International Sale Research Articles

A Comparative Study on the Conformity of Goods under the UN Convention on Contracts for the International Sale of Goods (CISG) and Ukrainian Sales Law

A Comparative Study on the Conformity of Goods under the UN Convention on Contracts for the International Sale of Goods (CISG) and Ukrainian Sales Law

Genericism in the uniformity endeavour: a plea against the one-size-fits-all approach

Abstract This article focuses on the practice of United Nations Commission on International Trade Law (UNCITRAL) to include the text of Article 7 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) into an array of other instruments, including model laws. Article 7 of the CISG lays out the interpretative methodology of this Convention. The discussion in this article is conducted through the lens of UNCITRAL’s best-known model law—the UNCITRAL Model Law on International Commercial Arbitration—whose Article 2A is the counterpart to CISG’s Article 7. To this end, this article first explains the difference between model laws and conventions. Second, it focuses on Article 7 of the CISG, explaining its meaning, purpose, and the widely accepted mode of operation. Third, the article shifts its focus specifically to Article 2A of the UNCITRAL Model Law on International Commercial Arbitration, and against the backdrop of the discussion on Article 7 of the CISG, seeks to unpack the meaning and scope of Article 2A. Last, but not least, the article will make a determination as to whether adding Article 2A to the Model Law was a good idea to begin with. Given the fact that other model laws contain similar or practically verbatim provisions, conclusions reached in this article also ought to be relevant outside of the realm of the Model Law on International Commercial Arbitration itself.

LEGAL CRITERIA OF INTERPRETATION UNDER VIENNA CONVENTION ON THE INTERNATIONAL SALE OF GOODS 1980 (CISG)

Since the Vienna Convention (CISG) has a vital important role in developing the international commercial transactions regarding the sale of international goods. It regulates the obligations and rights of the parties of international sale contracts of goods, as a result, one should focus on the interpretation of its provisions and the interpretation of the parties' correspondences, statements, and actions towards each other, and this interpretative mechanism has an important role in interpreting the contract concluded between the parties, which leads to reaching the true meaning behind each of the provisions of the contract, taking into account all relevant circumstances, including negotiations and subsequent conducts of the parties, and the interpretation aspect has practical importance in the real life of international courts and arbitral bodies which facilitates increase the efficiency in resolving disputes. Keywords: Vienna Convention, CISG, Objective Interpretation, Subjective Interpretation, International Sale Contract of Goods.

The need for a harmonious interpretation of the rules applicable to international contracts

International trade, as of result of globalization and the consequent exponential growth in the operations volume, has brought a movement of reflection on the disciplinary rules of international trade relations. In this context and considering the significant divergences between the legal regimes of the different States, the instruments of standardization and harmonization of the international contracts’ disciplinary rules assume special importance. Notwithstanding the existence of normative instruments that guide the formation and execution of the signed agreements, it is imperative that the hermeneutic activity of such texts is also harmonious, under penalty of distorting the purpose for which they were conceived. Through the analytical method, we will approach the unifying rules and principles of the process of interpreting contracts in the international scenario. Initially, we will present the principle that guides the entire process of interpreting international contracts, pointing out the fundamental principles in conducting the interpreter's activity. We will also note the importance of usages and customs in the interpretive process. Finally, we will analyze the rules on the interpretation of contracts and unilateral declarations of the parties contained in the Vienna Convention on the International Sale of Goods 1980, CISG, and in the UNIDROIT Principles applicable to international commercial contracts, version 2016.

A Study on the Limitations of Consequential Damages Resulting from Breach of Contract under the United Nations Convention on Contracts for the International Sale of Goods (CISG)

