CISG

Structure
 Introduction
• The CISG has four easy distinguishable
parts (sphere of application, formation,
rights and obligations of parties, final
provisions).
• The text of the Convention is introduced
by a Preamble (2) and concludes with an
Authentic Text and Witness clause (3).
• In between are the 101 substantive articles of the
CISG, which are organized into four Parts.

• Part I (“Sphere of application and general

provisions”), which encompasses articles 1-13 of
the Convention, is subdivided into two Chapters:
Chapter I (“Sphere of application”), which covers
articles 1-6, and Chapter II (“General provisions”),
which includes articles 7-13.
• Articles 14-24 comprise Part II of the
Convention (“Formation of contract”).
Part II is not further subdivided.

The largest part of the Convention is Part

III (“Sale of goods”), which covers articles
25-88.
• Part III is organized into five chapters :
• Chapter I (“General provisions”) consists of
articles 25-29.
• Chapter II (“Obligations of the seller”) is
comprised of articles 30-52, and itself is
subdivided into Section I (“Delivery of goods and
handing over of documents,” articles 31-34),
Section II (“Conformity of goods and third party
claims,” articles 35-44), and Section III
(“Remedies for breach of contract by the seller,”
articles 45-52).
• Chapter III (“Obligations of the buyer”)
incorporates articles 53-65, and in turn is
subdivided into Section I (“Payment of the
price,” articles 54-59), Section II (“Taking
delivery,” article 60), and Section III
(“Remedies for breach of contract by the
buyer,” articles 61-65).
• Chapter IV (“Passing of risk”) includes articles
66-70.
• Finally, chapter V (“Provisions common to the
obligations of the seller and of the buyer”)
encompasses articles 71-88, and is arranged into six
sections: Section I (“Anticipatory breach and instalment
contracts,” articles 71-73); Section II (“Damages,”
articles 74-77); Section III (“Interest,” article 78);
Section IV (“Exemption,” article 79-80); Section V
(“Effects of avoidance,” articles 81-84); and Section VI
(“Preservation of the goods,” articles 85-88).
• - The last Part of the Convention is Part IV (“Final
provisions”), which consists of articles 89-101.
 OVERVIEW ON THE PREAMBLE

• The preamble to the CISG declares its

background, nature, general purposes
and approaches.
• It begins by stating that the parties to the
Convention are States, and ends by
averring that the Convention is an
agreement of such States.
• Between these two statements are three
main clauses, the fist two of which place
the CISG in the context of broader
international programmes and goals, and
the third of which focuses on the specific
purposes and methods of the
Convention.
• The fist of the main clauses of the
Preamble (“Bearing in mind . . .”)
suggests that the CISG is consistent with
the “broad objectives” of the United
Nations resolutions to establish a “New
International Economic Order.”
• The second (“Considering that . . .”)
indicates that the CISG project promotes
“friendly relations among States” by
fostering “the development of
international trade on the basis of
equality and mutual benefit.”
• The latter theme is continued in the third
clause, which declares that promoting
“the development of international
trade,” along with “the removal of legal
barriers in international trade,” are
particular purposes of the CISG, as well
as anticipated results of its adoption.
• The third clause also describes particular
aspects of the Convention that advance
those goals—specifially, the status of the
CISG as a set of “uniform rules”
(emphasis added) for international sales,
and its success in “tak[ing] into account
the different social, economic and legal
systems.”
• The emphasis here on uniformity and on
transcendence of particular legal and
socio-economic traditions is amplified in
article 7(1) of the substantive CISG,
which mandates that the Convention be
interpreted with regard “to its
international character and to the need
to promote uniformity in its application.”
 USE OF PREAMBLE IN DECISIONS
• Although the Preamble does not contain
substantive rules of sales law, it has been
invoked by tribunals in the course of resolving
disputes governed by the Convention.
