The Draft UNCITRAL Digest and Beyond

Transcription

1 The Draft UNCITRAL Digest and Beyond Cases, Analysis and Unresolved Issues in the U.N. Sales Convention Bearbeitet von Franco Ferrari, Harry Flechtner, Ronald A Brand, Peter Winship, Ulrich Magnus, Claude Witz, Joseph Lookofsky, Michael Bridge, Maria del Pilar Perales Viscasillas, Johan Erauw, Henry Gabriel, Alejandro Garro, Paul Volken, Filip DeLy, Petar Sarcevic, John E Murray, Jernej Sekolec, Harold Burman 1., Aufl Sonstiges. XII, 875 S. ISBN Format (B x L): 22,4 x 14,1 cm Gewicht: 1010 g Zu Inhaltsverzeichnis schnell und portofrei erhältlich bei Die Online-Fachbuchhandlung beck-shop.de ist spezialisiert auf Fachbücher, insbesondere Recht, Steuern und Wirtschaft. Im Sortiment finden Sie alle Medien (Bücher, Zeitschriften, CDs, ebooks, etc.) aller Verlage. Ergänzt wird das Programm durch Services wie Neuerscheinungsdienst oder Zusammenstellungen von Büchern zu Sonderpreisen. Der Shop führt mehr als 8 Millionen Produkte.

2 The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention Papers of the Pittsburgh Conference Organized by the Center for International Legal Education (CILE) edited by Franco Ferrari, Harry Flechtner, Ronald A. Brand Sellier. European Law Publishers

3 ISBN (Hard cover edition by Sweet & Maxwell) ISBN (Soft cover edition by Sellier. European Law Publishers) Die Deutsche Bibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detailierte bibliografische Daten sind im Internet über abrufbar. # 2004 by Sellier. European Law Publishers GmbH, München / Sweet & Maxwell, London Dieses Werk einschließlich aller seiner Teile ist urheberrechtlich geschützt. Jede Verwertung außerhalb der engen Grenzen des Urheberrechtsgesetzes ist ohne Zustimmung des Verlages unzulässig und strafbar. Das gilt insbesondere für Vervielfältigungen, Übersetzungen, Mikroverfilmungen und die Einspeicherung und Verarbeitung in elektronischen Systemen. Gestaltung und Herstellung: Sandra Sellier, München. Satz: Federer & Krauss, Augsburg. Druck und Bindung: Kösel, Kempten. Gedruckt auf säurefreiem, alterungsbeständigen Papier. Printed in Germany.

4 Digest of case law on the UN Sales Convention: The combined wisdom of judges and arbitrators promoting uniform interpretation of the Convention Jernej Sekolec * I. Need for uniform interpretation The United Nations Convention on Contracts for the International Sale of Goods ( CISG ) has been adopted by 62 States. 1 Their combined share in cross-border trade represents over two-thirds of the total volume of international trade. The States members range from the least economically developed to the most developed, and all major legal traditions of the world are represented among them. This makes the Convention a world sales law and the experience with the Convention to date guarantees that membership in the Convention will continue to grow. The Convention has made the rights and obligations of parties to international export and import of goods remarkably transparent easy to ascertain and easy to understand by parties from different legal systems and in step with evolving international contract practices. One of its benefits is that it reduces the costs of administering international transactions for the sale of goods. This will remain so, however, only if the Convention is interpreted uniformly. The expectation of its uniform * Secretary of UNCITRAL (United Nations Commision on International Trade Law) and Chief of the International Trade Law Branch of the United Nations Office of Legal Affairs. The views in this paper are personal and do not necessarily represent the views of the organization. 1 As of 21 January 2003, the following States had adhered to the Convention: Argentina, Australia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Bulgaria, Burundi, Canada, Chile; China, Colombia, Croatia, Cuba, Czech Republic, Denmark, Ecuador, Egypt, Estonia, Finland, France, Georgia, Germany, Greece, Guinea, Honduras, Hungary, Iceland, Iraq, Israel, Italy, Kyrgyzstan, Latvia, Lesotho, Lithuania, Luxembourg, Mauritania, Mexico, Mongolia, Netherlands, New Zealand, Norway, Peru, Poland, Republic of Moldova, Romania, Russian Federation, Saint Vincent and the Grenadines, Singapore, Slovakia, Slovenia, Spain, Sweden, Switzerland, Syrian Arab Republic, Uganda, Ukraine, United States of America, Uruguay, Uzbekistan, Yugoslavia, and Zambia. 1

