CISG Advisory Council Opinion No 15

Reservations under Articles 95 and 96 CISG

INDEX

3. Interpretation of Article 95 CISG

4. Interpretation of Article 96 CISG

a) General
b) Scope of the reservation

aa) Prerequisites for reservations under Article 96 CISG
bb) Lack of prerequisites and its effect
cc) Unclear declarations

c) Effects of the reservation

aa) Exclusion of Contracting States’ obligation to apply the Convention’s freedom of orm provisions (the reservation’s ‘negative’ effect)

(1) Contractual declarations affected
(2) Form requirements covered
(3) Universal effect in all Contracting States

bb) No determination of rules governing formal validity (no ‘positive’ effect of the reservation)
cc) Identification of the law governing formal validity via rules of private international law in CISG cases
dd) Form requirements for sales contracts and party autonomy (Article 12 sentence 2 CISG)

ADDENDUM: CASES CITED 29

3. Interpretation of Article 95 CISG

a) General

3.1 The subject matter of Article 95 CISG is the Convention’s applicability in accordance with Article 1(1)(b) CISG, which provides that ‘[t]his Convention applies to contracts of sale of goods between parties whose places of business are in different States […] when the rules of private international law lead to the application of the law of a Contracting State’. A reservation under Article 95 CISG, when made by a Contracting State, results in the reservation State ‘not being bound’ by Article 1(1)(b) CISG, thereby limiting the applicability of the Convention. The precise effects of an Article 95 declaration raise a number of questions to be addressed in detail below.

3.2 The practical importance of Article 95 CISG was not insignificant in the first years after the Convention’s entry into force, in particular because two major trading nations (the People’s Republic of China and the United States of America) have made use of this reservation. In recent years, its practical relevance has been greatly diminished by the increasing overall number of CISG Contracting States, which in turn has increased the Convention’s application via Article 1(1)(a) CISG: Today, in the vast majority of cases the CISG applies because both parties to the sales contract have their place of business in different Contracting States (Article 1(1)(a) CISG), thereby making a recourse to Article 1(1)(b) CISG unneccessary. A certain importance of Article 1(1)(b) CISG (and the reservation under Article 95 CISG relating thereto) will, however, remain as long as not every State has acceded to the Convention.

3.3 The following States have made an Article 95 CISG declaration: Armenia,[17] the People’s Republic of China, Saint Vincent and the Grenadines, Singapore, and the United States of America. According to the prevailing opinion,[18] a reservation in accordance with Article 95 is furthermore in force for the Czech Republic and for Slovakia, since the declaration made by the former Czechoslovakia when depositing an instrument of ratification in 1990 extends to these two States due to the principles of state succession. At least one court has confirmed the Czech Republic’s status as an Article 95 reservation State.[19]

In addition, Canada had initially made an Article 95 declaration providing that its territorial unit of British Columbia would not be bound by Article 1(1)(b) CISG; however, this declaration was withdrawn in July 1992.

Germany did not make an Article 95 reservation when ratifying to the Convention, but made an interpretative declaration that relates to certain effects of Article 95 reservations made by other Contracting States. It will be addressed in more detail below.[20]

b) Scope of the reservation

3.4 The scope of Article 95 CISG does not cause any problems: While some of the reservations under the CISG (namely those according to Articles 93, 94 and 96) may only be made by Contracting States which fulfil certain prerequisites, Article 95 CISG may be used by any State which so desires.[21] A reservation under Article 95 CISG can, however, only be declared at the time of the deposit of the instrument of ratification, acceptance, approval or accession by a new Contracting State, but not later.

3.5 It furthermore follows from Article 98 CISG that a declaration under Article 95 CISG may only be made with the scope and effects authorized in Article 95 CISG; a State’s declaration may therefore not limit, extend or otherwise vary the reservation’s scope and effects as laid down in Article 95 CISG. The declaration made by the Republic of Armenia upon its accession to the Convention contains such a variation, because its wording limits the non-application of Article 1(1)(b) CISG by Armenia (i.e., the reservation’s effects) „to the parties that declare not to be bound by [Article 1(1)(b) CISG]”.[22] The latter phrase cannot be found in Article 95 CISG, and its purpose is unclear. For the purposes of the present Opinion, it suffices to say that the wording of Armenia’s declaration remains without effect for the Convention’s application by courts outside of Armenia, because Article 95 CISG reservations generally only affect the application of the Convention by courts in the respective reservation State (an issue to be developed in more detail below)[23]. The effect that the Armenian declaration’s apparent incompatibility with Articles 95 and 98 CISG may have upon the Convention’s application in Armenian courts is primarily a matter of domestic law that lies beyond this Opinion’s scope.

