CISG Advisory Council Opinion No 16

Exclusion of the CISG under Article 6

4. Generally, such a clear intent to exclude:

(a) should be inferred, for example, from:

(i) express exclusion of the CISG;
(ii) choice of the law of a non-Contracting State;
(iii) choice of an expressly specified domestic statute or code where that
would otherwise be displaced by the CISG’s application.

(b) should not be inferred merely from, for example:

(i) the choice of the law of a Contracting State;
(ii) choice of the law of a territorial unit of a Contracting State.

4.1 Courts and tribunals already apply a strict standard for intent to exclude in relation to ex ante exclusions. Awareness of the CISG’s applicability is not considered relevant in the context of ex ante choice of law clauses.[26]

4.2 Where a choice of law clause indicates that the law of a Contracting State governs the contract, commentators, courts and tribunals have widely accepted that, without more, this will not exclude the CISG, since the CISG forms part of the law of the Contracting State,[27]  including a notable line of U.S. cases.[28]  Choice of a Contracting State’s law immediately following an express exclusion of the CISG has been held to exclude the CISG.[29]  A reference to INCOTERMS has been held insufficient to demonstrate intent to exclude the CISG.[30]  A choice of national law excluding ULIS was held not to exclude the CISG.[31]  A few cases have denied even the possibility of implicit exclusion within the contract.[32]  By contrast, a clause providing for ‘exclusion of UNCITRAL law’ was upheld as manifesting an intent to exclude the CISG.[33]  Choice of law of a non-Contracting State has been upheld as an implicit exclusion.[34]

4.3 A minority of cases and commentators view selection of the law of a territorial unit or province within a Contracting State as an exclusion.[35]  However, most courts and tribunals recognize that as part of the law of the Contracting State, the CISG is, by extension, the law of its territorial units. For example, choices of the law of ‘California’, the ‘Province of British Columbia’ and ‘the state of Pennsylvania’ were considered insufficient to exclude in US cases typical of the majority of decisions.[36]

4.4 A clear choice of non-CISG domestic law would evince an intent to exclude the CISG, but whether this is achieved by reference to a particular domestic statute or code in a choice of law clause has been controversial. Reference in a choice of law clause to an entire non-uniform code or statute has sometimes been held by courts as sufficient indication of intent to exclude, but not consistently.[37]  Academic commentary generally favours the notion that reference to an entire non-uniform code or statute within a choice of law clause evinces an intent to exclude,[38]  although some take a more restrictive view, arguing that reference to a code such as a Civil Code is insufficient, and that instead, specific reference to the Sales Law within the Code is required.[39]  Cases have been mixed in their approach. In regard to selection of entire domestic codes or statutes. Some German courts have suggested that a choice of ‘the BGB’ or ‘HGB’ could amount to an effective opt-out,[40]  as has a Chinese tribunal in the case of selection of a Chinese statute, likewise an Austrian court upheld implied exclusion on the basis of reference to Austrian Consumer Protection Act or Austrian Commercial Code,[41]  and American courts have held selection of the ‘Uniform Commercial Code’ or ‘California Commercial Code’ may be implied exclusions.[42]  On the other hand, the Hungarian Supreme Court concluded selection of the Hungarian Civil Code was not an exclusion of the CISG,[43]  in a decision which has attracted criticism from Hungarian commentators.[44]

4.5 The majority approach that a choice law clause indicating a domestic code or statute is sufficiently clear is arguably consistent with legislative history in that ‘referring to the title of [a municipal law]’ was seen as potential evidence of parties’ intent to exclude.[45]  However, the view must still be treated with caution. It should be recalled that some domestic statutes may indeed be the instrument within which the CISG is enacted into law in that Contracting State e.g., Goods Act 1958 (Vic.)(Australia). In such circumstances, the reference is far from clear, and a more specific expression of intent would be necessary before exclusion could be reasonably understood as sufficient intent. Notably, this reasoning was not relied upon in the Hungarian decision above.[46]  Likewise, reference to a non-uniform domestic code or statute will not be a clear indication of intent to exclude in a choice of law clause where the transaction in question does not fall within the scope of that code or statute.[47]  It is not necessary for the purposes of exclusion of CISG for the choice of law clause to refer to the specific non-uniform Sales Law within a Code. A reference to a Code containing the purely domestic sales law should be sufficient, provided the Code does not also enact the CISG. A reference only to particular provisions may evince only an intent to derogate from parts of the CISG, rather than to exclude it entirely, as discussed below [§4.11].

