The CISG: Applicable Law and Applicable Forums

Abstract

Despite being in effect for over thirty years, a debate continues on whether the United Nations Convention on Contracts for the International Sale of Goods (CISG) has been a success. With 89 Contracting States, it clearly is widely accepted. At the same time, empirical studies show that private parties regularly opt out of its application. It has served as a model for domestic sales law, and as an important educational tool. But has it been a success? In this article I consider that question, and suggests that the scorecard is not yet complete; and that it will perhaps take significantly more time to gauge success or failure. While those who say the CISG has not been a success point to private party failure to choose it as the applicable law, I suggest that the future determination of success of the CISG is likely to be determined as much by choice of forum. Three forums in particular provide significant opportunity for success: large-scale contracts between multinational companies who prefer international commercial arbitration; middle-class contracts that will benefit from the 2005 Hague Convention on Choice of Court Agreements; and small and medium-sized contracts that may benefit most from the development of online dispute resolution (ODR). I consider each of these forums and how the CISG may play a more important role in the future of international sales law.

Keywords: CISG, UN Sales Convention, comparative law, private international law, international arbitration, international litigation, recognition of judgments, international law, international commercial law, sales law, international economic law

JEL Classification: K12, K19, K29, K33, K40, K41, K49