c) Effects of the reservation

3.6 The precise effects of an Article 95 reservation on the Convention’s practical application raise a number of difficult questions which have earned Article 95 CISG a reputation as the ‘probably most complex’[24] and ‘[p]erhaps the most challenging to understand’[25] among the CISG’s reservations.

In addressing these difficulties, it is helpful to distinguish between the effect of an Article 95 CISG reservation in courts of Contracting States that have made an Article 95 declaration (Comments 3.7 et seq.), in courts of Contracting States that have not made an Article 95 declaration (Comments 3.12 et seq.), in courts of Non-Contracting States (Comment 3.18) and in arbitral proceedings (Comment 3.19).

aa) Effect in courts of Contracting States that have made an Article 95 declaration
1. A declaration under Article 95 excludes the declaring Contracting State’s obligation under public international law to apply the Convention in accordance with Article 1(1)(b). However, it does not prevent the courts of such a State from applying the Convention when their rules of private international law lead to the application of the law of a Contracting State.

3.7 By providing that a declaring State ‘will not be bound’ by Article 1(1)(b) CISG, Article 95 CISG makes clear that this reservation merely removes the declaring State’s obligation under public international law to apply the Convention in accordance with Article 1(1)(b) CISG.[26] Making use of the reservation does, on the contrary, it itself not prevent the courts in the declaring State from applying the Convention in cases where the prerequisites of Article 1(1)(a) CISG are not met, since the Article 95 reservation does not impinge upon the declaring State’s freedom to apply the Convention despite its missing obligation to do so.[27]

3.8 Such a situation is most likely to arise in practice in cases in which two contracting parties – at least one of which does not have its place of business in a CISG Contracting State (because then Article 1(1)(a) CISG would apply) – choose the Convention as the law applicable to their contract, either by way of an ‘isolated’ choice of the CISG or by choosing the law of a CISG Contracting State: In such a case, many courts are likely to accept the parties’ choice of the CISG, thereby respecting party autonomy as recognized by the rules of private international law of the forum.[28] At least two courts of second instance in the People’s Republic of China, an Article 95 CISG-reserving State, adopted the same position and applied the CISG although the prerequisites of Article 1(1)(a) CISG were in casu not fulfilled.[29]

3.9 One Article 95 CISG-reserving State – Singapore – has included in its domestic law a specific provision by which the national legislator explicitly excludes the application of the CISG in all cases in which Article 1(1)(a) is inapplicable:

‘Sub-paragraph (1)(b) of Article 1 of the Convention shall not have the force of law in Singapore and accordingly the Convention will apply to contracts of sale of goods only between those parties whose places of business are in different States when the States are Contracting States.’[30]

At least three U.S. District Courts have taken the same position and held that the only circumstance in which the CISG can be applied by a U.S. court is if all the parties to the contract are from Contracting States.[31] It is important to note that this assessment cannot be derived from Article 95 CISG itself, which – as explained above – does not prevent Article 95 reservation States from applying the Convention where the prerequisites of Article 1(1)(a) CISG are not fulfilled.[32]

Another CISG Contracting State which has not made a declaration under Article 95 CISG – the Netherlands – has included in its domestic law an explicit provision addressing cases in which the private international law of an Article 95 reservation State leads to the applicability of Dutch law: This provision[33] requests foreign judges in Article 95 reservation States not to apply the Dutch Civil Code provisions on sales[34] but rather the CISG, if Dutch law is declared applicable by virtue of the local conflicts rules. This suggestion is of course not binding on foreign courts but by enacting this solution, the Dutch legislature has indicated that under Dutch law it prefers a solution which enhances uniformity rather than one that relies on the local Dutch law of sales.[35]
 

2. A declaration under Article 95 is without any effect for the Convention’s applicability in accordance with Article 1(1)(a). In applying Article 1(1)(a), it is irrelevant whether the forum State has made an Article 95 declaration or whether one (or both) parties to the sales contract have their place of business in a State which has made an Article 95 declaration.