4.6 It has been speculated whether certain expressions might indicate an intention for non-CISG domestic law to be applied. Courts have not resolved the effect of selection of ‘civil code and corresponding community regulation’.[48]  While one Italian court has speculated that choice of ‘purely domestic law’, or more controversially, ‘the Italian domestic law’ could amount to an exclusion,[49]  cases actually decided on the basis of choices of ‘Swiss internal law’ and ‘the law applicable to residents within the Federal Republic of Germany’[50] have held that these expressions do not exclude the CISG’s application. A contractual choice of law for ‘the law of a Contracting State insofar as it differs/derogates from the national law of another Contracting State’ has been also suggested as wording that might convey an intent to exclude.[51]  On the other hand, exclusions were upheld by a Swiss court for a choice of Swiss law ‘as if domestic parties had been concerned’, and a Dutch court for a choice of ‘exclusively’ domestic law.[52]

4.7 A choice of a contractual term associated with a particular jurisdiction was held not to constitute a choice of that jurisdiction’s law, nor to be an implicit exclusion of the CISG.[53]  An attempt to exclude the application of local sales laws, even if unsuccessful, was considered in a Canadian case to evince an intent to exclude the CISG.[54]  A misplaced comma in one exclusion clause which stated ‘All our disputes are exclusively subject to Austrian law, excluding private international law, and the CISG’ led to an ‘extensive weighing of arguments’ before the court eventually upheld the exclusion.[55]

4.8 It is to be doubted that a clear intent could be evinced from selection of the law of a territorial unit or province of a CISG Contracting State,[56]  but a choice of law clause referring to a specific domestic statute or code may more readily be seen as evincing a clear intent.[57]  Choice of the ‘domestic law’ of a Contracting State is no different to a choice of the Contracting State law, and so, without more, should not generally be viewed as evincing a clear intent to exclude, although selection of the ‘purely domestic law’ of such as State are more likely to meet the evidentiary standard, since there can be little other explanation for inclusion of the word ‘purely’. Attempts to exclude or limit the application of specific domestic statutes or codes do not generally evince a sufficiently clear intent to exclude the CISG.

4.9 Further, it is likely that a reasonable person would understand a clause excluding UNCITRAL law to evince an intent to exclude something, and it is difficult to envisage an alternative hypothesis as to what was intended other than exclusion of the CISG.[58]  In the absence of evidence of conduct which might point in the either direction, the intent behind the clause ‘All our disputes are exclusively subject to Austrian law, excluding private international law, and the CISG’ is less clear. Similarly, a choice of ‘the national law of [a Contracting State] as set out in the statutes of [that Contracting State] and developed by its courts’ is also unclear, since the CISG may indeed be implemented by domestic legislation and will naturally be the subject of domestic court cases.[59]  In these cases where what would be reasonably understood as the intent is unclear, a generally strict approach would favour application of the CISG unless other evidence existed that exclusion was intended by the parties. On the other hand, choice of the law of a non-Contracting State would generally indicate a sufficiently clear intention not to be bound by the CISG.

4.10 Without more, a jurisdiction clause will not imply exclusion of the CISG where the forum selected is located in a Contracting State. This was upheld in some court decisions. In one German case, it was correctly reasoned that whilst a choice of forum might otherwise ‘hint’ as to the law intended, this ‘hint’ is based on the underlying assumption that parties would not normally choose a forum intending it to apply foreign law. This assumption, however, bears no relevance to the CISG, which is not foreign law in Contracting States.[60]  However, the assumption might have relevance for choice of a non-Contracting State court, which could accordingly indicate an intent to exclude.

4.11 It can be contemplated that parties might sometimes refer, especially in relation to matters not governed by the CISG, to a non-CISG domestic law or provisions of a domestic law. This might be the case, for example: in a retention of title clause, whereby parties refer to a domestic law that deals with property or title issues which are excluded by Art. 4(b) CISG;[61]  or, in a franchise or distribution agreements where domestic laws dealing with agency or validity are chosen (see Art. 4(a)), or other situations in which a law concerning assignment is chosen. In such situations, much will turn on the wording of the clause. However, in the absence of other evidence, the application of a high threshold for intent would generally result in the following:

(a) If the wording makes it clear that the choice of a purely non-CISG domestic law is in relation only to matters not governed by the CISG, then the choice operates only to fill external gaps in the CISG for the nominated issues that extend beyond its scope. This recognizes parties, cognizant of the CISG’s limits, may have made provision for matters with which it does not deal;[62]

(b) If the choice is only in relation to a limited issue (e.g., risk, anticipatory breach, payment of price)[63]  which is covered by the CISG, then the choice may amount to a derogation from the CISG in relation to those matters, but not a full exclusion, consistent with the approach to nomination of INCOTERMS below [§4.12];

(c) If the choice is not limited to specific matters, but appears to be more general in nature, then the general approach endorsed in this Opinion should be applied.[64]

4.12 A choice of law indicating parties have selected a body of rules as opposed to national law will be subject to the applicable rules on the validity of the choice of law. Whether such a choice is a sufficiently clear indication of intent to exclude the CISG depends on the scope of the rules of law validly chosen. If such rules have much the same scope or a wider scope than the CISG, an intention to exclude would normally be sufficiently clear. For example, if parties select the UNIDROIT Principles of International Commercial Contracts,[65]  in most cases they would be reasonably understood to be to have intended that the UNIDROIT Principles apply rather than the CISG, provided the choice is valid.[66]  Where such a choice is not allowed under applicable law, intent to exclude the CISG in the absence of positive choices of rules of law will not be sufficiently clear. Selection of INCOTERMS concerns a narrow range of issues, therefore cannot of itself objectively manifest a clear intent to exclude the entire CISG rather than mere derogation from some of its provisions, such as risk, documentation, and payment terms.[67]

4.13 The now withdrawn proposed EU Regulation for a European Sales Law (Draft CESL) provided for application on an ‘opt-in’ basis.[68]  There was some controversy over how the application of the CISG and application of the Draft CESL would interface.[69]  It had been argued that the CISG should prevail over the Draft CESL where both instruments applied, such as where a CESL opt-in did not amount to a valid exclusion of the CISG, since ‘the CISG remains applicable if not validly excluded, and CESL respects the principal prevalence of the CISG’.[70]  This approach would be consistent with the requirement of a clear intent for exclusion of the CISG.

