Convention On The International Sale Of Goods Research Articles

Is it Time for India to Adopt the Convention on the Sale of Goods?

This century has been described by governments around the world as the Asian century. The resulting effect has seen Asia as the fastest-growing region economically. The recent acceptance of both the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Transpacific Partnership (TPP) and also the Regional Comprehensive Economic Partnership (RCEP) has reinforced the consolidation of trade in this region of the world. While India has yet to sign up to these trade agreements, their strategic importance in the region will only continue to grow. Thus, one question is whether it is time for India to ratify the Convention on the International Sale of Goods (CISG)? There have been calls for India to adopt the CISG that date back to more than a decade ago. Importantly, a development in relation to adoption of the CISG in the region is taking place. Recently, Vietnam and North Korea have acceded to the Convention. India, unfortunately, is one of the few important economic nations which has not yet signed the Convention. This article will argue that it is indeed in India’s interest, if not a necessary step, also to sign the Convention. However, it is also understood by the authors that further economic and legal analysis is likely needed by India to fully appreciate and understand the benefits afforded by the CISG.

Međunarodna trgovina i transnacionalno pravo

This article deals with the globalisation of contract law. It begins with an historical survey before taking an inventory of the various types of uniform law. These range from 'hard' law, such as multilateral treaties, to 'soft' law, an expression that captures various non-binding instruments that can usefully be employed by contracting parties and sovereign states. These include contractual standard terms (e.g. Incoterms 2020) and standard form contracts (e.g. ISDA contracts), as well as UNCITRAL model laws. The influence of national law in the globalisation process is noted, whether it takes the form of influencing the laws of other states or provides input into the creation of uniform law. The UN Convention on the International Sale of Goods (CISG) is examined at key points with reference to the influence exerted by the civil law and the common law in its creation. The importance of maintaining the uniform character of the CISG is underlined. Finally, the role played by the UNIDROIT Principles of International Commercial Contracts (PICC) is also examined.

Private Uniform Law & Global Legal Pluralism: The Case of ICC's Incoterms and UCP

Global legal pluralism comes in many forms and carries various implications. In this paper we shall trace the phenomena of legal pluralism in the field of commercial law. It is commonly held, that legal certainty is of paramount importance to merchants. Therefore, efforts to harmonize commercial law on the international level are pertinent, albeit with limited success. As states proved unwilling or unable to create uniform commercial law, a variety of private initiatives were established to achieve this end, the most prominent examples being the International Commercial Terms (Incoterms) and the Uniform Customs and Practice for Documentary Credits (UCP), both promulgated by the International Chamber of Commerce (ICC). From the perspective of global legal pluralism, such private-made uniform commercial law is an instance of legal pluralism. Interestingly, in this case it is not state law as the universal rule, which encounters conflicting normative claims of a sub-state social field, but it is a privately created normative regime, that claims universal authority over the fragmented domestic commercial law regimes. According to conventional legal theory, such claim is simply ridiculous, as it seems to be impossible for private uniform law to operate successfully. However, an analysis of English and German case law reveals, that the Incoterms and the UCP in fact are effectively operating as uniform law, and thus as a privately made functional equivalent to international instruments such as the Convention on the International Sale of Goods (CISG). This paper, therefore, argues that beyond theoretical discussions in textbooks, judges do practice what global legal pluralism suggests.

RECENT DEVELOPMENTS AND CURRENT TRENDS ON BRAZILIAN PRIVATE INTERNATIONAL LAW CONCERNING INTERNATIONAL CONTRACTS

This work aims to present the recent changes and the current trends of Brazilian Private International Law in the area of international contracts with especial focus on the enforcement of Convention on the International Sale of Goods (CISG) in Brazilian legal order. Historically, the recognition of party autonomy in Private International Law has not been uniformily recognized. While since 1996, with the enforcement of the new Arbitration Law, party autonomy has been increasingly accepted in terms of international arbitration, jurisprudence on the choice of law and the choice of court clauses does not show the same progress. In fact, despite of important documents which have already been signed by the government, Brazilian Private International Law of Contracts still dates from 1942. Such contrast with internal material law represents a challenge for the full recognition of Party Autonmy in Brazilian Private International Law.

RECENT DEVELOPMENTS AND CURRENT TRENDS ON BRAZILIAN PRIVATE INTERNATIONAL LAW CONCERNING INTERNATIONAL CONTRACTS

This work aims to present the recent changes and the current trends of Brazilian Private International Law in the area of international contracts with especial focus on the enforcement of Convention on the International Sale of Goods (CISG) in Brazilian legal order. Historically, the recognition of party autonomy in Private International Law has not been uniformily recognized. While since 1996, with the enforcement of the new Arbitration Law, party autonomy has been increasingly accepted in terms of international arbitration, jurisprudence on the choice of law and the choice of court clauses does not show the same progress. In fact, despite of important documents which have already been signed by the government, Brazilian Private International Law of Contracts still dates from 1942. Such contrast with internal material law represents a challenge for the full recognition of Party Autonmy in Brazilian Private International Law.