국제물품거래에서 계약은 사적 자치를 실현하기 위한 수단으로 계약위반으로 인한 손해배상의 범위 제한을 연구하는 것은 계약법 영역에서 중요한 과제이다. 계약당사자 일방의 계약위반으로 손해가 발생한 경우, 계약위반에 대한 법적 구제 수단 중 하나가 손해배상제도이다. 본 연구는 국제물품거래에서 매도인의 계약위반으로 매수인과 제3자 간 결과적 손해가 발생한 경우, 국제물품매매계약에 관한 유엔 협약(‘CISG’ 또는 ‘협약’) 제74조를 중심으로 손해배상 범위의 제한 여부를 검토하였다. CISG 제74조는 계약당사자의 예견 가능성과 증명책임을 통해 실질적으로 손해배상의 범위를 합리적인 범위로 제한하는 규정이며, 국제물품거래에서 결과적 손해에 대한 매도인의 손해배상 제한 여부를 검토하기 위해 연구 자료 및 국내외 판례를 분석하여 문헌 연구를 수행하였다. 본 연구는 CISG 상 결과적 손해에 대한 예견 가능성과 증명책임을 요건으로 손해배상 제한 적용의 분석을 통하여 향후 연구자들과 무역 실무가들에게 실무적 시사점을 제공하고자 함을 그 목적으로 한다.When a breach of contract results in damages, in cases without dispute resolution agreements between the contracting parties, a claim for damages constitutes one legal remedy. Thus, studying the limitations of damages is one of the main tasks of contract law scholars. Article 74 of the CISG defines the general extent of the obligation to pay damages for all cases in which the CISG obliges contracting parties to do so. This clause also limits a breaching party’s liabilities to paying damages for losses they foresaw or ought to have foreseen at a contract’s conclusion. This study focuses on the foreseeability of consequential damages to examine the limitations of consequential damages for the international sale of goods under the CISG. Regarding methodology, this paper utilizes a survey of the literature and analyzes relating legal cases. This study intends to contribute to academic development by providing practical implications to academic researchers and trade practitioners.

Attempt to Harmonize International Contract Law: Analysing the Role of CISG and UNIDROIT

The United nations commission on International Trade Law (UNCITRAL) is a body under the U.N. General Assembly established on 1966 for the purpose of facilitating the international trade through harmonization, unification and codification of international trade law. To achieve this the commission uses different conventions, model laws etc. One of the major convention drawn up by the UNCITRAL commission was CISG (United Nations Convention on Contracts for the International Sale of Goods) developed in 1968. The CISG is considered as a successful instrument which focuses on facilitating international trade among the contracting states. It is estimated that 80% of the world's trade in goods is potentially governed by the CISG.[1] It provides the duties of all contracting parties and expressly lay down the principle, formation of contract, terms, remedies in case of breach.[2] The commission under UNCITRAL draws the convention of CISG by relying heavily on the UNIDROIT( International Institute for the Unification of Private Law). The UNIDROIT’s objective is to harmonize private laws across different nations through model laws and it has also developed soft law instruments. Unlike CISG, UNIDRIOT principles will only apply only when it is chosen by the parties under the contract.
 

Reconsidering the Special Rules of Mitigation of Damages for Breach of Contract for the Sale of Goods in UAE Law

Abstract This research focuses on the regulatory framework of a creditor’s duty to mitigate damages in UAE law, and examines the extent to which this organization is consistent with the provisions of the UN Convention on the International Sale of Goods. The absence of an explicit legislative provision imposing this duty in the national law does not preclude the possibility of implementing many general rules governing the theory of contract provided in the UAE federal law on civil transactions. It also concludes that the regulation of commercial sales contracts provided in the UAE federal law on commercial transactions is counterproductive in organizing this duty in contravention of the general rules of contract law and international perspective and in contrast to the provided goals of these special provisions (maintaining mutual trust between the contracting parties and the stability of commercial transactions). It suggests fundamental amendments to the federal law on commercial transactions.

Extension for contract performance under the CISG 1980 and implications for Vietnamese businesses

Being adopted in 1980 and getting effective from January 1, 1988, The United Nations Convention on Contracts for the International Sale of Goods (CISG) has become one of the most widely accepted international trade treaties. Despite its validity in Vietnam since the beginning of 2017, the Convention is still applied in a very limited way by domestic businesses. In fact, there have been a lot of sophisticated legal issues in international trade, especially in cases the parties fail to promptly or properly perform their contractual obligations or even in case of non-performance. This article is aimed to study the provisions of additional time for late performance (Nachfrist) under CISG 1980 in comparison with Vietnamese laws, and current situation of extension for contract performance under CISG 1980. The research collected, summarized, compared and analyzed data from trustworthy sources and conducted the in-depth interviews with the experienced experts in commerce, law, and dispute settlement. The results point out some similarities and differences in establishing the additional time between Vietnamese legal documents and the Convention. Furthermore, it is also showed in this article that disputes related to the Nachfrist clause are quite common and tend to decrease, but only with the participation of mainly European countries and China. In terms of content of dispute cases, the rate of disputes arising from the Seller's breach of contract is much higher than that rate from the Buyer’s. Regarding methods of dispute settlement, China has nearly always chosen arbitration while European countries have given priority to the court. From the analysis, some implications for Vietnamese businesses in the application and interpretation CISG’s provisions of contract extension were represented as solutions to help businesses improve their legal knowledge and limit risks in international commercial activities.