4.14 Terms exchanged by the parties may differ in that one party has attempted to exclude the CISG and the other has not. In this situation the question of intention to exclude is problematic. The approach that best accords with the position that clear intent is necessary under Art. 6 would require both parties to positively assent to the exclusion before exclusion is effective. If both choose Contracting States, but only one excludes the CISG, there can be no clear agreement to exclude for the purposes of Art. 6.[71]  Yet even if parties exchange standard terms both purporting to exclude the CISG, their intent may still be unclear. For example, one party may indicate a choice of Danish law excluding the CISG, and the other might indicate Spanish law excluding the CISG. Neither Danish nor Spanish law will be applicable pursuant to the knock out method of dealing with conflicting standard terms expressed in CISG Advisory Council Opinion No 13, Rule 10.[72]  However, the common exclusion of the CISG should not usually be allowed to stand independent of the connected positive indications of choice of law, since it might well be that, absent their respective positive choices of law, and in the absence of any remaining positive choice, parties would rather that the CISG apply than resort to the uncertainty of default conflicts rules. In any event, the intention of parties in relation to exclusion is unlikely to be sufficiently clear.

[OPINION 16 PART 1]
Commentary on Rules 1-3 

 [OPINION 16 PART 3]
Commentary on Rule 5 para 5.1-5.16

 [OPINION 16 PART 4]
Commentary on Rule 5 para 5.17-5-22 and Rule 6

FOOTNOTES

 26. This has been the approach in the cases below. See also Schwenzer & Hachem, supra note 3, Art. 6, at 108-109 para. 14.

27. See, e.g., Cour de Cassation, 17 December 1996, supra note 4 (‘[r]eferring only to the law of a Contracting State in a clause…is not sufficient’); Oberster Gerichtshof [Supreme Court], Austria, 26 January 2005 <http://cisgw3.law.pace.edu/cases/050126a3.html>; International Chamber of Commerce (ICC) Award No. 7565 of 1994 <http://cisgw3.law.pace.edu/cases/947565i1.html>; Bundesgerichtshof [Federal Supreme Court](BGH), Germany, 25 November 1998 <http://cisgw3.law.pace.edu/cases/981125g1.html>; Federal Supreme Court (BGH), Germany, 23 July 1997 (Benetton I) <http://cisgw3.law.pace.edu/cases/970723g1.html> (translation A. Raab); Federal Supreme Court (BGH), Germany, 23 July 1997 (Benetton II), NJW 1997, 3309, 3310 at 3310 <http://cisgw3.law.pace.edu/cases/970723g1.html>; Supreme Court, Austria, 22 October 2001, supra note 17 (‘choice of Austrian law principally includes the CISG, which is a part of the Austrian legal system... The choice of law without an explicit declaration that the [CISG] be excluded does not constitute an implicit exclusion, because the CISG is a part of the chosen law, it is therefore included in the referral, and takes precedence over the non-unified law which would otherwise be applicable’); Kantonsgericht [District Court](KG) Zug, Switzerland, 11 December 2003, available at <http://cisgw3.law.pace.edu/cases/031211s1.html>; Oberlandesgericht (OLG)[Appellate Court] Frankfurt, Germany, 30 August 2000, CLOUT Case No. 429 <http://cisgw3.law.pace.edu/cases/000830g1.html> (‘subject to Swiss law’ would not lead to exclusion, instead a more specific reference to domestic Swiss code is necessary); Cour d'appel Paris, 6 November 2001 <http://cisgw3.law.pace.edu/cases/011106f1.html>; Foreign Trade Court of Arbitration attached to the Serbian Chamber of Commerce, 6 May 2010 <html>http://cisgw3.law.pace.edu/cases/100506sb.html>; NV Van Heygen Staal v. GmbH Stahl- und Metalhandel Klockner, Hof van Beroep [Appellate Court] Gent, Belgium, 20 October 2004 <http://cisgw3.law.pace.edu/cases/041020b1.html>; Supreme Court, Austria, 2 April 2009, CLOUT Case No. 1057 <http://cisgw3.law.pace.edu/cases/090402a3.html>; Supreme Court, Poland, 17 October 2008, M. Zachariasiewicz, Abstract <http://cisgw3.law.pace.edu/cases/081017p1.html>; Arbitration Court of Latvian Chamber of Commerce and Industry, 7 July 2011 <http://www.cisgnordic.net/110707LV.shtml>; District Court (LG) Kiel, Germany, 27 July 2004 <http://cisgw3.law.pace.edu/cases/040727g1.html>; Tribunal Supremo Popular (Sala de lo económico)[Economic Chamber of Peoples’ Supreme Court], Cuba, 16 August 2008 <http://www.cisgspanish.com/seccion/jurisprudencia/cuba/>. Although not relevant on the facts, see Tribunale di Forli, Italy, 26 March 2009, supra note 2, at 17, §VI. See also, UNCITRAL Digest of Case Law on the [CISG] (2012) <http://www.uncitral.cor/pdf/english/clout/CISG-digest-2012-e.pdf> Art. 6 para. [11]; Schlechtriem, in Schlechtriem & Schwenzer 2nd edn, supra note 2, Art. 6, at 90 para. 14 (‘prevailing opinion ... holds that a reference to the law of a Contracting State in itself does not amount to an exclusion’); Schwenzer & Hachem, supra note 3, Art. 6, at 108-109 para. 14; Mistelis, supra note 1, at 101 para. 7 & 104 para. 18 & notes 31 & 32; Schroeter, supra note 18, at 8. For an example of the rare exceptions where courts had reached the opposite conclusion was held, where parties chose the ‘exclusive’ application of domestic law: Hof's-Hertogenbosch [Appellate Court], Netherlands, 13 November 2007 <http://cisgw3.law.pace.edu/cases/071113n1.html>; Tribunale Civile di Monza, Italy, 29 March 1993, CISG-online Case No 102 <http://cisgw3.law.pace.edu/cases/930114i3.html> (choice of a Italian law held to exclude CISG, in circumstances where, despite a choice of Italian law, the court felt neither Art. 1(1)(a) nor (b) was met); International Commercial Arbitration at the Ukraine Chamber of Commerce and Trade, supra note 15 (applying CISG on the basis intention to exclude must be express and clear, where main contract chose Ukraine law without excluding CISG, and only incorporated GAFTA No 200 expressly ‘unless in contradiction of the provisions of the underlying contract’). Only two recent decisions are to the contrary, see Tribunal Cantonal [Appellate Court] Vaud, Switzerland, 24 November 2004 <http://cisgw3.law.pace.edu/cases/041124s1.html> (while acknowledging generally choice of Contracting State law did not exclude, choice of Swiss law in the absence of any contractual/other association with Switzerland whatsoever was inferred as an intent that the contract to be governed by the Swiss Code of Obligations rather than the CISG); Appellate Court (OLG) München, Germany 2 October 2013, CISG-online Case No 2473 <http://cisgw3.law.pace.edu/cases/131002g1.html> (parties included a contractual choice of law clause selecting “German law”. The Court held that the parties had “explicitly and unambiguously stipulated German law to apply” and consequently, the CISG was excluded)(translation F. Jaeger).

