Judicial Refusal to Apply Treaty Law: Domestic Law Limitations on the CISG's Application

40 Pages Posted: 21 Sep 2016 Last revised: 11 Oct 2016

See all articles by Clayton P. Gillette

Clayton P. Gillette

New York University School of Law

Steven D. Walt

University of Virginia School of Law

Date Written: September 19, 2016

Abstract

In numerous cases, courts have declined to apply the United Nations Convention on Contracts for the International Sale of Goods in litigation where the parties have pleaded domestic law, notwithstanding that the underlying contract satisfies criteria necessary for the CISG to serve as governing law. Courts that have reached this conclusion maintain that domestic procedural law permits exclusion of the CISG notwithstanding that it would otherwise be applicable. Other courts and numerous commentators maintain that the judicial refusal to apply to the CISG in these cases violates both the substantive provisions of the CISG and the law of treaties that governs the obligations of states that have adopted it. In this article, we maintain that courts that invoke domestic procedural doctrines to avoid application of the CISG are acting reasonably and consistently with the intent of Contracting States. In the first instance, the substantive provisions of the CISG do not preclude use of procedural doctrines in as broad of a set of cases as commentators who read the domain of the CISG more broadly maintain. More generally, the argument that states are obligated to subordinate domestic procedural doctrines where a treaty is silent about its effect on those doctrines fails to consider whether those states intended to displace domestic procedures. We conclude that in the case of many treaties, including the CISG, the appropriate default rule would consider the costs to the signatory state of displacing domestic procedures, and that those costs would often lead a state to desire to allow its domestic procedural doctrines to prevail over application of substantive treaty provisions.

Keywords: International Sales, Contracts, Treaties, CISG

JEL Classification: D86, K12, k33

Suggested Citation

Gillette, Clayton P. and Walt, Steven D., Judicial Refusal to Apply Treaty Law: Domestic Law Limitations on the CISG's Application (September 19, 2016). Virginia Law and Economics Research Paper No. 2016-18, Virginia Public Law and Legal Theory Research Paper No. 2016-56, NYU Law and Economics Research Paper No. 16-39, NYU School of Law, Public Law Research Paper No. 16-44, Available at SSRN: https://ssrn.com/abstract=2841055

Clayton P. Gillette (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States
212-998-6749 (Phone)
212-995-4692 (Fax)

Steven D. Walt

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
804-924-7930 (Phone)
804-924-7536 (Fax)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
130
Abstract Views
903
rank
261,707
PlumX Metrics