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To be cited as: CISG-AC Opinion No. 15, Reservations under Articles 95 and 96 CISG, Rapporteur: Professor Doctor Ulrich G. Schroeter, University of Mannheim, Germany. Adopted by the CISG Advisory Council following its 18th meeting, in Beijing, China on 21 and 22 October 2013.
Reproduction of this opinion 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
Article 1 CISG
(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States:
(b) when the rules of private international law lead to the application of the law of a Contracting State.
Article 95 CISG
Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1) (b) of article 1 of this Convention.
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.
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. 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.
Article 12 CISG
Any provision of article 11, article 29 or Part II of this Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention. The parties may not derogate from or vary the effect of this article.
Article 96 CISG
A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision of article 11, article 29, or Part II of this Convention, that allows a contract of sale or its modification or termination by agreement or any offer, acceptance, or other indication of intention to be made in any form other than in writing, does not apply where any party has his place of business in that State.
4. A declaration under Article 96 may only be made by States whose legislation requires all contracts of sale governed by the Convention to be concluded in or evidenced by writing.
5. Declarations that have been made under Article 96 must be observed by courts in Contracting States even if the prerequisites for such declaration were not or are no longer fulfilled, until the declaration has been withdrawn in accordance with Article 97(4).
6. Where any party to a sales contract has its place of business in a Contracting State which has made a declaration under Article 96,
6.1 no Contracting State is under any obligation under public international law to apply any provision of Article 11, Article 29 or Part II of the Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing (Article 12)
6.2 the forum’s rules of private international law determine which law governs the requirements as to form applicable to such sales contract and the manner in which it may be evidenced.
OPINION [BLACK LETTER TEXT] COMMENTS
2. Drafting History
a) Article 95 CISG
b) Article 96 CISG
b) Scope of the reservation
c) Effects of the reservation
aa) Effect in courts of Contracting States that have made an Article 95 declaration
bb) Effect in courts of Contracting States that have not made an Article 95 declaration
cc) Effect in courts of Non-Contracting States
dd) Effect in arbitration proceedings
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)
In its Final Clauses in Part IV of the CISG, the Convention authorizes a number of declarations whereby Contracting States may exclude or modify the legal effect of certain provisions of the Convention. According to Article 98 CISG, the list of reservations in Part IV is exhaustive, with no reservations except those expressly authorized therein being permitted.
Most of the reservations allowed under the CISG have proven to be relatively straightforward, and their effects have caused few difficulties in practice. The present Opinion addresses the two reservations that have raised questions about their proper interpretation and application, namely Articles 95 and 96 CISG. These two reservations are similar only insofar as they both merely affect the applicability of certain individual provisions of the Convention, whereas as declarations under Articles 92–94 CISG each exclude the application of the entire Convention or parts thereof. Beyond this shared general characteristic, the respective subject matters of Articles 95 and 96 CISG are unrelated: While Article 95 CISG affects the application of Article 1(1)(b) CISG, Article 96 CISG concerns the applicability of the freedom of form principle under the Convention.
2. Drafting History
a) Article 95 CISG
2.1 The drafting history of Article 95 CISG is quite brief. The provision was first proposed during the Vienna Diplomatic Conference by Czechoslovakia and considered during the 2nd meeting of the Second Committee, where it was rejected. Czechoslovakia subsequently re-introduced its proposal in the Plenary, now offering two alternative wordings. After a brief discussion, one of the proposed wordings was withdrawn and the other accepted by 24 votes to 7, with 16 abstentions.
2.2 The discussions about Article 95 CISG in the Plenary were almost exclusively concerned with the reason given by Czechoslovakia for its wish not having to apply Article 1(1)(b) CISG, which was its desire not to limit the practical applicability of one specific domestic law: The CSSR (and, quite similar, also the then German Democratic Republic) had enacted special legislation to govern transactions pertaining to international trade, which applied in Czechoslovakian courts when the rules of private international law referred to the law of the CSSR. Article 1(1)(b) CISG would therefore have had the effect of largely depriving said special legislation of its practical relevance, since it would have meant that the CISG and not the special domestic legislation would have to be applied. At this late stage of the Diplomatic Conference, this – rather narrow – reason for an additional reservation was readily accepted, largely out of the desire not to risk the support of the CSSR and other Socialist countries for the Convention as a whole. The new reservation’s precise effect upon the Convention’s sphere of application, on the contrary, was neither evaluated nor discussed.