RECENT DEVELOPMENTS AND CURRENT TRENDS ON BRAZILIAN PRIVATE INTERNATIONAL LAW CONCERNING INTERNATIONAL CONTRACTS

This work aims to present the recent changes and the current trends of Brazilian Private International Law in the area of international contracts with especial focus on the enforcement of Convention on the International Sale of Goods (CISG) in Brazilian legal order. Historically, the recognition of party autonomy in Private International Law has not been uniformily recognized. While since 1996, with the enforcement of the new Arbitration Law, party autonomy has been increasingly accepted in terms of international arbitration, jurisprudence on the choice of law and the choice of court clauses does not show the same progress. In fact, despite of important documents which have already been signed by the government, Brazilian Private International Law of Contracts still dates from 1942. Such contrast with internal material law represents a challenge for the full recognition of Party Autonmy in Brazilian Private International Law.

The Interpretation and Fairness of Standardized Terms: Certainty and Predictability Under the CESL and the CISG Compared

The vast majority of cross-border commercial sales transactions are concluded on the basis of standardized contracts. When assessing the competitive advantage of various regulatory instruments such as the new proposal for a Common European Sales Law (CESL) and the UN Convention on the International Sale of Goods (CISG), the nature and purpose of such contracts has to be borne in mind. Since standardized contracts aim to promote certainty, predictability and uniformity with respect to a business’ rights and obligations in numerous transactions, a set of rules that fosters certainty, predictability and uniformity in the interpretation and enforceability of such standardized contracts should be preferred. This contribution compares the CESL and the CISG in relation to contract interpretation and the control of fairness of standardized contract terms and concludes that although the CESL may have a competitive advantage in the sense that it deals with standard contract terms more comprehensively, the nature of many of its provisions will not promote legal certainty predictability and uniformity.

The Interpretation and Fairness of Standardized Terms: Certainty and Predictability under the CESL and the CISG Compared

The vast majority of cross-border commercial sales transactions are concluded on the basis of standardized contracts. When assessing the competitive advantage of various regulatory instruments such as the new proposal for a Common European Sales Law (CESL) and the UN Convention on the International Sale of Goods (CISG), the nature and purpose of such contracts has to be borne in mind. Since standardized contracts aim to promote certainty, predictability and uniformity with respect to a business' rights and obligations in numerous transactions, a set of rules that fosters certainty, predictability and uniformity in the interpretation and enforceability of such standardized contracts should be preferred. This contribution compares the CESL and the CISG in relation to contract interpretation and the control of fairness of standardized contract terms and concludes that although the CESL may have a competitive advantage in the sense that it deals with standard contract terms more comprehensively, the nature of many of its provisions will not promote legal certainty, predictability and uniformity.

Commercial Sales: The Common European Sales Law Compared to the Vienna Sales Convention

Abstract: If the Common European Sales Law (CESL) is adopted, commercial parties will have the opportunity to choose between two international legal instruments for the regulation of their international commercial sales contracts. Whereas CESL is available to both consumer and commercial sales contracts, the Vienna Sales Convention on the International Sale of Goods (CISG) is intended for commercial sales contracts only. This could suggest that CISG is more suitable for use in commercial sales contracts, as commercial parties usually have different interests compared to consumers. In this article, it is argued that, as CESL remedies major flaws in CISG, in fact CESL is the better choice (also) for commercial parties, in particular because it introduces coherent rules on defects of consent, clearer and more balanced rules regarding the incorporation of standard terms, and a scheme for the testing of the unfairness of standard terms. Résumé: Si le droit commun européen de la vente (CESL) est adopté, les parties commerciales auront la possibilité de choisir entre deux instruments juridiques internationaux pour la régulation de leurs contrats de vente commerciale internationale. Alors que CESL sera disponible dans le cas d'une transaction transfrontalière dans l'espace européen entre professionnels et consommateurs et aussi dans le cas d`une transaction entre deux professionnels, la Convention de Vienne relative à la vente internationale de marchandises vise uniquement les contrats de vente commerciale internationale. Ceci pourrait suggérer que la Convention de Vienne est plus appropriée aux contrats de vente commerciale internationale comme les parties commerciales ont en général des intérêts différents par rapport aux consommateurs. Dans cet article, nous postulons que CESL répare les défauts majeurs dans la Convention de Vienne et propose en fait le meilleur choix pour toutes les parties - professionnels et consommateurs -, en particulier parce que CESL introduit des règles cohérents sur les vices de consentement, contient des règles concernant l'incorporation des conditions générales plus claires et plus équilibrées et introduit des provisions pour tester le caractère abusif des conditions générales. Zusammenfassung: Sollte der Vorschlag über ein Gemeinsames Europäisches Kaufrecht (CESL) angenommen werden, werden Unternehmer die Wahl zwischen zwei Rechtsordnungen haben, die ihren internationalen Kaufverträgen zugrunde liegen können. Während der Anwendungsbereich des CESL sowohl für Verbraucherverträge als auch für Handelsverträge zur Verfügung steht, findet das Wiener Abkommen zum UN-Kaufrecht (CISG) nur für Handelsverträge Anwendung. Man könnte daraus schließen, dass das CISG als Grundlage für Handelsverträge besser geeignet sei, da Händler in der Regel von Verbrauchern abweichende Interessen haben. In diesem Aufsatz wird jedoch argumentiert, dass, da das CESL erhebliche Mängel im CISG behebt, das CESL grundsätzlich die bessere Wahl (auch) für Händler ist. Im Gegensatz zum CISG führt das CESL kohärente Vorschriften über Einigungsmängel ein, sowie klare und ausgewogene Vorschriften für die Einbeziehung und Inhaltskontrolle von Allgemeinen Geschäftsbedingungen.