Trade Relations and Trade Openness amongst the ECOWAS Member Nations

This study is necessitated by the belief that, there is an improved trade relation amongst West African countries following the establishment of a Regional Economic Community– the ECOWAS. In this regard, so much has been said about the trade bloc, but we are yet to feel its impact on the regional economy. Thus, this study is set to ascertain the nature of trade relations, impediments to trade and means of improving on trade liberalization within the sub–region .An ex-post facto research study was adopted in the study. It made use of secondary data for the period 2000 to 2019. Descriptive statistics, percentages and granger causality tests were utilized in estimating the time-series statistics. Outcome of the study indicates that there is still a low level of trade amongst the ECOWAS member states. The average total imports and exports from the ECOWAS trading bloc for the period under review stood at 7.1% and 20.10% respectively. This is considered rather poor! Reasons adduced to this effect are that regional trading arrangements still retains the specified patterns which consist of primary products and assume low levels of international sale. The sub-regional sale volume is low as they export raw materials and not processed goods. There is little that they are interested in importing from each other. Again because of the limited diversity of products, the same primary products also tend to dominate her trade with the rest of the world. It was also ascertained that there is a low level of trade liberalization within the ECOWAS sub region. Most of the member states were ranked lowest in terms of trade openness in the continent and the world at large. The study therefore recommends that apart from the new wave of increased interest in regional integration and removal of trade barriers, there is need for a major shift – ECOWAS member nations must play down on the continued dominance of primary production, export and low value addition. Regional trades need to be driven by a diversified production structure essentially driven by growth in manufacturing that would deliver lots of jobs, raise productivity and incomes; else intra regional trade will remain fragile, unadoptable and therefore more susceptible to major disruptions. Poor trade relations are likely to persist in the sub–region without a robust manufacturing sector where innovation and technology would improve value addition and raise productivity.

Pravna sredstva prodavca za slučaj kupčeve povrede ugovora o međunarodnoj prodaji robe

The legal remedies available to a seller in case of a buyer's breach of contract on international sale of goods are predominantly contained in Articles 61-65 of the UN Convention on Contracts for the International Sale of Goods (CISG). Article 62 of the CISG entitles the seller to require from the buyer to perform the obligations. Under Article 63 of the CISG, the seller may fix an additional period of time of reasonable length for the performance of the buyer's obligations. Article 64 defines the conditions under which the seller is entitled to declare the contract avoided. The first situation in which the seller can avoid the contract is where the buyer has committed a fundamental breach of contract. Article 64 also provides that the seller can avoid the contract if the buyer has not paid the price or taken delivery of the goods within the additional period of time fixed by the seller under Article 63(1) of the CISG. In case the buyer has paid the price, the seller loses the right to avoid the contract if it does not declare avoidance within the periods stated in Article 64(2). In cases of late performance, the seller loses the right to declare the contract avoided unless it does so before becoming aware that performance has been rendered. In regard to any breach other than late performance, there is a distinction according to whether or not the seller has fixed an additional period for performance in accordance with Article 63 (1). In the absence of an additional period for performance, the seller loses the right to declare the contract avoided unless it declares avoidance within a reasonable time after the seller knew or ought to have known of the breach. In case the seller has fixed an additional period of time for performance by the buyer, the seller loses the right to declare the contract avoided unless it declares avoidance within a reasonable time after the expiry of the additional period fixed by the seller or after the buyer has declared that it will not perform his obligations within such an additional period. Finally, under Article 65 of the CSIG, if the buyer fails to make the specification of the goods, either on the date agreed upon or within a reasonable time after receipt of a request from the seller, the seller may, without prejudice to any other rights he may have, make the specification himself in accordance with the requirements of the buyer that may be known to him.

Rękojmia za wady sprzedanych praw i dóbr niematerialnych w ujęciu historycznym i prawnoporównawczym

The paper deals with historical and comparative legal analysis of the subject of warranty for physical and legal defects. A brief review of European legal orders shows that they are generally oriented towards things (variously understood as tangible or intangible objects). However, modern trade is characterized by an increasing dematerialization of its components. It justifies the question of how the European legal orders and some model acts solved (in the past) and still solve the problem of seller’s responsibility for the sold rights and intangible objects. First, a historical analysis will be made of two issues – the concept of ‘thing’, as well as the object of property, and the object of the sale contract (and at the same time the regime of seller’s responsibility for defects). In the second part, the analysis from the comparative legal perspective will be made, covering selected legal orders in the field of the contract of sale of rights and liability of the seller for defects of these objects. The research has been based on the following legal systems: Austrian, French, German and Swiss. In addition, the Convention on Contracts for the International Sale of Goods (CISG) and the model law – the Draft Common Frame of Reference (DCFR) were analyzed.