Specifically, the Preamble has been cited to
support the conclusion that certain domestic
law causes of action related to a transaction
governed by the CISG were pre-empted by the
Convention.
• Case No. 579 [U.S. District Court, Southern District of New
York, United States, May 10, 2002, available on the Internet
at:
• http://cisgw3.law.pace.edu/cases/020510u1.html
• The court cited language from the third main clause of the
Preamble (“the adoption of uniform rules which govern
contracts for the international sale of goods and take into
account the different social, economic and legal systems
would contribute to the removal of legal barriers in
international trade and promote the development of
international trade”) in support of its holding that the CISG
pre-empted contract claims based on internal domestic
law.
• See also U.S. District Court, Northern District of
Illinois, United States, 3 September 2008 (CAN
Int’l, Inc. v. Guangdong Kelon Electronical
Holdings), available on the Internet at
http://cisgw3.law.pace.edu/cases/080903u1.html

(“[T]he CISG drafters’ goal was to remove legal

barriers to international trade”).
 Part I - Sphere of application and
general provisions
• Part 1 of the Convention addresses the
question—preliminary to all others under the
CISG—of the applicability of the Convention, as
well as general matters such as interpretation and
formality requirements.
• It is divided into two chapters:
• Chapter I, “Sphere of application,” encompasses
articles 1-6 of the CISG;
• Chapter II, “General provisions,” covers articles 7-
13.
 Chapter I: SPHERE OF APPLICATION
(art. 1 – art.6)
• Chapter 1 of Part I of the CISG contains
provisions defining the scope of the
Convention.
• Articles 1-3 identify transactions to which
the CISG does and does not apply.
• Art. 1(1) of the Vienna Convention regulates
the applicability in the following way:
“This Convention applies to contracts of sale of
goods between parties whose places of
business are in different States:
(a) when the States are Contracting States; or
(b) when the rules of private international law
lead to the application of the law of a
Contracting State.”
• The fact that the parties have their places
of business in different States is to be
disregarded whenever this fact does not
appear either from the contract or from
any dealings between, or from
information disclosed by, the parties at
any time before or at the conclusion of
the contract.
• The Convention does not apply to every
kind of contracts for the international
sale of goods; rather, its sphere of
application is limited to contracts for the
sale of goods that meet a specific
internationality requirement set forth in
article 1.
• Pursuant to that provision, a contract for
the sale of goods is international when
the parties have—at the moment of the
conclusion of the contract—their
relevant places of business in different
States.
• One court stated that the relevant places of
business of the parties are their “principal
places of business”.
• U.S. District Court, Eastern District of
Pennsylvania, United States, 29 January 2010,
available on the Internet at
http://cisgw3.law.pace.edu/cases/100129u1.h
tml#ii.
• The concept of “place of business” is critical
in the determination of internationality.
• The Convention, however, does not define
it, although it does address the problem of
which of a party’s multiple places of
business is to be taken into account in
determining internationality (article 10).
• According to several courts, “place of business”
can be defined as “the place from which a
business activity is de facto carried out [...]; this
requires a certain duration and stability as well as
a certain amount of autonomy”.
• Example: case No. 867 [Tribunale di Forlì, Italy, 11
December 2008],
• English translation available on the Internet at
http://cisgw3.law.pace.edu/cases/081211i3.html
• Neither the nationality of the parties nor
the civil or commercial character of the
parties or of the contract is to be taken
into consideration in determining the
application of this Convention.
• Indeed, the internationality requirement is not
met where the parties have their relevant
places of businesses in the same country.
• This is true even where they have different
nationalities, as article 1 (3) states that “the
nationality of the parties [...] is [not] to be
taken into consideration in determining the
application of this Convention”.
• Also, the fact that the place of the conclusion
of the contract is located in a different State
from the State in which the performance takes
place does not render the contract
“international”.
• For the purposes of the Convention’s
applicability, the parties’ civil or commercial
character is also irrelevant.