5 Jernej Sekolec interpretation will also help attract more States to membership in the Convention. The objective of uniform interpretation is expressed in Article 7(1) of the Convention: In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity... Yet, uniformity does not mean that the Convention should be frozen in time and independent of evolving circumstances. The longevity and usefulness of the Convention requires that it be interpreted in a way that allows the uniform regime to be in harmony with certain basic principles of law and to be adapted to evolving practices and needs. This flexibility is ensured in particular by the following provisions and principles: (a) Article 7(1), according to which one of the factors to be taken into account in interpreting the Convention (next to the need to promote uniformity in its application) is the observance of good faith in international trade ; (b) Article 9, which provides that The parties are bound by any usage to which they have agreed and by any practices which they have established between themselves. The threshold for usages to become binding on the parties is rather low, since under Article 9(2), The parties are considered, unless otherwise agreed, to have impliedly made applicable to their contract or its formation a usage of which the parties knew or ought to have known and which in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned. Thus, evolving usages will complement or even supersede the specific statutory language of the Convention; (c) Article 7(2), according to which if questions should arise concerning matters governed by this Convention which are not expressly settled in it, those questions are to be settled in conformity with the general principles on which [the Convention] is based... Only when such principles cannot be ascertained may the interpreter of the Convention resort to the non-unified national law determined in accordance with the rules of private international law. Accomplishing the task of promoting uniform interpretation is facilitated by the fact that the drafters of the Convention used, wherever it seemed possible, concepts that are described in factual terms, rather than traditional terms that have, over the course of history, acquired definite and possibly disparate meanings in national legal systems. Thus, for example, the Convention speaks of goods being handed over or taken over instead of using concepts such as delivery (or déliverance ) which may in various 2

6 Digest of case law on the UN Sales Convention: The combined wisdom national laws carry established but different meanings. Article 79 of the Convention also describes in factual terms the circumstances in which a party is not liable for a failure to perform, and avoids using technical legal terms such as force majeure or frustration. Since it was not possible to completely eliminate from the Convention language that has a technical meaning in national legal systems, however, the interpreter is reminded (in Article 7(1)) that concepts of the Convention should not be given the meaning determined by the interpreter s domestic legal system, but rather the CISG should be interpreted having regard to its international character. For any interpreter or user of the Convention, it would be difficult to ensure consistency with the uniform interpretation of the Convention, have an appreciation of what it means to have regard to its international character, ascertain how regularly observed trade usages are being given effect in the context of the Convention, or how good faith is being understood in international trade, without having information on how courts and arbitral tribunals in States that are parties to the Convention have interpreted the uniform text. Such information must be reliable, objective, easily accessed in various languages, as comprehensive as possible, and presented in a manageable and understandable way. The value of such information is helpful beyond the purpose of promoting uniformity of interpretation. First, information on decisions taken by courts and arbitral tribunals regarding the Convention assists parties and their legal advisers in negotiating and performing commercial sales contracts, particularly by allowing the tailoring of negotiated contracts or general contract conditions to individual needs and expectations, and by promoting contractual performance in line with the prevailing understanding of the Convention s provisions. Second, dissemination of knowledge of case law created by the combined wisdom of judges and arbitrators of many countries exhibits the Convention in a more meaningful and complete way, rather than as an isolated international text that stands on its own in the context of one legal system. This will give confidence to States that have not yet joined the Convention to do so. II. UNCITRAL and promotion of uniform interpretation of the Convention The United Nations Commission on International Trade Law, or UNCI- TRAL, which prepared the draft Convention that was eventually finalized at 3