Способы защиты прав покупателя по договорам международной купли-продажи в случае поставки товаров из государств, применяющих экономические санкции к России

The recent increase in attempts to import into the territory of Russia goods produced in states applying economic sanctions against Russian citizens and organizations invariably entails an increase in statistics on bringing business entities to administrative responsibility and, as a result, an increase in the number of complaints to arbitration courts against the actions of customs authorities. The proposed study focuses on identifying possible civil legal ways to protect the rights of participants in trade, violated due to the application of economic sanctions or counter-sanctions to one of the parties to the contract of international sale. The aim of the study is to identify mechanisms for protecting the rights of the Russian buyer under the contract for the supply of foreign goods, which are the recognition of the transaction as invalid and the termination of the contract. Within the framework of the aim, the following objectives are to be achieved: (1) to assess the legality and integrity of the conduct of the foreign supplier and the Russian buyer in the performance of contractual obligations; (2) to determine how to protect the rights of the buyer in case of delivery of goods prohibited for import into the territory of Russia, and, as a result, seized by customs authorities; (3) to identify the substantive grounds for claims that may be brought against a foreign supplier. The subject of the study is the scientific and practical substantiation of the requirements of the Russian buyer to a foreign supplier to declare the transaction concluded between them invalid, as well as to terminate the contract due to improper performance by the supplier of its obligations. On the basis of a synthesis of the latest jurisprudence, the author made recommendations on what way to protect the violated rights of the buyer should be chosen in a specific situation. So, according to the author, the buyer, to whom the goods of the country of origin prohibited for import into the territory of Russia are delivered, should, as a matter of priority, sue the supplier to invalidate the transaction as circumvented by the law due to the contradiction of its content to the super-imperial norms of Russian law. This will allow the buyer to recover in restitution all losses caused by such a delivery. In the absence of legal grounds for invalidating the transaction, the Russian buyer is further entitled to demand the termination of this contract, since the fact of the loss of the opportunity for the buyer to acquire ownership of goods delivered from abroad and seized by customs authorities indicates the supplier's improper performance of its contractual obligations.

Comparison of Iranian Civil Law and International Law on Termination of Contracts

The expansion of relations between countries has led to an increase in international transactions, and since trading and economic activity in general require special legal rules, in some cases, according to international transactions, the rules in the world's major legal systems enter the international arena. These rules have sometimes been agreed upon by countries to adapt to the needs of international trade by amending the relevant documents. In the present article, the research method has been library and also the collection of information has been descriptive, analytical and comparative methods. In the end, some rules can be obtained, including the rule of cancellation due to the anticipation of breach of referred to in Article 72 of the Convention on the International Sale of Goods. According to this article, if it is revealed before the due date that the obligation will not be reasonably fulfilled, such as if the obligor declares that he will refuse to fulfill his obligations, the other party may announce his decision to terminate the contract by sending a statement. If the obligor refuses to provide an appropriate guarantee for the performance of the contract, the obligee will have the right to terminate the contract.

To Boldly Go, Part II: Data as the CISG’s Next (but Probably Not Final) Frontier

The United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) is an international sales law treaty concluded in 1980 and drafted with traditional (physical) goods trade in mind. While a significant body of scholarship has addressed its capacity to govern electronic software transactions, only limited commentary has explored the CISG’s digital application beyond software per se. ‘To Boldly Go, Part I’, this article’s counterpart, developed a specific legal framework for assessing the CISG’s capacity to regulate international trade in non-software data. This article now applies that framework, confirming the CISG is capable of governing non-software data trade, and uses that framework to resolve the currently unsettled question of whether cryptocurrency trade falls within the CISG’s scope. Since non-software data trade is becoming increasingly economically important, this article’s conclusions stand to benefit data traders as well as the practitioners advising them.

Analysis of the Cultural Homeward Trend in International Trade Laws

Article 7 of the Vienna Convention on Contracts for the International Sale of Goods (‘CISG’) mandates that the convention must be interpreted uniformly without recurse to domestic principles. This article demonstrates that the homeward trend – the tendency to project domestic laws onto the international provisions of a Convention is breach of article 7(1). However, art 7(2) alerts the reader that some matters are not expressly settled but must be settled by recourse to general principles within the CISG and again no recourse to domestic laws can be sought even if the terms track domestic laws. This article argues that a distinction must be draws if vague terms vague terms such as reasonable time must be interpreted. These terms are not governed by laws but are subject to factual events such as customs or universal understanding.

