The United Nations Convention on Contracts for the International Sale of Goods governs contracts for the international sale if (1) both parties are domiciled in Contracting States or (2) private international law leads to the application of the law of a Contracting State (although several Contracting States have declared under the United Nations Convention on Contracts for the International Sale of Goods (Article 95) that they are not bound for the latter reason). The autonomy of the parties to contracts for the international sale of goods is a fundamental theme of the Convention: the parties may derogate from virtually any United Nations rule by agreement or exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods in favour of another law. Where appropriate, the Convention does not regulate all questions that may arise from a contract for the international sale: for example, questions concerning the validity of the contract or the effects of the contract on the ownership of the goods sold, as expressly provided for in the United Nations Convention on Contracts for the International Sale of Goods, do not fall within the scope of the Convention and are left to the law applicable under the rules of private international law (Article 4). Questions concerning matters governed by the Convention but not expressly governed by it shall be decided in accordance with the general principles of the United Nations Convention on Contracts for the International Sale of Goods or, in the absence of such principles, by reference to the law applicable under the rules of private international law. – Obligations to preserve the goods to be sent or returned to the other party. Second, it is questionable whether consent through conduct in a dispute is properly characterized as an exercise of the exclusion in section 6. Article 6 contains nothing on the form of an effective exclusion. Article 8 provides that the consent of the parties may be obtained[16] and that “all relevant circumstances of the case, including (…) Any subsequent conduct of the parties”[17] must be viewed with critical intent. Some scholars argue that this behaviour must be clearly expressed,[18] others argue that Article 8(2) CISG indicates a lower threshold; that the intention is that which would flow from a reasonable person.[19] In any event, courts should be careful to consider alternative explanations for not invoking or arguing the United Nations Convention on Contracts for the International Sale of Goods in the course of the proceedings, as the parties may not intend to exclude it if they are not aware of it.[20] Therefore, the District Court`s reasoning in stating that the United Nations Convention on Contracts for the International Sale of Goods is mandatory, “Rienzi was informed of the possible applicability of the United Nations Convention on Contracts for the International Sale of Goods at the time of filing the complaint”[21] is not satisfactory. The mandatory application of the United Nations Convention on Contracts for the International Sale of Goods requires Rienzi`s lawyer, not Rienzi himself, to know the Convention.[22] Even for those who argue that lawyers are representatives of the parties, it remains to be proven that they knew that the CSIG was applicable and deliberately excluded it.
If this is the case, it could constitute professional misconduct on the part of the lawyer who harmed his client`s interests by excluding the UN Convention on Contracts for the International Sale of Goods, even though the UN Convention on Contracts for the International Sale of Goods would have been favourable to him[23]. Even more difficult, virtually no U.S. court has been able to suspend its legal traditions of contract execution and interpretation in order to participate in the specific type of analysis required by the United Nations Convention on Contracts for the International Sale of Goods to determine whether parties to a contract governed by the United Nations Convention on Contracts for the International Sale of Goods wish to exclude its application. In particular, even if there is a written contract, the content of which indicates that the parties did not intend to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, the United Nations Convention on Contracts for the International Sale of Goods requires courts to consider evidence outside the four corners of the written contract that could prove that the parties nevertheless intended exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, an exercise that is totally beyond the American legal imagination. and is likely to be culturally difficult for the courts to grasp. As a general rule, the CISG framework is likely to be considered more onerous for a supplier, in particular with regard to the conformity of the goods with the contract, compared to the sales laws of stable and established countries. Accordingly, it is still customary for suppliers of goods to insist on excluding the United Nations Convention on Contracts for the International Sale of Goods from the application of their terms of sale if they can enforce the laws of that jurisdiction. Several other UNCITRAL projects are designed to collaborate with CISG. For example, the United Nations Convention on the Limitation Period in Contracts for the International Sale of Goods contains rules on the limitation period for claims arising from contracts for the international sale. The Limitation Convention was originally promulgated in 1974, but amended in 1980 by a protocol adopted by the Diplomatic Conference, which approved the United Nations Convention on Contracts for the International Sale of Goods, in order to harmonize the two Conventions.