 
3.10 The language of Article 95 CISG, which entitles any State to declare that it will not be bound ‘by subparagraph (1)(b) of Article 1 of this Convention’, makes clear that the application of Article 1(1)(a) CISG is e contrario not affected by the reservation: Reserving States continue to be bound by this provision.[36]

3.11 For the application of Article 1(1)(a) CISG, it is furthermore without any relevance whether one (or even both) parties to the sales contract have their place of business in Contracting States that have made an Article 95 CISG reservation – the Convention is nevertheless applicable in accordance with Article 1(1)(a) CISG. This result can on one hand be explained by the general lack of effects that an Article 95 CISG reservation has on Article 1(1)(a) CISG,[37] and on the other hand by reservation States’ status as ‘Contracting State’ in the meaning employed by Article 1(1) CISG which remains unaffected by an Article 95 CISG reservation (a point to be further addressed in Comment 3.14). At least one court in a Contracting State, however, overlooked this.[38]

bb) Effect in courts of Contracting States that have not made an Article 95 declaration
 
3. When the forum is in a Contracting State that has made no declaration under Article 95, the Convention applies in accordance with Article 1(1)(b) even when the rules of private international law lead to the application of the law of a Contracting State that has made an Article 95 declaration.

 

3.12 In Contracting States that have not made a declaration under Article 95 CISG, the courts are bound to apply Article 1(1)(b) CISG. Article 1(1)(b) CISG in turn provides that the Convention applies to contracts of sale of goods when the rules of private international law lead to the application of ‘the law of a Contracting State’. It is a much discussed question whether this condition is also fulfilled when the forum’s rules of private international law lead to the application of the law of an Article 95 reservation State.

3.13 The constellation in which the before-mentioned dispute becomes relevant is extremely rare in practice. There is accordingly almost no case law in point. The constellation requires that a dispute arising out of a CISG contract is heard in a court of a Contracting State that has not made a declaration under Article 95 CISG, and that at least one of the parties to the sales contract has its place of business in a Non-Contracting State. (The reason for the latter requirement is that Article 1(1)(a) CISG applies whenever both parties are from Contracting States, so that Article 1(1)(b) CISG has no relevance. Due to the large number of States that have adopted the CISG in recent years, the vast majority of cases is nowadays covered by Article 1(1)(a) CISG, making Article 1(1)(b) CISG constellations less and less common.) In addition, it is necessary that the private international law rules of the forum lead to the application of the law of a Contracting State (Article 1(1)(b) CISG) that has made an Article 95 CISG reservation.

3.14 According to the preferable opinion,[39] the Convention applies in accordance with Article 1(1)(b) even when the rules of private international law lead to the application of the law of a Contracting State that has made an Article 95 declaration, because such declaration does not affect the declaring State’s status as a ‘Contracting State’.[40] This becomes clear when comparing the wording of Article 95 CISG with that of its neighbouring reservations in Articles 92, 93 and 94 CISG. The latter reservations all contain a provision that attaches a certain legal effect to their use by Contracting States:

‘A Contracting State which makes a declaration in accordance with the preceding paragraph in respect of Part II or Part III of this Convention is not to be considered a Contracting State within paragraph (1) of article 1 of this Convention in respect of matters governed by the Part to which the declaration applies.’[41]

Article 92(2), Article 93(3) and Article 94(2) thereby all provide that a declaration under those provisions deprive the declaring State of its status as a ‘Contracting State’ for purposes of Article 1(1) CISG. Article 95 CISG, on the contrary, contains no such provision. Whenever the rules of private international law lead to the application of an Article 95 reservation State’s law, they therefore lead to the application of the law of a ‘Contracting State’ as described by Article 1(1)(b) CISG. Since the conditions of Article 1(1)(b) CISG are accordingly fulfilled, courts in Contracting States must apply the Convention.