Dealing with informational asymmetries under the proposed CESL and CISG

PurposeThis paper aims to explore the way in which informational asymmetries between the two parties to a contract for the sale of goods are dealt with under two legal regimes designed for transnational sales contracts: the UN Convention on the International Sale of Goods (CISG) and the proposed Common European Sales Law (CESL).Design/methodology/approachHaving considered the different types of informational asymmetry that can exist in a contract of sale, the paper undertakes a doctrinal legal analysis of the relevant provisions first in the CESL and then the CISG to identify what, if anything, has been done to deal with informational asymmetries. The paper primarily exposes and analyses these rules and compares the approaches taken under both legal regimes.FindingsThe CESL has a more detailed set of rules which address informational asymmetries. This might be because the genesis and context of the CESL (being limited to the EU) might make it easier to agree on more extensive rules. However, the CESL has not yet been adopted.Practical implicationsA seller in a contract of sale governed by CESL will be subject to more detailed (and onerous) requirements when it comes to the disclosure of information.Originality/valueThis is a first attempt to compare the treatment of informational asymmetries under the CISG and CESL, and will be of interest to scholars of both transnational and EU private law.

Book Review: Schlechtriem and Schwenzer: Commentary on the UN Convention on the International Sale of Goods (CISG), Global Sales and Contract Law

Book Review: Schlechtriem and Schwenzer: Commentary on the UN Convention on the International Sale of Goods (CISG), Global Sales and Contract Law

Contract Enforceability During Economic Crisis: Legal Principles and Drafting Solutions

The recent economic crisis, now commonly called the Great Recession, has caused huge financial dislocations. One aspect of the crisis is the effect on contractual obligations: Can a contractual obligation be avoided because of fundamental disruptions in the relevant market? This paper first looks at the common law; there, major market changes are rarely, if ever, the basis of avoidance of a contractual obligation. Restatement and UCC provisions also reflect this “principle of market risk.” While case law dealing with the effect of the economic crisis on contracts is thin, the few reported decisions are quite uniform in applying the market risk principle to deny relief.The second part of the paper considers the extent to which international contract law as reflected in the Principles of International Commercial Contracts (the UNIDROIT Principles) and the Convention on the International Sale of Goods (CISG) provides relief from fundamental market disruptions. Article 6.2.1 of the UNIDROIT Principles recognizes that when supervening circumstances lead to a fundamental change in the equilibrium of the contract, relief on the ground of hardship may be available. A few cases have granted relief under this provision, but they are rare. In addition, arbitration panels are divided on the question of whether hardship is part of the general commercial law, the lex mercatoria.Article 79 of the CISG provides for relief due to an “impediment” beyond the control of a party that the party could not reasonably have been expected to take into account. Controversy exists as to whether the concept of impediment encompasses economic hardship due to market change. The paper examines the contending arguments and case law on this issue.Because both common and international law rarely provide relief from market change, a party who wishes to have protection against market disruptions should provide for this contingency by contract. The final section of the paper, with no intent of being complete, suggests various types of clauses for the parties to consider incorporating into their contracts to deal with market change: whereas clauses; express conditions; MAC (market adverse condition) clauses; expanded force majeure clauses; hardship clauses; renegotiation and adjustment clauses; choice of law, forum, and arbitration clauses; Take-or-Pay and Hell-or-High-Water clauses. The fundamental message of the paper is that the parties should address relief from market changes in the negotiation of the contract. If they choose not to do so, they cannot expect to obtain relief from courts or arbitrators.

