Scope of Application of CISG

and PICC
 General Questions
Legal nature of CISG: International
Convention
Legal Nature of PICC: Restatement,
model, soft law
Sphere of Application Art. 1 CISG
I. Art. 1(1)(a), (2) and (3) CISG
Purpose of Art. 1 CISG
Two different approaches
Provisions complementing Art. 1(1)
CISG
Autonomous definition of sphere of
application in Art. 1(1)(a) CISG
Final provisions: Art. 92, 93, 94, 99, 100
CISG
Sphere of Application Art. 1 CISG
I. Art. 1(1)(a), (2) and (3) CISG
Place of business in different states
objective recognisability
Art. 10 CISG
Purpose of Art. 1(3) CISG
Barter contract, distribution agreement
Tangible goods immovables
Sphere of Application Art. 1 CISG
I. Art. 1(1)(a), (2) and (3) CISG
Software
Standard v. individual software
Software on CD v. download
Intellectual property rights, licenses,
assignments of debts, market research?
Mixed contracts?
Sphere of Application Art. 1 CISG
II. Art. 1(1)(b) CISG
Indirect application of CISG
Purpose of Art. 95 CISG
III. Applicability of CISG through parties
choice of law? Direct/indirect
 Sphere of Application Preamble
PICC
I. International contracts
Not defined broad interpretation
II. Applicability by courts
A-national law?
III. Applicability by arbitral tribunals
IV. Choice of law by parties/choice of lex
mercatoria (shall be applied)
V. Interpretation and supplementation of
international uniform instruments
 Sphere of Application Consumer
Contracts
I. Purpose of excluding consumer
contracts differences between
merchants and consumers
II. Art. 2(a) CISG
III. Preamble PICC: commercial contracts
IV. Recognisability as consumer
V. Principles of International Consumer
Contracts?
Sphere of Application Art. 2(b)-(f)
CISG
I. Reasons for excluding certain forms of
sales
II. Exclusion of certain goods
III. Documentary sales
Sphere of Application Art. 3 CISG
I. Art. 3(1) CISG: sale v. contract for work
and labour
II. Art. 3(2) CISG: sale v. contract for
services
One single contract v. several contracts
III. Preponderant part
Economic value v. function
Ascertainment of value
Sphere of Application Art. 4 CISG
I. Formation, rights and obligations of the
parties
II. Art. 4(a) CISG: validity
Reasons for exclusion
Autonomous determination of validity
question
Public policy, illegality, immorality
Remedies for vitiated consent?
Sphere of Application Art. 4 CISG
III. Art. 4(b) CISG: Transfer of property
Reasons for exclusion
Areas covered by domestic law
IV. Other areas not covered by CISG
Capacity, agency, assignment/
assumption of debt, limitation of action
Substantive v. procedural rules
V. Determination of domestic law
 Sphere of Application PICC
I. Agency, Art. 2.2.1-2.2.10 PICC
II. Validity, Art. 3.1-3.20 PICC
Not covered: Capacity, immorality,
illegality (Art. 3.1 PICC)
Covered: Mistake, fraud, threat, gross
disparity
III. Third party rights, Art. 5.2.1-5.2.6 PICC
IV. Set-off, Art. 8.1-8.5 PICC
 Sphere of Application PICC
V. Assignment of rights, Art. 9.1.1-9.1.15
PICC
VI. Transfer of obligations, Art. 9.2.1-9.2.8
PICC
VII. Assignment of contracts, Art. 9.3.1-
9.3.7 PICC
VIII. Limitation, Art. 10.1.-10.11 PICC
IX. Not covered: Transfer of title
Sphere of Application Art. 5 CISG
I. Personal injury
Reasons for exclusion under CISG
PICC: no explicit exclusion
II. Property damages
Covered by CISG
Concurrent domestic tort remedies
III. Claim for indemnity
 Party Autonomy
I. PICC: Opting in, but see Art. 1.5 PICC
II. Art. 6 CISG: Opting out
Mere choice of law of Contracting State
How to opt out?
III. Litigating under the wrong law
Procedural issue?
Subsequent choice of law
IV. CISG: Opting in?
 Freedom of Contract
I. Art. 6 CISG
Exception: Art. 12 CISG
II. Art. 1.5 PICC
Exceptions: Art. 1.7(2) - good faith, Art.
3.19 - validity issues, Art. 7.1.6 -
exemption clauses, Art. 7.4.13(2)
agreed sums
 Freedom of Form
I. Art. 11 CISG, Art. 1.2 PICC
General principle
Domestic form requirements (Common
Law, French systems)
II. Form agreed to by parties
III. Form for modification: Art. 29 CISG, Art.
2.1.18 PICC
 Freedom of Form
IV. Art. 12, 96 CISG
Reservation under Art. 96 CISG
Significance of reservation: examples
V. Art. 13 CISG
Scope of application
Electronic communications
VI. Art. 1.11 PICC