• The places of business of the parties as
determined in this fashion are the ones
relevant to analyzing whether the
contract is international.
• According to article 1 (2), internationality is
irrelevant where “the fact that the parties
have their places of business in different
States [...] does not appear either from the
contract or from any dealings between, or
from information disclosed by, the parties at
any time before or at the conclusion of the
contract”.
• Thus, the Convention protects the
parties’ reliance upon what appears to
be a domestic setting for a transaction.
• The party that asserts that the
Convention is not applicable because
the internationality of the contract was
not apparent must prove its assertion.
• Remark: autonomous applicability
• The internationality of a contract for the
sale of goods, by itself, is not sufficient to
make the Convention applicable.
• Article 1 (1) lists two additional alternative
criteria for applicability, one of which has to
be met in order for the Convention to apply
as part of the law of the forum.
• According to the criterion set forth in article 1 (1)
(a), the Convention is “directly” or
“autonomously” applicable, i.e., without the
need to resort to the rules of private
international law, when the States in which the
parties have their relevant places of business are
Contracting States.
• As the list of Contracting States grows, this
criterion is leading to application of the
Convention in an increasing number of cases.
• This is true, unless the parties have
designated a given law with the intention
to exclude the Convention, which they
are allowed to do
pursuant to article 6.
• Another element that deserves to be
mentioned is that contracting parties having
their place of business in states that have not
adopted the CISG may well have their contract
governed by the Vienna Convention.
• However, care has to be taken in the choice of
the governing law to such contracts.
• It must be of a state that has adopted the
CISG.
• The articles on scope of application indicate both
what is covered by the Convention and what is
not covered.
• The Convention applies to contracts of sale of
goods between parties whose places of business
are in different States and either both of those
States are Contracting States or the rules of
private international law lead to the law of a
Contracting State.
• A few States have availed themselves of the
authorization in article 95 to declare that they
would apply the Convention only in the
former and not in the latter of these two
situations.
• As the Convention becomes more widely
adopted, the practical significance of such a
declaration will diminish.
• The Convention may also apply as the law
applicable to the contract if so chosen by
the parties.
• In that case, the operation of the
Convention will be subject to any limits on
contractual stipulations set by the
otherwise applicable law.
• A special focus should be devoted to the
contracts governed by the Convention.
Indeed, the Convention applies to contracts
for the sale of goods—irrespective of the
label given to the contract by the parties.
• Although the Convention does not provide
any definition of this type of contract, an
autonomous description can be derived
from articles 30 and 53.
• Thus, a contract for the sale of goods
covered by the Convention can be defined
as a contract pursuant to which one party
(the seller) is bound to deliver the goods
and transfer the property in the goods sold
and the other party (the buyer) is obliged to
pay the price and accept the goods.
• One court has declared that the
essence of the contract governed by
the Convention lies in goods being
exchanged for money.
• Example: case No. 328
[Kantonsgericht des Kantons Zug,
Switzerland, 21 October 1999]
• The Convention covers contracts for the
delivery of goods by installments, as can
be derived from article 73 of the
Convention, and contracts providing for
the delivery of the goods sold directly
from the supplier to the seller’s
customer.
• Pursuant to article 29, contracts
modifying a sales contract also fall
within the substantive sphere of
application of the Convention.
• Art. 2 of the Vienna Convention
stipulates that sales contracts of goods
bought for personal, family or household
as well as for auction, stocks, shares, ship
vessel and much else do not apply to
CISG.
• Where the parties wish the Convention
not to apply to their contract but any
national law of their choice, or they wish
to “derogate from or vary the effect of
any of its provisions”, they may do so
according to Art. 6 of the CISG but have
to consider Art. 12 that regulates the
form of contract.
• The exclusion of CISG to a contract may
be stipulated in the corresponding
provision as e.g.: “The contract shall be
governed exclusively by the laws of
Switzerland excluding CISG”.