To What Extent Can the Notion of ‘Reasonableness’ Help to Harmonize European Contract Law? Problems and Prospects from a Civil Law Perspective

Abstracts: The notion of ‘reasonableness’ is familiar to Common Law lawyers, whereas it is almost unknown to most ‘continental’ civil codes (e.g., the German, French and Italian Civil Codes). In the last decades the situation has, however, considerably changed and also within the continental context. References to ‘reasonableness’ in legal provisions have continuously increased due to many factors: among others, the influence of important international conventions dealing with commercial contracts (e.g., Convention on the International Sale of Goods (CISG)) and the implementation of EU Directives in the field of contract law, where ‘reasonableness’ is constantly present. The same phenomenon can be observed to a greater extent in most academic projects aiming at harmonizing European contract law: Principles of European Contract Law (PECL), Code Européen des Contrats, Principles of European Law (PEL), Acquis Principles, Draft Common Frame of Reference (DCFR), and so forth. It is not only a matter of ‘globalization’ of the law. The attractiveness of ‘reasonableness’ also depends on its specific features of extreme flexibility and proximity to concrete circumstances compared with the abstract and rigid features of other well-known principles and concepts familiar to Civil law (like ‘good faith’, ‘diligence’, ‘equity’). Nevertheless, the introduction of this new notion raises controversial issues: first, there is the risk of unfaithfully assimilating the foreign legal pattern (examples taken from EU Directives demonstrate this very well); secondly, some doubts may be raised as to whether such an ungraspable notion may really serve the aim of harmonization; finally, one may wonder whether it is wise to sacrifice traditional concepts like ‘good faith’, ‘diligence’, or ‘equity’ on the altar of simplification, thus renouncing conceptual precision and legal certainty.

Force Majeure and Hardship in International Sales Contracts

This article takes an analytical look of the concepts of force majeure and hardship when attempting to extract oneself from an agreement. The article starts off with a brief summary of their historical background and their presence in various domestic legal systems, such as France, Germany and the Netherlands. It goes on to examine the Convention on the International Sale of Goods (CISG) which does not have force majeure and hardship provisions but does have a provision that has the same effect. The article goes on to describe the requirements for avoiding liability in international sales contracts and concludes with the consequences of force majeure and hardship.

Remedies for Breach of Contract Under the CISG

In this essay, I survey the three main remedial categories of the Convention on the International Sale of Goods (CISG) [specific performance, money damages, and goods-oriented remedies such as rejection and cure] from the vantage point of the economic literature on contract remedies, and discuss whether the rules set by the CISG are economically suitable for the particular transactions it governs—that is, long-distance and cross-border transactions, which are characterized by a different configuration of relative transaction costs than purely domestic exchanges. The central theoretical premise of the essay that is that while the economically optimal arrangement with respect to contract remedies is a second-best matter about which it is difficult to generalize, it is possible to draw some distinctions between long-distance and short-distance transactions and between in-border and cross-border transactions, and to develop generalizations about which remedies are relatively best suited to which contracts. A subsidiary premise is that CISG remedial rules are only default rules; and that private parties engaging in these transactions can and should contract into the remedial arrangements that are best suited to their particular arrangements. At the end of the paper, I draw some comparisons to issues raised by the burgeoning practice of electronic contracting.

The Harmonization of Legal Warranties in European Sales Law: An Economic Analysis

Journal Article The Harmonization of Legal Warranties in European Sales Law: an Economic Analysis Get access Francesco Parisi Francesco Parisi 1Francesco Parisi is Professor of Law & Director, Law and Economics Program, George Mason University, School of Law. This paper was presented at the 1st International Congress of the Society of European Contract Law, Rome (Italy), June 8-9, 2001. I would like to thank Peter Irvine for his valuable editorial assistance Search for other works by this author on: Oxford Academic Google Scholar The American Journal of Comparative Law, Volume 52, Issue 2, Spring 2004, Pages 403–431, https://doi.org/10.2307/4144456 Published: 01 April 2004

Raskid ugovora prema Konvenciji UN o medjunarodnoj prodaji robe

The breach of a international sales contract by one party gives the other party a right to recover damages, but we are here concerned with more specialized remedy - avoidance of the contract. In the UN Convention on the International Sale of Goods (CISG) as in national legal systems, avoidance is not available for every breach of contract. The question whether the party affected by the disturbance may avoid the contract instead of being restricted to a claim for damages or other remedies with the contract continuing in force, depends of the seriousness of the breach of contractual obligation. In the Convention, a party may avoid the contract when the other party commits a 'fundamental breach'. The party affected by breach must suffer a detriment which must be such 'as substantially to deprive him of what he is entitled to expect under the contract unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result'. The definition of 'fundamental breach of contract', as a fruit of world-wide compromise, is not always easy to apply both for the parties and the judges and it's notions of 'substantial detriment' and 'foreseeability' may give rise to divergent judicial interpretation and application. .