28. Valero Marketing & Supply Co. v. Greeni Oy, 373 F.Supp.2d 475, U.S. District Court New Jersey, 15 June 2005 <http://cisgw3.law.pace.edu/cases/050615u1.html>; Ajax Tool Works, Inc. v. Can-Eng Manufacturing Ltd., 2003 U.S. Dist. LEXIS 1306 (N.D. Ill.), 29 January 2003 <http://cisgw3.law.pace.edu/cases/030129u1.html>; American Mint LLC v. GOSoftware, Inc., 2006 U.S. Dist. LEXIS 1569 (M.D. Pa), 6 January 2006 <http://cisgw3.law.pace.edu/cases/060106u1.html>; Travelers Property Casualty Company of America v. Saint-Gobain Technical Fabrics Canada Ltd, supra note 22 (‘absent an express statement that the CISG does not apply, merely referring to a particular state's law does not opt out of the CISG’); Easom Automation case, supra note 3; Asante Technologies, Inc. v. PMC-Sierra, Inc., 164 F. Supp. 2d 1142, U.S. District Court (N.D. Cal.), 27 July 2001 <http://cisgw3.law.pace.edu/cases/010727u1.html>; St Paul Guardian Insurance Company and Travelers Insurance Company v. Neuromed Medical Systems & Support, GmbH, supra note 22 (‘Where parties … designate a choice of law clause in their contract -- selecting the law of a Contracting State without expressly excluding application of the CISG’ this results in application of the CISG ‘as the law of the designated Contracting state’); BP International, Ltd. v. Empressa Estatal Petroleos de Ecuador, 332 F.3d 333, U.S. Court of Appeals (5th Cir.), 11 June 2003 <http://cisgw3.law.pace.edu/cases/030611u1.html> (‘Where parties seek to apply a signatory's domestic law in lieu of the CISG, they must affirmatively opt-out of the CISG’); Foreign Trade Court of Arbitration Serbian Chamber of Commerce, 6 May 2010 §IV <http://cisgw3.law.pace.edu/cases/100506sb.html> (‘[i]f the parties opted for a law of [Contracting] State … without expressly delineating that they choose internal law of the State, the Vienna Convention will be applicable’).

29. Beechy Stock Farm Ltd v. Managro Harvestore Systems Ltd, Court of Queen’s Bench Saskatchewan, Canada, 3 April 2002 <http://cisgw3.law.pace.edu/cases/020403c4.html> (clause stating ‘The application of the Vienna Convention on Contracts for the International Sale of Goods (CISG) is excluded. Instead, German law is agreed upon to be the basis of this contract as far as not these General Conditions of Sale stipulate anything different’ was taken as an exclusion of the CISG).

