IN DEFENCE OF THE CISG

CHRISTOPHER KEE AND EDGARDO MUÑOZ *

In this article, the authors respond to certain criticisms made against the
1980 Vienna Convention on Contracts for the International Sale of Goods
(the ‘CISG’) and explain what they perceive as the shortcomings of, and
impediments to, a particular model of a proposed new global code. A goal of
both the CISG and the proposed global code is to create an environment
which promotes international trade. Predictability in the law is a
fundamental element to achieve such an environment. The CISG has been
criticised as failing to provide such predictability. It has been suggested that
it has not been uniformly interpreted, contains internal inconsistencies and
allows countries to establish varying mini-codes. While there may be some
merit in some of these criticisms there is also much that is overstated and
wrong. The CISG may not be a perfect instrument. However, it has been
widely accepted and that alone makes it a strong basis from which to
develop. A global code applied with absolute uniformity throughout the
world might provide predictability. However, such a uniform law is
unrealistic and, in any event, undesirable. The authors propose a more
realistic solution. The law should be the framework upon which individually
nuanced contracts could be built. Predictability is obtained by developing
and establishing avenues of communication. It is also obtained by
developing and establishing means of explaining and understanding the
concepts upon which the framework has been built. The CISG allows for all
of this.

INTRODUCTION

The 1980 Vienna Convention on Contracts for the International Sale of Goods
(the ‘CISG’) is the law of all Australian States and Territories. It is enacted at

* Christopher Kee, BA (Hons) LLB (Deakin), Pro Cert Arb (Adelaide), Grad Dip Laws (UQ),
Barrister and Solicitor, Supreme Court (Vic), Supreme Court (NSW), High Court of Australia;
Adjunct Professor, City University of Hong Kong; Honorary Fellow, Deakin University,
Australia; Senior Research Assistant, Global Sales Law Project, University of Basel,
Switzerland. Edgardo Muñoz, Lic (Mexico), DEUF (Lyon), LLM (Liverpool), Admitted
Lawyer in Mexico, Research Assistant, Global Sales Law Project, University of Basel,
Switzerland. The views expressed in this paper are the authors’ own and not those of their
universities.
100 DEAKIN LAW REVIEW VOLUME 14 NO 1

a state level through uniform enabling legislation.1 As a UN convention the

CISG entered into force on 1 April 1989. The CISG has 74 2 state parties and
is in force in 72 of those, making it one of the most adopted international
private law conventions. Unfortunately, Australia does not have a particularly
good reputation when it comes to understanding or applying the CISG. When
a contract is of the type to which the CISG applies it is quite often the case
that the parties, counsel and the courts remain unaware of the CISG’s
application until the end of the trial.3 This is perhaps in part due to the fact
that there is no mention of the CISG in the respective Goods, or Sale of
Goods, Acts, as the case may be. Nevertheless, as it is Australian law it should
be defended against particularly unfair critiques.

We read with interest Christopher Scheaffer’s article published in the Fall

2007 edition of Cardozo Journal of International and Comparative Law, and
entitled ‘The Failure of the United Nations Convention on Contracts for the
International Sale of Goods and a Proposal for a New Uniform Global Code
in International Sales Law’. 4 As the title suggests, Scheaffer is very critical of
the convention.

Scheaffer identifies four failures of the CISG as a uniform code. There is a

fifth criticism, which Scheaffer makes in his introduction5 but does not
elaborate upon, that is, its internal contradictions.

First, in Scheaffer’s view, CISG Article 7 is in itself an impediment to

uniformity due to ‘the provision’s ambiguity and the absence of a clear
hierarchal methodology of interpretation’.6

1
Sale of Goods (Vienna Convention) Act 1987 (Vic); Sale of Goods (Vienna Convention) Act
1987 (Tas); Sale of Goods (Vienna Convention) Act 1987 (ACT); Sale of Goods (Vienna
Convention) Act 1986 (Qld); Sale of Goods (Vienna Convention) Act 1986 (NSW); Sale of
Goods (Vienna Convention) Act 1986 (SA); Sale of Goods (Vienna Convention) Act 1986
(WA); Sale of Goods (Vienna Convention) Act 2007 (NT).
2
United Nations Commission on International Trade Law, Status: 1980- United Nations
Convention on Contracts for the International Sale of Goods, United Nations Commission on
International Trade Law
<http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html> at 11
August 2009.
3
See Italian Imported Foods Pty Ltd v Pucci SRL [2006] NSWSC 1060 (Unreported, Malpass
AsJ, 13 October 2006); Downs Investments Pty Ltd v Perwaja Stell SDN BHD [2002] 2 Qd R
462; Perry Engineering Pty ltd v Bernold AG [2001] SASC 15 (Unreported, Burley J, 1
February 2001).
4
Christopher Scheaffer, ‘The Failure of the United Nations Convention on Contracts for the
International Sale of Goods and a Proposal for a New Uniform Code in International Sales
Law’ (2007) 15(2) Cardozo Journal of International and Comparative Law 461.
5
Scheaffer, above n 4, 462.

100
2009 In Defence of the CISG 101

Second, Scheaffer suggests that the CISG has suffered from language
difficulties arising out of the six official language versions that ‘greatly
complicate the goal of uniformity’. 7

Scheaffer’s third basis of criticism comes from what he alleges are the
multitude of ‘mini-codes’ resulting from the ability of the adopting countries
and contractual parties ‘to choose when and how the governing law will be
applicable’. 8

Fourth, in Scheaffer’s view the existence of diverging interpretations and

conflicting case law makes the CISG ‘impractical, undermining uniformity in
international sales law’.9

Finally, there is a fifth criticism which Scheaffer makes in his introduction10

but does not elaborate upon, that is, the supposed internal contradiction
between CISG Articles 14(1) and 55.

While we find ourselves in agreement with some of Scheaffer’s concerns, we

nevertheless cannot agree with his assessment that the CISG has been a failure
and so have been moved to write this defence. Similarly, we do not share the
view that a new uniform global code in international sales law is a solution to
the problems that Scheaffer identifies. We see many difficulties with that
approach and instead believe that there are more realistic and achievable
alternatives that will deliver the desired outcome. In our view the answer lies
in better education and understanding, improved avenues of communication
and the dissemination of knowledge to all interested parties. The Global Sales
Law project, in which we are both involved and which we describe in the
concluding part of this paper, is an initiative specifically designed to achieve
these goals.

