CISG Advisory Council Opinion No 16

Exclusion of the CISG under Article 6

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To be cited as: CISG-AC Opinion No. 16, Exclusion of the CISG under Article 6, Rapporteur: Doctor Lisa Spagnolo, Monash University, Australia. Adopted by the CISG Advisory Council following its 19th meeting, in Pretoria, South Africa on 30 May 2014.

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, ULRICH SCHROETER, HIROO SONO, CLAUDE WITZ, Members

SIEG EISELEN, Secretary

OPINION

Article 1 CISG

(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States:

(a) when the States are Contracting States; or
(b) when the rules of private international law lead to the application of the law of a Contracting State.

Article 6 CISG

The parties may exclude the application of this Convention […].

* * *

1. Where the CISG is applicable according to Arts 1-3 CISG, the principle of party autonomy expressed in Art. 6 CISG permits parties to agree to exclude its application, at the time of or after the conclusion of the contract.

2. The CISG governs the manner of exclusion. An agreement to exclude the CISG is governed by the rules on contract formation and modification in Arts 11, 14-24, 29 CISG.

3. The intent of the parties to exclude must be determined in accordance with
Art. 8 CISG. Such intent should be clearly manifested, whether at the time of conclusion of the contract or at any time thereafter. This standard also applies to exclusions during legal proceedings.

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.

5. During legal proceedings an intent to exclude may not be inferred merely from failure of one or both parties to plead or present arguments based on the CISG. This applies irrespective of whether or not one or both parties are unaware of the CISG’s applicability.

6. Domestic principles of waiver should not be used to determine the parties’ intent to exclude the CISG.  

COMMENTS

 1. Where the CISG is applicable according to Arts 1-3 CISG, the principle of party autonomy expressed in Art. 6 CISG permits parties to agree to exclude its application, at the time of or after the conclusion of the contract.

1.1 The general principle of party autonomy manifest in Art. 6 enables parties to exclude the applicability of the CISG in whole or part.

 
2. The CISG governs the manner of exclusion. An agreement to exclude the CISG is governed by the rules on contract formation and modification in Arts 11, 14-24, 29 CISG.

2.1 The matter of exclusion is one which is governed by the CISG. In every case where parties purport to do so, exclusion of its application will only be effective if it complies with the CISG. Thus the ability of parties to choose to exclude the application of the CISG is dealt with by Arts 6, 11, 14-24, which control the manner of exclusion, whether parties seek to exclude the CISG within the original contract or sometime thereafter. Domestic validity laws in relation to matters not covered by the CISG remain applicable: Art. 4(a).[1]

2.2 In relation to exclusions at the time of concluding the contract, there is a contrary minority opinion that advocates the testing of ex ante exclusion clauses by conflicts of laws rules.[2] However, the majority view is that any agreement to exclude the CISG’s applicability must meet the formation provisions Arts 11, 14-24 CISG, and must satisfy Art. 6.[3] The CISG’s initial applicability is not ‘subordinated to the will of the parties’ since the CISG already applies pursuant to Art. 1.[4] Its subsequent applicability can be altered by the will of the parties provided that will amounts to an agreement to exclude in accordance with the CISG. The question in every case of purported exclusion is whether parties have an agreed intent to exclude which satisfies the requirements of the CISG provisions.

2.3 The better view is that once a contract is prima facie governed by the CISG by virtue of Art. 1, the adjudicator must look to its provisions alone to decide if there has been an exclusion, since until such time as Art. 6 is satisfied, the CISG remains the governing law of the contract. It is the CISG which controls the ‘choice of law rule’ when a contract to which the CISG is prima facie applicable exists.

