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Christophe Bernasconi '

1. 2. 2.1 2.1.1 2.1.2 2.1.3 2.2 3. 3.1 3.2 3.2.1 3.2.2 3.2.3 3.3 3.3.1 3.3.2 3.3.3

Introduction: a glance back The international character of the transaction The basic criterion: the parties' places of business A sufficient criterion? What is meant by place of business? Multiple places of business The necessity of awareness The transaction's relation to a contracting state Preliminary remarks The autonomous requirements of the Convention's applicability: Article 1(1 Xa The nature of Article 1 (1 Xa) The pursued goal Article l(lXa) and the Hague PIL Conventions Contracting state The case of the former German Democratic Republic The former USSR The former Yugoslavia Which courts are addressed by Article 1 (1 Xa)? The conflictual method of defining the Convention's scope: Article The scheme of Article l(lXb): an easy example The history of Article l(l)(b) The deliberations of the First Committee A last-minute decision taken at the Plenary Conference: Article 95 The expediency of Article l(lXb) An enlargement of the Convention's scope

1. Dr. iur. ulr. (Fribourg), LLM. (McGill), Secretary at the Permanent Bureau of the Hague Conference on Private International Law. The opinions expressed are personal to the author and are not to be attributed to the Hague Conference on Private International Law or to its Permanent Bureau. Netherlands International Law Review, XLYl: 137-170,1999 © 1999 T.M.C. Asser Instituut and Contributors

138 3.3.4 4.



Internationally harmonized judgments? The CISG as an unwelcome surprise? The position of the United States The possibility of making a reservation under Article 95: a general critique Article 1(1 Kb) and Article 95: how do the different choices interfere? An analysis of some intricate permutations The judge sitting in a reservation state The judge sitting in a contracting state whose conflicts rules point to the law of a country that has filed a reservation under Article 95 The judge sitting in a non-contracting state Conclusion



On April 1999, the United Nations Convention on Contracts for the International Sale of Goods (hereinafter: the Vienna Convention, CISG or the Convention)2 celebrated its 19th anniversary. The Convention has been praised throughout the world as a skillful and effective tool for governing international sales transactions. Hence, after more than fifty years of arduous work, the efforts undertaken to unify the law for international sales at a global scale seem, at last, to have reached success. As frequent referrals to former efforts undertaken will be made, it seems appropriate to set forth, at least summarily, the history of the Vienna Convention. The effort to achieve a uniform law on the international sale of goods has spanned nearly 70 years.3 The adoption of the Vienna Convention was the culmination of a long process which began in April 1930. Under the auspices of the League of Nations, the International Institute for the Unification of Private Law (UNI-

2. 'Final Act of the UN Conference on Contracts for the International Sale of Goods', A/CONF.97/18, in 34 Yearbook of the United Nations (1980) Part 3, ch. I., section A. An unofficial version of the text of the Convention is reproduced in 19 /LA/(1980) pp. 668-699. 3. See, e.g., R. Loewe, 'Anwendungsgebiet, Auslegung, Lucken, Handelsbrauche', in The 1980 Vienna Convention on the International Sale of Goods, Lausanne Colloquium of November 19-20, 1984 (Zurich, Schulthess 1985) p. 11 at pp. 12-13; M. Ndulo, 'The Vienna Sales Convention 1980 and the Hague Uniform Laws on International Sale of Goods 1964: A Comparative Analysis', 38 ICLQ (1989) p. 1 at pp. 2 et seq.; K. Sono, 'The Vienna Convention: History and Perspective', in P. Sarcevic and P. Volken, eds., International Sale of Goods, Dubrovnik Lectures (New York, Oceana Publications 1986) pp. 1 et seq.; P. Winship, 'The Scope of the Vienna Convention on International Sales of Contracts', in N. Galston and H. Smit, eds., International Sales: The United Nations Convention on Contracts for the International Sale of Goods (New York, Matthew Bender 1984) p. 1-1 at pp. 1-3 et seq., with further references.

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DROIT) decided to proceed with the preparation of a uniform law in this area.4 The work of UNIDROIT had largely been facilitated by the comprehensive preliminary works of Ernst Rabel, the first to suggest both the desirability and feasibility of a unification of substantive sales law.5 A first draft was completed in 1935 and submitted for comments to the member states of the League of Nations. Based on their comments, a second UNIDROIT draft was presented in 1939 (the Rome draft). However, these initial efforts were interrupted in 1939 due to the outbreak of the Second World War. The efforts were resumed in 1951, when the government of the Netherlands organized a diplomatic conference to consider means by which the UNIDROIT draft could be brought to a successful conclusion. The direct outcome of the reopening of discussion was the 1964 adoption of two Uniform Laws: one on the International Sale of Goods (ULIS), and one on the Formation of Contracts of Sale (ULF).6 These two Conventions, however, entered into force among few states and therefore never have achieved the expected success.7 Essentially, they are considered complex Western European civil laws that do not sufficiently take into consideration common law principles or the interests of developing and socialist countries that had not participated in the 1964 Conference. Furthermore, strong criticism has been directed at the excessive sphere of application of the uniform

4. This decision was certainly affected by the confidence gained following the adoption of the Geneva Conventions of 1930 and 1931 on negotiable instruments, both of which had also been elaborated under the auspices of the League of Nations. 5. Ernst Rabel, then Director of the Kaiser-Wilhelm-Institut fur auslandisches und internationales Privatrecht in Berlin, had submitted a report to UNIDROIT: 'Observations sur futility d'une unification du droit de la vente au point de vue des besoins du commerce international', (1929); reprinted in 22 RabelsZ( 1957) p. 117. These observations were accompanied by a comparative study that Rabel had prepared in collaboration with the members of his institute. This latter study formed the basis of Rebel's classic comparative analysis of the law of sales: Das Recht des Warenkaufes, published in 1936 (Vol. I) and in 1958 (Vol. II) (Berlin, W. de Gruyter). 6. The ULIS and the ULF are reprinted in 3 IIM (1964) p. 855 respectively p. 864. For more details on the history of the 1964 uniform sales law, see P. Winship, 'Private International Law and the U.N. Sales Convention', 21 Cornell IU (1988) p. 487 at pp- 491-500; see also J.O. Honnold, 'The Draft Convention on Contracts for the International Sale of Goods: An Overview', 27 AJIL (1979) p. 223 at p. 224. 7. Only Belgium, the Federal Republic of Germany, Gambia, Italy, Luxembourg, the Netherlands, San Marino, and the United Kingdom have ratified, or acceded to, both the ULIS and the ULF; Israel ratified only the ULIS. The ULIS had some important practical impacts in Germany and Italy in particular (some 180 court decisions of the five original Member States of the EEC have been reported). There is, however, not one single reported case of English or Scottish courts involving the Hague Uniform Laws, see B. Nicholas, 'The Vienna Convention on International Sales Law', 105 LQR (1989) p. 201 at p. 202. Overall, it seems fair to state that the 1964 Conventions did not have the expected impact on the practical conduct of international trade.

the Commission decided to consolidate these two texts into a single Convention. n. at p. Belarus. the Conference unanimously approved the current uniform rules. 9. Norway. Uzbekistan. Burundi (effective as of 1 October 1999). Honnold. 381 et seq. idem. 6. Honnold. see Winship. The uniform laws are intended to be applied by a court of a contracting state to international sales transactions even when the parties involved are from non-contracting states and the transaction had little or no connection either with the forum or another contracting state. In fact. Mexico. the Hague Conference on Private International Law. the following 54 states were party to the CISG: Argentina (one of the eleven initial contracting states (i)). 27 AJCL (1979) p. it should be emphasized that neither Japan. Lithuania. 5). Chile. The Diplomatic Conference in Vienna was attended by 22 European and other developed Western states. Today more than 50 countries. Despite the possibility for a state to make one or more reservations (and in particular limit the Convention's application to parties whose places of business are in different contracting states). 333 at p. Iraq. Following extensive preliminary works. Australia. Poland. Slovakia. countries such as Brazil. Russian Federation. Documentary History of the Uniform Law for International Sales: The Studies. and Zambia (i).140 C. and Venezuela have not joined the CISG. the newly established United Nations Commission on International Trade Law (UNCITRAL) revisited the issue.g. Mongolia.O. Bulgaria. Finland. Romania. Belgium.BERNASCONI NILR 1999 laws. 11 Socialist. Kluwer 1989) pp.10 After five weeks of intensive work. Syria (i). 31 AJCL (1983) p. United States of America (i). 20 and accompanying text. at the end of the 1960s. Peru. and the International Chamber of Commerce. Czech Republic. Germany.. 223 at p. Columbia. 226. 11 South American. Eorsi. Sweden.12 8. see. 7 African. Denmark. representing all sectors of the world community. Guinea. Ecuador. New Zealand. n. France (i). the 1978 Draft Convention on Contracts for the International Sale of Goods (referred to as the 1978 Draft). cit. loc. Egypt (i). Greece. Yugoslavia (i).8 As a result. 'The Draft Convention on Contracts for the International Sale of Goods: An Overview'. China (PRC. Regarding the Middle and South American continent. 'A propos the 1980 Vienna Convention on Contracts for the International Sale of Goods'. Canada. 1 et seq. See generally J. at pp. 335 (ft. Georgia. 3. The first was the 1976 Draft Convention on Sales. Ukraine. Bosnia-Herzegovina. It is worthy to note that Norm America is the only major trade block whose member states have all subscribed to die CISG.O. are party to the Convention. As of January 1999. Italy (i). the European Community. Latvia. Switzerland. Spain. (i)). with some notable exceptions (principally Egypt). ft.9 the Commission presented the results of its undertaking at a Diplomatic Conference held at the Neue Hofburg in Vienna from 10 March to 11 April 1980. the countries not parties are Portugal and die United Kingdom. 11. This Conference was attended by more than 200 delegates from sixty-two nations. several international organizations took part as observers. and. Cuba. Deliberations and Decisions that Led to the 1980 United Nations Convention with Introductions and Explanations (Deventer. e. nor Taiwan has yet become a party to the CISG. 10. the UNCITRAL Working Group submitted two draft Conventions. As far as the European Union is concerned. J. Later on. Indonesia. Uruguay (1 February 2000). a second Draft Convention on Formation of the Sales Contract was completed in 1977. among them the World Bank. Furthermore. Austria. Singapore. Croatia. see G. 12. Hungary (i). the very large majority of the African . accounting for over two-thirds of all world trade. for more details. Concerning the APEC-region. 1-11. Estonia. Slovenia. Moldova. 491-503.. it soon became apparent that the ULIS and the ULF would not be widely adopted. (Part C)." The CISG came into force on 1 January 1988 for an initial group of eleven contracting states. Luxembourg. op. cit. Lesotho (i). Finally. Uganda. For more details. Netherlands. and 11 Asian countries.