Part I of this paper responds to the criticisms raised by Scheaffer on the

current role of the CISG. We then, in Part II, explain what we perceive as the
shortcomings of and impediments to a new global code. Part III very briefly
addresses the role of other harmonisation initiatives currently undertaken at an
international level, and, finally, Part IV proposes a more realistic solution to
the current problems faced by judges, legal practitioners, academics and
students when dealing with international sales law matters.

6
Ibid 470.
7
Ibid 474.
8
Ibid 476.
9
Ibid 479.
10
Ibid 462, note 7.

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102 DEAKIN LAW REVIEW VOLUME 14 NO 1

PART I: THE CISG – ITS PROBLEMS AND MERITS

Scheaffer is right when he suggests that the world has become a small place.11
No one could reasonably deny that in the last 30 years the growth of
international trade, together with the new developments in technology, have
created a much closer interaction between countries, societies and people in
general. 12 Commerce is at the base of the phenomenon, since many of the
improvements in technology and our lives in general have been motivated by
profit. 13 The same may also be said about unification endeavours and
achievements in the area of private law. Lex Mercatoria compilations,
uniform or model laws undertaken by organisations such as UNIDROIT,
UNCITRAL, The Hague Conference or the International Chamber of
Commerce, among others, all have the basic aim of facilitating amicable trade
and minimising or settling disputes between traders. 14 A predictable system
which is understood and appreciated by everyone involved decreases
expenses and increases profits. 15 In addition, there are many important ‘extra-
economic’ effects that result from an increase in international trade. The
notion of interdependency theory 16 – the idea that countries are less likely to
go to war with each other if they are trading partners – has, by and large,
proved to be true. So, while we agree with Scheaffer’s aspiration towards
harmonisation of the law, we do not necessarily share the sentiment that this
must be achieved by a uniform code. Harmony does not mean that everything
has to be identical. Rather, it means that things must be able to work together.
Certainly, a uniform code applied uniformly would achieve much of what
Scheaffer is seeking, but it is unrealistic to believe that this will ever occur.
Although we take issue with many of the criticisms Scheaffer levels at the
CISG, we do agree that it has not been interpreted uniformly. However, we
fail to see how or why the proposed Global Code would be any different from
the CISG, and we fail to see why this is necessarily a bad thing. Perhaps this

11
Ibid 461.
12
See Globalization for Development: The International Trade Perspective, [vii]
UNCTAD/DITC/2007/1 (2008) <http://www.unctad.org/en/docs/ditc20071_en.pdf> at 11
August 2008.
13
See Ann Florini, The Coming Democracy: New Rules For Running A New World (2005).
14
On the benefits of private international law instruments see Sandeep Gopalan, ‘A
Demandeur-Centric Approach to Regime Design in Transnational Commercial Law’ (2008) 39
Georgetown Journal of International Law1, 7 <http://ssrn.com/abstract=1105225> at 11
August 2009.
15
Ibid 4.
16
See Scott Burchill et al, Theories of International Relations (2nd ed, 2001).

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2009 In Defence of the CISG 103

suggests that we belong to the ‘new formalist’ camp of legal theory, 17

although here is not the place to have a theoretical debate.

The CISG was drafted by jurists from all over the world who specialise in the
law of sales. 18 The Convention reflects the consensus reached by the members
of the 1980 United Nations Conference on Contracts for the International Sale
of Goods, based on 12 years of work by UNCITRAL and the various
governmental delegates who had taken part in the relevant Working Group. 19
Naturally, as every jurisdiction has its own views on the fundamental rules for
sales contracts, most provisions of the CISG needed to reflect common
principles. 20 This was only possible after the comparative study of different
codes and statutes. 21

As previously stated, Scheaffer identifies five reasons for the failure of the
CISG as a uniform code:

(A) Deficiencies in CISG Article 7;

(B) Language Problems;
(C) The opportunity for ‘opting out’ of the CISG;
(D) Misapplication of the CISG by courts; and
(E) internal contradictions.

We will address them in the same order.

17
For a very clear and easily understood critique of ‘new formalism’ see Mark Movsesian,
‘Rediscovering Williston’ (2005) 62 Washington and Lee Law Review 207.
18
In this regard see the Travaux préparatoires of the CISG and note the representatives from
many different jurisdictions who participated in the drafting.: United Nations Commission on
International Trade Law, Travaux Prépatoires (2009)
<http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_travaux.html> at 11
August 2009.
19
For a detailed description on the 1980 United Nations Conference see Texts adopted by the
United Nations Conference on Contracts for the International Sale of Goods [149], UN Doc
A/CONF.97/18 (1980) <http://www.uncitral.org/pdf/english/yearbooks/yb-1980-e/vol11-p149-
150-e.pdf> at 11 August 2009.
20
Peter Schlechtriem and Ingeborg Schwenzer, Commentary on the UN Convention of the
International Sale of Goods (CISG) (2nd ed, 2005) 2.
21
Ibid 6.

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104 DEAKIN LAW REVIEW VOLUME 14 NO 1

A CISG Article 7

In Scheaffer’s view, CISG Article 7 is itself an impediment to uniformity. We

certainly agree that it has been the subject of controversy and is understood
differently by different people. However, we believe that Scheaffer’s critique
has misunderstood the debate and overstated its significance.

For the sake of clarity we feel it is important to reproduce Article 7 in its

entirety.

Article 7

(1) In the interpretation of this Convention, regard is to be had to its

international character and to the need to promote uniformity in its
application and the observance of good faith in international trade.

(2) Questions concerning matters governed by this Convention which are not
expressly settled in it are to be settled in conformity with the general
principles on which it is based or, in the absence of such principles, in
conformity with the law applicable by virtue of the rules of private
international law.

Scheaffer identifies two issues with Article 7(1): first, the lack of a definition
of good faith, and, second, the difficulty of determining where and upon
whom a good faith duty is imposed. We will address the second of these
points first, as our response to it will largely negate the first issue as well.

The debate as we see it is whether Article 7(1) imposes a positive obligation

on the parties to act in good faith, or whether it is a statement that the
Convention must be interpreted according to the observance of good faith in
international trade. 22 We argue for the latter. What is significant in our view is
the phrase at the very beginning of the Article ‘In the interpretation of the
Convention’. Scheaffer does not place emphasis on these words and does not
reproduce them when quoting from the Article. Further, Scheaffer cites
Professor Schlechtriem as supporting the view that Article 7 imposes an
obligation directly on the parties. We interpret Schlechtriem very differently –
that is, we believe he shared our view.

22
For a further explanation of the debate see Troy Keily, ‘Good Faith and Vienna Convention
on Contracts for the International Sale of Goods (CISG)’ (1999) 3 Vindobona Journal of
International Commercial Law and Arbitration 15.