2.4 It follows that the question of incorporation of the clause purporting to exclude the CISG is to be determined initially in accordance with Arts 11, 14-24, not the contract law that would otherwise be applicable by virtue of conflict rules.[5] Courts in Contracting States have a duty to apply these provisions to determine formation of an agreement to exclude, including incorporation of any clause purporting to exclude the CISG’s application.[6]

2.5 In relation to exclusions after the contract has been concluded, the position is unequivocal. CISG formation provisions incontrovertibly apply to ex post exclusions, has been acknowledged even by the minority of scholars who advocate conflict rules to test ex ante exclusion clauses.[7]  Therefore the ability of parties to exclude the application of the CISG after the contract is concluded is also dealt with by Arts 6, 11, 14-24.[8]  However, as a CISG contract already exists, any agreement to exclude ex post also constitutes a modification of the original contract. Thus Art. 29 CISG must also be satisfied before the CISG’s application is excluded at the stages or contractual performance or legal proceedings alike. The adjudicator must look to the CISG alone to decide if there has been an exclusion. Until Art. 6 is enlivened, the CISG remains the governing law of the contract.[9]

2.6 While parties can agree to exclude the CISG during litigation,[10]  the only way conduct of legal proceedings itself can potentially alter the prior applicability of the CISG is if it amounts to an agreement to modify the choice of law of the underlying contract. In other words, the CISG is excluded only if such conduct leads to formation of an agreement to modify the original contract in compliance with Arts 6, 11, 14-24 and 29 CISG.[11]  Parties must therefore comply with the CISG’s internal requirements before their autonomous choice can be effective.[12]

 
3. The intent of the parties to exclude must be determined in accordance with Art. 8 CISG. Such intent should be clearly manifested, whether at the time of conclusion of the contract or at any time thereafter. This standard also applies to exclusions during legal proceedings.

3.1 It is undesirable to have extensive disparity between the requirement for intent to exclude at the ex ante and ex post stages. There is broad consensus in the scholarship and amongst cases decided on exclusions within the original contract that a clear intent to exclude is required pursuant to Art. 6. Generally, courts and commentators have taken a rather restrictive approach to ex ante exclusion of the CISG. Most scholars caution against swift conclusions of implicit exclusion within the contract.[13] Implicit exclusions have been upheld,[14] but most courts and tribunals have been slow to infer exclusion where the intent of a contractual clause is unclear.[15] Generally, a ‘certain’ or ‘real’ tangible intent rather than hypothetical intent has been required.[16]  Above all, the cases strongly demonstrate that a ‘clear intent’ is required for ex ante exclusion.[17]  By contrast, where parties have failed to plead or present argument based on the CISG during legal proceedings involving a contract for which the CISG is the applicable law, intent to exclude has frequently been tested by far less stringent standards, and in some cases, domestic law applied instead of the CISG.

3.3 Rather than have different approaches to determining an intent to exclude at the ex ante and ex post stages, it is appropriate to discern a single uniform standard that can be applied consistently to determine intent to exclude at both contractual and post-contractual stages.

3.4 Since court and tribunal decisions and most scholars overwhelmingly support the requirement of a high threshold for intent to exclude at the time of concluding a contract, it is appropriate that this existing strict standard of intent should be maintained as the single uniform standard for all exclusions at contractual and post-contractual stages, including during legal proceedings. A clear intent to exclude should be inferred before the court or tribunal is satisfied of an agreement to exclude, whether at the time the contract is formed, or post-contractually.

3.5 It is true that this sets the threshold for intent to exclude at a higher level than is otherwise generally required for intent under the CISG. However, at the ex ante contractual stage, the evidentiary bar for inferences satisfying Art. 6 is already consistently applied in a stringent manner by courts and tribunals.[18] The strict uniform interpretive approach to the threshold for intent to exclude generally observed in the decisions on ex ante exclusions is desirable in terms of promoting efficiency and certainty.[19]  It encourages greater and more predictable uniform application of the CISG. It also accords with the views of most scholars,[20]  furthers the CISG’s ‘international character and to the need to promote uniformity in its application’ as directed by Art. 7(1), and develops the original aim of the CISG in ‘contribut[ing] to the removal of legal barriers in international trade and promot[ion of] the development of international trade’. It is consistent with the timbre of the Diplomatic Conference, where the concern was that uniform law would be rendered ineffective if courts were too quick to find exclusion,[21] a policy concern that has been expressly recognized in some cases.[22]  In interpretation of potential agreements to exclude the CISG’s application, a principle of in dubio pro conventione furthers these purposes.