• The Convention contains a list of types of
sales that are excluded from the
Convention, either because of the
purpose of the sale (goods bought for
personal, family or household use), the
nature of the sale (sale by auction, on
execution or otherwise by law) or the
nature of the goods
• (stocks, shares, investment securities,
negotiable instruments, money, ships,
vessels, hovercraft, aircraft or
electricity).
• In many States some or all of such sales
are governed by special rules reflecting
their special nature.
• Important: Article 3 contains a special
rule which extends—within certain
limits—the Convention’s substantive
sphere of application to contracts for the
sale of goods to be manufactured or
produced as well as to contracts
pursuant to which the seller is also
bound to deliver labour or services.
• Most courts considering the issue have
concluded that the Convention does not
apply to distribution agreements, or
framework agreements, as these
agreements focus on the “organization of
the distribution” rather than the transfer
of ownership of goods.
• A great number of cases demonstrate the
various contracts for the sale of goods
concluded in execution of a distribution
agreement, can, however, be governed
by the Convention, even where the
distribution agreement was concluded
before the entry into force of the
Convention.
• Contracts of sale are distinguished from
contracts for services in two respects by
article 3.
• A contract for the supply of goods to be
manufactured or produced is considered to
be a sale unless the party who orders the
goods undertakes to supply a substantial
part of the materials necessary for their
manufacture or production.
• When the preponderant part of the
obligations of the party who furnishes
the goods consists in the supply of labour
or other services, the Convention does
not apply.
• Franchise agreements also fall outside the
Convention’s sphere of application.
• A legal contract in which a well established
business consents to provide its brand,
operational model and required support to
another party for them to set up and run a
similar business in exchange for a fee and
some share of the income generated.
• The franchise agreement lays out the
details of what duties each party
needs to perform and what
compensation they can expect.
• In addition, it appears from certain
arbitral tribunals that the Convention
does not apply to barter transactions.
• Barter is the act of trading goods and
services between two or more parties
without the use of money.
• Bartering benefits individuals, companies and
countries that see a mutual benefit in exchanging
goods and services rather than cash, and it
enables those who are lacking hard currency to
obtain goods and services.
• A barter transaction involves two parties and is
one where one basket of goods and services is
exchanged for another basket of different goods
and services without any accompanying
monetary payment.
• Example: Tribunal of International Commercial
Arbitration at the Russian Federation Chamber
of Commerce and Industry, Russian
Federation, 9 March 2004, English translation
available on the Internet at:
http://cisgw3.law.pace.edu/cases/040309r1.h
tml
• But according to a different arbitral tribunal, the
Convention does govern barter transactions.
• Tribunal of International Commercial Arbitration
at the Ukrainian Chamber of Commerce and
Trade, Ukraine, 10 October 2003,
English translation available on the Internet at
http://cisgw3.law.pace.edu/cases/031010u5.html
• The Convention does not define “goods”.
• This does not mean one should resort to one’s
domestic definition.
• In light of article 7 (1), the concept of “goods”
should be interpreted autonomously, in light
of the Convention’s “international character”
and “the need to promote uniformity in its
application”, rather than referring to domestic
law for a definition.
• According to case law, “goods” in the sense of
the Convention are items that are, at the
moment of delivery, “moveable and tangible”,
regardless of their shape and whether they
are solid, used or new, inanimate or alive.
Remark: “Intangible”, such as intellectual
property rights, goodwill, an interest in a
limited liability company, or an assigned debt,
have been considered not to fall within the
Convention’s concept of “goods”.
• The same is true for a market research study.
• According to one court, however, the
concept of “goods” is to be interpreted
“extensively,” (case No. 281
[Oberlandesgericht Koblenz, Germany, 17
September 1993) perhaps suggesting that
the Convention might apply to goods that
are not tangible.
• Whereas the sale of computer hardware
clearly falls within the sphere of application of
the Convention, the issue is not so clear when
it comes to software.
