International Instruments: CISG and Soft Law

Abstract

Introduction Formation of contract in general, and contractual negotiations in particular, has been a delicate matter for the international uniform law since the beginning of the twentieth century. At the Vienna diplomatic conference for the adoption of the United Nations Convention on Contracts for the International Sale of Goods (CISG), the question as to whether the Convention should lay down the rules for the precontractual stage generated intense debates. Up to the present time, formation of contract forms one of the issues on which further harmonization and unification of law may be considered. However, the current political priority of this issue is not high. This Chapter will be dedicated to international uniform law. What is the approach to private regulation of negotiations in the uniform international rules? At the level of hard law, the most relevant instrument to be discussed is the CISG. The Convention does not explicitly address contractual negotiations. The question as to whether the Convention's scope covers the precontractual period is a matter of academic discussion. At the level of soft law, the UNIDROIT Principles of International Commercial Contracts (UPICC), the Principles of European Contract Law (PECL), and the Draft Common Frame of Reference (DCFR) contain specific provisions relating to negotiations of contract. As will be shown below, despite a high level of sophistication of the soft law instruments, their rules provide no straightforward approach to letter of intent. The Chapter will provide a brief overview of the genesis and prospects of unification and harmonization of international contract law (Section 8.2). Thereafter, the debate on the applicability of the CISG to contractual negotiations will be reviewed. Within this broader debate, this study will suggest a nuanced view on the particular question of application of the CISG to letter of intent (Section 8.3). Furthermore, the rules on negotiations included in the UPICC, PECL and DCFR will be addressed. The Chapter will sketch the scope and structure of the soft law instruments (Section 8.4), analyse soft law rules on contractual negotiations (Section 8.5), discuss the remedies (Section 8.6), and provide concluding remarks (Section 8.7). Genesis and prospects of uniform and harmonized contract law The first projects in the field of transnational contract law date back to the beginning of the twentieth century.