At the time of writing, the amended Limitation Convention was in force in 20 States Parties. In 2005, the General Assembly adopted the United Nations Convention on the Use of Electronic Communications in International Treaties to address various issues arising when electronic communication methods are used in the context of international contracts, including international sales contracts. The issues covered by the Electronic Communications Convention include the conclusion of contracts by automated communication, the time and place where electronic communications are deemed to have been sent and received, the determination of the location of parties using electronic communications and the criteria for determining functional equivalence between electronic and printed communications and authentication. At the time of writing, 18 States had signed the Electronic Communications Convention, although no State had yet ratified or acceded to it and it had not yet entered into force. Where appropriate, the Convention deals with both contractual and commercial matters. For example, there are provisions regarding the formation and modification of a contract, the respective responsibilities and obligations of the parties during the transaction, breaches of contract and remedies. Relatively few U.S. court cases deal with the United Nations Convention on Contracts for the International Sale of Goods (CISG). In fact, contracting parties generally agree to exclude its application, probably due to the reluctance of lawyers to familiarize themselves with it[1].
What is even more troubling is that U.S. judges are also unfamiliar with the United Nations Convention on Contracts for the International Sale of Goods and tend to misapply it, often following the Uniform Commercial Code[2] and ignoring[3] that the provisions of the United Nations Convention on Contracts for the International Sale of Goods under Article 7(1) of the United Nations on contracts for the international sale of goods are subject to an autonomous and non-nationalistic interpretation guided by foreign judgments.[4] Foreign affairs are of compelling value[5] and only this approach will achieve the objective of the Convention; To establish uniform rules for the conclusion and performance of international commercial contracts for the sale of goods. Article 1 of the United Nations Convention on Contracts for the International Sale of Goods 1. This Convention shall apply to contracts for the sale of goods between parties having their registered office in different States:(a) where the States are Contracting States; or (b) where the rules of private international law lead to the application of the law of a Contracting State. Article 6 CISGTThe Contracting Parties may exclude the application of this Convention […]. * * *1. To the extent that the United Nations Convention on Contracts for the International Sale of Goods is applicable under articles 1 to 3 CISG, the principle set out in article 6 CISG allows the parties to agree on an exclusion from its application at the time of conclusion of the contract or thereafter.2. The United Nations Convention on Contracts for the International Sale of Goods regulates the terms of exclusion. An agreement on the exclusion of the United Nations Convention on Contracts for the International Sale of Goods is governed by the provisions on conclusion and modification of the contract contained in articles 11, 14-24 and 29 CISG.3. The parties` intention to exclude is in accordance with article 8 CISG. This intention should be clearly expressed, whether at the time of conclusion of the contract or at a later date.
This standard also applies to exclusions during court proceedings.4. In general, such a clear intention to exclude should:(a) result, for example: (i) from the explicit exclusion of the United Nations Convention on Contracts for the International Sale of Goods; (ii) the choice of law of a third country;(iii) the choice of a specifically designated national law or code, if this would otherwise be superseded by the application of the United Nations Convention on Contracts for the International Sale of Goods. (b) should not flow exclusively, for example, from (i) a State Party`s choice of applicable law; (ii) the choice of law by a territorial unit of a State Party.5 The intention to exclude in judicial proceedings cannot arise solely from the fact that one or both parties have not advanced arguments based on the United Nations Convention on Contracts for the International Sale of Goods. This applies regardless of whether one or both parties are unaware of the applicability of the United Nations Convention on Contracts for the International Sale of Goods or not.6. National principles of waiver should not be used to determine the intention of the parties to exclude the United Nations Convention on Contracts for the International Sale of Goods.