35 Years of the CISG: Progress and Application Overview

1. 35 years of the CISG: an overview of the CISG, its formulation and itsprogress in the past 35 years. Luca Castellani UNCITRAL Secretariat

2. Preparation • Extensive preparatory studies • Based on ULF/ULIS • Inclusive drafting process • Adoption at diplomatic conference • Voting mechanism • Long preparation time • Limitation Convention as spin off • Amending protocol • Actual relevance recently re-assessed

3. Part I – Scope and general provisions • Clear mechanism of application • Effectively prevented the need for a uniform conflict of laws text • May benefit from a uniform choice of law clause • Exclusion of consumer transactions • Issue still difficult to harmonise globally • New terminology • Sometimes seen as unclear, but drawback intrinsic to any law reform

4. Uniform interpretation and application • Opting out • Increasingly less common, especially for specialised counsels • Highlights that the CISG is not “hegemonic” • Increasing awareness on professional liability for opting out without full justification • Default application • Parties may not be aware • CISG works as “safety net” • More useful in developing countries and for SMEs

5. Uniform interpretation and application • Duty of uniform interpretation • Thousands of reported cases available in several languages often at no cost • Now available also in compact form as Digests • Increased awareness among the judiciary, especially if specialized • Need to look at foreign cases facilitates exchange of ideas

6. Part II – Formation of contract • More “classic” part in comparative law • Less relevant in practice? • Impact of the use of new technologies • Many solutions are contained in the Electronic Communications Convention

7. Part III – Duties and obligations • More “innovative” part • Rationalised system of remedies • Favor contractus • Avoidance only for fundamental breach • Enhanced contract management • Duty of cooperation in avoiding/mitigating non-performance • Compensation of damages proportionate to actual loss

8. Part IV – Final clauses • Ongoing review of declarations • Clear trend towards more uniform global scope of application • Possibility that new declarations will arise for regional purposes

9. To conclude and to go forward • The CISG has delivered as a text for international trade • At a minimum, it reinforces the application of the principle of freedom of contract, underpinning all commercial transactions • When appropriate, it provides a modern and fair legal framework to cross-border sale of goods • It seems best known and applied in those jurisdictions that have based domestic law on same or similar notions • Unfortunately, the CISG is not well-known where it is needed most (developing countries, SMEs)

10. To conclude and to go forward • The CISG has delivered as a model for national and regional law reform • It has introduced new notions in line with business needs and practice • Acknowledging this function will reinforce its application