30. Oberster Gerichtshof [Supreme Court], Austria, 22 October 2001, supra note 17.

31. District Court (LG) Düsseldorf, Germany, 11 October 1995 <http://cisgw3.law.pace.edu/cases/951011g1.html>.

32. See Landgericht [District Court](LG) Landshut, Germany, 5 April 1995, §II.1.a <http://cisgw3.pace.edu/cases/950405g1.html> (stating ‘[t]he parties can only exclude the application of the CISG by explicit agreement’); Orbisphere Corp. v. United States, 726 F. Supp. 1344, Federal Court of International Trade, U.S.A., 24 October 1989, note 7 <http://cisgw3.law.pace.edu/cases/891024u1.html>; Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, Award 54/1999, 24 January 2000, para. 1 <http://cisgw3.law.pace.edu/cases/000124r1.html>. Criticizing such cases: Schroeter, supra note 18, at 9.

33. Olivaylle Pty Ltd v Flottweg GmbH & Co KGAA (No 4), 20 May 2009, supra note 14.

34. P. Perales Viscasillas, Abstract, BSC Footwear Supplies Ltd v. Brumby St., Audiencia Provincial de Alicante, Spain, 16 November 2000 <http://cisgw3.law.pace.edu/cases/001116s4.html> (one basis for the conclusion of tacit exclusion was that English law governed the contract); Mistelis, supra note 1, at 103 para. 12 & 104 para. 17.

35. For the minority view, see American Biophysics v. Dubois Marine Specialties, 411 F.Supp.2d 61, U.S. District Court Rhode Island, 30 January 2006 <http://cisgw3.law.pace.edu/cases/060130u1.html> (upholding exclusion by choice of law of the state of Rhode Island), and (albeit in the course of litigation by express reliance in pleadings on ‘State Law’); Ho Myung Moolsan, Co. Ltd. v. Manitou Mineral Water, Inc., U.S. District Court (SDNY), 2 December 2010 <http://cisgw3.law.pace.edu/cases/101202u1.html> (concluding that by referring expressly to ‘State Law’ the claimant had in pleadings consented to the application of New York UCC rather than the CISG); Rienzi & Sons, Inc., v. Puglisi, U.S. District Court (EDNY), 27 March 2014 <http://cisgw3.law.pace.edu/cases/140327u1.html> (approving of Ho Myung Moolsan); Mistelis, supra note 1, at 105 para. 18 & 107 para. 23 (selection of the law of a province in a Contracting State may be seen as exclusion of CISG). Contra, upholding the majority view that selection of the law of a territorial unit or province is insufficient, see e.g., Ajax Tool Works, Inc. v. Can-Eng Manufacturing Ltd., supra note 28; Asante Technologies v. PMC-Sierra, supra note 28; American Mint LLC v. GOSoftware, Inc., supra note 28; Travelers Property Casualty Company of America v. Saint-Gobain Technical Fabrics Canada Ltd, supra note 22 (choice of Minnesota law not an exclusion); Valero Marketing & Supply Co. v. Greeni Oy, supra note 28 (choice of New Jersy/New York law would not exclude CISG); Beltappo Inc. v. Rich Xiberta, SA, 7 February 2006 <http://cisgw3.law.pace.edu/cases/060207u2.html>; Schwenzer & Hachem, supra note 3, Art. 6, at 108-109 para. 14; William P. Johnson, Understanding Exclusion of the CISG, 59 Buffalo Law Rev. 213, at 228 (2011)(concluding it ‘is appropriate under the Supremacy Clause of the US Constitution [that]…a choice-of-law clause choosing the laws of a jurisdiction within the United States in fact chooses the CISG’). See also Johnson, id., at 242 (arguing the American Biophysics case, id., relied on cases which were not relevant to the issue of exclusion).

36. Asante Technologies v. PMC-Sierra, supra note 28, at 1150 (as these did not evince a ‘clear intent to opt out’); It's Intoxicating, Inc. v. Maritim Hotelgesellschaft mbH Federal District Court [Pennsylvania] United States, 31 July 2013 <http://cisgw3.law.pace.edu/cases/130731u1.html>.

37. On choice of specific domestic code or law, Oberlandesgericht [Appellate Court] (OLG) Stuttgart, Germany, 31 March 2008 <http://cisgw3.law.pace.edu/cases/080331g1.html> (commenting that were German law to apply, it should not be assumed the BGB or HGB rather than CISG applied, since ‘the CISG is incorporated into German law’. Words such as ‘the provisions of the BGB are applicable’ would be required to denote domestic non-uniform law). Contra Appellate Court (OLG) Linz, 23 January 2006, supra note 24, [2.3] (mention of HGB (Austrian Commercial Code) in standard terms dealing with warranties was not sufficient), but overturned in Supreme Court, Austria, 4 July 2007, supra note 24.

