The CISG as Soft Law & Choice of Law: Gōjū Ryū?
Monash University - Faculty of Law
March 30, 2014
Larry DiMatteo (Ed), International Sales Law: A Global Challenge (Cambridge 2014) (Pre-Publication Version)
Monash University Faculty of Law Legal Studies Research Paper 2013/52
The CISG is hard law. Yet in many ways, it arguably mimics soft law in its operation and impact. This has much to do with the pedestal upon which the CISG places party autonomy, since it enables parties to modify its provisions or exclude its application altogether. However, whether parties actually exercise their autonomy in this way is itself influenced by factors relevant to their choice of law more broadly.
In this Chapter it is argued that the CISG behaves like soft law in many senses. It argues that rather than taking a purely doctrinal approach, an interpretive approach which takes into account the effect on party choices of law when choosing between otherwise equally valid interpretations may help mould the CISG in a manner more conducive to its underlying aims. In this context, treating the CISG as a ‘soft’ or ‘optional’ law can focus attention on the effect of interpretation upon choices of law.
Soft law depends entirely upon its acceptability to potential users, primarily in terms of its economic value, for its effectiveness. Likewise, if factors which affect choices of law by parties are taken into account in interpretation, the CISG may become more desirable. This may increase the frequency with which the CISG is ultimately applied and its comparative efficiency vis-à-vis other choices of law. This in turn, will enhance its impact and arguably improve the efficiency of international trade.
Number of Pages in PDF File: 24
Keywords: CISG, soft law, UNIDROIT Principles, UCP, Incoterms, choice of law, commodities
JEL Classification: K12, K33, F23, D23, D79, D83
Date posted: April 1, 2014 ; Last revised: June 3, 2014