• Some courts consider only standard software
to be “goods” under the Convention; another
court concluded that any kind of software,
including custom-made software, should be
considered “goods”.
• Articles 4 and 5 describe issues that are
and are not addressed in the Convention.
Article 6 contains a broad principle of
party autonomy that can affect both the
transactions and the issues that are
governed by the CISG.
• Importance of Article 4:
• This Convention governs only the formation of the
contract of sale and the rights and obligations of the
seller and the buyer arising from such a contract.
• In particular, except as otherwise expressly provided
in this Convention, it is not concerned with:
(a) The validity of the contract or of any of its
provisions or of any usage;
(b) The effect which the contract may have on the
property in the goods sold.
• The fist sentence of article 4 lists matters
to which the Convention’s provisions
prevail over those of domestic law, i.e.,
the formation of contract and the rights
and obligations of the parties.
• The second sentence contains a non
exhaustive list of issues with which, except
where expressly provided otherwise, the
Convention is not concerned, namely, the
validity of the contract or any of its provisions
or any usage, as well as the effect which the
contract may have on the property in the
goods sold.
• The issues referred to in the second part
of article 4 were excluded from the
Convention because dealing with them
would have delayed the conclusion of the
Convention.
• Some courts state that the Convention is
exhaustive.
• Still, there are matters not governed by
the Convention.
• These matters are to be settled either in
conformity with the applicable uniform
rules (…)
• Example: case No. 202 [Cour d’appel de
Grenoble, France, 13 September 1995]
(stating that the assignment of receivables
(cession de créances) is not governed by the
Convention and applying the 1988 UNIDROIT
Convention on International Factoring as the
assignment fell under its sphere of
application.
• International factoring may be defined as the sale
of assignments of short-term (generally 120 days
or less) accounts receivable arising from an
international sale of goods or services.
• Le financement de factures sur l’étranger, lié a la
vente de missions de courte durée (généralement
120 jours ou moins) en guise de solution à la
gestion des créances des clients export.
• or the applicable domestic law to be
identified on the basis of the rules of private
international law of the forum.
• Issues dealt with by the Convention:
As far as formation of the contract is
concerned, the Convention merely governs
the objective requirements for concluding the
contract.
• The issue of whether a contract is validly
formed, however, is subject to the
applicable national rules, except for
those issues as to which the Convention
provides exhaustive rules.
• Thus, issues such as capacity to contract
and the consequences of mistake, duress
and fraud are left to the applicable
domestic law, as are those of
misrepresentation and negligence.
• Where, however, if one party errs
concerning the quality of the goods to be
delivered or the solvency of the other
party, the rules of the otherwise
applicable law give way to those of the
Convention, since the Convention
exhaustively deals with those matters.
• Other issues not dealt with by the Convention:
• The Convention itself expressly lists several
examples of issues with which it is not
concerned. (in addition to the issues listed in
article 4, we will refer later to article 5 which
provides that the “Convention does not apply
to the liability of the seller for death or
personal injury caused by the goods to any
person”).
• There are many other issues not governed by the
Convention.
• Courts have identified the following additional
issues as beyond the Convention’s scope of
application:
• the validity of a choice of forum clause,
• the validity (and scope) of a penalty
clause,
• the validity of a settlement agreement,
• an assignment of receivables,
• assignment of a contract,
• set-off (at least where the receivables do not
all arise from contracts governed by the
Convention),
• the theory of imprévision,
• the statute of limitations (délais de
prescription),
• the issue of whether a court has jurisdiction
and,
• generally, any other issue of procedural law,
• an assumption of debts,
• an acknowledgement of debts,
• the effects of the contract on third parties
• as well as the issue of whether one is jointly
liable.
• According to some courts, the
Convention does not deal with tort
claims:
• Case No. 579 [U.S. District Court,
Southern District Court of New York,
United States, 10 May 2002].