38. Schwenzer & Hachem, supra note 3, Art. 6 para. [25].

39. Apparently suggesting this as the safest course: Joseph Lookofsky, Understanding the CISG 27 (Kluwer 2008); Contra Schwenzer & Hachem, supra note 3, Art. 6 para. [26].

40. Appellate Court (OLG) Stuttgart, 31 March 2008, supra note 37; Appellate Court (OLG) Oldenburg 20 December 2007, supra note 3; CIETAC Award, 24 March 1998, CISG-online Case No 930 (selection of the PRC Law on Economic Contracts Involving Foreign Interest).

41. Supreme Court, Austria, 4 July 2007, supra note 24 (reference to a particular law such as the Austrian Consumer Protection Act and the Austrian Commercial Code was an implied exclusion of the CISG, overturning Appellate Court (OLG) Linz, 23 January 2006, supra note 24).

42. Asante Technologies v. PMC-Sierra, supra note 28, at 1150 (dicta); Delchi Carrier SpA v. Rotorex Corp., 71 F.3d 1024, 1027 n. 1 <http://cisgw3.law.pace.edu/cases/951206u1.html>; Doolim Corp. v. R Doll, LLC, U.S. District Court (SDNY), 29 May 2009 [34] <http://cisgw3.law.pace.edu/cases/090529u1.html> (dicta)(approving Delchi statement that choice of UCC would exclude CISG).

43. Supreme Court, Hungary, 2007, Gfv.IX.30.372/2007/5 (‘The fact that in the choice of law clause the parties referred to the Hungarian Civil Code instead of the Hungarian law does not mean - according to the phrasing as well - the exclusion of the application of the Convention. It is evident that in case of civil law relations the parties are referring to the specific law which governs their relation and not to the Hungarian law in general, especially when their contract contains provisions which are not covered by the Convention. [..] Therefore it can not be verified that the parties excluded the application of the Convention by mutual consent’)(reported in translation by Gusztáv Bacher, Application of the CISG in Hungary and the effect of the CISG on Hungarian Law, 30 October 2008, §1.2 <http://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0CDAQFjAB&url=http%3A%2F%2Fwww.szecskay.hu%2Fdynamic%2FBacher_Application_of_CISG_in_HUNGARY.doc&ei=QqtgU4-fIMLolAWLroGgDA&usg=AFQjCNEcae1REvspVHWO5PscAV1PTy2pXg&bvm=bv.65636070,d.dGI>). Similarly, some German and Italian courts have dismissed the notion that reference by both parties during proceedings to BGB or other domestic provisions could amount to an implied exclusion, discussed below: see District Court (LG) Landshut, 5 April 1995, supra note 32, §II.1.a; Appellate Court (OLG) Linz, 23 January 2006, supra note 24; Tribunale di Padova, 25 February 2004, supra note 100; Oberlandesgericht [Appellate Court](OLG) Zweibrüken, Germany, 2 February 2004, §3 <http://cisgw3.law.pace.edu/cases/040202g1.html>; Oberlandesgericht [Appellate Court](OLG) Hamm, Germany, 9 June 1995 <http://cisgw3.law.pace.edu/cases/950609g1.html>.

44. Bacher, supra note 43, at §1.2 (citing also Sándor, Tamás - Vékás, Lajos, Nemzetközi Adásvétel [International Sale of Goods], Budapest, 2005, at 65).

45. See Summary Records of the First Committee, 4th Meeting, 13 March 1980, UN Doc. A/CONF.97/C.1/SR.4, reprinted in Official Records UN Doc. A/CONF.97/19, at 251 para. [38]-[40] (Comments by Mr Rognlien for Norway and Mr Plantard for France). See also, Johnson, supra note 35, at 254-55.

46. Supreme Court, Hungary, supra note 43 (translation by Bacher, supra note 43, at §1.2.

47. See Appellate Court (OLG) Linz, 23 January 2006, supra note 24, [2.3] (reference to HGB insufficient as transaction fell outside scope of HGB), but overturned in Supreme Court, Austria, 4 July 2007, supra note 24.

48. See Vrhovno sodišce v Celju [Celje High Court], Slovenia, 8 June 2011 <http://cisgw3.law.pace.edu/cases/110608sv.html> (the contractual choice of law was for ‘civil code and corresponding community regulations’, and was remanded to the first instance court which had applied CISG without considering whether parties had excluded the CISG pursuant to Art. 6). Although not relevant on the facts, see Tribunale di Forli, Italy, 26 March 2009, supra note 2, at 17, §VI (speculating that selection of ‘the Italian Civil Code’ might amount to exclusion).

49. Although not relevant on the facts, see Tribunale di Forli, Italy, 26 March 2009, supra note 2, at 17, §VI.

50. ICC Award No. 12365/2004 <http://cisgw3.law.pace.edu/cases/0412365i1.html>; Hof van Beroep [Appellate Court] Gent, Belgium, 20 October 2004, supra note 27; Schroeter, supra note 18, at 9.

51. Appellate Court (OLG), Linz, 23 January 2006, supra note 24, [2.3] (suggesting this could amount to an implied exclusion (utilizing the term ‘derogates’); UNCITRAL Digest, supra note 27, Art. 6 at para. [12](citing OLG Linz, using the term ‘differs’).