. For an example. P. Bernasconi and A. 3 SZIER/ RSDIE (1993) pp. Dubrovnik Lectures (New York. e. European scholars and judges are still debating the personal and territorial scope of application of the treaty.NILR1999 CISC (ARTICLE 1) 141 No treaty has likely been discussed by legal scholars as extensively as the CISG subsequent to the end of the Second World War. International Sale of Goods. This essay presents a synthesis of different problems caused by states has also still not ratified die Vienna Convention. one should note that the ULIS and ULF have not been totally abandoned.. 71 Wash. the Vienna Convention deals with contracts for the international sale of goods. As it is the case for all international treaties. 99-101. in P. the scope provisions have been of particular interest to the commentators in the first years following the adoption of the Vienna Convention.. accept. and within a given period of time. 12 in fine. C.16 As a result. and Gap-Filling'.g. Norris. Its complex structure has produced a tremendous volume of writings and commentaries. the Convention covers only a specific category of sales. Furthermore. an analogy may be made with the Brussels Convention of 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters and. the Court applied the ULIS to a contract between an Italian buyer and a German seller. See. e. eds. 'A New Paradigm for International Business Transactions'. See. 15. see the decision of the Oberlandesgericht Munchen dated 9 August 1995 [7 U 7143/92]: as the CISG did not apply by virtue of Art 100 (the contract was drawn up before the entry into force of the Convention in Italy or Germany). Oceana Publications 1986) p. The temporal scope of the Convention is regulated in the Arts. 16. approve or accede to the Vienna Convention shall at the same time denounce either or both the ULIS and the ULF. a contract of sale will be governed by the Convention only if it falls within the CISG's personal. see also n. and material sphere of application. within a particular territorial sphere. According to Art 99(3) CISG. They may still be applied between contracting states if the CISG does not apply. 13. 14. 17. its sphere of application must be examined with regard to four different aspects: the Vienna Convention applies only to contracts concluded between a given group of persons. ULQ (1993) p. Finally. 599 at p. The principal rules delimiting the Convention's scope are contained in Articles 1 to 6. a state which is party to either or both the ULIS and the ULF and which wants to ratify. however.14 Many of these questions continue to be debated today. Volken. 39 et seq. The basic principle is that the Convention does not apply retroactively (Art 100). Randall and J. Gerber. with many references. 'The Vienna Convention: Scope.13 Similar to most international treaties. making this Article one of the most discussed provisions of the Convention. 613. temporal. consequently. Both ULIS and ULF raised the same questions in die first years of their applicability. Sarcevic and P..15 As indicated in its title. In this context. . apply to all international sales of goods. Interpretation. with the Lugano Convention which was adopted in 1988 and which extends the rules and principles embodied in the Brussels Convention to the Member States of the European Free Trade Association: more than thirty years after the adoption of the Brussels Convention. Article 1 is certainly one of the most important. 19 at p. K. more than nineteen years later.17 Among the scope provisions of the CISG. 23.g. The CISG does not. This provision fixes the personal and territorial scope of the Vienna Convention. territorial. 'Der raumlich-personliche Anwendungsbereich des Lugano-Ubereinkommens'. Volken.

The latter continue to be regulated by domestic laws. cit the abundant writing has brought out. According to Article 1(1).' . the Vienna Convention does not ask for additional characteristics. Bonell. in order for the Vienna Convention to apply. 28. Winship. 3. Volken. Contrary to the ULIS. According to its Art 1. the Convention has to provide a basic criterion that distinguishes international contracts from merely domestic ones. The draftsmen of the Vienna Convention utilized the same criterion already rooted in the ULIS: the parties' places of business. 16. op. 1-20 et seq.O. 'Article 1'. 13 Nederlands Internationaal Privaatrecht (1995) p. Honnold. (Deventer. at pp. 2. L. 342. 19. at pp.g. that offer and acceptance be accomplished in different states or that the goods be delivered in a state other than that within whose territory offer and acceptance have been effected. 26-28. See F. 'CISG Article 1(1XB) and Related Matters: Brief Remarks on the Occasion of a Recent Dutch Court Decision'. and when does the transaction bear a prescribed relation to one or more contracting states?18 These two questions are examined separately in the following comments. e. V6kas.' Anwendungsvoraussetzungen und Anwendungsbereich des UN-Ubereinkommens fiber Vertragefiberden intematkmalen Warenkauf (CISG)'. See.142 C. that the goods be carried from the territory of one state to the territory of another state. it is not necessary that borders be crossed. ciL n. 1 Aktuelle Juristische Praxis /Pratique Juridique Actuelle (1992) p. KJuwer 1991) para. 31920.1 THE INTERNATIONAL CHARACTER OF THE TRANSACTION The basic criterion: the parties' places of business The Vienna Convention applies only to international contracts.20 The application of the 18. 39. 27 at p. Schlechtriem.. 2nd edn. 7 IPRax (1987) p. 317 at pp. 339 at p. P. (b) where the acts of constituting the offer and the acceptance haven been effected in the territories of different States. 342. eds. the ULIS is applicable to contracts of sale of goods entered into by parties whose places of business are in the territories of different states. Ferrari. Commentary on the International Sales Law: The 1980 Vienna Sales Convention (Milan. E. (c) where delivery of goods is to be made in the territory of a State other than that within whose territory the acts constituting the offer and the acceptance have been effected. 20. BERNASCONI NILR1999 Article 1 and sketches the . in each of die following cases: '(a) where the contract involves the sale of goods which are at the time of conclusion of the contract in the course of carriage or will be carried from the territory of one State to the territory of another. Jayme. 2. 'Zum personlkhen und raumlichen Anwendungsbereich des UN-Einheitskaufrechts'. Uniform Law for the International Sales under the 1980 United Nations Convention.19 Therefore. with further references. op.. Hence. in CM. Bianca and MJ. See especially J.occasionally divergent . Giuflre 1987) p. the CISG applies to contracts of sale of goods between parties whose places of business are in different states. Analysis of the Convention's personal and territorial scope follows the two central questions that are embodied in Article 1: when is a transaction international.

the CISG does not apply. the Vienna Convention refers only to the contracting parties. the Convention's applicability must be examined without taking into consideration the place where the contract has been concluded (e. The parties have their places in different states (Canada and France). . (3) of CISG Art. Would it not be appropriate to apply the German BGB (Biirgerliches Gesetzbuch) in this case? On the other hand.. UN Doc. thus the Convention applies. may seam inappropriate. Manzsche Verlags. Uniform Sales Law: The UN-Convention on Contracts for the International Sale of Goods (Vienna. 27.21 2. Honnold. A/CONF. at p. the basic criterion adopted by the CISG serves three major purposes: (1) to reduce the search for a forum with the most favourable law. cit n..97/5. even if that state is not a contracting state. the Secretariat Commentary is the closest available equivalent of an Official Commentary on the Convention. Consider the following example: Bombardier (Canada) owns prefabricated mass-transport components stored in Germany.22 However. reprinted in J. the lack of additional characteristics (e. when the Bombardier plant in Valcour (Canada) sells goods located in its factory near New York to another Canadian corporation which needs that type of goods in Mexico. prepared by the Secretariat'. 1. would it not be a sustainable solution to apply the CISG? In defining the international character of sales transactions. 405. 4 (hereinafter Secretariat Commentary). (3) to provide a modern law of sales appropriate for transactions of an international character. op. Hamburg) or where the goods were located at the time the parties agreed on the terms of their contract (remember that in our example the components have never left Germany). formation and execution may occur within a single state. at first glance. para. the Secretariat Commentary on 1978 Draft Art 1 can legitimately be regarded as relevant to the interpretation of CISG Art. Given the obvious international implications of this transaction. 11.g. 22. 'Commentary on the Draft Convention on Contracts for the International Sale of Goods.und Universitatsbuchhandlung 1986) p. CISG Art 1 and 1978 Draft Art 1 are identical except for the phrase 'in determining the application of this Convention' mat has been added to para. In fact. Documentary History. Bombardier sells these elements to a French company which builds a new mass-transport system in Hamburg. Schlechtriem.NILR1999 CISC (ARTICLE 1) 143 Vienna Convention requires only that the parties' places of business be located in different states. (2) to reduce the necessity of resorting the rules of private international law. an international carriage of goods) may lead to results which. P. The Convention does not make any reference to the purchased goods or to their location at the time of the contract's 21.O.1 A sufficient criterion? According to the Secretariat Commentary on Article 1 of the 1978 Draft.1. In other words. 1. Consequently.g.

the CISG indeed looks 'simplistic'. 26. Vol. Schulthess 1985) p. 29-30. lacunes.144 C. cit n. at p. 3. the application of their common domestic law to the transaction would therefore be a sustainable solution . 25 Nevertheless. to nationals of non-contracting states who have their 23. Jen-Huong Wang. 'Champ d'application. the parties have the possibility to exclude the applicability of the uniform rules. if Bombardier and its French partner did not want their contract to be governed by the Vienna Convention. 87 Zeitschrift fur vergleichende Rechtswissenschqft (198%) p. See die references in Winship. 24. 25. 21 at pp. the Convention also applies. 28. BERNASCONI NILR1999 conclusion. 23-24. op. . the uncomplicated solution embodied in the Vienna Convention is of inestimable practical advantage and largely preferable to the uncertainties caused by the approach chosen in the ULIS. cit n. 24. 184 at p. idem. they could. it must be emphasized that the parties are located in the same country. Volken. cit n.24 Critics assert that the system adopted by the CISG creates two categories of international sales transactions: so-called 'first-class' transactions regulated by the Vienna Convention. In addition to the positive criterion of place of business. op. Therefore. Compared to the punctilious solution that the ULIS had adopted for its definition of the international character of sales transactions.26 First. see also Nicholas. at pp. the CISG has become an invaluable tool so that they are generally aware of its conditions and consequences of applicability. April 1980'. For individuals and corporations that have attained a certain experience in international sales transactions. fh. the Convention also refers to two negative criteria designed to settle its personal sphere of applicability. 3 (Zurich. Volken (1985). The comprehensible solution adopted by the Vienna Convention has been criticized by some authors. cit n. see also P.23 Although the Vienna Convention's definition of the international character of a sales transaction may be narrower than that adopted in the ULIS. 19. Therefore. 1-11. it must be underscored that according to Article 6 of the CISG (the so-called 'opting-out provision'). 205. paragraph 3 of Article 1 states that the nationality of the parties to the contract has no relevance to the application of the Convention. refer to German domestic law. With respect to the second example. at p. 1984. 7. for example. Volken. where he proposes that the applicability of the CISG should at least request an international carriage. Furthermore. 16. op. it adeptly avoids complicated interpretation problems. 16. for example. citn. usages'. Lausanne Colloquium of November 19-20. op. at p. be. and 'second-class' transactions that continue to be governed by domestic private international law principles. 'Das Wiener Ubereinkommen fiber Internationale Warenkaufvertrage vom 11. interpretation. at p 30. in The 1980 Vienna Convention on the International Sale of Goods. least preferable to the intricate interpretation difficulties that inevitably would arise if the CISG were to adopt a similar provision to Article 1(1) of the ULIS. The solution adopted by the draftsmen of the Vienna Convention must be regarded as a response to the irritating problems associated with Article 1 of ULIS.