2.3 Article 95 CISG had quasi-predecessors in Article III of the Conventions relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF) and to a Uniform Law on the International Sale of Goods (ULIS) respectively, which both provided for a reservation which had a somewhat similar effect on the Uniform Sales Law’s applicability by restricting it to contracts between parties that both had their places of business in Contracting States. Due to the different legal structures of the Hague Sales Laws and the CISG, however, the way by which this effect was achieved differed from the mechanism employed by Article 95 CISG, thereby limiting the guidance that can be drawn from the predecessors for interpretation purposes.
b) Article 96 CISG
2.4 The drafting history of Article 96 CISG and its companion provision, Article 12 CISG, was comparatively uneventful. Both provisions had no predecessor in ULIS or in ULF. During the preparation of the CISG within UNCITRAL and during the Vienna Diplomatic Conference, the discussions about a possible reservation on form requirements formed part and parcel of the more general policy discussion about the freedom of form principle under the Convention. The freedom of form principle (primarily incorporated in today’s Article 11 CISG) and its scope had from the beginning been one of the most controversial issues, with some countries (in particular the then Socialist countries) insisting on formal requirements for the making of foreign trade contracts, while others (in particular Western market economies) rejecting such requirements as impractical and inappropriate for international commercial transactions. Once the decision within UNCITRAL had been made in favor of the freedom of form principle, the possibility for Contracting States to declare a reservation against this principle was introduced as a compromise.
An initial proposal in UNCITRAL to include a provision resembling Articles 12 and 96 CISG had already in 1971 been made by the U.S.S.R., which had legislation requiring contract terms to be expressed in a signed writing. After the compromise mentioned above, the U.S.S.R. continued to be the principal supporter of today’s Article 96 reservation, which in turn was essentially viewed by the other States as a price for the Convention’s acceptance by the U.S.S.R. and other Socialist States. During the Vienna Diplomatic Conference, this had the practical effect of Articles 12 and 96 CISG receiving relatively little attention from the conference delegates, as there was agreement that the primary concern was the reservation’s acceptability for the U.S.S.R. Certain substantive amendments to the language of Article 96 CISG which were nevertheless proposed during the Diplomatic Conference are addressed below where relevant for the interpretation of the provision.
2.5 A unique feature of the Article 96 CISG reservation is its apparent ‘duplification’ by Article 12 CISG. The two provisions are almost identical in their wording, although Article 96 CISG is written as a reservation for Contracting States admissible under certain conditions (‘A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may at any time make a declaration in accordance with article 12 that any provision […] does not apply where any party has his place of business in that State’), while Article 12 in its first sentence focuses on the reservation’s effect (‘Any provision […] does not apply where any party has his place of business in a Contracting State which has made a declaration under article 96 of this Convention.’). Furthermore, Article 12 CISG includes a second sentence announcing its mandatory nature which has no counterpart in Article 96 CISG.
Due to the close relationship between Articles 12 and 96 CISG, they were discussed together in the First Committee, although Article 96 CISG would ordinarily have been dealt with in the Second Committee responsible for reservations. A proposal to merge the two provisions into one was made in the First Committee, but rejected. Within the Convention’s text as eventually adopted, Article 12 CISG is – strictly speaking – superfluous, as can be seen from the fact that no other reservation contained in Part IV of the Convention is accompanied by a provision in Part I–III governing their effect on the CISG’s application. Its insertion immediately following Article 11 CISG may nevertheless serve a useful purpose by drawing attention to the fact that Article 11 might be affected by a reservation.
* The CISG-AC started as a private initiative supported by the Institute of International Commercial Law at Pace University School of Law and the Centre for Commercial Law Studies, Queen Mary, University of London. The International Sales Convention Advisory Council (CISG-AC) is in place to support understanding of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the promotion and assistance in the uniform interpretation of the CISG.