3.15 The interpretation suggested here is furthermore supported by the drafting history of Article 95 CISG. When the provision was introduced during the Vienna Diplomatic Conference, the delegation of Czechoslovakia had also provided an alternative draft, which would – in addition to what became today’s Article 95 – have introduced the following paragraph:

‘(2) This Convention does not apply if the rules of private international law lead to the application of the law of a State making a declaration under the preceding paragraph unless places of business of the parties to the contract are in different Contracting States.’[42]

In presenting the proposed reservation, delegate Kopac (Czechoslovakia) explained:

‘Two alternatives were offered for the proposed new article. Alternative I consisted of two paragraphs. If that alternative were adopted, the provisions of its paragraph 2 would mean that the exclusion of the application of the Convention would be the same in all Contracting States. Alternative II consisted of only one paragraph, namely the first paragraph of article C bis as it appeared in document (A/CON.97/L.4).’[43]

The delegates opted for Alternative II[44] which, apart from two minor drafting changes,[45] was identical to today’s Article 95 CISG, thereby intentionally rejecting a reservation according to which ‘the exclusion of the application of the Convention would be the same in all Contracting States’.[46]

3.16 A significant number of legal writers[47] nevertheless argue that, when the private international law rules of the forum as applied under Article 1(1)(b) CISG lead to the application of the law of an Article 95 CISG reservation State, a court in a Contracting State has to apply the domestic law of the reservation State (and not the CISG). The underlying reasoning is that the law of the Contracting State which the rules of private international law refer to should be applied in the same way as a judge in that Contracting State would apply his law: Accordingly, the CISG should not be applied when – as a result of an Article 95 reservation in said State – a judge in said State would not apply the CISG.[48]

The true source for the difference between the two competing interpretations is thus not primarily a different reading of Article 95 CISG, but rather a different reading of Article 1(1)(b) CISG, which in turn affects the role that the status of an Article 95 reservation State plays within the application of Article 1(1)(b) CISG. The essential assumption underlying the opinion criticized here is that the forum’s rules of private international law when applied under Article 1(1)(b) CISG result in the application of the law of the State that the PIL rules refer to, of which the Convention forms a part. This assumption, it is submitted, is incorrect. The reason becomes evident when the wording of Article 1(1)(b) CISG is read in its entirety, including its introductory phrase: ‘This Convention applies to contracts of sale of goods between parties whose places of business are in different States […] when the rules of private international law lead to the application of the law of a Contracting State’.[49] It is therefore ‘this Convention’ which the judge in a Contracting State has to apply when its forum’s rules of private international law lead to the application of the law of a Contracting State, and not ‘the law of a Contracting State’ (that may or may not have made a declaration under Article 95 CISG).[50] The contrary opinion instead reads the partial phrase ‘lead to the application of the law of a Contracting State’ as calling for the application of that State’s law, thereby confusing cause and effect under Article 1(1)(b) CISG. It should therefore not be followed.

3.17 The legal situation in the Federal Republic of Germany presents particular challenges, since Germany filed an interpretative declaration[51] about the question discussed here when acceding to the Convention,[52] the content of which is furthermore repeated in a German domestic law (Vertragsgesetz).[53] For the purposes of the present Opinion, it suffices to say that Germany’s interpretative declaration has no effect on the Convention’s application by courts outside of Germany,[54] since the declaration is incompatible with Article 7(1) CISG[55] which delegates the Convention’s interpretation to the courts and not the government or parliament of the individual Contracting States.[56] The situation in German courts is largely affected by questions of domestic law and does not require treatment here.[57]

cc) Effect in courts of Non-Contracting States

3.18 When the forum is located in a Non-Contracting State, there is at the outset no obligation of any sort under public international law to take Article 95 CISG into account, as there is no obligation to apply Article 1(1)(b) CISG: Both provisions are only directed at CISG Contracting States.[58] Any effect that an Article 95 CISG reservation can have must therefore result from the private international law of the forum,[59] and is as such a merely ‘indirect’ effect. An indirect effect of this kind will usually arise when the private international law rules of a Non-Contracting State lead to the application of a CISG Contracting State that has made an Article 95 reservation: In such a case, the court is likely to apply the domestic law of that State and not the CISG, because a judge in that State – in view of Article 1(1)(b) CISG being inapplicable – would do the same.[60]

dd) Effect in arbitration proceedings

3.19 The effect of Article 95 CISG in arbitration proceedings is similar to its effect in courts of Non-Contracting States (Comment 3.18 above), since the Convention neither creates any obligations for arbitration tribunals (whether their place of arbitration is located in a CISG Contracting State or not),[61] nor for Contracting States in respect of arbitration tribunals having their place of arbitration in that State.