104
2009 In Defence of the CISG 105

The meaning of the reference to ‘good faith’ is controversial, but this phrase
is not unique to Article 7 and can be found in other Conventions or drafts of
Conventions as well. As its history shows, the origin of that term lies in the
reference to good commercial practice and it was initially intended to govern
not the interpretation of the Convention’s rules by courts, but the parties’
conduct. But such opinions, which are influenced not least of all by the
German understanding of the principle of Treu und Glauben and its bearing
on legal texts as well as individual contracts, cannot be regarded as having
prevailed. The maxim of ‘observance in good faith in international trade’,
therefore, concerns the interpretation of the Convention only. 23

We argue that, when considered in this light, the need for a precise and
unambiguous definition of ‘good faith’ disappears. ‘Good faith’ can be
understood as a broad and general maxim, in the same way that general
notions of ‘equity’ in a broad sense might be referred to by a common law
lawyer. As nothing is to be judged by the standard, a precise definition is not
necessary. In light of the discussion below, we feel it important to note that
this interpretation also reconciles a linguistic difference between the official
Spanish, French and Arabic versions of the CISG and the English version.
Each of those versions adds an extra verb (‘asegurar’, ‘assurer’ and ‫ﻳﺮﺍﻋﻰ‬
respectively), that is, to assure the observance of good faith. The Russian and
Chinese texts both follow the structure of the English version.

We are aware of opinions, both among scholars 24 and courts, 25 that do not
24F 25F

interpret Article 7(1) in the manner that we suggest. Will people continue to
interpret Article 7(1) differently? Almost certainly. Is that a fatal flaw that
condemns the CISG as a failure? No. Admittedly it is frustrating, but it is not
an insurmountable, or even unexpected, problem.

23
Schlechtriem and Schwenzer, above n 20, 95 para 7 (Art 7) (emphasis added and citations
omitted).
24
Nives Povrzenic, Interpretation and gap-filling under the United Nations Convention on
Contracts for the International Sale of Goods, (1998) CISG Database
<http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html> at 11 August 2009.
25
Judgment of Nov 17, 1995, Arb Ct CCI Budapest (Mushrooms case), CISG-online 250
<http://www.cisg-online.ch/> at 11 August 2009; Judgment of May 10, 2000, Corte
Constitucional de Colombia, CISG-online 250 <http://www.cisg-online.ch/> at 11 August
2009; Judgment of Nov 30, 1998, Compromex [Comisión para la Protección del Comercio
Exterior de México = Mexican Commission for the Protection of Foreign Trade], CISG-online
504 <http://www.cisg-online.ch/> (Dulces Luisi v Seoul International).

105
106 DEAKIN LAW REVIEW VOLUME 14 NO 1

B Language Problems

The second basis on which Scheaffer suggests that the CISG has suffered is
that of language difficulties. Here again, though we understand and appreciate
the thrust of this argument, we believe the issue has been mischaracterised.
This mischaracterisation then influences Scheaffer’s proposed solution, which
does not in our view resolve the real underlying problem.
In our view the issue is more accurately understood as one of differing legal
concepts, rather than simply differing languages. Without in any way
intending to understate the difficulties of translating from one language to
another, we think the translation of legal concepts is harder. This difficulty is
perhaps most easily demonstrated within the same language. Article 16 of the
CISG distinguishes between ‘withdrawal’ and ‘revocation’. An offer can be
‘withdrawn’ before it has been received by the offeree. Once received, and
before acceptance, the offer can, subject to some exceptions, be ‘revoked’.
The word used changes depending on whether the offer has been received. In
contrast, under English law, the word ‘withdrawal’ is used for situations up to
the acceptance of the offer. Whether the offer has been received or not does
not influence the word used. 26 Thus the problem is not simply a linguistic one
but rather a conceptual one – made even more complicated by the six official
languages.

A problem of this kind cannot be avoided. It is a problem that affects every

international treaty or convention. Efforts must therefore be focused on ways
of overcoming its effects. Certainly, the UN in general (and UNCITRAL in
particular) is aware of this problem and has adopted processes to minimise the
problems associated with it. One such process is simultaneous translation.
Describing the 1980 Vienna Conference in his 1986 text, Professor
Schlechtriem observes that ‘[the CISG] was written and certified in the
following official languages: Arabic, Chinese, English, French, Russian and
Spanish. The discussions were all conducted in one of these languages and
then translated simultaneously into the other five’.27 Simultaneous translations
are not a complete solution but they certainly serve to lessen the problem in so
far as they allow the delegates a contemporaneous opportunity to debate the
relevant concepts. We acknowledge that, in the particular case of the CISG,
anecdotal evidence suggests that simultaneous translation did not occur as

26
The classic English authority that an offer can be withdrawn at any time prior to acceptance
is Offord v Davies (1862) 12 CB NS 748. For more recent authority see Scammell v Dicker
(2001) 1 WLR 631 and Flynn v Scougall [2004] EWCA Civ 873 [18].
27
Peter Schlechtriem, Uniform Sales Law – The UN-Convention on Contracts for the
International Sale of Goods (1986) 20.

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2009 In Defence of the CISG 107

thoroughly as it would today. Another way of addressing this problem is for

the drafters to explain concepts using terms not normally found in domestic
law or in a way clearly distinguishable from their domestic law use. This was
certainly the intention of the CISG drafters.

Scheaffer raises two specific examples to argue his case for language
problems. In our view the first of these is unsustainable; the second we
alluded to above and acknowledge is a difficulty, but it is one which can be
overcome.

The first example Scheaffer refers to is the Argentinean version of the CISG,

It is impossible to expect that each version of a multi-language treaty

precisely corresponds to others. Replicating terms consistently in two
languages, let alone six, is a difficult feat. This is exemplified by the
Argentinean version of the CISG, which at adoption, contained a
typographical omission in Article 2, that would have made the CISG
applicable to consumer sale and other transactions expressly excluded under
the Convention. 28
Scheaffer cites an article by Felemegas on this point. 29 However, Felemegas
had cited Kastely. 30 Kastely explains that the omission did not occur in the
official Spanish version of the CISG. This is an example of a transcription
error, not a translation error. It occurred in one language, in this instance
Spanish, but could just as easily have occurred in English.