3.6 In considering whether an agreement to exclude has been formed pursuant to Arts 29 and/or 11, 14-24, Arts 6 and 8 CISG are of prime importance. The adjudicator will need to determine whether a clear inference arises from the words and/and conduct of the parties to the effect that they intended to exclude the CISG, in the sense that these would be reasonably understood as manifesting such an intent: Art. 8(2). The evidence may support divergent inferences regarding intent. In balancing competing inferences arising from such evidence, the adjudicator must determine the most likely intent from amongst competing hypotheses. When doing so, Art. 7 requires that the adjudicator bear in mind the need for uniform development of the law, and thus the uniform requirement of clear intent to exclude required by Art. 6, 11, 14-24 and 29 should be used to determine intent to exclude at both contractual and post-contractual stages.

3.7 It follows that, while implicit exclusion is possible, intent to exclude is not to be readily inferred for the purposes of Art. 6. In accordance with the cases and commentary, the balance should generally tip in favour of non-exclusion where the facts do not support an inference of clear intent to exclude. In other words, when balancing competing inferences pursuant to Art. 8 CISG, in the absence of a clear intent to exclude,[23]  parties should be reasonably understood as not evincing intent to opt out pursuant to Art. 8(2).[24]  The burden is on parties to make their choice of law plain enough that it would be reasonably understood as bearing the purpose of exclusion: Art. 8(2) CISG. Thus the facts of a particular case are not to be ignored, but must be weighed appropriately against the requirement of a clear manifestation of intent.[25]  The conduct of the parties both prior and subsequent to the choice should be taken into account pursuant to Art. 8(3).

3.8 Naturally, the evidence of intent must be analysed on a case-by-case basis pursuant to Art. 8, but some general observations are possible as to what might be reasonably understood as an intent to exclude pursuant to Art. 8(2).

[OPINION 16 PART 2]
Commentary on Rule 4 

 [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

 * 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, Prof Yesim Atamer, Istanbul Bilgi University, Turkey, and Prof Ulrich G. Schroeter, University of Mannheim, Germany. 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.

1. L. Mistelis, in S. Kröll, L. Mistelis & P. Perales Viscasillas (Eds), UN Convention on Contracts for the International Sale of Goods (CISG) Art. 6, 99, at 104 para. 17 (2011)(private international law of the forum determines which laws apply in relation to validity).

2. P. Schlechtriem, in P. Schlechtriem & I. Schwenzer (Eds), Commentary on the UN Convention on the International Sale of Goods (CISG), Art. 6, at 85-89 & 91 paras 7-10, 12 & 14 (‘Schlechtriem & Schwenzer 2nd edn’)(stating that rules of private international law determine the issue). Contra Tribunale di Forli, Italy, CISG-online Case No 2336, 26 March 2009, §V (this avoids the ‘two-step’ process, the CISG prevailing over private international law as the special and more limited law) <http://www.globalsaleslaw.org/content/api/cisg/urteile/2336.pdf>.

3. See, e.g., Oberlandesgericht [Appellate Court](OLG) Oldenburg, Germany, 20 December 2007 <http://cisgw3.law.pace.edu/cases/071220g1.html>; Golden Valley Grape Juice and Wine, LLC v. Centrisys Corp., 2010 U.S. Dist. LEXIS 11884 (E.D. Cal.), 22 January 2010 <http://cisgw3.law.pace.edu/cases/100121u1.html> (‘Golden Valley case’); Easom Automation Systems, Inc. v. Thyssenkrupp Fabco, Corp., 2007 WL 2875256, U.S. District Court (E.D. Mich.), 28 September 2007, CISG-online Case No 1601 <http://cisgw3.law.pace.edu/cases/070928u1.html> (‘Easom Automation case’); Handelsgericht des Kantons, [Cantonal Commercial Court](HG) St. Gallen, Switzerland, 15 June 2010, 2009/164, CISG-online Case No 2159 <http://www.globalsaleslaw.org/content/api/cisg/urteile/2159.pdf> (where parties chose Swiss law to the exclusion of the CISG, the court first applied CISG to determine if exclusion had been successful under Art. 6), see discussion by Phillip Landolt, Summary of Swiss case law on the CISG from 2008 until March 2013, Jusletter, 26 August 2013 <www.jusletter.ch>; L. Spagnolo, The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the Vienna Sales Convention for Australian Lawyers, 10 Melbourne J. Int’l L. 141, at 205; (CISG should determine the matter, at least until the point at which exclusion is established under its formation provisions); I. Schwenzer & P. Hachem, in I. Schwenzer (Ed), Schlechtriem & Schwenzer: Commentary on the UN Convention on the International Sale of Goods (CISG), Art. 6, at 104 & 105 (2010)(‘Schwenzer 3nd edn’) (formation and interpretation of exclusion clauses subject to CISG rules); M. Schmidt-Kessel, in Schwenzer 3rd edn, Art. 8, at 177 para. 61 (incorporation of choice of law clauses including exclusions of CISG within the sphere of CISG formation provisions). But see Schlechtriem, in Schlechtriem & Schwenzer 2nd edn, supra note 2, Art. 6, at 85-89 paras 7-10 (stating that rules of private international law determine the issue). For discussion suggesting the need for choice of law clauses to be treated as separable from the remainder of the contract for the purposes of Art. 6: see Jack Graves, CISG Article 6 and Issues of Formation: The Problem of Circularity, 15 Vindobona Journal of International Commercial Law & Arbitration 105 (2011). See also Mistelis, supra note 1, at 102 para. 10 (2011)(agreements to exclude should be treated as ‘stand-alone’ agreements).