From Product-Centered to Servitized Industry

Over the last four decades, producers of durable goods recognized the role of services as a tool to increase their competitiveness and achieve long-term growth. Consequently, the producers began to integrate services into their products to satisfy their customers’ needs, a process known as servitization. Since its introduction in the late 1980s, servitization received practical affirmations and focused on diverse and interdisciplinary research. Nevertheless, legal aspects and considerations, particularly those concerning contracts, are remarkably scarce. This is surprising since challenges in the transition to product-service integration call for a framework that ensures predictability and certainty on the one hand while enabling proactive contract design and management on the other. We aim to fill this gap by examining the application of the UN Convention on Contracts for the International Sale of Goods (the “CISG”) on servitized business-to-business (“B2B”) contracts. The added element of services blurs the lines of classifying a relationship as a sale, service, or mixed agreement. It is reasonable to expect that selling productsservices as an integrated unit will lead to issues concerning the qualification of the commercial relationship between producers and its customers and, as a result, increase the legal challenges in an already challenging business environment. That is where the CISG comes into play. The CISG recognizes the dichotomy between the sale of goods and the provision of services in its Art. 3(2). Since the purpose of the CISG is to enable the development of international trade, we offer an interpretation of Art. 3(2) that would enable the CISG to govern contracts arising out of or connected with a servitized business model. The CISG is appropriate to govern these relationships, allowing for a sufficient level of flexibility that parties need to adapt to their specific contracts.

ADEQUATE ASSURANCE OF PERFORMANCE UNDER THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AND THE UNIFORM COMMERCIAL CODE

AbstractThis article compares and contrasts the doctrine of adequate assurance of performance under the US Uniform Commercial Code (the UCC) and the UN Convention on Contracts for the International Sale of Goods (the CISG). The article argues that, in the context of the CISG, the mechanism of adequate assurance found in the UCC is a faux ami. Despite some similarities, the doctrine of adequate assurance regulated in the CISG is distinct and serves different functions to its UCC counterpart.

THE OBLIGATION OF THE SELLER TO DELIVER THE GOODS IN ACCORDANCE WITH THE PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS

The seller’s obligations are regulated in the second chapter of the Vienna Convention. Thus, the seller is obliged to deliver the goods, to transfer the property and, if it is the case, to provide the documents regarding the goods, in the conditions specified by the contract. In this article, I will refer to the obligation of the seller to deliver the goods in accordance with the provisions of the United Nations Convention on Contracts for the International Sale of Goods signed at Vienna on 11 April 1980. In connection with the obligation to deliver goods, the Vienna Convention regulates three aspects, namely: the place of delivery of the goods; certain obligations of the seller; adjacent to the delivery and the time of delivery of the goods.

To Boldly Go, Part I: Developing a Specific Legal Framework for Assessing the Regulation of International Data Trade under the CISG

The United Nations Convention on Contracts for the International Sale of Goods (‘CISG’) is an international sales law treaty concluded in 1980. Given its vintage, the CISG was drafted with traditional (physical) goods trade in mind. A significant body of scholarship has addressed the CISG’s capacity to govern electronic software transactions. However, only limited commentary has explored its digital application beyond software per se. This article develops a specific legal framework for assessing the CISG’s capacity to regulate international trade in non-software data: a framework so far missing from existing scholarship. ‘To Boldly Go, Part II’, this article’s counterpart, will go on to apply this framework to non-software data trade. Collectively, these articles establish that the CISG is capable of governing not only software trade (as previously established) but also trade in non-software data: a category of trade becoming increasingly economically important.

Interpreting merger clauses in contracts governed by the CISG: delineating the scope for the use of extrinsic evidence

Abstract Under Article 8(3) of the United Nations Convention on Contracts for the International Sale of Goods (CISG), parties’ statements, prior negotiations and other external circumstances may be used to assess the presence of subjective or objective intent that can, in turn, be used to interpret contractual terms in international sales contracts governed by the CISG. However, parties to the contract can, through the adoption of an ‘entire agreement’ or ‘merger’ clause, opt out of this rule under Article 8(3) and restrict these interpretative tools in any manner as they see fit, depending on the requirements of their contract. Since the CISG does not explicitly address merger clauses and their effects, the CISG Advisory Council, in its Opinion no. 3, has provided a test to determine how the scope of a merger clause is to be determined. However, this test presents certain conceptual and practical limitations that render it inadequate for use in international commercial contracts. This article aims to analyse this test and the methods that have been used to interpret merger clauses under other uniform legal instruments and cases in common law jurisdictions. On this basis, the article proposes a test that attempts to fully capture the conceptual intent behind including merger clauses while ensuring that the parties are in the driver’s seat while determining their scope and effect.