Introforelæsning: 24. februar 2010 kl. 15.00 - 16.00, TRIN 116, Købmagergade 50

The 1980 United Convention on Contracts for the International Sale of Goods (hereafter “CISG”) was adopted, among other objectives, to harmonise sales law at an international level and thus facilitate sales transactions involving parties from different countries. This initiative was undoubtedly successful, since some 70 countries have ratified the CISG, and among them some major players of the world’s economy, such as China and the United States of America. 

However, even in CISG “Contracting States”, domestic (sales) law remains relevant in certain respects. Firstly, the parties to an international sales contract, even if they are located in CISG Contracting States, are free to exclude the application of the CISG, fully or partly. This raises a number of interesting issues, including some connected with contract interpretation: (e.g.) should a clause providing for a remedy which does not exist in the Convention be interpreted as excluding the Convention’s remedial regime, or as an addition to the CISG’s catalogue of remedies? 

Secondly, CISG Contracting States have the possibility to make reservations concerning the application of certain parts of the Convention. Scandinavian countries have made use of this possibility and excluded the application of Part II of the Convention on the formation of a sales contract through an art. 92 reservation. The formation of a sales contract in Scandinavia, even if it involves parties from different countries, is thus still to a large extent governed by the domestic sales law designated by the applicable rules of international private law, unless CISG Part II applies by virtue of its art. 1 (1) b. 

Thirdly, the CISG does not have the ambition to regulate all types of issues arising in relation with international sales contracts. Art. 4 and 5 of the Convention expressly exclude matters of contract validity, the effect of the sales contract on the property of the goods sold, and some issues of product liability from the scope of application of the Convention.  

The issue of contract validity is particularly interesting. In fact, the idea that the CISG is not meant to censor international sales contract for unfairness or unreasonableness may seem easy to understand, but the reality is more complex. In fact, the question of whether a party can rely on agreed contract terms, such as a liquidated damages clause or a liability disclaimer, depends on the answer to three other questions: has the relevant contract term been incorporated into the contract (incorporation test)? How should the contract term be understood (interpretation test)? Is the contract term enforceable? These questions relate to the issue of validity, which remains within the realm of the applicable domestic law, but also to contract formation (how much does it take for a clause to be incorporated into the contract) and contract interpretation, which are both, at least partly, regulated by the CISG. 

Finally, the CISG Convention regulates international contracts of sales; it is in principle not concerned with tort matters. This may seem straight-forward, but then again, the reality is more complex. For instance, if the parties agree, orally or in writing, that the sold goods should have some specific properties, and it turns out that they do not, what kind of remedy can the buyer exercise? CISG remedies for non-conformity, based on art. 35 of the Convention, and/or national remedies in tort such as those available in case of misrepresentation? Do the contractual remedies provided by CISG and national tort remedies exclude or supplement one another?

In conclusion, the topic of the relation between the CISG and domestic law raises a number of important questions. For the sake of delimiting the scope of the assignment it will however be appropriate to focus on one or more of the following topics:

• Validity of agreed remedies and liability disclaimers: issue of contract validity not dealt with by the CISG (art. 4) and/or issue of contract formation/interpretation?
• Relationship between CISG remedies for non-conformity and national tort-based remedies such as misrepresentation
• What happens if a contractually agreed remedy or a liability disclaimer is deemed unreasonable by a court? Which rules apply – CISG remedial regime as default rules, or domestic rules?
• Contracting States’ reservations pursuant to art. 92 of the CISG: how does this reservation work in theory and in practice (case law)?