52. Federal Supreme Court, Switzerland, 16 December 2012, 4A_240/2009, CISG-online Case No 2047 (‘dass Schweizer Recht zur Anwendung gelange, und zwar so, wie wenn inländische Parteien betroffen wären’)(translation by Landolt, supra note 3; Hof's-Hertogenbosch [Appellate Court], Netherlands, 13 November 2007, supra note 27 (although the court also took into account the fact the party arguing for application of CISG did not raise it until rejoinder)(translation by S. Kruisinga).

53. Accord Nidera SA v. General Oil Trading BV, District Court Rotterdam, Netherlands, 2 March 2011 [2.5] <http://cisgw3.law.pace.edu/cases/110302n1.html> (rejecting argument inclusion of ‘cash against documents’ term implied choice of English law).

54. Although this was not expressly stated as the reasoning for the court’s conclusion, see Houweling Nurseries Oxnard, Inc. v. Saskatoon Boiler Mfg. Co. Ltd, Queen’s Bench for Saskatchewan, Canada, 14 March 2011 [90]-[93] <http://cisgw3.law.pace.edu/cases/110314c4.html> (where the court applied local sales law after deciding an attempt to exclude terms implied terms by those laws had been unsuccessful, but did not explain why it omitted to apply the CISG, despite its potential applicability being drawn to the court’s attention in the pleadings).

55. Oberster Gerichtshof [Supreme Court], 2 April 2009, supra note 27 (the clause read ‘Gerichtsstand. Gerichtsstand für alle Streitigkeiten ist Steyr. Für alle unsere Streitigkeiten gilt ausschliesslich österreichisches Recht, ausgenommen IPR, und UN-Kaufrecht’; Schroeter, supra note 18, at 22, note 122.

56. Accord Schwenzer & Hachem, supra note 3, Art. 6, at 108-109 para. 14; Ajax Tool Works, Inc. v. Can-Eng Manufacturing Ltd., supra note 28; American Mint LLC v. GOSoftware, Inc., supra note 28; Travelers Property Casualty Company of America v. Saint-Gobain Technical Fabrics Canada Ltd, supra note 22. Contra American Biophysics v. Dubois Marine Specialties, supra note 35; Mistelis, supra note 1, at 105 para. 18 & 107 para. 23.

57. Accord Appellate Court (OLG) Stuttgart, 31 March 2008, supra note 37.

58. Accord Olivaylle Pty Ltd v Flottweg GmbH & Co KGAA (No 4), 20 May 2009, supra note 14.

59. This was the choice of law indicated in the 21st Annual Willem C. Vis International Commercial Arbitration Moot Problem, 2014, with the Contracting State in question being the fictitious Medditeraneo.

60. Appellate Court (OLG) Stuttgart, Germany, 31 March 2008, supra note 37; Handelsgericht [Commercial Court](HG) Aargau, Switzerland, 10 March 2010, CISG-online No 2176 <http://cisgw3.law.pace.edu/cases/100310s1.html> (the Court held that a choice of forum clause selecting a court in a CISG Contracting State would not suffice for exclusion of the CISG under Art. 6, because such a court must apply the CISG as part of its own law)(translation by U. Schroeter). See also Appellate Court (OLG) Linz, 23 January 2006, supra note 24, at [2.2] (overturned on appeal by Supreme Court, Austria, 4 July 2007, supra note 24). Contra Obergericht [Appellate Court] Aargau, Switzerland, 3 March 2009 <http://cisgw3.law.pace.edu/cases/090303s1.html> (inter alia, considering that a jurisdiction clause was relevant, although ultimately exclusion was not upheld)(translation by Landolt, supra note 3 & A. Raab).

61. In Roder Zelt- und Hallenkonstruktionen GmbH v. Rosedown Park Pty Ltd (1995) 57 FCR 216 <http://cisgw3.law.pace.edu/cases/950428a2.html> the CISG was governing law, but the main issue was property in goods where an administrator had been appointed. The court rightly held the Romalpa/retention of title clause to involve matters outside the CISG, but still correctly determined whether the ROT clause had been incorporated by reference to CISG formation provisions. A building lien was registered under the Swiss Civil Code by a subcontractor in Appellate Court, Aargau, Switzerland, 3 March 2009, supra note 60 (raising without deciding the question as to which law applied to the potential actions: CISG Art. 41, Austrian or Swiss law) (translation by Landolt, supra note 3 & A. Raab).

62. This approach was followed by the Geneva Cour de justice [Appellate Court], Switzerland, 12 March 2010, C/13279/2006, CISG-online Case No 2426 (pleading Belgian law was not considered as a tacit exclusion since areas of law concerned were outside scope of CISG) (translation by P. Landolt, supra note 3). See also, Federal Supreme Court (BGH), Germany, 23 July 1997 (Benetton II), supra note 27.

63. See Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, 12 November 2004 <http://cisgw3.law.pace.edu/cases/041112r1.html> (derogation relating to risk, anticipatory breach); Cour de justice [Appellate Court] de Genève, Switzerland, 22 October 2010, CISG-online Case No 2430 <http://globalsaleslaw.com/content/api/cisg/urteile/2430.pdf> (derogation from Art. 58 by valid settlement on price, CISG otherwise applicable)(translation by C. Baasch Andersen).