The application of Article 1(1)(b) CISG (and of Article 95 CISG affecting such application) can therefore, again, only be an ‘indirect’ one, created and governed by the lex arbitri and by arbitration rules agreed upon by the parties, and not by the Convention itself. The rules about the substantive law to be applied by arbitral tribunals are often more flexible in their content than rules of private international law to be observed by courts.
  

Footnotes

 17. The wording of Armenia’s declaration departs from the wording of Article 95 CISG. See Comment 3.5 below.

18. Ulrich Magnus, in J. von Staudingers Kommentar zum BGB, Wiener UN-Kaufrecht (CISG) (2013), Art. 95 para. 4; Schroeter, op. cit. (footnote 15) 464. Contra Fritz Enderlein, ‘Vienna Convention and Eastern European Lawyers’, IBA International Sales Quarterly (1997) 12.

19. Thüringer Oberlandesgericht in Jena (Germany), 26 May 1998, translated at: http://cisgw3.law.pace.edu/cases/980526g1.html.

20. Comment 3.17.

21. Schroeter, op. cit. (footnote 15) 432.

22. Armenia‘s declaration reads: „Pursuant to Article 95 of the Convention, the Republic of Armenia declares that it will not apply the Article 1, subparagraph (1) (b) of the Convention to the parties that declare not to be bound by the Article 1, subparagraph (1) (b) of the Convention.“

23. Comments 3.12 et seq.

24. Filip De Ly, ‘Sources of International Sales Law: An Eclectic Model’, 25 Journal of Law and Commerce (2005–06), 1 at 10.

25. Michael G. Bridge, ‘Uniform and Harmonized Sales Law: Choice of Law Issues’, in Fawcett, Harris & Bridge, International Sale of Goods in the Conflict of Laws (2005), para. 16-128.

26. Schroeter, op. cit. (footnote 15) 440.

27. Gary F. Bell, ‘Why Singapore should withdraw its reservation to the United Nations Convention on Contracts for the International Sale of Goods (CISG)’, 9 Singapore Yearbook of International Law (2005), 55 at 65; Michael G. Bridge, ‘Uniform and Harmonized Sales Law: Choice of Law Issues’, in Fawcett, Harris & Bridge, International Sale of Goods in the Conflict of Laws (2005), para. 16-134; Christoph Brunner, UN-Kaufrecht – CISG (2004), Art. 95 para. 1; Honnold, op. cit. (footnote 9), paras. 47.5, 47.6; Peter Schlechtriem, Ingeborg Schwenzer & Pascal Hachem, in Schlechtriem & Schwenzer Commentary on the UN Convention on the International Sale of Goods (CISG) (3rd ed. 2010), Art. 95 para. 2; Kurt Siehr, in Honsell ed., Kommentar zum UN-Kaufrecht (2nd ed. 2010), Art. 1 para. 21.

28. Johnny Herre, in Kröll, Mistelis & Perales Viscasillas eds., UN Convention on Contracts for the International Sale of Goods (CISG) (2011), Art. 95 para. 5.

29. Japan Taiping v. Jiangsu Shuntian, Jiangsu Higher People’s Court, 2001, Case No. Su Jing Zhong Zi (2001) No. 011; Japan Xingsheng v. Ningxia Capital Steel, Ningxia Huizu Higher People’s Court, 2002, Case No. Ning Min Shang Zhong No. 36.

30. Sub-section 3(2) of the Singapore Sale of Goods (United Nations Convention) Act.

31. Impuls v. Psion-Teklogix, U.S. District Court [S.D. Florida], 22 November 2002, 234 F.Supp.2d 1267, 1272, available at: http://cisgw3.law.pace.edu/cases/021122u1.html; Prime Start v. Maher Forest Products, U.S. District Court [W.D. Washington], 17 July 2006, Internationales Handelsrecht (2006), 259 at 260, available at: http://cisgw3.law.pace.edu/cases/060717u1.html; Princess d’Isenbourg et Cie Ltd. v. Kinder Caviar, Inc., U.S. District Court [E.D. Kentucky], 22 February 2011, available at: http://cisgw3.law.pace.edu/cases/110222u1.html.