22. see also Secretariat Commentary. Convention de Vienne sur les controls de vente internationale de merchandises: Commentaire (Lausanne.2 What is meant by place of business? Even though the Convention refers several times to the concept of 'place of business'. at p. 31. the civil or commercial character of the transaction can be taken into consideration for the purposes of determining matters such as the reasonable period of time provided for in Arts. family or household use. Furthermore. Neumayer and Ming. such as sales 'of goods bought for personal. 32. 9. e. para. op. 11. However. n. e.29 2. Jayme. for example. however. 43(1) or 63(1). ad hoc negotiations. this seems to be overlooked by Randall and Norris. Jayme. a temporary place of sojourn during. at p. supra n. cit n.27 Second. See. loc. place of business means a permanent and regular (stable) place for the transacting of general business. 12. CEDIDAC 1993) pp. 41 and 42. cit n. There has to be a real connection of the party with the place in question. the same provision states that the Convention applies regardless of the 'civil or commercial character of the parties or of the contract'. at p.g. op. See.. 31(c). 59).1. 24. 21. n. op. E. 1(3) and 7. 56). 20. or the place where only preparations for the conclusion of the single contract have been made.. at p. op. at p. The term place ofbusiness does not include. a fictitious registration is not sufficient.31 Professor Honnold accurately notes that the meaning of place of business as a site of stable business activity is supported by the references to this concept in other 27. 227. cit.' This step enormously simplified drafting by avoiding fears of collision between the Convention and various domestic legislations designed to protect consumers. 42(l)(b). According to a widely accepted opinion.30 it does not provide a definition of what is meant by that term. 94(1). 614 (fh. 36 and accompanying text. 57(lXa). 10. see Honnold. e. 405. In fact. . Art 2 excludes from the Convention's scope certain contracts which are likely to be classified as civil contracts by some legal system.. 29.. 28.g. see its Arts. 22. 93(3). at p. 1(1). Schlechtriem. 405. supra n. See. 27 (with further references in fh. loc.g. Arts. the idea was not pursued given the difficulties in determining the 'nationality' of legal persons. This provision allows the Convention to avoid conflicts that could arise between dualistic systems (e. However. at p. 32. See Schlechtriem. 90.28 Hence. cit. cit n. 20. at p. 30. the question whether nationality should be introduced as an (additional) prerequisite for the application of the Convention was raised during the negotiations. 94(2) and 96. See also infra n.g. 14. France and Germany) and monistic systems (e. see Secretariat Commentary. para. 39(1). 57(2). 27. cit n. 69(2).g. 21..NILR1999 CISC (ARTICLE 1) 145 places of business within two different contracting states. it does not matter whether a party is a merchant in the eyes of the law of a particular country in which commercial contracts are governed by specific rules that are different from the general rules on sales. 13. Both negative criteria were already rooted in ULIS. Italy and Switzerland) in which the distinction between the civil and commercial character of the parties is unknown.

On the other hand. the seller must place the goods 'at the buyer's disposal at the place where the seller had his place of business at the time of the conclusion of the contract' (para. the CISG also embraces subsidiary places such as a branch. for example. an agency or another establishment of a party.34 2.32 Article 31 seems particularly pertinent in this context. . at para.. cit n. the idea that the term place ofbusiness implies a certain permanency is additionally supported by the fact that the French text of the Convention uses the expression etablissement. loc.3 l(c). ed. 'having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract' (Art.1. 15 at p. e. See. fe. cit. at pp. paras. see. 10.g. Les controls de vente intemationale de marchandises (Lausanne. 10(a)). op. cit n. 18. 34.. This provision states that if the contract does not involve a carriage of the goods (para.g. such as in Articles 24.146 C. it must be emphasized that the Convention's concept of the place ofbusiness is not to be considered as equivalent to the head place of business. 35. Ferrari. 19. 33. 6 et seq.. at p. 3. See also Secretariat Commentary. n. For the following. Obviously. Siehr. 3. and the goods are not located at a place known by the parties (para. Which of the following conclusions prevails in this case: the fact that the parties have places of business in different states (Canada.3 Multiple places of business If a party has more than one place of business. 42(b) and 69(2). at least. op. the location which has 'the closest relationship to the contract and its performance' prevails. c). this kind of delivery is only appropriate if the seller's place of business is. USA). K.35 Let us suppose. e. Winship. b). 52 RabelsZ (1988) p. 20. Stoffel.33 Hence. W. 323-324. or the fact that they have their places of business in one and the same country (Canada)? Article 10(a) establishes the principle that the selection of the decisive place of business must be based upon an analysis of its individual relationship to the sales contract. that a seller has places of business in both Canada and the United States and that the buyer has his only place ofbusiness in Canada. 587 at p. 43. cit n. 'Le droit applicable aux contents de vente intemationale de marchandises'. 590. 1-22. although the latter had no provision like Art 10(a) of the CISG. a).. supra note 22 at p. 30. in F. op. 42. A German court had already adopted this position under the ULIS. The same observation can be made with regard to the (unofficial) German text which uses the term Niederlassung. ibid. BERNASCONI NILR 1999 parts of the Convention. &. 18. the head establishment is not of primary importance but rather the place from which the obligation is to be performed. See also. Finally. Dessemontet. op. 409. at p. It is important to note that the Vienna Convention does not refer to any of the different theories developed by private international law 32. of a continuing character. 26. CEDIDAC 1991) p. 'Der intemationale Anwendungsbereich des UN-Kaufrechts'.. Honnold. which suggests an even stronger connotation of a branch office. at para. cit n. Jayme.g. Honnold. e.

the parties must have entered into an international contract consciously. the Convention only applies when the Canadian seller knows (or should know) of the real partner to the contract. P. 'Les personnes morales et les societes dans le nouveau droit international priv6 suisse'.38 2. at pp. See the subsequent comments under 2. Reymond. Tzouganatos. while the final contract itself is accepted and signed by a member of the American headquarters.471. ed. the fact that the parties have their places ofbusiness in different states holds no relevance if this fact does not appear either from the contract orfromany dealings between. This is particularly true with regard to international consortia whose determinant place ofbusiness is often very difficult to ascertain. the parties' places of business would not be located in different states as required by Article 1(1). See also Secretariat Commentary. the making of the contract and its performance are more closely linked to Canada.NILR1999 CISG (ARTICLE 1) 147 doctrine for determining a corporation's location or 'nationality'. D. 143. CEDIDAC 1988) p. consequently. the Convention does not apply and the contract is governed by 36. Therefore.36 If.2 The necessity of awareness According to Article 1(2). For the cases where one party has no business place at all. 38. 19 Vand. J TransnatlL(m6)p.g. theparties at any time before or at the conclusion of the contract. supra n.2. In other words. the parties would be well advised to settle the point in their contract and to include an express provision on whether the CISG or a specified domestic law applies. see. in our example. Dessemontet.37 The balancing test that is often necessary in order to ascertain the determinant place of business can involve difficulties and uncertainties . 409-410. e. . the Convention refers to the habitual residence of that party (Art. if there is a lack of awareness with regard to the international character of the contract. para. There are two different concepts applied in PIL in order to determine the corporation's 'nationality': the Place of Incorporation Theory and the Seat Theory. 37. the Convention would not apply since Canada would be considered as the seller's relevant place of business. If the Canadian representative is merely entitled to prepare the conclusion of the contract. 'Private International Law as a Means to Control the Multinational Enterprise'.. 22. orfrominformation disclosed by. The same conclusion would have to be reached if a company is incorporated in Canada but fully owned by an American parent and the sales contract is executed between the Canadian corporation and a Canadian seller. 10(b)). in F.. 9. Le nouveau droit international prive suisse (Lausanne.not really what international business is looking for.

148 C. . the sale will not be governed by the Convention but rather by the Swiss Code of Obligations. 31. 49-50 (with further references). 41. supra n. we have seen that the CISG applies to sales contracts if the parties have their places of business in different states. 40. at para. n. BERNASCONI NILR 1999 domestic rules. whose place of business is also in Switzerland. 20. op. However. 21. 27 (fn. Volken. If. n. a Swiss agent does not inform a buyer. to apply ULIS to a sale between parties who had their places of business in Canada and the US. 3. they have been almost universally applicable. n. para. Neumayer and Ming. at p. if a payment has to be effected abroad or if authorizations for foreign exchange are necessary). Schlechtriem. n.40 The fact that the other party's place of business is in a different state must be recognizable no later than at the time of the formation of the contract. the ULIS directed Germany as a ratifying state. the Vienna Convention adds two alternative restrictions to this basic criterion. La vente Internationale de marchandise: Convention des Nations-Unies du 11 avril 1980 (Paris. Honnold. 405. despite the fact that neither of these two countries had ratified the 1964 Hague Conventions and the transaction had no contact with Germany or 39. Therefore. cit. 27. op. at p. cit. since neither the ULIS nor the ULF have asked for a substantial link with a member state. 21. at p. These restrictions are aimed at rendering the Vienna Convention applicable only if there is a substantial relation between a sales transaction and a state that has ratified or acceded to the Convention. e.1 THE TRANSACTION'S RELATION TO A CONTRACTING STATE Preliminary remarks Thus far. cit. for example. LGDJ 1990) pp. These restrictions constitute another substantial difference to the 1964 Hague Conventions' territorial applicability. Schlechtriem. cit..39 The criterion that has to be applied in order to determine whether the international character of the transaction has been dissimulated or not is an objective one: one must refer to what a party knew or ought to have known by observing the required attention in the concrete circumstances (i. 342. See. 9. 41.41 Article 1 (2) addresses in particular the case of an undisclosed foreign principal. see also Secretariat Commentary. 19-20. Jayme. Schlechtriem.42 3. at p. B. 22. 42. op. n. op. at pp. op. op. at p. cit n. at p. cit. 57). 16. n. loc. for example. that he represents a seller having its place of business in Canada.e.g. 18. 24. Audit. Article 1 ofboth the ULIS and the ULF simply provides that the uniform law 'shall apply' to transactions between parties whose places of business are in two 'different states'.. cit. regardless whether these states have ratified (or adhered to) the Convention. 20. 31.

