For an Independent Development of the CISG Beyond Article 7 (2): A Stocktake and a Proposal

Abstract

AbstractThe 40th anniversary of the Convention on Contracts for the International Sale of Goods (CISG) is an occasion to celebrate the remarkable success of the Convention that is approaching the symbolic number of 100 Contracting States and still inspires national legislators in their private law reforms. However, the Convention also shows some signs of its age: it does not contain rules on electronic commerce, intangible assets, standard terms or the consequences of hardship. The CISG thus needs an update in order to avoid its ossification and potential obsolescence. Given that a reform, supplementation or even the adoption of a new Convention would require a new diplomatic conference involving all 94 Contracting States, it is for courts and scholars to update the CISG from within by a dynamic interpretation and further development of the Convention. It is the purpose of this paper to take stock of the instruments provided by Article 7 CISG for such a contemporaneous development and also to inquire as to what is permissible beyond the supplementation of the Convention via its general principles pursuant to Article 7 (2) CISG. The paper argues that, while the CISG does provide some tools for its dynamic interpretation and supplementation, it is necessary to recognise an independent development of the Convention beyond Article 7 (2) CISG as a distinct category for the most challenging novel questions in international commerce that the drafters of the CISG more than 40 years ago could not anticipate. It proposes a methodological framework for such independent developments that should mirror the key characteristics of the Convention as uniform private law. According to this framework, independent developments beyond Article 7 (2) CISG should not only aspire to optimize the general principles of the Convention but also rely on detailed comparative analysis to assess the potential for international acceptance. The criteria suggested in this paper are neither exhaustive nor conclusive but should be understood as a contribution to the ongoing conversation on how to make the CISG fit for the next 40 years.