Scheaffer’s second example refers to an article published by Professor Harry

Flechtner. 31 In his article Flechtner recalls an argument he had previously
made about how Articles 71 and 72 CISG should be interpreted. He notes that
he had made this argument on a textual analysis of the English version of the
CISG. In the English version the two Articles use different descriptive words,
which Flechtner argued implied different standards. Sometime later, when
reviewing the French version, he noticed that the same descriptive words had
been used in both Articles 71 and 72. This, he acknowledges, ‘undercut’
(though it did not defeat) his earlier argument, but he decided that that

28
Scheaffer, above n 4, 474.
29
John Felemegas, ‘The United Nations Convention on Contracts for the International Sale of
Goods: Article 7 and Uniform Interpretation’ [2000-2001] Review of the Convention on
Contracts for the International Sale of Goods 115.
30
Amy Kastely, ‘Unification and Community: A Rhetorical Analysis of the United Nations
Sales Convention’ (1988) 8 Northwestern Journal of International Law and Business 574, 592.
31
Harry Flechtner, ‘The Several Texts of the CISG in a Decentralized System: Observations on
Translations, Reservations and other Challenges to the Uniformity Principle in Article 7(1)’
(1998) 17 Journal of Law and Commerce 187.

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108 DEAKIN LAW REVIEW VOLUME 14 NO 1

particular journal article was not the place to answer the question. Flechtner
notes that one (albeit not entirely satisfactory) way of resolving the issue
might be to examine the other official versions.32 We have done that. It is
interesting to note that the Spanish, Arabic, Russian and Chinese versions all
use different descriptions in the respective Articles, tending to support
Flechtner’s original interpretation of the English version.

As noted above we believe that the ‘language’ issue is better characterised as

a conceptual issue rather than a pure language one. We feel that focusing on
the different national languages is a flawed approach in the sense that it
cannot offer a solution. This is so for two reasons. First, it is unrealistic to
think that the world will have a single ‘legal’ language anytime soon. English
may appear to be the international lingua franca at the moment, but, as history
shows, there is no certainty that it will remain so. Second, as our earlier
example involving ‘withdrawal’ and ‘revocation’ demonstrates, the problem
still exists within a single language in any event.

While we say that the problem is better understood as a conceptual one, we

appreciate that it cannot be divorced from the differing national languages.
Therefore we believe that the solution must involve all the differing languages
rather than just one.

C ‘Opting Out’ of the CISG

Scheaffer’s third basis of criticism comes from what he alleges are the
multitude of ‘mini-codes’ emerging from the CISG. 33 A closer analysis of the
statistics relied upon to make this allegation reveals that this argument is also
unsustainable.
The CISG has been adopted by 74 countries. 34 This makes the Convention
one of the most successful instruments in the area of private law worldwide 35.

32
Flechtner observes that this approach would be quite unhelpful in the particular case he
described in his text.
33
Scheaffer, above n 4, 464.
34
See United Nations Convention on Contracts for the International Sale of Goods, Status 1980
(2009) <http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html>
at 11 August 2009.
35
See, eg, Loukas Mistelis, CISG-AC Publishes First Opinions (2008) Pace Law School
Institute of International Commercial Law <http://www.cisg.law.pace.edu/cisg/CISG-
AC.html> at 11 August 2009: ‘It is often pointed out that, world-wide two thirds of
international sale transactions are conducted between parties based in a CISG country’; and

108
2009 In Defence of the CISG 109

It is true that the Convention gives each adopting country the opportunity to
make declarations or reservations. However, it is not accurate to suggest that
30% of the contracting states have consequently created a series of ‘mini
codes’. An examination of the actual declarations and reservations made is
necessary.

The UNCITRAL website (Status of the Convention) 36 reveals that only eleven
countries 37 have made a reservation to Articles 12 and 96 of the Convention.
The reservation is to the effect that any provision of Article 11, Article 29 or
Part II of the Convention that allows a contract of sale or its modification or
termination by agreement or any offer, acceptance or other indication of
intention to be made in any form other than in writing, would not apply where
any party had his place of business in its territory. Eleven countries constitute
approximately 14% of the adopting countries. While any change to treaty
provisions is important, this reservation cannot really be considered as
creating a mini-code.

Only seven countries, 38 that is, fewer than 10%, have made a reservation
relating to the application of Article 1(1)(b). Article 1(1)(b) states that the
CISG will apply where the rules of private international law point to a
contracting state.. This is also a minor reservation since the reciprocity
reservation common in most international instruments does not have a
substantial effect in a Convention that has already been adopted by 74
countries. Indeed, as the number of contracting states increases, the
significance of this reservation diminishes. 39

The only countries that have really opted out of a significant part of the
Convention are Denmark, Finland, Norway and Sweden, four countries
representing less than 6% of the whole. These countries declared that they
would not be bound by Part II of the Convention (‘Formation of the

Hiroo Sono, Contract Law Harmonization and Non-Contracting States: The Case of the CISG
(2008) Pace Law School Institute of International Commercial Law
<http://www.uncitral.org/pdf/english/congress/Sono_hiroo.pdf> at 11 August 2009.
36
See United Nations Convention on Contracts for the International Sale of Goods, Status 1980
(2009) <http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html>
at 11 August 2009.
37
Argentina, Belarus, Chile, Hungry, Lebanon, Lithuania, Paraguay, Russian Federation,
Ukraine, China.
38
China, Czech Republic, Germany, Saint Vincent and the Grenadines, Singapore, Slovakia
and the United States.
39
The application of Art 1(1)(a) CISG is not impaired by Art 95 CISG; Filanto SpA v
Chilewich International Corp, (SDNY Apr 14, 1992) 984 F2d 58, CISG-online 45. Contra
Judgment of May 26, 1998, OLG Thüringen, CISG-online 513 (Germany).

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110 DEAKIN LAW REVIEW VOLUME 14 NO 1

Contract’) and that they would not apply the Convention to contracts of sale
where the parties have their places of business in Denmark, Finland,
Iceland, 40 Sweden or Norway. It is rumoured that these countries will
effectively opt-back in the near future.

D Misapplication of the CISG by Courts

We agree with Scheaffer that many domestic courts have taken a ‘homeward
trend’ 41 approach. The term ‘homeward trend’ is generally understood to
mean that the CISG has been interpreted through the prism of domestic law.
In other words courts have interpreted the CISG as though it were the same as
their respective domestic laws. We also agree that this is unfortunate, but we
question whether this is a fair measure to determine the success or failure of
the CISG. It seems to us that those who cite this as a failure of the CISG are
often applying an unrealistic standard in assessing its effectiveness. For
example, do conflicting – or even wrong – interpretations of the Uniform
Commercial Code (UCC) prompt allegations of failure? No. 42 While it is
certainly desirable that conflicting decisions be avoided, they are not
unexpected. It may be that the level of conflicting decisions could rise to the
level of a failure, but we do not believe that level has yet been reached.