This second conception is known as the conflictual method of defining the Convention's territorial scope (Art. three major questions of significant practical impact are to be heeded under the title of the Convention's autonomous applicability. n. 33). loc.. the Conference adopted a compromise that allowed the contracting states to amend. see supra n. idem. however. 9. However. cit. l(l)(a)). it is then sufficient that the forum's private international law rules lead to the application of the law of a contracting state. 45. 45. The Convention's applicability may be directed by conflict of law rules when . e.the requirement that these are contracting states is not fulfilled.g. loc. 227. n. This overly optimistic view. at para. 45. Volken. At first glance. before turning to the analysis of these two particular issues. Honnold. Finally. at p. 18. who characterized this technique as legal imperialism. The first qualification embodied in the CISG requires that the parties' business places are located in contracting states (Art. This observation seems to be confirmed by the fact that the Conference in Vienna reached prompt agreement on this particular provision. The notion of contracting state. op.NILR1999 CISC (ARTICLE 1) 149 any other contracting state. 43. cit n. 16. cit n. 44.2 The autonomous requirements of the Convention's applicability: Article l(l)(a) According to Article 1(1 )(a).46 Nevertheless. at p. op. According to this more restrictive approach.44 The Vienna Convention follows therefore a more conservative path. 227. The second qualification expressly refers to private international law. at para. this principle does not appear to engender any serious difficulties. this is the so-called 'substantive or autonomous' definition of the Convention's territorial applicability. cit. 3. a motion to reject this approach failed on a closely-divided vote. 3. at p. 9..1 (with additional references). an explanation of the basic nature of Article 1(1 )(a) is required. 20. . 46.43 The underlying principle of avoiding any reference to private international law was designed to give the world the greatest possible benefits of the new international regime. cit n. e. Honnold.although the parties have their places of business in different states . failed to satisfy the conflict of laws experts and the representatives of many states.g. op. the Convention applies when the places of business of the seller and the buyer are located in different contracting states. cit n. by reservation. 18. See. the universalist definition. Honnold. During the Conference at The Hague. See also Winship.1. See. 45 These two concepts are examined below. and of the courts that are addressed by this provision must be examined. 1 of the ULIS. at p. l(l)(b)). this 'universalist' approach had been criticized by many delegations. However. op. 1-17 (with additional references in fn. For the content of Art. 24. who refers to 'similar justifications for a slightly less greedy rule' in the 1952 draft of the UCC. the Convention is applicable to transactions between parties 'whose places of business are in different Contracting States'.

.1.g. 116 and 117 of the Swiss Statute on Private International Law. cit. the applicable domestic law may be unknown to at least one of the parties. op. the forum's PIL is eluded. at pp. 47. for example. the applicable law is determined by a specific nexus that the transaction has with a particular legal order. the characteristic performance in a barter-deal. In Article l(l)(a). under Article 1(1 )(a) there is no need to perform a conflicts analysis to determine whether the Convention applies.. These principles have been enacted. n. in the latter case.BERNASCONI The nature of Article l(l)(a) NILR 1999 3.49 Moreover. They are also embodied in the European Convention on the law applicable to contracts (the 1980 Rome Convention). Winship. the final outcome is often Again.1. 70 at p. 60 Schweizerische Aktiengesellschafl (1988) p. however.48 However. 518-520. The contract's final attachment to a specific legal order may be grounded either on the parties' choice (subjective allocation) or. n.1 The pursued goal Article l(l)(a) embraces the Convention's central objective which is to smooth out legal uncertainty. 18. e. the Vienna Convention responds to this primary concern of certainty and predictability.2. See. continue to haunt this provision for all countries that have also ratified the Hague Convention of 15 June 1955 on the Law Applicable to the International Sale of Goods (Hague PIL Convention). At this point.47 The goals of certainty and predictability as to which set of rules governs an international sale transaction may not always be best served by the traditional conflicts of law approach.2.150 3. 71. see B. at para. 6. Kleiner.1 C. on the concept of the so-called specific performance (objective allocation). Honnold. The basic purpose of this provision is to by-pass the difficulties inherent to conflict of laws principles. 48. Applicability based on Article 1(1 )(a) directly results from the fact that the countries. 49. in the Arts. According to this latter approach. 'Ein vernachlassigtes "Detail"'. cit. 50. in a joint-venture's basic contractual agreement or in a foreign exchange deal that two banking computers have concluded automatically without the intervention of any human being? For the latter example. Which is. The Convention dictates this result even if the forum's private international law (PIL) would normally designate the law of a non-contracting state. 45. in general. in which the parties to the contract have their business places. loc. The ghosts of private international law. 3111-3113 of the Civil Code of Quebec and in the Arts. one could easily imagine that further explanations on Article 1 (1 )(a) are unnecessary. for example. have ratified (or acceded to) the Vienna Convention.

see the developments in Honnold. the latter 51. Sweden and Switzerland have ratified (or have acceded to) this Convention.2. 3. 1-43. 90 does not cover the case of the relationship between the Vienna Convention and the 1964 uniform law treaties. France. However. 53. For the following. 52. 18. In both cases Art. cit. n.2 CISC (ARTICLE 1) 151 Article 1 (1 )(a) and the Hague PIL Conventions With an increased number of adopted conventions. indeed. with the exception of Niger. Belgium. at p. at p. such open-handed formulated provisions do not resolve the intricate problem of collision of conventions. Winship. Italy. Denmark. op.51 Formally.1. states that the Convention 'does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention. 55. IV of the Convention. Niger. . 515-517 and 530-532. loc. between the Vienna Convention and the Hague Convention of 1955 on the Law Applicable to the International Sale of Goods. cit. cit. at first sight. 99. Interestingly enough. 6. 20. op. comes an increased overlapping of their respective fields of application.55 This provision. Art. According to Article 90. 54. n. Such a collision of conventions seems to exist. ifboth states involved have ratified the Vienna Convention as well as the Hague PIL Convention. contrary to the uniform laws of 1964.2. that specific relationship is covered by Art. at para. 51) have also ratified the Vienna Convention.'56 However. n. the Vienna Convention neither provides for an analogous reservation nor calls for an explicit denouncement of the PIL Convention. cit n. 3.52 Which rules should the forum apply in these cases: the uniform law of the Vienna Convention or the conflict of laws principles embodied in the Hague Convention?53 In analyzing this problem. 56. 45.54 This reservation renders ULIS and ULF applicable only when the conflict of laws rules of the 1955 Convention lead to a state that has adopted the uniform laws.NILR 1999 3. 17. idem. at pp. loc. addresses the problem of collision of conventions. Professor Winship attempts to resolve this dilemma through Article 90 of the Vienna Convention. Article 90. cit n. both countries that had ratified the 1955 Convention as well as the uniform laws (Belgium and Italy) made this particular reservation. 1-42 and 1-43. these two Conventions clash each time the forum is located in a state that has ratified both of them. Winship. Norway. which was not contested at the Conference in Vienna. Finland. provided that the parties have their places of business in States parties to such agreement. All states that have ratified the 1955 Hague Convention (see supra n. see also supra n. op. 343. at pp. one must remember that both uniform law treaties of 1964 (ULIS and ULF) allow a state that is also party to the 1955 PIL Convention to ratify (or to accede to) the uniform law treaties with a reservation. Velcas.

mais se presente comme une simple norme. in letter (b). of course.) ne saurait etre regardee comme une regie de conflit. 37: 'A la lettre a) [de 1'Article premier]. . any conflict of laws has become impossible. rightly states: 'lorsque les conditions de la lettre a) sont remplies. see op. would make no sense. Honnold has taken this critique into consideration and has corrected the relevant passage. the autonomous conditions of the Convention's applicability by adopting a rule on conflict of laws and then.) Ainsi. as far as their 'bilateral' relationship is least partially unified their substantive law (as is the case for two contracting states of the Vienna Convention). rendant superflu le recours a la regie de conflit' Pelichet accurately criticizes a statement in the first edition of Honnold's Uniform Law. 36. according to which Art. (lXa) does not state a general rule on PIL. Pelichet. n.BERNASCONI NILR1999 prevails. As a result..' In the second edition of his book. 34 et seq. in fact. However. at pp. les dispositions de la Convention de Vienne vont s' appliquer independamment d'un ordre juridique national donne.). the relationship between the Vienna Convention and the European Convention of 1980 on the Law Applicable to Contractual Obligations (Rome Convention). These developments are applicable . 201 Recueil des Cours (1987) p. . at p. 18. This. when a provision dealing with conflict of laws designates the applicable law. Secondly.152 C. however. ibid. . cit.mutatis mutandis .. la Convention de Vienne fixe directement son champ d'application. nous sommes de 1 'opinion que la lettre a) (. at p. and M. n. leads to an unnecessary and confusing application of the puzzling conflict of laws' principles. it refers to the legal order in general. where different legal orders have . is true only with respect to the questions falling within scope of the Vienna Convention. the opposite assertion does not sufficiently consider the purpose and the effects of Article l(l)(a) of the CISC 5758 This opinion is confirmed by the Hague Convention of 22 December 1986 on the Law Applicable to Contracts for the International Sale of Goods (the new Hague 57. it would be quite a strange legislative technique to set down. In other words.. There is a simpler and more appropriate way of looking at this problem. although the autonomous requirements of the Vienna Convention's applicability are fulfilled. at para. loc. This. d'application de la convention. text accompanying fn. is not the effect of Art. objective et autolimitative. 1(1 X a ) of the Convention. which now makes clear that para. Firstly. 9. these countries have rendered private international law superfluous. l(lX a ) lays down a unified and authoritative rule of private international law on the applicability of the Convention (see ibid. not to a specific rule of substantive law (the determination of the applicable substantive rule within the lex causae is generally known as the secondary characterization). At the very core of this alternative lies the belief that the Vienna Convention has established a uniformed legal entity among parties to an international sales contract who have their places of business in different contracting states. This. however.2. 'La vente Internationale de marchandises et le conflit de lois'. cit. in letter (a). 9 at p. 343. the alleged collision between the Vienna Convention and the 1955 Hague Convention is unfounded. (.. 45. Pelichet. See especially Vekas. 58. to expressly refer to the rules on conflict of laws: which rules would letter (b) refer to? The ones that are contained in letter (a)? This would be a circulus vitiosus. This.