• Some courts have found that estoppel issues
are not governed by the Convention (Issue
estoppel applies to issues of fact or of law or
of mixed fact and law)
• U.S. District Court, Northern District of
Illinois, United States, 30 March 2005,
available on the Internet at
http://cisgw3.law.pace.edu/cases/050330u1.
html
• Other courts have concluded that
estoppel should be regarded as a general
principle of the Convention.
• Case No. 230 [Oberlandesgericht
Karlsruhe, Germany, 25 June 1997]
• A court has also ruled that the question of
priority rights in the goods as between the
seller and a third party creditor of the buyer
is, under article 4, beyond the scope of the
Convention and is governed instead by
applicable national law, under which the
third party creditor prevailed.
• Case No. 613 [U.S. District Court, Northern
District of Illinois, United States, 28 March
2002] also in 2002 Westlaw 655540
(Usinor Industeel v. Leeco Steel Products, Inc.)
and available on the Internet at
http://cisgw3.law.pace.edu/cases/020328u1.h
tml
• According to some courts, the issue of
the currency of payment is not governed
by the Convention and, in the absence of
a choice by the parties, is left to
applicable domestic law.
• Case No. 907 [Tribunal Cantonal du
Valais, Switzerland, 27 May 2005]
• One court found that, absent an agreement
of the parties on the matter, the currency of
payment is the currency of the place of
payment as determined by article 57.
• Case No. 80 [Kammergericht Berlin,
Germany, 24 January 1994];
• However, in Landgericht Berlin, 24 March
1998, Unilex, (describing an alternative
view that the Convention does not contain
a general principle to address this issue).
• One court expressly stated that the
Convention does not identify the place of
conclusion of the contract.
• Monomeles Protodikio Thessalonikis, Greece,
2008 (docket No. 16319/2007),
• English abstract available on the Internet at
http://cisgw3.law.pace.edu/cases/080001gr.ht
ml
• Article 5
• “This Convention does not apply to the liability of
the seller for death or personal injury caused by
the goods to any person”.
• Pursuant to this provision, the Convention does not
deal with liability for death or personal injury
caused by the goods to any person, regardless of
whether the injured party is the buyer or a third
party.
• Consequently, national law applies to those
matters.
• According to part of the case law, any
claims for damage to property caused by
non-conforming goods are governed by the
Convention and do not fall within scope
of the article 5 exclusion.
• This excludes any concurrent domestic
remedies for damage to property.
• Consequently, in those cases where the
Convention applies, it requires a buyer to
notify the seller of the lack of conformity
that caused the damage to property in
order for the buyer not to lose its claim.
• Where the damage to property is not
“caused by the goods”, as where the
buyer’s property is damaged by delivery
of the goods, the liability issue must be
settled on the basis of applicable
domestic law.
• Article 6
• “The parties may exclude the application of
this Convention or, subject to article 12,
derogate from or vary the effect of any of its
provisions”.
• According to article 6 of the Convention, the
parties may exclude the Convention’s
application (totally or partially) or derogate
from its provisions.
• Thus, even if the Convention would
otherwise be applicable, courts must
determine that the parties have not
excluded the Convention
nor derogated from its provisions,
• the lack of an exclusion is elevated to
an applicability requirement of the
Convention.
• According to several courts, opting-out requires:
• a clear (case No. 1025 [Cour de Cassation, France, 3
November 2009], English translation available on the
Internet at http://cisgw3.
law.pace.edu/cases/091103f1.html)
• Unequivocal (U.S. District Court, Southern District of New
York, United States, 11 January 2011);
• and affirmative agreement of the parties (U.S. District
Court, Middle District of Pennsylvania, United States, 16
August 2005, available on the Internet at
http://cisgw3.law.pace.edu/cases/050816u1.html
• According to one court, however, for the
Convention not to apply, it suffices that the
“contract contains a choice-of-law
provision.”