4. Sté Ceramique Culinaire de France v. Sté Musgrave Ltd, Cour de Cassation, France, 17 December 1996 <http://cisgw3.law.pace.edu/cases/961217f1.html> (the CISG ‘applies at the outset; its applicability is not subordinated to the will of the parties, express or tacit’). See also, Tribunale di Padova, Italy, 25 February 2004 <http://cisgw3.law.pace.edu/cases/040225i3.html> (‘[f]urther, the silence in the pleadings on the matter of the applicability of the law at issue is immaterial because, in the presence of all requisites mentioned above [the CISG] is applicable by operation of law’).

5. CISG Advisory Council Opinion No 13 Inclusion of Standard Terms under the CISG, Rapporteur: Prof. Sieg Eiselen, §1. Contra Venter v. Ilona MY Ltd., Supreme Court of New South Wales, Australia, 24 August 2012 at [26] <http://cisgw3.law.pace.edu/cases/120824a2.html> (incorporation of a choice of forum/choice of law clause was determined in accordance with Australian domestic law, despite the court correctly noting that an argument was available that the exclusion only operates if the terms containing the exclusion were incorporated ‘(the very question to be decided)’).

6. A court’s failure to apply the CISG as the applicable governing law may amount to a breach of international obligations. As the Vienna Convention on the Law of Treaties at Art. 27 states ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty’: Vienna Convention on the Law of Treaties, Vienna, 23 May 1969, Vol. 1155 U.N.T.S. 331. See discussion, Spagnolo, infra note 9. Venter v. Ilona MY Ltd., supra note 5 (court did not consider whether it had a duty to apply the CISG ex officio).

7. Schlechtriem, in Schlechtriem & Schwenzer 2nd edn, supra note 2, at 89 & 91 paras 12 & 14.

8. Alluding to disagreement about the relevance of Arts 8, 14-24 in relation to Art. 29: A. Björklund,, in Mistelis, supra note 1, Art. 29, 382, at 383 para. 5 (2011). Suggesting reference to these provisions in the context of modifications is appropriate: P. Schlechtriem & P. Butler, UN Law on International Sales 87 para. 97 (2009); P. Perales Viscasillas, Modification and Termination of the Contract (Art. 29 CISG), 25 J. L. & Com. 167, at 171 (2005-6); H. Gabriel, Contracts for the Sale of Goods 22 (2009)(provided not applied to their full extent).

9. L. Spagnolo, Iura Novit Curia and the CISG: Resolution of the Faux Procedural Black Hole, in I. Schwenzer & L. Spagnolo, Towards Uniformity: 2nd Annual MAA Schlechtriem CISG Conference 181, 191, 205 (2011), revised version published as L. Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer, 2014) Ch. 10.

