Dr. André Janssen (Centre for European Private Law) has posted “The CISG and Its General Principles“, excerpted from CISG METHODOLOGY, Janssen, Meyer, eds., pp. 261-285, Sellier: Munich, 2009. Here is the abstract:
Art. 7(2) CISG is a crucial provision for the uniform interpretation and application of the CISG. Taking a first look at UNILEX, one can identify 73 decisions from 15 different countries in which this provision has been considered. Under Art. 7(2) CISG, gaps in the Convention are in the first instance filled with the Convention’s general principles. Only if it is impossible to identify a general principle, one can resort to the applicable national law via international private law. Matters not governed at all by the Convention are resolved by direct recourse to domestic law as determined by international private law rules. This basic guideline seems to be easy to understand; however, there are quite a number of difficulties that arise when applying Art. 7(2) CISG. These difficulties result from different aspects: first of all, Art. 7(2) CISG cannot be analysed separately. There is interplay between the interpretation of the Convention as following from Art. 7(1) CISG and the gap-filling provided by Art. 7(2) CISG. Moreover, it is sometimes difficult to make a clear distinction between the matters that are governed by the Convention and those which are not. Finally, references are often made to general principles to not only to fill a gap, but also to bring forward arguments when it comes to the interpretation of unclear provisions. This contribution will first expound when and how Art. 7(2) CISG is to be applied and what general fundamental ideas have to be kept in mind when doing so (see section B.). These preliminary questions are essential for a thorough understanding of this provision and its role for the Convention. After explaining which general principles can be derived from the articles of the Convention and how they have been applied in case law (see section C.), this contribution will in the part thereafter (see section D.) focus on a further and rather remarkable function of general principles besides their function to fill gaps: their use as persuasive arguments to interpret unclear provisions or to settle controversies of how a provision should be understood. Although this function deviates from the clear wording of Art. 7(2) CISG, reference thereto is nevertheless sometimes made.