To Exclude, to Ignore, or to Use? Empirical Evidence on Courts’, Parties’ and Counsels’ Approach to the CISG (With Some Remarks on Professional Liability)
31 Pages Posted: 9 Jan 2012 Last revised: 31 Jul 2014
Date Written: December 16, 2011
In discussions about the practical importance of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG), it has frequently been stated that parties "generally" or "often" exclude the Convention. Usually, such allegations are made without any empirical support being cited.
This Chapter collects and organizes the increasing empirical evidence on how the CISG is excluded, ignored or actively used in practice, thereby measuring rumors against reality. The main part of the Chapter describes the existing empirical as well as anecdotal evidence on the CISG’s role as law in practice and attempts some explanations for the evidence found. It commences by (1) summarizing past empirical research on the CISG and continues by addressing the approaches demonstrated by (2) the courts, (3) by counsel and eventually (4) by the parties to international sales contracts. The following section outlines the possible risks that legal practitioners face when they ignore the CISG, thereby potentially exposing themselves to claims for professional malpractice. The final section briefly concludes.
In summary, the Chapter proves that the claim of the CISG being “generally excluded” in practice, although still often heard and read, is not supported by empirical evidence. In particular, the courts in many CISG Contracting States are increasingly adopting a positive position towards the Convention, developing what can be categorized as a pro-Convention bias. Its practical effect is that agreements between the parties to exclude the Convention under Article 6 CISG - often drafted by counsel, not the parties themselves - are subjected to strict standards, therefore frequently failing to effectively exclude the CISG’s application. The approach of buyers and sellers towards the Convention is more difficult to determine, since empirical and anecdotal evidence is hard to find. The evidence that exists indicates an openness towards the CISG, with little if any general preference for domestic sales law instead of the Convention. The most skeptical position with respect to the CISG’s application can be found among legal counsel, some of whom try to avoid the investment of time and money necessary to familiarize themselves with its rules. Ignorance of the CISG, however, is no longer an attractive option for counsel when viewed against the risk of professional liability, which by now has become very real.
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