E Internal Contradictions

In his introduction Scheaffer makes brief mention of alleged internal

contradictions in the CISG. In a footnote he identifies Articles 14(1) and 55 as
an example of such a contradiction.43

Scheaffer’s opinion is that there is contradiction between these Articles. The

former requires that an offer, in order to be valid, must expressly or implicitly
fix or make provision for determining the quantity and the price. The latter, on
the other hand, states that where price is not set by the parties, the price will

40
Iceland in reciprocity declared that it would not apply the Convention.
41
Scheaffer, above n 4, 477.
42
See, eg, Colin Marks, ‘The Limits of Limiting Liability in the Battle of the Forms: U.C.C.
Section 2-207 and the “Material Alteration” Inquiry’ (2006) 33(3) Pepperdine Law Review 501,
who discusses the varying approaches courts have understood Section 2-207 of the UCC.
43
Scheaffer, above n 4, 7.

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be that which is generally charged at the time of contracting for those goods
sold under comparable circumstances in the trade concerned. This does not
mean, however, that ‘it would be impossible for a court to determine whether
a stated price is required for a contract to exist where one part of the code says
it must be included but another gives a remedy for a situation where parties
fail to agree on that price’. 44 The word ‘impossible’ is too strong.

The relationship between these two Articles has spawned considerable

amounts of commentary. 45 One view is that the Articles work in harmony
with the different approaches taken by national laws: those that support open
price offers and those that required the price to be definitive. 46 It should be
remembered that Article 55 is within the third part of the CISG and was
specifically created to avoid situations where a state declares a reservation
relating to Part II of the Convention. Countries doing so (as the Scandinavian
countries did) would otherwise be left with a CISG without any rules on
contract formation. Therefore, on one view, the purported contradiction is
baseless, because there is a single rule stating that every contract always
contains either an express or an implied price. A price could be fixed in two
ways. The first is by including a provision in the offer determining the price,
or a mechanism for determining the price. Alternatively, when the parties
have not discussed a price, Article 55 would function as an interpretative
guideline to determine an implied price, namely the price that would generally
be charged at the time of the conclusion of the contract for such goods sold
under comparable circumstances in the trade concerned. In addition, Article
55 is important when the Convention is to be applied without Part II and the
applicable domestic law permits a contract to be concluded without specifying
a price.47

So, concluding this part of the article and summarising our critique of
Scheaffer’s arguments, we agree that there are difficulties and issues to be
overcome. We disagree that these are failings and we disagree with the way
Scheaffer has characterised many of the difficulties. Finally, we assert that
these mischaracterisations have led Scheaffer to propose unrealistic solutions.
In the next part we identify the reasons why we believe Scheaffer’s solutions
are unrealistic.

44
Ibid.
45
For a discussion of the differing views see Schlechtriem and Schwenzer, above n 11, 194
para 10 (Art 14).
46
Ibid.
47
Ibid 195 para 11 (Art 14).

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112 DEAKIN LAW REVIEW VOLUME 14 NO 1

PART II: THE IMPEDIMENTS TO SCHEAFFER’S NEW GLOBAL CODE

When introducing his idea of a new Global Code, Scheaffer suggests the use
of the UCC as a guide to its creation. Although there is some ambiguity in the
headings used, we do not understand Scheaffer to mean that the proposed
code should be based on the UCC. The problems with this approach would be
obvious. From a pluralistic perspective it would be unheard of to limit the
content of a ‘global’ code to the principles of a common law country, thereby
leaving aside other legal families such as the civil law and religious legal
systems, for example. It is not enough that the UCC has proven successful
within the United States. International instruments in private law require more
than one good law example.

Rather, we understand Scheaffer to be referring to the desirability of learning

from the experience of the UCC. He emphasises three aspects of this
experience. The first is the respect of one jurisdiction for the decisions of
another which can be seen in UCC decisions. He believes that, although not
binding, judicial decisions from other countries would be persuasive. It is not
clear how this would be the case. If a reliance on international comity is
required, then how would this position differ from what presently exists?
Would the new code place a positive obligation on the courts of each country
to consider the decisions of other courts in other countries? Would there be a
doctrine of precedent? Even adopting the more liberal understanding of that
doctrine found in the United States, 48 there would be issues with court
hierarchies.

The second experience of the UCC that Scheaffer highlights is the official
commentary which accompanies it and which assists in the interpretation of
its terms. We agree that such a commentary on the proposed Global Code
would be very helpful, however we believe it would be near to impossible to
establish.49 We explain our reasons for this view in detail below in the context
of the CISG Advisory Council. However, it is necessary at this point to
address Scheaffer’s example of the UNIDROIT Principles (PICC). In the
footnote that accompanies this example, Scheaffer acknowledges that the
PICC ‘are not actually binding law’. 50 In our view this makes all the

48
For a comparison of the doctrine of precedent in England versus the United States see Anika
Stucky, ‘Building Law, Not Libraries: The Value of Unpublished Opinions and Their Effects
on Precedent’ (2006) 59(2) Oklahoma Law Review 403.
49
In any event there is the Secretariat’s Commentary on the CISG which may not be an official
commentary in the sense of a Restatement or the like, but is quite close to it.
50
Scheaffer, above n 4, 481 note 111.

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2009 In Defence of the CISG 113

difference. Reaching agreements on hypotheticals and non-binding guidelines

is an entirely different ball game, as it does not involve anywhere near the
level of politics involved in domestic negotiations. Later in his article,
Scheaffer suggests that the drafters of the new Global Code should have
regard to the PICC. This is actually a statement in favour of the CISG. To
quote Bonell, Chairman of the Working Group for the preparation of the
UNIDROIT Principles of International Commercial Contracts, ‘[t]o the extent
that the UNIDROIT Principles address the same issues as the CISG, their
provisions are normally taken either literally or at least in substance from the
corresponding provisions of the CISG’. 51

The third experience of the UCC is its relatively uniform adoption by the
various States of the US. At the time of adoption these States were able to
make amendments if they desired. A number of States did so, though most
amendments were minor. It is not entirely clear why, then, Schaeffer makes
this point, as it seems to weaken rather than strengthen his argument. We have
already responded to the assertions regarding ‘mini codes’ above. Those
comments apply equally here.

