I. Introduction: The United Nations Convention on Contract for the International Sales of Goods has been adopted by 62 States, their combined share in cross border trade represent over two thirds of the total volume of international trade. The Convention is a world sales law.
a. Non member countries
b.Made the rights and obligations of parties remarkably transparent and easy to ascertain and understand. Reduces the costs of administrating international transaction for the sale of goods.
c. Uniform interpretation: Necessary to reduce costs. The objective of uniform interpretation is expressed in Article 7 (1) of the convention. Uniformity does not meet that the Convention should be frozenin time and independent of evolving circumstances. The longevity and usefulness and longevity of the Convention requires that it be interpreted in a way that allows the uniform regime to be in harmony with a certain basic principles of law and to be adopted to evolving practices and needs.
d. Concepts of the Convention should not be given the meaning determined by the interpreter’s domesticlegal system, but rather the CISG should be interpreted having regard to its international character. For this it useful to know how courts and arbitral tribunals have interpreted the uniform text.
e. Flexibility: The flexibility in interpretation is ensured by:
iii. Article 7 (1): Factor in interpreting is the observance of good faith in international trade.
iv.Article 9: Parties are bound by usages to which they have agreed and by practices that they have established between themselves. The threshold for usages to become binding on the parties is low, since under Art. 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 andwhich is know in international trade and regularly observed by parties to contracts of the type involved in the particular trade concerned. Evolving usages will complement or even supersede the specific statutory langue of the Convention.
v. Article 7 (2): Matters not governed by the CISG should be settled in conformity with the general principles in which the Convention is based and onlywhen such principles can’t be ascertained may the interpreter resort to the non unified national law determined in accordance with the rules of private international law.
II. Sphere of Application: Part I, Chapter I
f. The Convention’s most important provisions. Unless it has been decided on the basis of this provisions that the CISG applies, neither the Convention’s substantiveprovisions, nor its provisions on interpretation can be used to solve any dispute.
g. Does a Court of a Contracting State (CS) has to resort to its private international law rules in order to determine the applicable substantive law or ether it has to have direct recourse to the Convention? The problem arises because both the Convention’s rules and private international law rules arespecifically designed to deal with international sales disputes. Courts have to look FIRST into whether the CISG applies before resorting to the private international law of the forum. Two Courts have already said that the CISG’s prevalence over the conflict of law approach is due to the principle “lex specialis derogat generalis” and to the fact that the CISG is more specific that any privateinternational law rule. Rules of uniform substantive law must always prevail over the rules of private international law, uniform substantive law is more specific than rules of private international law because the former settles directly the question of applicable substantive law.
vi. This avoids the two step approach used when we resort to private international law: 1) Identify the applicable...