32. Contra Prime Start v. Maher Forest Products, U.S. District Court [W.D. Washington], 17 July 2006, Internationales Handelsrecht (2006), 259 at 260, available at: http://cisgw3.law.pace.edu/cases/060717u1.html: ‘Because not all parties are from countries that signed the CISG, the CISG cannot apply to this dispute, even if a traditional choice-of-law analysis leads to the application of the law of the United States (or one of its states) or any other signatory State. Accordingly, some body of law other than the CISG will govern this dispute’; as here Franco Ferrari, ‘Short notes on the impact of the Article 95 reservation on the occasion of Prime Start Ltd. v. Maher Forest Products Ltd. et al., 17 July 2006 (IHR 2006, 259)’, Internationales Handelsrecht (2006), 248 at 250; Claude Witz, ‘Droit uniforme de la vente internationale de marchandises – juillet 2006–décembre 2007’, Recueil Dalloz (2008), 2620 at 2621.

33. Article 2 of the Dutch Implementing CISG Act of 18 December 1991.

34. Book 7, Title 1 of the Dutch Civil Code.

35. De Ly, op. cit. (footnote 24) 10.

36. Valero Marketing v. Greeni Oy, U.S. District Court [New Jersey], 15 June 2005, 373 F.Supp.2d 475, 482, available at: http://cisgw3.law.pace.edu/cases/050615u1.html; Schlechtriem, Schwenzer & Hachem, op. cit. (footnote 27), Art. 95 para. 2; Schroeter, op. cit. (footnote 15) 440.

37. Comment 3.10 above.

38. Thüringer Oberlandesgericht in Jena (Germany), 26 May 1998, translated at: http://cisgw3.law.pace.edu/cases/980526g1.html: The Convention’s applicability to a contract between a seller from the Czech Republic (an Article 95-reservation State) and German buyer was not based on Article 1(1)(a) CISG, but on a choice of law in favor of the CISG made by the parties during the court proceedings.

39. Bell, op. cit. (footnote 27), 55 at 63–4 (with certain doubts); Bridge, op. cit. (footnote 27), para. 16-135; Michael Bridge, The International Sale of Goods: Law and Practice (2nd ed. 2007), para. 11.46; Fritz Enderlein & Dietrich Maskow, International Sales Law (1992), Art. 95 note 1; Franco Ferrari, in Schlechtriem & Schwenzer eds., Kommentar zum Einheitlichen UN-Kaufrecht (CISG) (5th ed. 2008), Art. 1 para. 78; Herre, op. cit. (footnote 28), Art. 95 para. 9; Martin Karollus, UN-Kaufrecht (1991) 31; Burghard Piltz, Internationales Kaufrecht (2nd ed. 2008), para. 2-104; Schlechtriem, Schwenzer & Hachem, op. cit. (footnote 27), Art. 95 para. 3; Schroeter, op. cit. (footnote 15) 446; Siehr, op. cit. (footnote 27), Art. 1 para. 18.

40. Bell, op. cit. (footnote 27), 55 at 63–4; Bridge, op. cit. (footnote 27), para. 16-136; Ferrari, op. cit. (footnote 39), Art. 1 para. 78; Herre, op. cit. (footnote 28), Art. 95 para. 8; Schlechtriem, Schwenzer & Hachem, op. cit. (footnote 27), Art. 95 para. 3; Schroeter, op. cit. (footnote 15) 446. Contra Schlechtriem, op. cit. (footnote 7), 26–7.

41. Article 92(2) CISG. Similar provisions are contained in Article 93(3) and Article 94(2) CISG.

42. Document A/CONF.97/L.4 (Alternative I), Official Records (footnote 1) 170.

43. Official Records (footnote 1) 229.

44. Official Records (footnote 1) 230: Alternative II, which was eventually the only wording put to the vote, was accepted by 24 votes to 7, with 16 abstentions.

45. Cf. Official Records (footnote 1) 230.

46. But see Peter Winship, ‘The Scope of the Vienna Convention on International Sales Contracts’, in Galston & Smit eds., International Sales: The United Nations Convention on Contracts for the International Sale of Goods (1984), 1-27 et seq., who alleges that this rejection was based more on the complexity of the last-minute proposal rather than on its content.

