Globalization of Law as Documented in the Law on International Sales of Goods

Abstract

This paper, presented as part of the 2008-09 Willy Delva Lecture series at the University of Gent (Belgium) and published in Nieuw Internationaal Privaatrecht: Meer Europees, Meer Globaal 541 (J. Erauw & P. Taelman, eds.) (Kluwer, 2009), explores the extent to which the United Nations Convention on Contracts for the International Sales of Goods (“CISG”) is meeting the most fundamental challenge it confronts. The CISG adopts a particularly demanding vision of globalized law, but eschews the most potent means to achieve the uniform interpretation that vision requires. The CISG relies instead on an admonition that it be interpreted with regard for, inter alia, “its international character and the need to promote uniformity in its application....” Remarkable resources have appeared to aid in achieving this goal, creating a new information infrastructure and a new method of conducting legal research and practicing law. This paper analyzes three specific issues to test the success of courts and arbitral panels in employing these resources and achieving a uniform interpretation of the CISG: 1) the interpretation of choice of law clauses that designate the law of a Contracting State; 2) determining whether a seller must deliver goods that comply with domestic regulations of the buyer’s state; 3) incorporation of standards terms under the CISG, including adoption of the “rolling contract” theory under the Convention. Examining the treatment of these issues shows a mixed picture of success in implementing the uniformity mandate of the CISG, but one that leaves the author hopeful about the future of the Convention and its lofty ambitions.

Keywords: International Commercial Law, the United Nations Sales Convention, CISG, Interpretation of the CISG; Uniformity, Choice of Law Clauses, Warranties, Mussels Case, Obligation to Comply with Regulations of Buyer’s Jurisdiction, Standard Terms, Battle of the Forms, Rolling Contract Theory