Who's Afraid of the Vienna Sales Convention (Cisg)? A New Zealander's View from Australia and Japan

Sydney Law School Research Paper No. 06/21

Victoria University of Wellington Law Review, Vol. 36, pp. 815-45, 2005

33 Pages Posted: 8 Feb 2006

See all articles by Luke R. Nottage

Luke R. Nottage

The University of Sydney Law School; The University of Sydney - Australian Network for Japanese Law

Abstract

The United Nations Convention on Contracts for the International Sales of Goods (CISG) has attracted growing numbers of member states, as well as increasingly accessible case law, over the last two decades. However, Japan and the United Kingdom refuse to accede, and some law firms in member states such as the United States, Australia and New Zealand apparently continue to advise clients to opt-out of CISG (pursuant to Article 6) in individual cross-border sales contracts that would otherwise be governed by CISG. This article shows how countries like Japan could benefit from acceding to CISG, and how countries like Australia need to work harder to take full advantage of having acceded.

Part II begins with a case study, based loosely on recent experience in helping a New Zealand company to resolve an escalating problem involving major export sales of vegetables to Japan. It outlines CISG's coherent and straightforward structure, making it easier to work through the many legal and practical issues potentially involved, at least compared to the complex body of contract and sales law in the English tradition. Overall, the key benefits of being able to apply CISG to these transactions are its accessibility, its intelligibility to business people as well as to legal professionals, and its potential for consistent interpretation (particularly if combined with dispute resolution through arbitration). Generalizing even further, Part III then considers - but mostly rejects - possible objections in fact broadly related to those points. One set of objections stems from traditional lawyers' preference for the familiar - and, to outsiders, the mysterious. Relatedly, especially in Anglo-Commonwealth jurisdictions, they favor more elaborated sets of norms, with their own unifying principles and supporting institutions. But the deep-rootedness of such objections suggests that certain psychological barriers, now quite well-known in other areas of law and life (particularly in law and behavioral economics), may also be limiting full engagement with CISG. Part IV therefore ends by looking for ways of overcoming such biases and institutional inertia, calling for renewed efforts by law reformers, teachers and especially practitioners, as well as sketching some broader theoretical implications for the globalization and harmonization of commercial law.

Keywords: contract law, comparative law, Asian law, Japan, Australia, New Zealand behavioural law and economics

JEL Classification: K12

Suggested Citation

Nottage, Luke R., Who's Afraid of the Vienna Sales Convention (Cisg)? A New Zealander's View from Australia and Japan. Sydney Law School Research Paper No. 06/21; Victoria University of Wellington Law Review, Vol. 36, pp. 815-45, 2005. Available at SSRN: https://ssrn.com/abstract=880372

Luke R. Nottage (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

The University of Sydney - Australian Network for Japanese Law

Room 640, Building F10, Eastern Avenue
Sydney, NSW 2006
Australia

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