In its Article 23. The GDR had signed the CISG on 23 February 1989. 63.'62 A considerable debate among lawyers and politicians ensued as to whether the Vienna Convention (as well as the Convention on the limitation period) had expired or not with the disappearance of the GDR. accepted. from 59. 20. The following developments are based on Schlechtriem. 62. approved or acceded to the CISG. in order to endorse their continuance.' Hereby. loc. loc. 20. 23. n. at p.2.NILR1999 CISG (ARTICLE 1) 153 PIL Convention). See the references in Schlechtriem. the 1986 Hague Convention also concedes priority to the New York Convention of 1974 on the Limitation Period in the International Sale of Goods and to the Protocol amending that Convention and which has been adopted in Vienna on 11 April 1980.approved or accepted or acceded to the Convention. the 'principle of good faith. the 1986 Convention expressly states that it does not prejudice the application of the Vienna Convention. 61.2.60 However. and on the country reports on the CISG database of Pace University.61 3. 60.2 Contracting state The meaning of the term 'contracting state' used in Article 1(1 )(a) seems to be obvious: a contracting state is a state that has eitherratified. see Schlechtriem. cit n. nearly all the laws and regulations of the former GDR have been annulled by the reunification treaty in effect from 3 October 1990 and have been replaced by the laws of the Federal Republic of Germany (FRG). cit. 343. at p. the Convention enters into force only twelve months after a state has ratified. Note. cit. For the original German text of this provision. With regard to the international treaties signed and ratified by the GDR. loc.59 3. 93 (1)). the Vienna Convention has ceased to be applicable in the former GDR as of 3 October 1990. However.63 However. the reunification treaty provided in Article 12 that the FRG would 'reconsider [the treaties] together with the former partners of the GDR. The CISG also specifies that a contracting state with different territorial units may declare that the Convention is to extend to all its territorial units or only to one or more of them (Art. according to the dominant opinion. 15 and accompanying text). 99(2). the profound changes in Eastern Europe occurring in recent years have given rise to various problems. the Vienna Convention entered into force only on 1 January 1991.1 The case of the former German Democratic Republic The notion of contracting state embodied in the Vienna Convention has been challenged for the first time by the disappearance of the former German Democratic Republic (GDR). . the Convention had become effective on 1 March 1990. 343 (in fh. Therefore. that according to Art. Furthermore. In the FRG. the interests of all the involved parties and the international obligations of the FRG were to be taken into account. at p.2. The 1986 Hague PIL Convention also expressly refers to the Vienna Convention in its Preamble and in Art. n. The controversial debate is beyond the scope of this note. in Art. 20. 8(5). 343. however. their revising or their expiration.

The required notices of accession to the CISG have been filed by Estonia. at this time. in Moldova on 1 November 1995. in Georgia on 1 September 1995. the succession principle does not apply to the other states of the former USSR. 64. when these Republics became independent states. However. The intricate public international law problem of state successions is beyond the scope of this note. The CISG was intended to become effective in the USSR on 1 September 1991. the Hague Uniform Laws that were still applicable in the FRG at that time were also applicable in the former territory of the GDR. Kyrgyzstan. Muller and L. Tjikistan and Turkmenistan) have not.2.BERNASCONI NILR1999 3 October to 31 December 1990. Latvia. Praxis des Volkerrechts. it is doubtful whether international treaties of the USSR could continue to apply to the whole territory. For each individual state. and in Uzbekistan on 1 December 1997. Moldova and Uzbekistan.P. in Latvia on 1 August 1998. Georgia. The newly established Russian Federation has officially succeeded the USSR as a member state of the United Nations on 24 December 1991. filed notice of accession or succession to the CISG. On the other hand. . 65.154 C. 3. the Russian Federation is also regarded as the rightful successor to the CISG obligation. However. J. in Lithuania on 1 February 1996. Kazakhstan. Stampfli 1982) pp. the Legal Officer in charge of the UN Depository function requires a further treaty formality prior to making the Vienna Convention applicable for the purposes of Article l(l)(a). For a discussion of this problem. Lithuania. Consequently. It took on.. Azerbaijan. the CISG had already become effective on respectively 1 November 1990 and 1 February 1991. given the tremendous legal and political problems following the August 1991 coup attempt. 2nd edn. Moldova and Uzbekistan since 1 September 1991.65 The remaining states (Armenia. The CISG had been in force in the former Soviet Republics of Estonia. all duties and rights of the former USSR ensuing from the UN Charter and all the multilateral treaties deposited with the General Secretary.2 The former USSR The case of the former USSR is even more complex. Georgia. (Bern. Belarus and Ukraine are regarded as the legitimate successors to Byelorussian and Ukrainian treaty obligations. they all preferred to adopt the Convention by way of accession rather than by succession. It is only since 1 January 1991. The CISG became effective in Estonia on 1 October 1994. Lithuania.2. Currently.64 However. therefore. a brief discussion follows as to the present legal status of countries formerly part of the USSR with regard to their subscription to the CISG. see. 173 et seq. Latvia. In the Belorussian and in the Ukrainian SSR. e.g. that the Vienna Convention is applied to the whole German territory. Wildhaber.

Croatia filed a declaration of succession making the CISG retroactively applicable to it effective the date mentioned. loc. on 7 January 1994. The Legal Officer in charge of the UN Depositary function regards the Federal Republic of Yugoslavia (i. on 8 June 1998. op.. cit. 68. 342. either in favour of the CISG or in favour of one particular national legal order.2. at p.3. the states of Montenegro and Serbia) as successor to this treaty obligation. 344.3 Which courts are addressed by Article l(l)(a)? It should be noted that the autonomous applicability of any international treaty is an immediate and direct result ofthe treaty's binding nature.3 CISC (ARTICLE 1) 155 The former Yugoslavia On 1 January 1988. Slovenia filed a declaration of succession making the CISG retroactively applicable to it effective the date mentioned. He or she would be better off by implementing into the contract a clear and unequivocal choice of law rule. each businessperson wanting to conclude a contract for an international sale of goods with a partner who has his place of business in one of the newly independent Republics of both the former USSR and the former Yugoslavia would be well advised not to rely on the autonomous requirements of the Convention's applicability. Bosnia-Herzegovina filed a declaration making the CISG retroactively applicable to it effective the date mentioned. The former Yugoslav states Slovenia and BosniaHerzegovina filed their notices of succession with the UN in January 1994. Honnold. at p. 20. 6 6 With respect to the practical impact of these issues. . n.68 The conditions ofan autonomous applicability ofthe Convention are fulfilled even if one (or both) ofthe contracting states has (have) made a reservation according to Article 95.2. n. The possibility of this reservation will be discussed at length in section 3. 321. Slovenia became a state on 25 June 1991. Vek&s. 45. on 12 January 1994. cit. at para. 67. loc. at p. 20. cit. In other words.67 A clear choice of law rule could also overcome the differences national courts may hold on the issue of state succession. 19.69 Article 95 becomes. See also Ferrari. Article l(l)(a) is only mandatory for a court sitting in a state that has ratified the CISG. that is when the parties have their places of business in different states.2. The fact that the forum state itself (also) made such a 66. the CISG became effective for the Socialist Republic of Yugoslavia.NILR 1999 3. in fact. irrelevant as soon as both (all) parties to the contract have their places of business in different contracting states. but the requirement that these are contracting states is not fulfilled.e. See also Schlechtriem. 3. n. Hence. loc. 69. cit. n. Croatia became a state in 1991. Croatia inJunel998. Article 95 has only to be regarded within the conflictual method of defining the Convention's personal and territorial scope. 18. BosniaHerzegovina became a state on 6 March 1992.

.71 3. That is exactly the reason why the CISG proposes in its Article l(l)(b) a conflictual method to determine its application. 39. . For the following comments. depends on what private international law principles the forum has adopted. Volken. of course. In other words: the autonomous applicability of the CISG presupposes reciprocity. 22. n. 343-344. and adopted Article l(l)(b) as a remedy. 72. at p. the Convention applies to contracts between parties whose places of business are in different states when the rules of private international law lead to the application of the law of a contracting state. What position should a court of a non-contracting state adopt. cit. however. n.BERNASCONI NILR 1999 reservation does not constitute an obstacle to the autonomous applicability of the CISG. The buyer files a suit in Quebec against the seller.156 C. Vekas. this rule restrains the Convention's applicability. 20. cit. 18. cit. op.3. 71.g. at p. the reciprocity principle has the advantage of being unequivocal. 70. 22. The circuitous route of private international law is necessary because public international law does not impose any obligation on the forum to apply the CISG in this case.72 As a matter of fact. 16. On the other hand. According to Article 1(1 )(b). Audit.1 The scheme of Article l(l)(b): an easy example The purpose of Article 1(1 )(b) can be illustrated with the help of the following example: A company in Quebec sells goods to a buyer whose place of business is in Japan. e. 39. n.70 It has to be presumed. op. when it has to sit in judgment on a contract concluded among two parties with places of business in different states. loc. op. The draftsmen of the Vienna Convention were aware of this dilemma. each having ratified the Vienna Convention? The answer. at pp. See.3. that the judge of the forum will be inclined to apply the Vienna Convention only if his private international law leads him to the law of a country that has ratified the CISG. n. 28-29. cit. 3. see Audit. op.3 The conflictual method of defining the Convention's scope: Article l(l)(b) The conditions of an autonomous applicability of the Vienna Convention are not fulfilled when the parties to the contract have their places of business in different states but one or both of the states have not ratified the Convention. n. Honnold. at pp. cit. 47. at para.

It is presumed that no such treaty has to be applied in Canada in this specific case. Zivilabteilung. cit. at pp. 77. The example presumes that the negotiations have taken place in Quebec. 1. Since Japan has not ratified the Vienna Convention. Decision of 28 February 1997.76 Before analyzing the different problems related to the effects of a reservation filed under Article 95. op. the provisions of the Vienna Convention govern the transaction at issue. 74. that the contract does not provide expressly that delivery has to be made in Japan. the conflictual method of defining the Convention's applicability has been largely debated and remained controversial throughout the Diplomatic Conference in Vienna. the relevant conflicts rule could also be embodied in a treaty. 1 U 167/95. the judge has to determine the law applicable to the transaction. 31. see Winship. it is useful to retrace the history of Article 3. cit. According to Article 3114 of the Civil Code of Quebec (CCQ). Oberlandesgericht Hamburg. also available on the Pace Database.NILR1999 CISG (ARTICLE 1) 157 The jurisdiction of the courts of Quebec being assumed. 44-45. the conditions of an autonomous applicability of the CISG are not fulfilled. the application of Article l(l)(b) does not seem to raise very difficult problems. For the following. n. n.75 At first glance. Of course. The opposition to Article 1 (1 )(b) eventually led to the last-minute reservation clause of Article 95. 503-508. see Neumayer and Ming. and finally. for example. it is the law of Quebec that is designated as lex causae in our example.3. 3114 CCQ). 73. who also retraces the history of the work done by the UNCITRAL Working Group established in 1969. 75. . The judge in Quebec must therefore apply his private international law provisions. case no. the conflicts of law-based technique of determining the Convention's personal and territorial sphere of application continues to be debated. loc. EWiR 1997. almost twenty years after its adoption.791.3 The history of Article l(l)(b) Whereas the draftsmen of the CISG reached prompt agreement on the autonomous applicability of the CISG. the sale of a corporeal movable is governed by the law of the country where the seller had his residence (establishment) at the time of formation of the contract. 6.73 if no law is designated by the parties. However.Article 95 .allowing contracting states 'not to be bound' by subparagraph (l)(b) of Article 1 when ratifying the Convention. The uncertainty surrounding this approach is generated by a reservation clause . Since the CISG is applicable in Quebec and Quebec has not filed an Article 95 declaration.74 Thus. See. 76. Another issue worth to be mentioned here is the puzzling renvoi question. at pp. that there was no call for tenders (see Art. with many additional references pro and contra.