To support the maintenance of the system produced by the Global Code,

Scheaffer suggests the creation of an international advisory council. This
council would ‘issue advisory opinions and rectify ambiguities with the
Global Code’. 52 Scheaffer does correctly identify the arguments of the critics
of this approach and then posits a response to those arguments. Thus, we find
ourselves in the advantageous position of essentially providing a rebuttal.
Scheaffer suggests that critics ignore the success of institutional bodies such
as UNIDROIT and the Hague Conference on Private International Law. With
respect, we fail to see the relevance of this observation, as neither of these
institutions is empowered to make binding amendments to laws. An ability to
issue binding amendments would presumably be necessary to ‘rectify
ambiguities’.

Scheaffer then suggests that his strongest argument is that ‘a limited council
for international sales law is already in existence and has been issuing
advisory opinions for a number of years under the guidance of
UNICTRAL’. 53 Here he is referring to the CISG Advisory Council. The
statement is fundamentally wrong. The CISG Advisory Council does not
operate under the guidance of UNICTRAL. It is a private initiative originally

51
Michael Bonell, ‘The CISG, European Contract Law and the Development of a World
Contract Law’ (2008) 56 American Journal of Comparative Law 1, 17.
52
Scheaffer, above n 4, 482.
53
Ibid.

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114 DEAKIN LAW REVIEW VOLUME 14 NO 1

promoted by the Institute of International Commercial Law, Pace University,

and the Centre for Commercial Law Studies at Queen Mary, University of
London. 54 UNCITRAL is not part of the CISG Advisory Council and does not
attend council meetings. The CISG Advisory Council is possible precisely
because it is not official. (This observation relates to our earlier response to
the suggestion of an official commentary.) An official body capable of
amendment by decree would inevitably become political and unworkable.
Most significantly, it would require diplomacy and, at best, muted critiques.
UNCITRAL and other UN creations exist in a highly charged diplomatic and
political environment. UNCITRAL could not been seen to countenance any
criticism of any UNCITRAL member.

The general idea of an advisory council is a good one. To date the

independent CISG Advisory Council has issued 7 opinions. 55 These opinions
have an intrinsic value and have indeed been used by courts when determining
CISG cases. 56 However, a ‘Permanent Editorial Board’ (PEB) of the sort
Scheaffer suggests, that is, one which would edit and add provisions to the
new Global Code, would not have the expected success. Whether the
proposed Global Code takes the form of a model law or a convention, each
time an amendment or addition is proposed by the PEB a new legislative
process in each member country has to be undertaken. The experience of the
UNCITRAL working groups - for example the group relating to the Model
Law on International Commercial Arbitration - is that individual governments
only start considering the possibility of adopting the modifications proposed
after two or three years. 57 To overcome this problem the PEB would need to

54
See Loukas Mistelis, CISG-AC Publishes First Opinions (2008) Pace Law School Institute of
International Commercial Law <http://www.cisg.law.pace.edu/cisg/CISG-AC.html> at 11
August 2009 and in German: Rolf Herber, Eine neue Institution: Der CISG Advisory Council,
<http://www.globalsaleslaw.org/__temp/CISG-_AC_Herber_intro.pdf> at 11 August 2009 Prof
Herber was head of the German delegation at the Vienna conference.
55
Available at CISG - Advisory Council, Opinions (2008) <http://www.cisgac.com/> at 11
August 2009.
56
TeeVee Tunes Inc v Gerhard Schubert GmbH, CISG-online 1272 (SDNY, 2006)
<http://cisgw3.law.pace.edu/cases/060823u1.html> at 11 August 2009.
57
On December 4, 2006 the General Assembly of the UN passed Resolution 61/33 which
integrated the amendments and additions made to the Model Law on International Commercial
Arbitration of 1985. At the time of writing just four countries have integrated such changes into
their legislation. One might also analogise directly with the UCC and note that the 2003
Revision of Article 2 has only been adopted by the US Virgin Islands – which is, in any event,
not a State of the USA.

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be vested with the power to unilaterally make changes from the inception of
the Code. We believe that countries are very unlikely to grant such a power.58

Similar difficulties would appear with the establishment of an International

Court. 59 We must consider not only the normal managerial tasks for the
creation and administration of such a Court, but also the fact that most legal
systems have established constitutional rules for the application of court
precedents and jurisprudence. Not all jurisdictions endow all their courts with
the same jurisdictional power. Most countries have specific rules regarding
the binding nature of a court decision. Therefore, not only would amendments
be needed in each legal system in order for the authority of an international
court to be recognised, but also a harmonised and uniform system of
interpretational rules and precedents would be necessary within the
International Court.

We next take issue with the suggestion that one official language version of
the proposed Code should prevail over the others in cases of inconsistency.
Scheaffer suggests that there would still be other official language versions,
but the implication is that ultimately English would be the controlling
language. We believe that this would be practically the same as deciding that
there would be only one official version.

English is the most appropriate language in which to communicate the Global

Code principles to those who speak English and are familiar with the English
terminology of trade and trade law. However, not everyone involved in sales
contracts or in related disputes is knowledgeable in English. It seems
unrealistic to believe that the English version of the new Global Code would
be the one consulted by judges who cannot speak the language. Indeed,
looking at the experience of the CISG in German-speaking courts, reference is
usually had to the unofficial German version, though one notable exception
has been the practice of the Swiss Federal Court. 60

58
Naturally, we cannot say for certain that countries would not sign up to a convention with
this sort of delegated authority. There are arguably examples of it already. The Convention on
the Settlement of Investment Disputes between States and Nationals of Other States 1966 (also
known as the ICSID or Washington Convention) could be cited as it provides a mechanism for
some amendment. Article 6 effectively delegates certain powers of amendment to the
Administrative Council. However, it must be noted that the Administrative Council is made up
of a representative of every contracting state, and the delegated authority is limited.
59
Scheaffer, above n 4, 483.
60
Judgment of May 12, 2003, Obergericht des Kantons Luzern, CISG-online 846
(Switzerland).

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An inability of judges (and of jurists in general) to work with a unique English

version would lead to a proliferation of unofficial translations, considerably
increasing the risk of mistranslations (and consequently misinterpretation). To
have six equally official versions would reduce this risk. For example, all
Spanish-speaking countries have adopted the same authentic Spanish text of
the CISG, rather than translating it with their own dialectical differences. 61
Furthermore, almost every national constitution or procedural code guarantees
that all trials and proceedings may be conducted in the official language of the
country. Arguably these laws would need to be amended if there was only one
official English version.

Moreover, according to the organisational rules of the United Nations, the

Secretary-General has to ensure equal treatment of the six official languages
of the United Nations. 62 Consequently, any new text, instrument, convention,
or official document should be translated into all the six official languages of
the United Nations: English, Spanish, Chinese, Arabic, French and Russian.
This would make it impossible for UNCITRAL to produce a single official
English version of the proposed Global Code, unless the ‘equal treatment’
principle were also reformed.

