The Word is not Enough – Arbitration, Choice of Forum and Choice of Law Clauses Under the CISG

Abstract

Form requirements particularly for arbitration clauses are widely perceived as an obstacle for efficiently resolving disputes on an international level. The paper discusses recent suggestions that the freedom of form principle under Art. 11 CISG extends to arbitration, forum selection or choice of law clauses in international sales contracts and thus supersedes any and all formal requirements in this regard. The authors establish that said clauses indeed are generally within the CISG's scope of application and that, consequently, questions of contract conclusion, interpretation, and remedies for breach of these clauses are governed by the CISG. Freedom of form under the CISG, however, was neither intended to nor should it apply to arbitration, forum selection or choice of law clauses. This result is further confirmed by the interplay of the CISG with other international conventions, first and foremost the 1958 New York Convention, as well as a careful analysis of the so called most-favourable-law-approach. The recent aim to do away with form requirements for arbitration, forum selection or choice of law clauses can thus not be reached by taking a detour to the CISG, but only by directly abolishing or adjusting these form requirements.