op. the delegation of the former Czechoslovakia pointed out that the introduction of paragraph (1 )(b) would create even more difficulties in countries where international trade contracts were governed by special legal rules. cit. 13-14. e. 655. n. In such cases. 21. 458-459. 26 (m. This motion was also rejected. Articles 1-88). 11. 79.. would not have introduced insurmountable obstacles as the Convention was drafted in such a way that Part HI (substantive sales provisions) is at least compatible with domestic provisions on the formation of contracts. This argument has also to be pondered. 3). 458. see also Honnold.83 They 78. at pp. the FRG tried to impose that Art. For the following. 82. the Hague Convention of 1973 on the Law Applicable to Maintenance Obligations (Art. 83.e. the Hague Convention of 1955 on the Law Applicable to the International Sale of Goods. 3. 81. that domestic rules of private international law might point to the law of one state with respect to the formation of the contract and to the law of another state with respect to the substantive rules on sales. at p. paras. 1(2)). paras. 51). see Schlechtriem. The Delegation of the Federal Republic of Germany proposed to delete paragraph l(b) altogether.. 11. 80. that the International Commercial Contracts Act of the former GDR contained an express reservation in favour of international conventions (para.. and at p.80 The German representative also stressed that it was most unusual in an instrument governed by international law to bind contracting states to apply the instrument to nationals of states not parties thereto. The representative of the German Democratic Republic stressed that deletion of para. the task to examine Article 1 was assigned to the First Committee (which in fact prepared the major part of the Convention. The Swedish representative agreed with his German colleague. para. n.82 Other delegations (i. at p. the Hague Convention of 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions. 20. paras. In an alternative motion. para. 16. . i. The First Committee began consideration of Article 1 at its first meeting on 10 March 1980. Honnold. 655. Honnold. 9-12.. op. only parts of the uniform law would be applicable whereas the Convention was designed as a unified whole. Schlechtriem. Norway. Hungary. see Honnold. cit. Indeed. Bulgaria. This argument does not seem convincing. at p. cit. at p.3. l(b) would avoid the same internal problems in his country. loc.158 C. n. a partial application.g.e. see Honnold.78 The German representative argued that this provision involved serious problems of interpretation and application and that it would. at p. 11. however. ibid. 458-459.. n. op. Egypt.3. In fact. 24. op. introduce an unwelcome element of complication. it is not unusual at all that PIL Conventions are designed to be applied to nationals of states which are not parties to the Convention. 345. and Australia) expressly stated that paragraph (l)(b) should be retained. Argentina. 26.81 In addition. 11. cit. All these Conventions are of so-called hi uniforme-character. one has to know. at pp. n. 458. limited to the rights and obligations arising from the contract already formed. therefore. 457-458. para. cit n.BERNASCONI NILR 1999 3.1 The deliberations of the First Committee At the Diplomatic Conference. France. para. in particular. ibid. op. 17 et seq.79 He noted. 11. n. at p. at pp. op. cit. 3. cit. 1(1 Kb) be restricted to conflict of law norms that deal with rights and obligations arising from an already formed contract. see.

but cited here according to the separate (number 89. he proposed a new provision (at that time identified as Article C bis) that would allow any contracting state to declare that it will not be bound by Article 1(1 )(b). The government did not share this opinion and ratified the CISG without any reservation. On 7 April 1980. the German delegation has voted in favour of Art. however.86 Mister Kopac. the draft of the Convention submitted to the Plenary Conference on 4 April 1980 included the possibility to render the Convention applicable by the means of private international law. by a vote of 25 to 7. 20. from the Czechoslovakian delegation. the undertaking finally succeeded. Ibid. Ibid. 28-29. 345. the delegations stressed that if paragraph l(b) was deleted. 87. he decided to put his last trump on the negotiation table. Article 95. 1. 459. 95 reservation has also been discussed extensively during the consultation procedure launched by the Swiss government before ratifying the CISC The Swiss Bar Association in particular sustained that Switzerland should also make an Art 95 declaration. Finally. Ibid. n. again.2. was adopted on 10 April 1980. this declaration was. with 1 abstention. paras. the Czech Republic.3. 86. the government observed that an Art 95 declaration would render the application of the CISG much more complicated.87 84. withdrawn on 31 July 1992. at p. 735. The question of the appropriateness of Art. 714. paras.NILR 1999 CISC (ARTICLE 1) 159 stressed that the contracting states should regard the Vienna Convention as the general law to be applied to international sales of goods and not merely as a special law for sales between contracting states. Canada had initially filed an Article 95 declaration providing that the province of British Columbia would not be bound by Article l(l)(b). The Article 95 reservation has been made. to date.84 As a result. From the point of view of a ratifying state.002).2 A last-minute decision taken at the Plenary Conference: Article 95 At the Plenary Conference. Singapore.85 3. providing the possibility for a contracting state to exclude Article l(l)(b). Note that eventually. see Schlechtriem. The representative's motion to vote separately on each paragraph of Article 1 was rejected. cit. See the official message of the Swiss government. the Convention would constitute the law governing international sales and its sphere of application should therefore be as wide as possible. published in the Feuille federate of 1989.. raised the question of the appropriateness of Article l(l)(b). at p. it would not be possible to apply the Convention to sales involving non-contracting states. still had a card up his sleeve. 'Botschaft vom 11.. Furthermore. by China. however. 8-10. After an earlier rejection in the Second Committee. loc. at p. at p. and Article 1 was adopted by 42 votes to none. The judges would have to apply the domestic legislation on internal sales instead of the Convention drafted specifically for international trade and hence more suitable for that purpose. 1 and the possibility of an Art. the First Committee rejected the proposal to delete paragraph l(b). 85. with 10 abstentions. Slovakia. basically. Januar 1989 betreffend das Wiener Obereinkommen uber Vertrage fiber den . and the United States. the Czechoslovakian delegation persisted and.

decisions based on the modern (and 'neutral') law of the Convention are more acceptable to both parties than one party's domestic law. it will be sufficient if the transaction is international in character (i. places of business in different states). op. If this analysis designates the US law as the proper law of the contract. 11. 1 if neither party has its place of business in a contracting state.e. in which the conflicts analysis designates the law of a contracting state which has not made the reservation.88 3.90 internationalen Warenkauf. see the comments below. This statement clearly looks too radical to me: yes indeed.even not under subsection (b) of Art. the Convention does 'of course' never apply . at pp. thus the conditions of an autonomous applicability of the Convention (Art. 89. but also when an analysis of the transaction on the grounds of private international law principles reveals that its center of gravity is located in a state that has ratified the Vienna Convention. section 3.3. Japan has not yet ratified the CISG. often unfamiliar to the other party. 25.4. according to these authors' opinion. however. loc. Schlechtriem.1.89 In order for the Convention to be applied. cit n. Hence. Article l(l)(b) considerably enlarges the Convention's sphere of application. Usually. the more legal certainty that may be achieved. see the comments below under section 3. The effect of a reservation under Article 95 is to preserve the applicability of the domestic law of the forum in cases in which the parties do not have their places of business in different contracting states. the CISG may be applicable even though no party has its place of business in a contracting state. See. the judge will apply the rules embodied in the Uniform Commercial Code (UCC) instead of the CISG. 88.3. Randall and Norris. l(l)(a)) are not fulfilled. n.3.BERNASCONI NILR 1999 One only needs to modify slightly the first example in order to explain the basic purpose of Article 95. A company in New York sells goods to a buyer whose place of business is in Japan.1 An enlargement of the Convention's scope The conflictual method of determining the CISG's applicability is based on the notion that it is not only justified and appropriate to apply the Convention when both parties have their places of business in different contracting states. For the case.3. 614-615. The buyer files a suit in New York against the seller.3. 21.3 The expediency ofArticle l(l)(b) 3.160 C. Since the Convention is well-suited to international transactions. however.3. the more it applies. at p. cit. ..3. 90. the American judge must begin a conflicts analysis. and the conflicts rules of the forum lead to the law of a State Party to the Convention. at p. 13.

3. see.96 91. 21. 93. in cases like the previous example. cit. 30. 31. however. Stoffel. but simply to enlarge the Convention's sphere of applicability. appropriate that the judge of a foreign forum honors the contracting state's decision. 27-30.3. 96. Ibid. op. See the references in Schlechtriem. the expansion of the Convention's scope by reference to the mechanisms of private international law is still not unanimously accepted.94 Opponents of Article 1 (1 )(b) assert that this provision does not assist in achieving internationally harmonized judgments and that the originated diversity may lead to forum shopping. at pp. and in Neumayer and Ming. n. even if the contracting state excluded Article l(l)(b). the action is brought before a judge ofthat contracting state and private international law leads to the application of the law of the forum (or any other contracting state). Siehr. the following developments under section 3.33. Essentially. As a result. n. 92.. 32.93 3. 33. the judge sitting in a non-contracting state has an easier access to useful information on the CISG than on almost any foreign substantive law. 44 (fh. op.27. This critique cannot be questioned in its result. Ibid. the Convention does not apply. cit n. 25 (fn. at p. the stumbling block is not Article l(l)(b).cit. the two countries would still apply divergent substantive laws. cit. it may be legitimately presumed that a state that has ratified the CISG has substituted its domestic rules on (internal) sales for the more suitable rules of the Convention. 46). the same contract could be governed by different laws depending on where the action is launched. 95. 33. If.op. op. 26). as there is a wealth of largely accessible information on the CISG. 94. It points." On the whole. op. but rather the fact that the two fora apply different conflict of laws principles. cit. . If only one party to the contract has its place of business in a contracting state.n. however. loc. understand and apply the rules of a foreign domestic law. Schlechtriem. Stoffel. to the wrong source of the problem. at p. n. loc. it may be argued that it is often easier for the courts of a noncontracting state to apply the Convention than to try to determine. Stoffel. at p. at p. at p. n. the Convention applies.95 The purpose of Article l(l)(b) is not to ensure harmonized decisions. cit. as far as international sales transactions are concerned. 345. therefore.NILR 1999 CISG (ARTICLE 1) 161 Furthermore. n. the same action is brought before the courts of the non-contracting state and private international law leads to the application of the law of this (or any other) non-contracting state.3.3. Indeed.2 Internationally harmonized judgments? However. Article l(l)(b) may fairly be regarded as a logical development and ultimate achievement of the idea of a hi uniformed1 Indeed. cit.3. 20. however. It seems.atp. 599.