To the extent that we agree with Scheaffer’s criticisms of the CISG, we

cannot see how the proposed Global Code addresses those concerns. Indeed,
we think it more problematic than the CISG. Even if absolute agreement
could be reached among the experts involved in its drafting, it is difficult to
see how a Global Code adoption process involving the entire world would be
as easy as it was for the UCC. This is not only because of political arguments
concerning sovereignty, but because of the myriad of linguistic, infrastructure,
legal and cultural issues it would raise.

The CISG is not a perfect instrument. However, its general acceptance gives it
sufficient authority for it to continue. We certainly agree with Scheaffer when
he suggests that the solution lies in ‘building upon the current state of the
CISG’. 63 However, we do not believe that starting from scratch is the way to
go.

61
Twelve Spanish speaking countries are member states of CISG in the version published by
the UNCITRAL: Argentina, Chile, Colombia, Cuba, Ecuador, El Salvador, Honduras, Mexico,
Paraguay, Peru, Spain and Uruguay: see above n 36.
62
Djamel Moktefi, Pattern of Conferences, UN GAOR, 5th Comm, 52nd sess, Agenda Item 119,
UN Doc A/52/734 (1997).
63
Scheaffer, above n 4, 466.

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Our position can be summarised as follows. We believe in the aspirational

goal of establishing an environment which promotes international trade by
lowering transaction costs. Predictability is a fundamental need in such an
environment. One uniform law applied with absolute uniformity throughout
the world would provide predictability. However, the completely uniform
application of such a law is unrealistic and, in any event, undesirable. It would
be impossible to draft such a law without necessarily and severely restricting
party autonomy and freedom of contract. Rather, the law should be the
framework upon which individually nuanced contracts could be built. It
should provide solutions to the disputes that arise between parties, if the
parties themselves have not already determined a solution. Predictability is
obtained by developed and established avenues of communication. It is also
obtained by developing and establishing means of explaining and
understanding the concepts upon which the framework has been built. This,
then, is not simply a linguistic issue. A conceptual translation tool is required.

PART III: OTHER HARMONISATION EFFORTS

To support our assertion that a new Global Code introduced as a legal statute
is not a realistic idea, we can consider the experience of other relatively recent
harmonisation efforts.

As noted above, international instruments such as the PICC have been

developed in an attempt to progressively harmonise the rules of law for
international commercial contracts. It is often argued that, along with the
Principles of European Contract Law (PECL), the PICC are part of a new lex
mercatoria.

The PICC have proven to be a successful avenue of harmonisation. Soon after

their publication in 1994 court decisions and arbitral awards were already
applying the principles to international contracts.64 Also, the great volume of
scholarship produced during the past fifteen years, on both the 1994 and the
2004 versions, has contributed to their understanding and promoted their
application.

64
Michael Bonell, ‘The UNIDROIT Principles of International Commercial Contracts and the
Principles of European Contract Law: Similar Rules for the Same Purposes?’ (1996) 26
Uniform Law Review 229 <http://www.cisg.law.pace.edu/cisg/biblio/bonell96.html> at 11
August 2009.

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The CISG and the PICC share similarities and contain differences that make
them compatible in their potential combined application to a single contract.

On the one hand, the CISG deals with the international sale of goods, while
the PICC cover contracts in general. But they have many other things in
common. Both are concerned with international, not domestic contracts, and
B2B contracts, not B2C contracts. 65 Many of the rules of the CISG and of the
PICC are the same or similar - for example, those in the CISG on the
formation of the sale contract and PICC Chapter 2 on the formation of
contracts in general. Likewise, while CISG Part III covers the content and the
breach of the sales contract, the PICC deal with the same issues for contracts
in general in Chapters 5, 6 and 7, with important similarities in structure and
content.

The provisions of the PICC which the CISG does not have are broadly
compatible with the CISG and can be integrated by party choice as the law
applicable to particular areas of a contract without disturbing the rules of the
CISG. This is especially true, for example, of the provisions of the PICC on
the validity of contracts.

Nevertheless, and most importantly, both PICC and PECL remain soft law.
They are sets of rules with no binding character unless the parties expressly or
impliedly confer binding force on them to govern a particular contract. Courts
and arbitrators may not generally apply the PICC unless contracts are
subjected to them, or unless the forum law allows the judge or arbitrator to
settle the dispute with due regard to the international principles on contract.
The CISG, on the other hand, has direct application to all international sales
of goods between parties domiciled in a Member State, unless expressly
excluded by them. 66

65
B2B stands for transactions between one business and another business while B2C stands for
transactions between, on the one hand, a business, and, on the other hand, a consumer.
Generally, in B2C transactions, special rules of law are deployed in order to protect the weaker
party in the transaction.
66
See United Nations Convention on Contracts for the International Sale of Goods art 1(a), (b)
and art 6.

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PART IV: AN ALTERNATIVE SOLUTION - THE GLOBAL SALES LAW

PROJECT

The Global Sales Law project is the initiative of Professor Ingeborg

Schwenzer and is run from the University of Basel, Switzerland. Professor
Schwenzer’s name will be well known to those who have had any interaction
with the CISG. Throughout this article we have already cited the commentary
she edited with the late Professor Schlechtriem. 67 She is now the sole editor of
that commentary, which is widely acknowledged as a seminal text in this
field. Professor Schwenzer is also a member of the CISG Advisory Council
referred to earlier.

In Professor Schwenzer’s view the CISG is only part of a solution. As the

CISG critics note, the convention contains gaps and does not deal with certain
aspects of the sales transaction at all. This means that recourse is often had to
domestic sales law. What was therefore required was a comprehensive study
of sales laws from around the world, in essence a resumption of the work
Ernst Rabel began more than 70 years ago.68 This is the motivation behind the
Global Sales Law project.

The project has been made possible by initial funding from the Swiss National
Fund, the Freiwillige Akademische Gesellschaft, the Max-Geldner-Stiftung
and the Stiftung zur Förderung der rechtlichen und wirtschaftlichen
Forschung an der Universität Basel. To enable the undertaking of a genuinely
comparative study, a team of researchers made up of native speakers of each
of the UN languages as well as native speakers of German, has been
assembled. As noted in the introduction, we are both members of that team.
The research conducted over the next two and a half years will culminate in a
handbook. The purpose of this handbook is to forge a global view of
international sales law today.

In the context of this article, one particular aspect of the overall project will be
explained, as it relates directly to the language and conceptual difficulties we
referred to above.

