CISG Advisory Council Declaration No. 2

Use of Reservations under the CISG

 Download a pdf copy of Declaration No 2

 To be cited as: CISG-AC Declaration No 2 Use of Reservations under the CISG. Rapporteur: Professor Dr. Ulrich G. Schroeter, University of Mannheim, Germany. Adopted by the CISG-AC following its 18th meeting, in Beijing, China, on 21 October 2013.

Reproduction of this declaration is authorized.

INGEBORG SCHWENZER, Chair

YESIM ATAMER, ERIC BERGSTEN, JOACHIM BONELL, MICHAEL BRIDGE, ALEJANDRO GARRO, ROY GOODE, JOHN GOTANDA, HAN SHIYUAN, SERGEI LEBEDEV, PILAR PERALES VISCASILLAS, JAN RAMBERG, HIROO SONO, CLAUDE WITZ, Members

SIEG EISELEN, Secretary

The CISG Advisory Council recommends that:

a) States which newly acceed to the Convention do so without making any declarations under Articles 92–96 CISG;
b) Contracting States that have made one or more declarations under Articles 92–96 CISG consider withdrawing them in accordance with Article 97(4) CISG.

1. Introduction

Articles 92–96 CISG provide States that ratify, accept, approve or acceed to the Convention with the option to make a limited number of declarations, thereby excluding or modifying the legal effect of certain provisions of the Convention (reservations[1]).[2] According to Article 98 CISG, no reservations except those expressly authorized in the Convention are permitted.

2. Newly Acceding States

The drafting history of Articles 92, 94, 95 and 96 CISG demonstrates that these reservations were included in the Convention as a means of compromise, designed to cater to specific concerns of specific countries that existed at the time the Convention’s final text was adopted in 1980.[3] Since that time, the legal and political situation in many countries has undergone significant changes which have essentially removed the reasons why the reservations were initially created:

Article 92 CISG was included upon the Scandinavian States’ request in order to allow them to ratify the Convention without its Part II (the provisions on the formation of contracts)[4] – a policy decision that the Scandinavian States have recently abandoned by withdrawing their Article 92 reservations.[5] The reservation under Article 94 CISG through which regionally harmonized law can be accorded a limited prevalence over the Convention was similarly only used by the Scandinavian States, while all other States that were viewed as potential reserving States during the Vienna Diplomatic Conference[6] opted for an unreserved ratification.[7] As to Article 95 CISG, the need to preserve a relevant sphere of application for certain domestic legislation in the then CSSR and GDR[8] has since lapsed (since the respective legislation no longer exists in today’s successor States), and also the assumed undesirability of having to apply the Convention in accordance with Article 1(1)(b) CISG while other States do not face a ‘reciprocal’ obligation[9] is essentially redundant today as Article 1(1)(a) CISG has become the vastly more important basis for the Convention’s applicability. The need to preserve the possibility to apply domestic rules of form by making a declaration under Article 96 CISG[10] has similarly lost its relevance because almost all Article 96 reservation States no longer impose writing requirements on international sales contracts in their domestic laws.[11]

Today’s weakening (or altogether vanished) need for the reservations in Articles 92–96 CISG stands in contrast to their continuing detrimental effect upon the Convention’s practical application: Any use of reservations under the Convention inevitably undermines the considerable measure of uniformity that exists[12] and increases the likelihood of confusion regarding the application of the CISG.[13]

In light of these considerations, the CISG Advisory Council recommends that States which newly acceed to the Convention do so without making any declarations under Articles 92–96 CISG.

3. Current Reservation States

Contracting States that have made one or more of such declarations are reminded of the possibility to withdraw them by formal notification in accordance with Article 97(4) CISG, as the existence of these declarations in itself complicates the Convention’s application in practice and threatens its uniform interpretation.

In this context, it is helpful to consider the International Law Commission’s ‘Guide to Practice on Reservations to Treaties’ which calls for a periodic review of the usefulness of reservations:

1. “States or international organizations which have formulated one or more reservations to a treaty should undertake a periodic review of such reservations and consider withdrawing those which no longer serve their purpose.

2. In such a review, States and international organizations should devote special attention to the ai