Two New Scholarly Papers on the CISG

The following scholarly papers on the United Nations Convention on Contracts for the International Sale of Goods (CISG) may be of interest.

The first article is by Jan M. Smits (Maastricht University Faculty of Law – Maastricht European Private Law Institute (M-EPLI); University of Helsinki – Center of Excellence in Foundations of European Law and Polity) entitled “Problems of Uniform Sales Law – Why the CISG May Not Promote International Trade”, Maastricht Faculty of Law Working Paper No. 2013/1.  The abstract reads:

The United Nations Convention on Contracts for the International Sale of Goods (CISG) is the prime example of unification of private law at the global level. With over 75 contracting States that make up for an increasing number of the world’s largest economies, the CISG is usually seen as a big success. However, this assessment is largely based on how States perceive the advantages of the CISG. This contribution asks how other actors involved in the legal process (such as commercial parties, attorneys, in house-lawyers and courts) perceive the CISG. To this end, three persistent problems of the CISG are identified: its problematic uniform application by national and arbitral courts, its regular exclusion by parties, and its incompleteness. This calls for recognition that the establishment of a global uniform law is not the only possible way in which international trade can be promoted. It would be equally important to allow parties to make the national jurisdiction of their choice applicable to the contract. The value of the CISG then lies primarily in providing commercial parties with a common frame of reference, allowing them to compare the solutions of the CISG with various national jurisdictions and to act upon this.

The second article is by my colleague, Peter Mazzacano (Osgoode Hall Law School – York University) has published “The Treatment of CISG Article 79 in German Courts: Halting the Homeward Trend”, Nordic Journal of Commercial Law, Issue 2, 2012.  The abstract reads:

This article analyzes the treatment of CISG Article 79 by the German courts. Indeed, as one of the most prolific adjudicators of CISG jurisprudence, there now exists a critical mass of case law on Article 79 in Germany. The focus on a specific CISG provision by a specific jurisdiction wields invaluable information about the treatment of Article 79 by that signatory state. It finds that German courts have played a preeminent role in the interpretation of Article 79. In particular, German courts have generally eschewed the “homeward trend” that has plagued a number of other signatory states. This is an important development towards a conceptual goal of functional uniformity to which the CISG aspires. It also demonstrates that a specific CISG article — Article 79 — can stand alone as an autonomous international principle, without being charged with competing domestic principles. Article 79 has thus evolved — at least in Germany — into an autonomous international norm. This development suggests that Article 79 is capable of creating relative uniformity within the context of the CISG’s goal for a sales law that is truly transnational in design.

 Download a copy of  the Smits paper at SSRN here.

Download a copy of the Mazzacano paper at SSRN here.

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