64. For example, for choice of Contracting State law simpliciter without exclusion, discussed above at §42. As to the general approach to the gap filling function of residual national law in such situations to those matters not governed by the CISG, see comments of Economic Chamber of Peoples’ Supreme Court, Cuba, 16 August 2008, supra note 27 (translated in Addendum Table of Cases below, translation by P. Perales Viscasillas).

65. International Institute for the Unification of Private Law, UNIDROIT Principles of International Commercial
Contracts 2010 (Rome: UNIDROIT)(UNIDROIT Principles).

66. The same would be true of a choice of the Principles of European Contract Law. See Commission on European Contract Law, Principles of European Contract Law, Parts I & II (1999) & Part III (2003), available at http://www.cisg.law.pace.edu/cisg/text/textef.html (PECL/‘Lando Principles’).

67. Accord Oberster Gerichtshof [Supreme Court], Austria, 22 October 2001, supra note 17; Mistelis, supra note 1, at 106 para. 20 (stating this view is ‘indisputably correct’). Similarly, if the terms of the contract do not provide for consequences of proposals to continue the contract, then Art. 71(3) may step in to provide the solution: Tribunal of International Commercial Arbitration at the Russian Federation Chamber of Commerce and Industry, 12 November 2004, supra note 63.

68. The proposal was withdrawn 16 December 2014 in the EU Commission Work Program for 2015 Item 60. See Commission Proposal for a Regulation of the European Parliament and of the Council on a Common European Sales Law, art. 3, COM (2011) 635 final (10 November 2011) <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2011:0635:FIN:en:PDF>, adopted by EU Parliament: European Parliament legislative resolution of 26 February 2014 on the proposal for a regulation of the European Parliament and of the Council on a Common European Sales Law (COM(2011)0635 – C7-0329/2011 – 2011/0284(COD))(Ordinary legislative procedure: first reading), Art. 3 (as amended) <http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2014-0159>.

69. CESL Regulation, id., at para. [25](a choice to opt into CESL should imply intent to exclude CISG). See also Franco Ferrari, CISG and OHADA Sales Law, in U. Magnus (ed.), CISG vs Regional Sales Law Unification 79, 88 (Sellier 2012)(in relation to OHADA and Art. 90). Contra P. Schlechtriem & P. Butler, UN Law on International Sales 239 (Springer (stating that while other international agreements prevail over the CISG pursuant to Art. 90, that ‘does not apply to [EU] legislation, regulations and directives’ and that for such instruments to prevail the relevant State ‘has to make a declaration under Articles 94(1) or (2) CISG’); I. Schwenzer, The Proposed Common European Sales Law and the Convention on the International Sale of Goods 44 UCC Law Journal 457, at 459 (2012)(noting whilst CESL drafters consider choice of CESL to be implied exclusion of the CISG, that ‘Whether such a disposition can be ordered by the European authorities seems at least very doubtful, as the question whether the parties validly opted out from the CISG is entirely to be decided autonomously under the CISG itself’); see also I. Schwenzer & D. Tebel, The World is Not Enough, 31 ASA Bulletin 740, 762 (2013); U. Schroeter, Global Uniform Sales Law -- With a European Twist? CISG Interaction with EU Law,13 Vindobona Journal of International Commercial Law & Arbitration 179, at 190-191 (discussing complications in the interface with an EU instrument).

70. Ulrich Magnus, The Roots and Traces of the CISG in the Draft of a Common European Sales Law in I. Schwenzer & L. Spagnolo (eds), Boundaries and Intersections 1, 4 (Eleven, 2014).

71. While the Draft Hague Principles on Choice of Law acknowledges that if CISG Art. 1 conditions are met, the CISG is applicable in the absence of an exclusion agreement under Art. 6 [6.25], they understandably do not consider the preliminary threshold requirements under Art. 6 before such exclusion should become effective in removing the CISG’s application. Nonetheless, the Draft Principles suggest a solution on a conflicts approach [6.27], stating that where in a battle of standard terms A chooses a Contacting State X’s law, and B chooses a different Contracting State Y’s law but purports to opt out of the CISG, then one should compare the battle of the forms rules under the CISG (either last shot or knock out) with the rule under Y’s law (excluding the CISG). If Y operates under a knock out rule, then both choices of law are knocked out, leaving no choice of law, and thus CISG applies: Revised Draft Hague Principles on Choice of Law in International Commercial Contracts, Prel. Doc. No 6, July 2014 <http://www.hcch.net/index_en.php?act=text.display&tid=49>.

72. Supra note 5. Notably, in one case where there were differing choices of law (albeit not involving exclusion of the CISG) it was held that no contract was formed at all, however, the court mistakenly applied domestic knock out principles rather than within the framework of formation under the CISG: Hanwha Corporation v. Cedar Petrochemicals, Inc., U.S. District Court, New York, 18 January 2011<http://cisgw3.law.pace.edu/cases/110118u1.html>.