47.  Christoph Benicke, in Münchener Kommentar zum Handelsgesetzbuch (2nd ed. 2007), Art. 1 para. 39; Evans, op. cit. (footnote 6), Art. 95 note 3.4; Vincent Heuzé, La vente internationale de marchandises: Droit uniforme (2000), note 116; Honnold, op. cit. (footnote 9), para. 47.5; Felix Maultzsch, ‘Die Rechtsnatur des Art. 1 Abs. 1 lit. b CISG zwischen internationaler Abgrenzungsnorm und interner Verteilungsnorm’, in Büchler & Müller-Chen eds., Private Law: national – global – comparative, Festschrift für Ingeborg Schwenzer zum 60. Geburtstag (2011), 1225; Karl H. Neumayer & Catherine Ming, Convention de Vienne sur les Contrats de Vente internationale de Marchandises (1993), Art. 1 note 8; Ingo Saenger, in Bamberger & Roth eds., Bürgerliches Gesetzbuch (2nd ed. 2007), Art. 1 para. 19; Schlechtriem, op. cit. (footnote 7), 26–7; Winship, op. cit. (footnote 47), 1-27; Witz, op. cit. (footnote 32) 2621.

48. Evans, op. cit. (footnote 6), Art. 95 note 3.1 et seq: ‘No difficulties would seem to exist with regard to this provision if a court in a State taking the reservation under Article 95 (State A) finds its own law to be applicable, but delicate problems could arise if such a court were to find the law of another Contracting State (State B) to be applicable …’.

49. Emphasis added.

50. Bridge, op. cit. (footnote 27), para. 16-30.

51. Ferrari, op. cit. (footnote 39), Art. 1 para. 79; Herber & Czerwenka, op. cit. (footnote 15), Art. 1 para. 19; Magnus, op. cit. (footnote 18), Art. 1 para. 112; Schroeter, op. cit. (footnote 15) 454.

52. See Schroeter, op. cit. (footnote 15) 454.

53. Article 2 of the German Vertragsgesetz. See in more detail Ulrich G. Schroeter, in Schlechtriem & Schwenzer eds., Kommentar zum Einheitlichen UN-Kaufrecht (CISG) (5th ed. 2008), Art. 2 VertragsG para. 1 et seq.

54. Schroeter, op. cit. (footnote 15) 455; Marco Torsello, ‘Reservations to international uniform commercial law Conventions’, Uniform Law Review (2000), 85 at 117.

55. Ferrari, op. cit. (footnote 32) 251; Magnus, op. cit. (footnote 18), Art. 2 VertragsG para. 6; Torsello, op. cit. (footnote 55), 85 at 117.

56. See Jürgen Basedow, ‘Uniform Private Law Conventions and the Law of Treaties’, Uniform Law Review (2006), 731 at 735: ‘With the exception of reservations permitted in the convention, the binding treaty only leaves national legislators a choice between “yes” and “no”.’

57. See Magnus, op. cit. (footnote 17), Art. 2 VertragsG para. 6; Schroeter, op. cit. (footnote 55), Art. 2 VertragsG para. 1 et seq.

58. Peter Schlechtriem & Ulrich G. Schroeter, Internationales UN-Kaufrecht (5th ed. 2013), para. 34.

59. See Thomas Kadner Graziano, ‘The CISG Before the Courts of Non-Contracting States? Take Foreign Sales Law As You Find It’, 13 Yearbook of Private International Law (2011), 165 at 174.

60. Oberlandesgericht Koblenz (Germany), 17 September 1993, translated at: http://cisgw3.law.pace.edu/cases/930917g1.html: ‘If, as in this case, the rules of conflicts of a non-Contracting State – which Germany was at that time [i.e. the conclusion of the contract] – refer to the internal law of a Contracting State that has not made a reservation under Art. 95 CISG, the CISG applies in accordance with Art. 1(1)(b) CISG, if the other prerequisites for the application are given. The internal law of a Contracting State is then substituted by the Convention [citations omitted]. France has not made a reservation under Art. 95 CISG […], so that the Convention applies’; Kadner Graziano, op. cit. (footnote 59), 165 at 177.

61. Schlechtriem & Schroeter, op. cit. (footnote 58), para. 34.