67
Schlechtriem and Schwenzer, above n 11.
68
Ernst Rabel, Das Recht des Warenkaufs : Eine rechtsvergleichende Darstellung des Kaiser-
Wilhelm-Instituts für ausländisches und internationales Privatrecht ; vol 1 (1936); vol 2
(1957).

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A The Global Sales Law Thesaurus

Developing an efficient and effective method of managing the collective

knowledge and research generated was a critical first step of the project.
When considering this issue it became apparent that many of the language and
conceptual difficulties that plague a multilingual convention could also plague
our research. A system that would enable us to genuinely compare like
concepts and contrast unlike concepts was necessary. To make such
comparisons we needed some sort of common point of reference to begin with
– we needed a Rosetta stone. Our Rosetta stone came in the form of the CISG
and other international instruments such as the UNIDROIT Principles (PICC)
and the Principles of European Contract Law (PECL).
The CISG is the perfect Rosetta stone, notwithstanding the various language
and conceptual difficulties that we have already outlined and acknowledged
above. A fundamental assumption that can be made concerning a convention
that has 6 official versions is that each version is intended to mean the same
thing. The same is true of other instruments such as the PICC and PECL.

Each of these instruments has been analysed to indentify the legal concepts it
contains. The precise wording used to explain the concept is then extracted in
each language. This becomes the controlled vocabulary, through which it is
hoped that the language of international sales law will achieve a level of
uniformity. Rather than thinking in terms of differing national languages, the
project participants are drawing a distinction between the language of
International Sales Law and the languages of the domestic sales laws. This
approach does not so much allow the equal treatment of each national
language, but rather removes any distinction between them. The English
expression of a particular international sales law concept is treated as an exact
synonym of the Arabic expression of the same concept. Alternative terms,
phrases and expressions used in the variety of legal systems around the world
are mapped to the controlled vocabulary, based on their relationship with the
legal concept, not the particular term used. The mapping process allows the
international and domestic concepts to be distinguished.

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The box below demonstrates how the Thesaurus works.

AVOIDANCE (CISG Eng)

CT Résolution (CISG Fr)

CT Resolución (CISG Sp)
CT ‫( خسف‬CISG Ar)
CT Расторжение (CISG Ru)
CT 无效 (CISG Ch)
CT Termination (PICC Eng)
CT Résolution (PICC Fr)

Use For Rescission

Use For Cancellation

INE Rücktritt (Germany)

NNE Rücktritt (Switzerland)

NNE Wandlung (Switzerland)
NNE Rescission (England)
NNE ‫( خسف‬Egypt)

NT Notice of Avoidance
NT Declaration of Avoidance
NT Fundamental Breach

BT Remedies

RTerm Damages
RTerm Fundamental Breach

The example concept is ‘avoidance’ (CISG Eng). This exact concept has a
corresponding term (CT) in another international instrument, the PICC.
However there it is referred to in English as ‘termination’. The ‘Use For’ field
indicates non-preferred terms in the context of international sales law. It
encourages the reader to use ‘avoidance’ rather than ‘cancellation’ when

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describing the concept as it exists in international sales law. The next

relationship specified is ‘Identical National Equivalent’ (INE). This
relationship identifies where exactly the same concept exists within the law of
an individual country. In the above example the concept of ‘Rücktritt’ in
German law is exactly the same as the concept of ‘avoidance’ in the CISG. In
contrast, however, the concept of ‘Rücktritt’ in Swiss law is not quite the
same. Because of this difference, its relationship is that of ‘Nearest National
Equivalent’ (NNE). Similarly, the concept of ‘rescission’ in English law is not
quite the same as the concept of ‘avoidance’ in the CISG, and thus it is linked
as an NNE. The other relationships used in the example - ‘Narrower Term’
(NT), ‘Broader Term’ (BT) and ‘Related Term’ (RTerm) - are self
explanatory.

It is expected that the Thesaurus will serve as an important tool for uniform
interpretation, and will overcome the trials and tribulations of language
difficulties. It is anticipated that the Global Sales Law Thesaurus will
primarily operate in the following types of situations:

Scenario 1: A judge in Mexico types a term into the Global Sales Law (GSL)
Thesaurus and can instantly identify that it refers to a different concept in
international sales law than in the domestic Mexican law.

Scenario 2: Imagine a seller (Switzerland) is negotiating the terms of a

contract to sell chairs to a buyer (Egypt). The seller sends the buyer the terms
and conditions of the contract. The terms have a choice of law clause - ‘this
contract is governed by the laws of Switzerland’, for example. There is a word
or phrase in the terms and conditions that the Egyptian buyer does not
understand. The buyer would type the German/French/Italian term into the
Thesaurus and would get its equivalent in Arabic (or any of the other
languages) and be told whether the international concept is the same as the
domestic Egyptian one.

The Thesaurus itself will not explain the differences between international and
national concepts. Its purpose is simply to alert the user to the fact that there is
a difference. Each entry, however, will have a short scope note that will
provide an indication of where further information regarding the difference
can be found. References may be to commentaries, cases, statues and so forth.

Scenario 3: The GSL Thesaurus may also be used as a contract-interpretation

tool, specifically integrated by parties into their international sales contracts.
For example, parties may include clauses such as the following:

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(A) ‘This is an international sales contract. When interpreting the

meaning and definition of terms and obligations in this contract,
regard should be had to the Global Sales Law Thesaurus (2010).’ This
clause may be used when parties want neutral, non-national, specific
principles to apply to their contract. If the Thesaurus extract
reproduced above were used, it would also be evident that German
jurisprudence on ‘Rücktritt’ should be extremely persuasive
regardless of the jurisdiction;

(B) ‘This contract is governed by English law. When interpreting the

meaning and definition of terms and obligations in this contract,
regard should be had to the Global Sales Law Thesaurus (2010) and
the meanings attributed to English law.’ A clause of this kind could be
used when any national law had been specifically chosen. The GSL
Thesaurus would assist interpretation by effectively stating what a
term did not mean.

So, in conclusion, the purpose of the Global Sales Law Thesaurus is to try and
help establish uniform concepts in international sales law by promoting the
use of particular terminology. That terminology (in any of the given
languages) will, it is hoped, come to denote exactly the same concept.

CONCLUSION

It has not been our intention to argue that the CISG is a perfect instrument to
be lauded and accepted by all. By our own standards it is not perfect; indeed
we doubt whether a perfect instrument could ever exist. Rather, the CISG is
an instrument with flaws and holes, but it is real and something to work from.
Already 74 nation states have adopted the convention. The legal system
relating to international sales law can certainly be improved, but the efforts to
do so must be realistic and achievable.

123