89. 20. 101. at p.3. that court or those courts shall have exclusive jurisdiction.97 The next example illustrates the problem: X has his place of business in London. at pp. the Swiss judge should apply the Vienna Convention to this transaction. See generally Schlechtriem. The judge will first look at the precise wording of the parties' choice of law rule: does it refer. 345. 100. although neither X nor Z have their places of business in member states of the CISG. cit. for example. should not be overemphasized. 31-32. 98.' Both the United Kingdom and Switzerland are party to the Lugano Convention. the judge will (likely) not apply the CISG but rather the Swiss domestic law on sales. n. He sells goods to a buyer Z. In the example given. see also supra n. at p. whose place of business is in Tokyo.162 C. see generally Schlechtriem. . loc. 20.3 The CISG as an unwelcome surprise? According to another argument that is quite often presented to condemn Article l(l)(b). 345. According to an express choice embodied in their contract. have agreed that a court or the courts of a Contracting State are to have jurisdiction to settle any disputes ( . its practical impact.3. see especially Stoffel. loc. the judge will look at the general attitude that incited the parties 97. Such prorogation and choice-of-law clauses in favour of Swiss tribunals and Swiss law are very often used in commercial practice. it is likely that the judge of the forum will also examine the conditions of Article 6 of the Vienna Convention which allows the parties to opt out of the CISG's application. 33. at p. 345.99 This apprehension is comprehensible. For the following comments. to Swiss law in general or to the Swiss Code of Obligations? In the latter case. n. For the following comments. one or more of whom is domiciled in a Contracting State.98 According to the strict wording of Article l(l)(b).101 In the absence of such indications. . cit. n. 99. The validity of the choice of law provision in favour of Swiss law ensues from Art. Schlechtriem. 117 of the Swiss Statute on Private International Law which fixes the possibility for the parties to chose the law applicable to their contractual relation.BERNASCONI NILR 1999 3.100 If the parties made an express choice in favour of the law of a contracting state (in casu Switzerland) without having any links or previous attachments to that country. however. op. cit. the enlargement of the Convention's scope through the means of private international law may cause an unwelcome surprise to parties who have their places of business in different non-contracting states but who decide to bring their actions before a court sitting in a contracting state. the transaction is governed by 'the law of Switzerland' and any action has to be brought before the commercial court in Zurich. loc. cit. According to the opponents of Article l(l)(b). 20. the validity of the prorogation of a Swiss tribunal ensues from Art 17(1) of the Lugano Convention: 'If the parties. n. ) . it is inadequate to apply the CISG in such cases: to allow the parties' contract to be governed by the CISG would violate their prime intention. .

l(lXb) would only operate 'in the absence of a choice of law of the parties.cit.g. 35-37. even if the latter may be better tailored to international sales transactions. place of delivery) or because of its neutral character (no party imposes its law to the other).op. Neumayer was in favour of the application of the domestic law. Stoffel formulates the following two presumptions when parties have decided that their contract be governed by Swiss law: if they have chosen Swiss law because a given link to Switzerland (of either one party or the contract in general). choose the law of a contracting state to govern their contractual relationship. Recueil Dalloz Sirey (1990) p. cit n. von Hoffmann. 174. Volken were in favour of the application of the CISG in such cases. Prof.33. 'Ein neues Recht des internationalen Warenkaufs in der Schweiz'. Ferrari's critic. whereas Prof. loc.. von Overbeck. This is the opinion that Stoffel has presented in an article published one year previous to the article referred to so far. 86 SJZ (1990) p. 24.or by any other domestic law . This particular question was also largely debated at the Lausanne Colloquium in 1984. Prof. who have their places of business in non-contracting states. the mere fact that the parties have chosen 'the law of [a contracting state]' does not necessarily mean that the CSIG applies. critizing a decision dated 29 March 1993 of the Tribunale Civile di Monza (retrievable on the UNILEX database. fh. the question of the applicability of the CISG should be considered very carefully. Neumayer underpins his opinion by referring to the jurisprudence of the Federal Court or Germany which has adopted the same point of view. the parties' presumable intention seems to point to the domestic law rather then to the CISG. at p. 79.would be well advised to make the point clear and unequivocal in their contractual choice of law provision. it may still be possible to infer from the setting and the language of the contract that the parties intended the domestic law to govern the contract and not the Convention.NILR 1999 CISC (ARTICLE 1) 163 to choose Swiss law. it is likely that they have opted for the domestic rules of the Code of Obligations. Prof. CLOUT Nr. Even if one of the parties has his place of business in a contracting state and the parties choose the law of that particular state. seems to be excessive: as mentioned above.atp. however. generally they decide in favour of one particular law either because of its relation with the contract (e. 107. on the other hand. 19. the presumption goes in favour of the Convention. Prof.n. 325. Prof. see W. 169 at p. parties wanting their contract to be governed by the Swiss Code of Obligations . . Farnsworth. I believe that in cases where two parties. see supra n. Stoffel. Witz.102 Despite all sympathy one may have for the uniform law. 103. 540). Stoffel. see generally C. 102. 32. Even if the parties' incentive may vary. the parties have chosen Swiss law because of its neutral character. See also Ferrari. at pp.103 As a matter of fact.' This statement seems indeed to be erroneous and cannot be shared. 'L'exclusion de la Convention des Nations Unies sur les contrats de vente internationale de marchandises par la volonte des parties (Convention de Vienne du 11 avril 1980)'. In such cases. Schlechtriem and Prof. where it was said that Art. if.

n. 106. Randall and Norris. cit. cit. who state that the US may even view Art. n. the Secretary of State (George Shultz) stated that 'this provision would displace our own domestic law more frequently than foreign law. (. Randall and Norris. cit. however. there might be an advantage in displacing our law in favour of the uniform international rules provided by the Convention. 24. 615-616. Honnold. International Sales: The United Nations Convention on Contracts for the International Sale of Goods (New York.g. at p. .164 3.106 such a position considerably reduces the frequency ofthe Convention's applicability to international sales transactions. since subparagraph (1Kb) makes the Convention applicable only when "the rules of private international law lead to the application of the law of a Contracting State. However. 1-32. op.. the US possessed a further reason for excluding Article l(l)(b). at App. an American seller and a Japanese buyer . 7. See. 13. Smit. the sales law provided by the Uniform Commercial Code is relatively modern and includes provisions that address the special problems that arise in international trade. cit. 107.3. legitimate. 47. In Appendix B to the Legal Analysis of the Convention which accompanied the Letter of Submittal to the President (Ronald Reagan). 104. subparagraph (1 Xb) would be relevant only in sales between parties in the United States (a Contracting State) and a non-Contracting State. n. 39.. loc. Galston and H. Winship. cit.105 This conviction . n.107 The CISG's international rules do not supplant US domestic law in a transaction involving. op. at pp. 13. cit. 207-208. 18. who adds that the reason set forth by the US would also apply to the United Kingdom. loc. 616. at p. at para. Matthew Bender 1984) App. 3. subparagraph (1Kb) would normally operate to displace United States law (the Uniform Commercial Code) and would not displace the law of foreign non-Contracting States.108 The US attitude 104. at pp. Reprinted from N. loc.3. op. n. 108. n. e. see also Nicholas. apparently preferring its own law to that embodied in the CISG. If the United States law were seriously unsuited to international transactions. See the first reference in n.4 C.BERNASCONI The position of the United States NILR 1999 In addition to the arguments pleading in favour of certainty and international harmony. 2 of the UCC as superior to the CISG as a sales law. eds. 1-27 and 1-28. at p. This clearly rebuts the CISG's goal of establishing an international sales code. 1-28.largely supported by the American Bar Association . contrary to the express allegation of the US..'104 The US made an Article 95 reservation because it desired to preserve as much as possible the applicability of its UCC. when private international law points to the law of a foreign nonContracting State the Convention will not displace that foreign law. By its terms. Audit.) Under subparagraph (1 Xb)." Consequently. . when those rules point to United States law.two of the principle trading blocks in the world.1. for example.

. refer to proceeding discussion).and harmful . There are. which state has made a reservation under Article 95). however. at p. Additionally. There is no persuasive justification to the restriction of the Convention's sphere of application generated by Article 95. . See Winship.3. which state's laws are applicable under the conflicts rules of the forum.uncertainty. the CISG is not aimed at ensuring the exchange of two equivalent performances between contracting states. If private international law principles establish that an international sales transaction has its closest ties with a contracting state. 3. n. at p. 1-27.3. cit. Finally and most importantly. op. the application of the well-suited. 616. well-suited tool.110 Fortunately. Ibid.NILR1999 CISC (ARTICLE 1) 165 also illustrates the inherent tension between sovereignty and multilateral treaties embodying substantive rules. Intricate instances are examined subsequently. Indeed. who systematically examines 54 permutations in which the Convention's applicability is at stake.109 This leads to a generalized commentary on the possibility of making a reservation under Article 95 of the CISC 3.5 The possibility ofmaking a reservation under Article 95: a general critique It is regrettable that the Convention allows a nation to make a reservation under Article 95 and thus not be bound by Article 1 (1 )(b). largely accepted CISG seems generally more appropriate than the domestic rules on internal sales (for the case of an express choice of law clause in favour of 'the law' of a contracting state. there are many possible cases in which the question of the Convention's sphere of application might arise. 109. some particular situations that continue to cause considerable . the CISG has rather been designed to make sure that international sales transactions be governed by suitable rules. where each party has his place of business.4 Article l(l)(b) and Article 95: how do the different choices interfere? An analysis of some intricate permutations Given the great number of variables one must consider (where the forum sits. 3. the answer is clear. it must be emphasized that the interplay between Article 1(1 )(b) and Article 95 raises some difficult questions in determining the law applicable to an international sales transaction.3. in most of the cases. the belief that the Convention should only be applicable to sales transactions concluded between parties who have their places of business in different contracting states cannot be justified by referring to the principle of reciprocity rooted in public international law. 110. A reservation under Article 95 considerably reduces the reach of the CISG and constitutes a brake-block to the effective spreading of a modern.