At its formative meeting in Paris in June 2001, Prof. Peter Schlechtriem of Freiburg University, Germany, was elected Chair of the CISG-AC for a three-year term. Dr. Loukas A. Mistelis of the Centre for Commercial Law Studies, Queen Mary, University of London, was elected Secretary. The founding members of the CISG-AC were Prof. Emeritus Eric E. Bergsten, Pace University School of Law; Prof. Michael Joachim Bonell, University of Rome La Sapienza; Prof. E. Allan Farnsworth, Columbia University School of Law; Prof. Alejandro M. Garro, Columbia University School of Law; Prof. Sir Roy M. Goode, Oxford, Prof. Sergei N. Lebedev, Maritime Arbitration Commission of the Chamber of Commerce and Industry of the Russian Federation; Prof. Jan Ramberg, University of Stockholm, Faculty of Law; Prof. Peter Schlechtriem, Freiburg University; Prof. Hiroo Sono, Faculty of Law, Hokkaido University; Prof. Claude Witz, Universität des Saarlandes and Strasbourg University. Members of the Council are elected by the Council.
At subsequent meetings, the CISG-AC elected as additional members Prof. Pilar Perales Viscasillas, Universidad Carlos III, Madrid; Professor Ingeborg Schwenzer, University of Basel; Prof. John Y. Gotanda, Villanova University; Prof. Michael G. Bridge, London School of Economics; Prof. Han Shiyuan, Tsinghua University and Prof Yesim Atamer, Istanbul Bilgi University, Turkey. Prof. Jan Ramberg served for a three-year term as the second Chair of the CISG-AC. At its 11th meeting in Wuhan, People’s Republic of China, Prof. Eric E. Bergsten of Pace University School of Law was elected Chair of the CISG-AC and Prof. Sieg Eiselen of the Department of Private Law of the University of South Africa was elected Secretary. At its 14th meeting in Belgrade, Serbia, Prof. Ingeborg Schwenzer of the University of Basel was elected Chair of the CISG-AC.
** Rules 1-2 and 4-6 were adopted unanimously. Rule 3 was adopted with one dissenting vote.
1. Document A/CONF.97/C.2/L.7, United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March – 11 April 1980, Official Records, Documents of the Conference and Summary Records of the Plenary Meetings and of the Meetings of the Main Committees (1981) 145.
2. Official Records (footnote 1) 439.
3. Document A/CONF.97/L.4, Official Records (footnote 1) 170.
4. Official Records (footnote 1) 230.
5. Official Records (footnote 1) 229.
6. Cf. Malcolm Evans, in Bianca & Bonell eds., Commentary on the International Sales Law: The 1980 Vienna Sales Convention (1987), Art. 95 note 2.3.
7. Peter Schlechtriem, Uniform Sales Law (1986), 44.
8. See II UNCITRAL Yearbook (1971), 48. Predecessors whose wording was closer to today’s Articles 12 and 96 CISG were introducted in 1977; see John O. Honnold, Documentary History of the Uniform Law for International Sales (1989) 326–27.
9. John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention (4th ed. 2009), para. 129; Peter Schlechtriem & Martin Schmidt-Kessel, in Schlechtriem & Schwenzer Commentary on the UN Convention on the International Sale of Goods (CISG) (3rd ed. 2010), Art. 12 para. 1.
10. See e.g. the remark by delegate Date-Bah (Ghana), Official Records (footnote 1) 274: ‘… like the representative of the United States he thought that the agreement reached on article 11 [became Article 12 CISG] was designed merely to eliminate the obstacles which might be encountered by the Soviet Union.’
11. See Comment 4.24.
12. Official Records (footnote 1) 271.
13. Document A/CONF.97/C.1/L.42, Official Records (footnote 1) 91.
14. Official Records (footnote 1) 271.
15. Rolf Herber & Beate Czerwenka, Internationales Kaufrecht (1991), Art. 12 para. 5; Ulrich G. Schroeter, ‘Backbone or Backyard of the Convention? The CISG’s Final Provisions’, in Andersen & Schroeter eds., Sharing International Commercial Law Across National Boundaries: Festschrift for Albert H. Kritzer on Occasion of his Eightieth Birthday (2008) 427.
16. Honnold, op. cit. (footnote 9), para. 129 footnote 2.