7 Jernej Sekolec the Universal Diplomatic Conference in Vienna in 1980, 2 was established in 1966 by the UN General Assembly 3 with the objective of the promotion of the progressive harmonization and unification of the law of international trade. 4 The General Assembly based its decision to establish UNCITRAL on considerations that included the following: The interests of all peoples, and particularly those of developing countries, demand the improvement of conditions favouring the development of international trade; Disparities in national laws governing international trade constitute one of the obstacles to the flow of international trade; The progress in this area had not been commensurate with the importance and urgency of the problem; Furthering international trade is one of the most important factors in economic development; There was no existing United Nations organ which was both familiar with this technical legal subject and able to devote sufficient time to work in this field. 5 When UNCITRAL was established, its founding resolution 6 determined its mandate in the following terms: (a) Co-ordinating the work of organizations active in this field and encouraging co-operation among them; 2 Final Act of the United Nations Conference on Contracts for the International Sale of Goods, A/CONF.97/18 and Annex I, reproduced in United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, Official Records, A/ CONF.97/19, at 176 (available at 3 Resolution no. 2205(XXI) of 17 December 1966, reproduced in the UNCITRALYearbook, Volume I: , at 65 of the English version [hereinafter GA Res (XXI)]. The Yearbook is available at under UNCITRAL Yearbook. 4 Id. at I. 5 Id. 6 Id. 4

8 Digest of case law on the UN Sales Convention: The combined wisdom (b) Promoting wider participation in existing international conventions and wider acceptance of existing model and uniform laws; (c) Preparing or promoting the adoption of new international conventions, model laws and uniform laws and promoting the codification and wider acceptance of international trade terms, provisions, customs and practices, in collaboration, where appropriate, with the organizations operating in this field; (d) Promoting ways and means of ensuring a uniform interpretation and application of international conventions and uniform laws in the field of the law of international trade; (e) Collecting and disseminating information on national legislation and modern legal developments, including case law, in the field of the law of international trade; (f) Establishing and maintaining a close collaboration with the United Nations Conference on Trade and Development; (g) Maintaining liaison with other United Nations organs and specialized agencies concerned with international trade; (h) Taking any other action it may deem useful to fulfil its functions. 7 The function, mentioned above at (d), of [p]romoting ways and means of ensuring a uniform interpretation and application of international conventions and uniform laws in the field of the law of international trade, has been undertaken by UNCITRAL and its Secretariat in a number of ways, including by publishing in the six UN languages (i. e., Arabic, Chinese, English, French, Russian, and Spanish) the travaux préparatoires on texts emanating from its work, by organizing conferences and seminars, and by publishing informational notes and bibliographies. However, the activity most focused on promoting uniform interpretation is the CLOUT information system, established in 1988, which has been complemented with the decision in 2001 to prepare a digest of cases on the Convention in the six UN languages. 7 Id. II, 8. 5

9 Jernej Sekolec III.The CLOUT information system Based on a decision by UNCITRAL at its twenty-first session in 1988, 8 the Secretariat has established a system for collecting and disseminating information on court decisions and arbitral awards relating to Conventions and Model Laws resulting from the work of the Commission. The system is known by the acronym CLOUT (Case Law on UNCITRAL Texts). The purpose of the system is to promote international awareness of legal texts endorsed or adopted by the Commission; to enable judges, arbitrators, lawyers, parties to commercial transactions, and other interested persons to take account of decisions and awards relating to those texts when dealing with matters within their responsibilities; and in that way to promote the uniform interpretation and application of those texts. The CLOUT system has been designed to cover, potentially, a number of legislative texts prepared by the Commission. 9 However, the bulk of the information collected so far concerns the United Nations Convention on Contracts for the International Sale of Goods (1980) and the UNCITRAL Model Law on International Commercial Arbitration (1985). The system relies on a network of national correspondents designated by those States that are parties to a Convention or have enacted legislation based on a Model Law. 10 The national correspondents monitor and collect court decisions and arbitral awards, and prepare abstracts of those considered relevant in one of the official languages of the United Nations. The abstracts are translated by the Secretariat into the other five United Nations 8 Report of the United Nations Commission on International Trade Law on the work of its twenty-first session, New York, April 1988, A/43/17, , reproduced in the UNCITRALYearbook, 1988, which is also available at under UNCITRAL Yearbook. 9 These texts are, in particular: Convention on the Limitation Period in the International Sale of Goods (1974), as amended by the Protocol of 1980; United Nations Convention on Contracts for the International Sale of Goods (1980); UNCITRAL Model Law on International Commercial Arbitration (1985); United NationsConventionontheCarriageofGoodsbySea(1978); United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (1995); UNCITRAL Model Law on Procurement of Goods, Construction and Services (1994); UNCITRAL Model Law on Electronic Commerce (1996); UNCITRAL Model Law on Cross-Border Insolvency (1997). 10 The list of national correspondents, which is regularly updated, may be obtained upon written individual request to the UNCITRAL Secretariat. 6