656. 535. Therefore. cit. 345. see also ibid. Honnold. 46 (with additional references to writings supporting this view in fn. Article 95 eliminates the applicability of the Vienna Convention only in favour of the domestic law of the reservation state. the judge sitting in New York is required to apply the Vienna Convention regardless of the US reservation under Article 95. See Neumayer and Ming. See the proceeding example.not even for the reservation state itself. for example. the Vienna Convention does apply. the American conflicts rules point. 113. however.3. Vekas. 521 at p.4. 1 lit. at p. 869 at p. the legislative history of the Geneva Convention also makes clear that the countries which called for this provision wanted the reservation only to be effective when the conflicts rules point to their own domestic laws). if the conflicts rules of the reservation state point to the law of a contracting state that has not made the reservation. for instance. 77 AJIL (1983) p.4.3.5 (example IF).112 This conception of the interplay of Article l(l)(b) and Article 95 is supported by the legislative history of the latter. are also supporting this view: I. Dore.3. n. 'Das Einheitliche UN-Kaufrecht . cit. at p. this Convention contains the same reservation clause as the one embodied in Art. According to Pelichet. to Canada. H. I respectfully disagree on this qualification.1 C. a New York court has to sit on a sales contract concluded between an American buyer and a Japanese seller. 1 " However. 36 RIW (1990) p. at para. cit. 35). this unequivocal purpose of Article 95 is sometimes misunderstood. see the explanations below under section 3. According to Thieffry. Perspective'. . at pp. for example. courts in the United States should not apply the Convention even in instances where their conflicts rules lead to the application of the law of a contracting state that has not filed a reservation under 111. loc. 43. 'Choice of Law under the International Sales Convention: A U. b UN-Kaufrecht'. If.1. 95). 57. 3 SZIER/RSDIE (1993) p. the CISG will not apply. 57. cit. loc. at p. Pelichet (a member of the committee in charge of drafting Art. text accompanying fh. 55 (where the author makes a parallel with the Geneva Convention on agency. n.Anwendung kraft kollisionsrechtlicher Verweisung nach Art 1 Abs. 18. op. cit. 653 at p. section 3."3 Unfortunately. n. if in the example just presented. loc.S. and the American conflicts rules point to the law of New York.166 3. n. 20. The goal of the promoters of Article 95 was to make sure that a judge sitting in a reservation state would not have to apply the Convention if private international law would lead to the application of the law of the forum. the domestic law of a reservation state may only prevail over the Convention if the forum is located in the actual reservation state with the judge applying his own private international law. 112. Punder.BERNASCONI The judge sitting in a reservation state NILR 1999 The considerable uncertainty caused by Article 95 is best evidenced by the fact that even the reservation's basic repercussions are still not unanimously fixed . 40-43. 47. Pelichet. 31. 95 of the CISG. op. n. 872. see also 'Rechtsprechung zum Wiener Kaufrecht'.2.

op. op. loc. cit. op. at p.2 The judge sitting in a contracting state whose conflicts rules point to the law of a country that has filed a reservation under Article 95 There is another much debated question that reveals the uncertainty surrounding a reservation filed under Article 95. 871-872. cit n. 28-29. cit. Its jurisdiction being assumed. 173. at pp. 'Sale of Goods Between French and U. 47 (with many additional references in fn. at p. Thieffiy's opinion violates the foreign contracting state's will to apply the Convention in such an event. On the other hand. at p. n. the UCC) is not an issue at all in this case." 4 This opinion clearly contradicts both the legislative history and the basic purpose of Article 95. at pp. n. Thieffiy. n. 23. Audit.let us assume the US . loc. n. thus the problem of displacing US law (i. additional references in Neumayer and Ming. 20.. at p. 24. The application of the UCC in this case is supported by. the contract is governed by US law.5 (example 1H).S.may be summarized as follows: a sales contract to which at least one of the parties is from a noncontracting state and which. 33. . The following example sets the puzzle: A has his place of business in New York. cit n. Thieffry's opinion must be rebutted. Neumayer and Ming. op. Editions Universitaires 1990) para. Does the CISG or the UCC apply? For both solutions. it might also provoke forum shopping since courts of different countries would adopt different positions. It is not supported by the official US statement justifying the reservation: US conflicts rules point to a foreign legal order.NILR1999 CISC (ARTICLE 1) 167 Article 95." 5 In my opinion. 1017 at p. 1-53. cit. 345-346. 6. 3. Winship. A files a suit in Switzerland. cit. Punder. 3. 345-346. Erdem. the Swiss court concludes that according to Swiss conflicts rules. 21. loc. at pp. n. n. cit. 31. For another opinion supporting this view. 22 Int'l Lawyer (1988) p. n. at pp.3. 32. 46 (in fh. at pp. Convention on Contracts for the International Sale of Goods'. cit. La livraison des marchandises selon la Convention de Vienne: Convention des Nations Unies sur les controls de vente Internationale de marchandises du 11 avril 1980 (Fribourg. op. 31. one will find eminent supporters. idem. 39. 27. the Swiss court should apply the UCC and not the Vienna Convention. op. see the reference in Neumayer and Ming. cit. for example. 18. loc. idem. at p. Those in favour of 114. Merchants: Choice of Law Considerations Under the U. cit n. 47. loc. n. Furthermore. according to the forum's conflicts rules. op. Honnold. cit. is subject to the law of the forum (or the law of another reservation state) is not governed by the CISG but rather by the forum's domestic rules on sales. 524525. 47 (in fh. op. Hence. 31. the effects of Article 95 on a court sitting in a reservation state . 601 et seq. the following authors would apply the CISG in this case: Siehr. 115. 36. 153. and idem. For these reasons. Volken. n. E. Finally. loc. in this case presumably by the UCC. He contracts with B whose place of business is in Tokyo (Japan has not yet ratified the CISG). 112. 35).N. at para. cit. 37). 103. cit. Vekas. Stoffel. n. cit. 3).. Schlechtriem. 1018 (fh. op. cit. 37).4. at p. P. at pp. 20. at p. n. at para.e.

5 (fii. op. at p. S86. Neumayer and Ming. cit n. filed general remarks on the interpretation of Article l(l)(b). . These arguments do not appear convincing. The real effect of an Article 95 reservation is comparable to that of a switch-signal. Dore.. indicating which set of substantive rules within the designated lex causae is applicable. e. 57. 118. See. This explanation provides that if the conflicts rules of Germany point to the law of a country which has filed an Article 95 reservation. 345-346. such declarations must be respected within their true limits. Punder. 112. 47. the judge will indeed forestall forum shopping. cit n. op. cit n. See. See above section 3. It has. if the private international law of the forum points to 116. what about an application of the CISG through the means of the conflicts rules of the forum? Firstly. See also Schlechtriem. e. The German courts have to comply with mis authentic interpretation. By refusing to consider the reservation filed under Article 95. thus the Convention's rules are inapplicable. 'L'adhesion de la RFA a la Convention des Nations Unies sur les contrats de vente internationale de marchandises (Convention de Vienne du 11 avril 1980)'. Honnold. 20. the applicable law is that country's domestic law and not the Vienna Convention.3 The judge sitting in a non-contracting state We have already seen that in a non-contracting state. cit n. loc. at pp. at para. 31. e. loc. 47-48 (with an additional supporting reference in m. Punder. the CISG does not apply. 872 (with additional references in m.118 3. Honnold." 7 The opinion that the Swiss judge should apply the UCC and not the CISG in this particular instance is further supported by a corresponding explanation the Federal Republic of Germany filed in ratifying the Convention. A state's decision to file a reservation under Article 95 cannot simply be ignored by other member states. Bundesgesetzblatt (BGB1) 1989 n at p. loc. 47). 14).g. 18. however. op.4.g.g. 538. The lex causae has not enacted the CISG for cases similar to this one. cit n. cit n. Witz.2.116 The solution advocated in this essay has also the advantage of respecting the harmony among international court decisions. In applying the domestic substantive rules of the lex causae rather than the CISG.168 C. 47. op. 120. the forum judge would fail to recognize the lex causae altogether. 872.119 However.120 However. See. 18. Germany has not made a reservation under Article 95 and has therefore retained Article l(l)(b). at para. the CISG cannot be applied autonomously. 39). at p. cit n. 119. BERNASCONI NILR 1999 the application of the CISG claim that a reservation filed by one contracting state could not have any effect whatsoever on the position to be adopted by other member states and that the intent and the underlying purpose of the Convention would be to guarantee its largest possible sphere of application.. 112.3. 117. it seems to be unequivocal that when the conflicts rules of the forum point to the (domestic) rules of either a noncontracting state or a state that has filed a reservation under Article 95. C. at p. at pp. 112.S. 6 RDAI/IBLJ (1990) p..

the other member states must respect those declarations.)' This request is particularly apropos with regard to the conditions of the Convention's applicability and the determination of its scope. This duty to an effective application of the uniform law has been embodied in the Convention itself. uncertainty surrounding Article l(l)(b) decreases. though. However. It must be emphasized. the directed state has substituted its domestic rules for the uniform law of the Vienna Convention. The CISG is at the cross-roads of different traditions and constitutes an inestimable source of education and an effective means of rapprochement of all the 'families' characterizing the different legal systems that have participated in the elaboration of the CISG. one should always keep this request in mind. this goal of wide applicability has partly beenfrustratedby the enactment of Article 95. regard is to be had to its international character and to the need to promote uniformity in its application (. It is also a welcome compensation for ceaseless efforts undertaken to harmonizetlifferent legal systems and cultures. The achieved unity should not be jeopardized without due cause. Article 7 of the Convention states that 'in the interpretation of this Convention. is intended to summarize the most important and debated permutations of the Convention's applicability through the means of Article l(l)(b) and to give the reader a concise illustration of the applicability of the CISG. Indeed. will continue to grow. that the already impressive list of states that have ratified the Vienna Convention. since for international sales transactions. however. Unfortunately.NILR1999 CISG (ARTICLE 1) 169 the law of a contracting state. for with each new ratification.. public international law does not impose any obligation on the judge of the forum to apply the Convention. The issue of an increased transparency and effectiveness in international sales transactions would definitely be well served. that in such instances. It is hoped. it is suitable to apply the CISG. The Vienna Convention is a major improvement on ULIS. . at the end of this article. the Convention's sphere of application should therefore be as wide as possible. CONCLUSION Undoubtedly. 4. Ideally. the Vienna Convention constitutes a very important codification and is a landmark in the evolution of the science of comparative law. Table 1. now that contracting states have the possibility to file a reservation and to declare that they will not be bound by the conflictual method of determining the Convention's scope. In applying Article 1..

Japan..: NCS / P2: NCS F-NCS P. In my opinion. CS = contracting state (e. CSR = contracting state with reservation according to Art. 1(1) I. the plicable to their contract ('the law of [CS]').: CS / P2: NCS P.: CSR / P2: NCS P.g. and the United States).. the CISG should not apply question of the applica(see section bility of the CISG D.3). at least one party does not have his place of business in a CS.g.: CS / P2: NCS P.4. especially if the parties have their places of business in two NCS (see section 3.: CS / P2: NCS P. 122. The abbreviations used in the synopsis have the following meanings: F = forum. Note that in all the following permutations. However.4. Debated. Singapore.: NCS / P2: NCS Convention does apply. The possible application of the CISG is merely optional in this case and does not ensue from an obligation under public international law (see section 3. the CISG applies under its Art. Very controversial. PIL = private international law. the CISG should apply (see section 3.4. P. Slovakia.1).3. should be considered carefully.3. BERNASCONI NILR 1999 Table 1.3. if both parties have their places in a CS or in CSR. NS = non-contracting state (e.3. Switzerland). Netherlands.)): 121 Forum: Contract between parties having their place of business in:122 IfPILof the forum leads to the application of the law of a NCS: Convention does not apply IfPILof the forum leads to the application of the law of a CS: IfPILof the forum leads to the application of the law of a CSR: F-CS P. 3.2).3.: NCS / P2: NCS Convention does not apply Convention does not apply Convention does not apply 121.3). the Czech Republic. and P2 = party 1 and party 2 to the contract. United Kingdom).In my opinion. l(lXa). . Convention does not apply F-CSR P.170 C. if the parties have chosen the law ap. The conflictual method of defining the CISG's personal and territorial scope of application (Art.: CStf / P2: NCS P.: CSR / P2: NCS P. 95 (China.