• U.S. District Court, Eastern District of
California, United States, 21 January 2010,
available on the Internet at
http://cisgw3.law.pace.
edu/cases/100121u1.html#iii
• A different court even stated that for the
Convention not to apply it suffices that “there
is an objection to the application of the
Convention” by one party.
• Shanghai High People’s Court, People’s
Republic of China, 17 May 2007, English
translation available on the Internet at http://
cisgw3.law.pace.edu/cases/070517c1.html
• By allowing the parties to exclude the
Convention or derogate from its
provisions, the drafters affirmed the
principle that the primary source of rules
for international sales
contracts is party autonomy.
• Thus the drafters clearly acknowledged the
Convention’s non-mandatory nature and the
central role that party autonomy plays in
international commerce—specifically, in
international sales.
• Remark: For an express reference to the
Convention’s nonmandatory nature, see
Obergericht Kanton Bern, Switzerland, 19 May
2008, available on the Internet at
http://globalsaleslaw.com/content/api/cisg/urteil
e/1738.pdf
• Important:
• Article 6 distinguishes between excluding
application of the Convention entirely
and derogating from some of its
provisions.
• The former is not subject to any express
limitations in the Convention, but the
latter is.
• Although the Convention does not expressly so
state, the parties cannot derogate from the public
international law provisions of the Convention
(i.e. articles 89-101) because those provisions
address issues relevant to Contracting States
rather than private parties.
• + One court also stated that article 28 of the
Convention cannot be derogated from.
• Case No. 651 [Tribunale di Padova, Italy, 11
January 2005].
• One court acknowledged, also, that
parties can derogate from the
“reasonable time” period for notice set
forth in article 39 (1) by stating, for
example, that notice must be given
“within fie working days from the
delivery.”
• A different tribunal stated that the parties
are allowed to derogate from the concept of
“delivery” as found in the Convention.
• Zivilgericht BaselStadt, Switzerland, 8
November 2006, English translation available
on the Internet: http://cisgw3.law.pace.edu/
cases/061108s1.html
• Remark: Express Exclusion
• The parties can expressly exclude application
of the Convention through, inter alia, the
incorporation of standard contract terms
containing a clause expressly excluding
the Convention.
• Case No. 904 [Tribunal Cantonal du Jura,
Switzerland, 3 November 2004]
• Express exclusions come in two varieties:
exclusion with,
• and exclusion without indication by the
parties of the law applicable to their
contract.
• Where the parties expressly exclude the
Convention and specify the applicable law,
which in some countries can occur in the
course of legal proceedings,
• This is true for instance in Germany, as
pointed out in case law;
• see, for example, Case No. 122
[Oberlandesgericht Köln, Germany, 26
August 1994]
• the law applicable will be that designated by the
rules of private international law of the forum,
resulting (in most countries) in application of the
law chosen by the parties.
• (Foreign Trade Court of Arbitration attached to
the Serbian Chamber of Commerce, Serbia, 17
August 2009, English translation available on the
Internet at
http://cisgw3.law.pace.edu/cases/090817sb.html
• Where the parties expressly exclude the
Convention but do not designate the
applicable law, the governing law is to be
identified by means of the private
international law rules of the forum.
• General Remarks:
• Several provisions of Chapter 1 implicate the Final
Provisions of the Convention, found in Part IV of
the CISG covering articles 89-101.
• For example, application of article 1, the main
provision governing the Convention’s
applicability, may be affected by, inter alia,
articles 92 (declarations that a State is not bound
by Part II or by Part III of the Convention),
• article 93 (federal-state clause),
• article 94 (declarations by States with
harmonized sales law that the Convention
does not apply to sales between parties
located in those States),
• article 95 (declarations that a State is not
bound by article 1 (1) (b)),
• article 99 (time at which the Convention
enters into force),
• and article 100 (temporal rules for applying
the Convention).