excluding the CISG The Convention matches perfectly with the most recent trends in the international transaction practice Certainty as to the applicable law (official translations to 6 main languages) Extensive information and jurisprudence is easily available A client file a claim in Germany against his attorney because, when drafting an international sales contract, he had excluded the CISG. The claim was settled out of court and the indemnification paid by the insurance company The main point is education of attorneys, in house lawyers and judges.

12 Rome, 29 May 2015 I think excluding the Vienna Convention has to do with cold feet IN BOCCA LUPO!