10. Bridge, Uniform and Harmonized Sales Law: Choice of Law Issues, in J. Fawcett et al (Eds), International Sale of Goods in the Conflict of Laws, 905 at 922 (2005) at 917 & 922. Note that Bridge argues that where the forum would otherwise be obliged to apply the CISG, parties can post-contractually agree to apply non-CISG domestic law if, for example, Art 3(2) 1980 Rome Convention applies; J. S. Ziegel, The Future of the International Sales Convention from a Common Law Perspective, 6 New Zealand Business L. Q. 336, 342, note 30 (2000)at 342, note 30. See generally, I. Zajtay, Ch. 14, The Application of Foreign Law, in K. Lipstein (Ed.), International Encyclopedia of Comparative Law, Vol. III, Private International Law, at 8, §14-13 (1972).at 9, §14-13.

11. Schlechtriem, in Schlechtriem & Schwenzer 2nd edn, supra note 2, Art. 6, at 91 para. 14; Schwenzer & Hachem, supra note 3, Art. 6, at 114 & 116 paras 24 & 28 (agreements to derogate by modification are ‘only’ subject to the CISG, not conflicts rules). Agreements modifying contracts governed by the CISG are also subject to CISG formation provisions: U. Schroeter, in Schwenzer 3nd edn, supra note 3, Art. 29, at 472 & 473 paras. 2 & 4; P. Schlechtriem, Uniform Sales Law 63, §A5 (1986)(‘Uniform Sales Law 1986’); F. Ferrari, The CISG’s Sphere of Application: Articles 1–3 and 10, in F. Ferrari et al (Eds), The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the UN Sales Convention, 21, passim (2004)(‘Digest & Beyond’), at 61 (‘contracts modifying an international sales contract fall under the CISG as well, since they directly affect the [parties’] rights and obligations’); Peter Schlechtriem and Petra Butler, UN Law on International Sales 87 [97] (2009); Pilar Perales Viscasillas, Modification and Termination of the Contract, 25 J. L. & Com. 167, 171 (2005-6); Henry Gabriel, Contracts for the Sale of Goods 22 (2009)(provided not applied to their full extent). Alluding to disagreement about the relevance of Arts 8, 14-24 in relation to Art. 29: Andrea Björklund, in Kröll et al (eds), supra note 1, Art. 29, 382, at 383 [5].

12. Spagnolo, supra note 9. at 204-205.

13. Against implicit exclusion: F. Enderlein & D. Maskow, International Sales Law: United Nations Convention on Contracts for the International Sale of Goods: Convention on the Limitation Period in the International Sale of Goods: Commentary, Art. 6, at 48-49 paras 1.2 & 1.3 (1992)(‘Enderlein & Maskow’); Schlechtriem, in Schlechtriem & Schwenzer 2nd edn, supra note 2, Art. 6, at 88-89 para. 12 (noting reluctance of legal writers to infer exclusion). In support of implicit exclusion: M. Bridge, Choice of Law and the CISG: Opting In and Opting Out, in H. M. Flechtner et al (Eds), Drafting Contracts Under the CISG, 65 at 77 (2008), but see id., at 78 (cautioning parties bear the burden of making their intent plain); .H. M. Flechtner (Ed.), J. O. Honnold, Uniform Law for International Sales, Art. 6, at 108-110 & note 19 para. 77.1 (2009)(‘Honnold 4th edn’).

14 See, e.g. Olivaylle Pty Ltd v Flottweg GmbH & Co KGAA (No 4) (2009) 255 ALR 632, Federal Court, Australia, 20 May 2009 <http://cisgw3.law.pace.edu/cases/090520a2.html>; District Court (LG) München, Germany, 29 May 1995 <http://cisgw3.law.pace.edu/cases/950529g1.html>; Bezirksgericht [Lower District Court](BG) Weinfelden, Switzerland, 23 November 1998 <http://cisgw3.law.pace.edu/cases/981123s1.html>; Cour d'appel de Colmar, France, 26 September 1995 <http://cisgw3.law.pace.edu/cases/950926f1.html> (in a decision criticized in this respect on appeal by the Cour de Cassation, 17 December 1996, supra note 4).

