New NJCL Article on Conflict of Laws and the CISG

For those interested in private international law (conflict of laws) and the CISG, I have an new article published in the Nordic Journal of Commercial Law, Issue #1 2009, entitled: An “Unconventional Truth”: Conflict of Laws Issues Arising Under the CISG”.

Here is the abstract:

From a contractual perspective, the CISG is generally regarded as the most widely adopted international convention dealing with international business transactions. Currently, 73 countries are parties to the CISG, with the notable exceptions of the United Kingdom, Brazil and India. The number of international court and arbitration decisions is increasing exponentially. Yet, Canadian jurisprudence is lagging far behind. Some possible reasons are: (1) Lack of familiarity with the CISG among contracting parties, primarily due to simplistic contracts, invoices and purchase orders which do not contain a choice of law clause, opting in or out of the CISG; (2) The “Fear Factor”: Commercial lawyers drafting international contracts may be unfamiliar with the CISG’s benefits and prefer provincial sale of goods legislation or other domestic sales legislation. Oftentimes, the choice of law and choice of forum clauses are the last to be considered or negotiated; (3) Canadian litigators have yet to embrace the CISG’s default applicability when drafting pleadings; and, (4) Canadian judges are not yet as familiar with the CISG as their international counterparts, particularly European judges, who benefit from a wealth of CISG caselaw, the Principles of European Contract Law (PECL), UNIDROIT Principles and other international legal instruments.

This article discusses the applicability of the CISG from a Canadian conflict of laws perspective – both in terms of jurisdiction and choice of law. The analysis is framed by providing an outline of the key jurisdictional and choice of law principles developed within Canadian jurisprudence. Following a brief contextual overview of the CISG, Articles 1(1) (a) and 1(1) (b) and Article 6 of the CISG are highlighted, with specific reference to recent Canadian and foreign judicial decisions and foreign arbitral awards involving Canadian parties. The solution for Canadian courts to apply the CISG is relatively simple: both counsel and judges must become familiarized with the CISG in order to identify its applicability. Canadian litigators must know when the CISG is included or excluded when drafting pleadings and to bring forth CISG case law, arbitral decisions and scholarly commentary to the court’s attention. Equally important, Canadian judges must also become well-versed in the CISG to avoid misapplying domestic sales law and case law when rendering a decision. The article concludes with a clarion call to justice stakeholders, particularly, Canadian commercial lawyers and judges, to better understand and apply the CISG in the future.

download in full (pdf)

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