Archive for the ‘CISG’ Category

“International Commercial Transactions: Sales of Goods and Cross-Border Financing | New England Law | Boston

January 31, 2013

I will be speaking at the upcoming “International Commercial Transactions: Sales of Goods and Cross-Border Financing” program, to be held at the New England Law | Boston, Center for Business Law on February 21, 2013 (1:00 pm-3:00 pm), discussing Transnational Sales of Goods- CISG.

Here is the program announcement:

Center for Business Law   Program and Forum for Faculty and Students – New England Law   Boston

Two New Scholarly Papers on the CISG

January 23, 2013

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.

Lisa Spagnolo on “Iura Novit Curia and the CISG: Resolution of the Faux Procedural Black Hole”

February 22, 2012

Spagnolo Bio Pic InsertLisa Spagnolo (Monash University – Faculty of Law) has published “Iura Novit Curia and the CISG: Resolution of the Faux Procedural Black Hole” in I. Schwenzer & L. Spagnolo, Towards Uniformity: The 2nd Annual MAA Schlechtriem CISG Conference, Eleven International Publishing (2011) 181-221. The Introduction reads:

“A growing line of cases points to a potential black hole in the CISG. Through a combination of domestic procedural rules and waiver principles it seems many cases to which the CISG clearly applies are being determined on the basis of inapplicable law, simply because counsel failed to mention the CISG.

This result is at worst incorrect, and at best, unsatisfactory. In my view, judges (and to a lesser extent, arbitrators) who realize the CISG applies to the case before them rather than the local sales law presented by counsel, often should, and in many cases, must apply the CISG. In this article I will present the case for how and why this should occur, regardless of local procedural ground rules.

The chapter begins in Part 2 with a typical factual setting and examples of it in practice. Part 3 presents the traditional view, according to which the forum’s procedural rules should provide the solution, outlines the nature of iura novit curia, and queries whether observed diversity in outcomes can be attributed to variance in procedural rules or interpretation of the CISG. The balance of the chapter attempts to provide a resolution to the problem that will improve certainty. Parts 4 and 5 respectively pose and analyse the questions so often obscured by the approach taken in the cases and by the traditional view: is there an obligation to apply the CISG if it is not pleaded? And if so, does failure to plead the CISG  per se amount to an agreement to exclude it? Part 6 puts forward a range of practical solutions, and Part 7 draws some brief conclusions.”

The paper is available for free download via the Pace Law School CISG Database here [pdf link].

Dedek and Carbone, “Complexity of Transnational Sources: Reports to the XVIIIth International Congress of Comparative Law”

September 27, 2011

Helge Dedek (McGill University – Faculty of Law) and Alexandra Carbone, student-at-law (Osler Hoskin & Harcourt LLP) have posted “Complexity of Transnational Sources: Reports to the XVIIIth International Congress of Comparative Law”, ISAIDAT Law Review, Special Issue 3. The abstract reads:

In this report to the International Academy of Comparative Law, we describe the Canadian response to the transnational challenge while in particular focusing on the “complexity” of transnational law as one of its most challenging characteristics. Our inquiry is divided into two sections that address two different aspects of this complexity. First, we set out to find a trace of a specifically Canadian “legal culture” in response to the challenge that global legal pluralism poses to a legal discourse accustomed to thinking in terms of national positive law and national sovereignty; we will outline the reactions in academia, legal education, and the judiciary. Second, we turn to another, maybe less lofty aspect: the fact that the application of law is made technically more difficult by the proliferation of transnational legal sources. In this second section, we will outline the intricacies of the implementation of international instruments in Canadian law, and discuss the problematic repercussions of the technical complexification of law in core areas of private law, with a focus on the “plight” of the United Nations Convention on Contracts for the International Sale of Goods (CISG) in Canada.

A copy of the article is available for download on SSRN here.

Donald J. Smythe, “The Road to Nowhere: Caterpillar v. Usinor and CISG Claims by Downstream Buyers Against Remote Sellers”

September 15, 2011

Donald J. Smythe (California Western School of Law) has posted “The Road to Nowhere: Caterpillar v. Usinor and CISG Claims by Downstream Buyers Against Remote Sellers”, George Mason Journal of International Commercial Law, Vol. 2, Issue 2, Spring 2011. The abstract reads:

The UN Convention on Contracts for the International Sale of Goods (CISG) was intended to unify international sales law and facilitate the expansion of international trade. It was, however, the product of a bargain between representatives from diverse legal systems and its rules are spare. This invites parties to international sales disputes to argue that its preemptive effect is narrow and that domestic legal rules should be used to fill the gaps. Courts are notoriously prone to the “homeward trend bias” and have frequently accepted such arguments. In Caterpillar v. Usinor the federal district court for the Northern District of Illinois accepted an argument that the preemptive effect of the CISG was limited to contract claims by the seller’s immediate buyer. It thus construed the CISG to require privity of contract. It also allowed the downstream buyer to make a domestic contract claim against the remote seller under the common law doctrine of promissory estoppel. This confounded both the CISG and Illinois law. If followed, Caterpillar will not only create disunity in international sales and impede good faith in international trade, it will also diminish the amount and value of information remote sellers provide about their goods and distort their decisions about their distribution systems. Courts should instead construe the CISG to preempt all domestic contract claims and find a way of allowing downstream buyers to make claims against remote sellers under the CISG itself. The CISG can be construed to allow downstream buyers to make claims against remote sellers under Article 16(2)(b), a provision that is similar to the common law doctrine of promissory estoppel.

Download the paper from SSRN here.

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