15. Schlechtriem, in Schlechtriem & Schwenzer 2nd edn, supra note 2, Art. 6, at 88-89 para. 12 (noting the reluctance of courts to infer exclusion). See, e.g.,International Commercial Arbitration at the Ukraine Chamber of Commerce and Trade, 218y/2011, 23 January 2012, CLOUT Abstract No 1405 <http://cisgw3.law.pace.edu/cases/120123u5.html> (applying CISG as part of the law of Ukraine chosen in the contract, despite incorporation of GAFTA No 200 excluding CISG, on the basis that the intention to exclude must be express and clear).

16. Cour de Cassation, 17 December 1996, supra note 4 (implied exclusion must be ‘certain’); Honnold 4th edn, supra note 13, Art. 6, at 107-108 para. 77 (requiring ‘real’ and not ‘theoretical’ intent, thus exclusions must be ‘express’ or ‘clearly implied in fact’). See also, Enderlein & Maskow, supra note 13, Art. 6, at 48; F. Ferrari, Specific Topics of the CISG in the Light of Judicial Application and Scholarly Writing, 15 J. L. & Com. 1, at 88, note 614 (1996); F. Ferrari, Applicability and Applications of the Vienna Sales Convention (CISG), 4 Int’l Legal Forum 138, at 220 (1998)(‘International Legal Forum’) at 220.

17. Oberster Gerichtshof [Supreme Court], Austria, 22 October 2001 <http://cisgw3.law.pace.edu/cases/011022a3.html> (‘[A]n implicit exclusion may only be assumed if the corresponding intent of the parties is sufficiently clear. If it cannot be established with sufficient clarity that an exclusion of the Convention was intended (taking into account the criteria provided by Art. 8 CISG for the interpretation of a party's statements and other conduct), then the CISG is to be applied’).

18. Moreover, the uniformly strict approach can be observed irrespective of whether the applicable law (if exclusion of the CISG is upheld) is that of the forum or the domestic law of a foreign state: U.G. Schroeter, To Exclude, to Ignore, or to Use?: Empirical Evidence on Courts’, Parties’ and Counsels’ Approach to the CISG (with some Remarks on Professional Liability), in L. DiMatteo (Ed.), The Global Challenge of International Sales Law (Cambridge University Press, 2014) 16 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1981742>.

19. For discussion see L. Spagnolo, CISG Exclusion and Legal Efficiency (Kluwer, 2014) Ch. 10.

20. For a critique of standard of proof in ex ante exclusions: Schroeter, supra note 18, at 8-9.

21. The Diplomatic Conference declined special reference to the ability to impliedly exclude the CISG ‘lest the special reference [...] might encourage courts to conclude, on insufficient grounds, that the [CISG] had been wholly excluded’: Official Records of the United Nations Conference on Contracts for the International Sale of Goods, Vienna, 10 March-11 April 1980, UN Doc. A/CONF.97/19, at 17.

22. Travelers Property Casualty Company of America v. Saint-Gobain Technical Fabrics Canada Ltd, 2007 WL 313591, U.S. District Court, Minnesota, 31 January 2007 <http://cisgw3.law.pace.edu/cases/070131u1.html> (‘an affirmative opt-out requirement promotes uniformity and the observance of good faith in international trade, two principles that guide interpretation of the CISG’); St Paul Guardian Insurance Company and Travelers Insurance Company v. Neuromed Medical Systems & Support, GmbH, 2002 U.S. Dist. LEXIS 5096 (S.D. N.Y.), 26 March 2002 <http://cisgw3.law.pace.edu/cases/020326u1.html> (stating that choice of the law of a Contracting State did not exclude the CISG, and that ‘[t]o hold otherwise would undermine the objectives of the [CISG]’).

23. Spagnolo, supra note 9, at 208.

24. Oberlandesgericht [Appellate Court] (OLG) Linz, Austria, 23 January 2006, [2.2] <http://cisgw3.law.pace.edu/cases/060123a3.html> (onus of proof of exclusion lies on party arguing in favour of it, citing Schlechtriem/Ferrari) but decision on exclusion ultimately overturned by Oberster Gerichtshof [Supreme Court], Austria, 4 July 2007 <http://cisgw3.law.pace.edu/cases/070704a3.html>; Bridge, supra note 13, at 78.

25. Schroeter, supra note 18, at 8.