Volume 43 CISG Symposium Front Matter

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Formal and Operative Rules of the CISG: Case of Article 25

The United Nations Convention on Contracts for the International Sale of Goods (CISG) has been the law of some countries for the better party of forty years. The case law (judicial and arbitral) has grown steadily over this time. Unfortunately, the case law is spread unevenly over its eighty-eight substantive articles. This Article will provide a framework for performing a factors analysis of one of its most important articles. CISG Article 25 sets the standard of fundamental breach for the type of breach that allows the nonbreaching party to avoid or terminate the contract. A factors analysis seeks to discover the key facts or factors that best predict a court’s (and arbitral tribunal) decision on whether or not a breach is fundamental. The difference between formal and operative law can be drawn out by such an analysis. The difference between these two perspectives or types of rules can be depicted by two questions: In reading an article or rule of the CISG, what is the plain meaning or common sense meaning of the rule (formal rule)? In its application, what factors are most predictive of the decision involving the rule’s application, irrespective of the rule’s plain meaning (operative rule)? This analysis is founded on the simple premise that certain facts or factors in particular cases predict if and how a court applies a rule of law. This Article will focus on the interface between formal law and operative facts or factors

From an Interpretive Tool to Substantive Law: The Apotheosis of Good Faith in CISG Jurisprudence

This Article offers a narrow lens of analysis: it examines the essence of an interpretive provision in Article 7’s mention of “Good Faith” in the United Nations Convention on Contracts for the International Sale of Goods (“CISG” or “Convention”) and considers how that article has become glorified, ultimately rising to the deified status of substantive law by way of oftentimes creative, interpretive incorporation techniques by various domestic courts and international arbitral tribunals. Borrowing from religious terminology, court treatment of good faith over the years has resulted in the elevation and exaltation of a universal trope to a divine honor, an apotheosis. This Article argues that this elevation to an apotheosis-like status was never the original intention of the drafters of the Convention; quintessence was never contemplated. The compromise worked out at the 1980 Vienna Conference confined good faith to the interpretation of the CISG only. Good faith did not incorporate any behavioral standards by which parties’ performances under sales contracts were to be measured; it did not serve as a standard of conduct for contractual performance. There was nothing “divine” or even special about the incorporation of those words into the CISG. Good faith was to play only a modest and limited role. The plain meaning reference to it suggests it was of emblematic value, and its placement in a provision dealing with interpretation of the Convention is somewhat surprising and strange. This perplexity continues: one cannot find a definition or explanation of good faith in the CISG. It is a compromise provision that merely formulates good faith as an interpretive device only. But this is a far cry from what it has become and the heights it has climbed.The uncertain status and function of good faith by the drafters of the Convention appears to be deliberate: They imposed on contracting parties no substantive duty to act in good faith. Further, the placement of good faith in the CISG’s general principles also suggests that the reference to it is directed to the courts rather than to contracting parties. This outlier treatment stands in stark contrast to other international instruments, such as the Principles of European Contract Law and the UNIDROIT Principles of International Commercial Contracts, both of which explicitly impose a duty of good faith on the contracting parties. Nevertheless, in CISG cases, good faith is commonly referred to in judicial decisions but in such a way as not to make it clear what good faith means or to show why there is any need to invoke it outside of its interpretive purpose.Thus, domestic courts, international tribunals, scholars, judges and arbitrators have, at times, conflated the CISG’s interpretive provisions with its substantive ones, as this Article demonstrates with good faith. This comingling of an interpretive provision is problematic as it creates uncertainty among parties involved in international trade. The merging of different conceptions of the provision also reflects the scholarly discourse on the topic: some CISG scholars argue that the role of good faith is limited to the interpretation of the CISG only while others view good faith in the CISG as a general principle that must govern the conduct of the contracting parties. Distinctions between what is simply interpretive guidance and what is substantive law is of crucial importance to courts and tribunals in developing sound and principled jurisprudence regarding the proper application of the CISG. This Article argues that an expansive role for good faith was never contemplated by the drafters of the Convention, and a review of subsequent case law on it has neither clarified what good faith means in practice nor shown legal practitioners why it needs to be invoked when the cases can be settled by other means. The current confusion over good faith creates contractual ambiguity and this lack of clarity does not auger well for the future of the CISG as a uniform sales law in international transactions

Foreign Investments and Energy Transition in the Netherlands: Balancing Economic and Security Interests

Affordability, competitiveness, security of supply, and sustainability are among the goals set for the field of the energy transition for 2030 through 2050. In order to meet these goals, the energy sector of the European Union (EU) will require a continuous inflow of capital, particularly Foreign Direct Investment (FDI). Unfortunately, FDI has raised severe national security concerns in EU Member States, leading to the need to adopt and subsequently revisit the FDI screening framework on the EU level. On a domestic level, several EU Member States, such as the Netherlands, have either strengthened or are considering strengthening their screening mechanisms. States have been screening FDI on national security grounds for decades, but the scope of new mechanisms has dramatically expanded to cover more sectors, transactions, and types of investors. In particular, FDIs that affect energy infrastructure, supply of energy, raw materials, dual-use items, and critical technologies necessary for the energy transition should be subjected to more rigid scrutiny. These regulatory and policy developments might hinder the flow of investments into the energy sector and the advancement of new technologies and thus have implications for the prospects and speed of the energy transition in Europe. This Article will discuss the overarching question of how states can organize their investment screening mechanisms in a way that balances their national security interests against the need for free flow of FDI to stimulate development of technologies that accelerate the energy transition. This includes a case study of the FDI policy of the Netherlands, one of the major destinations of global FDI. This Article initially distills the principles necessary to balancing competing security and economic interests of host states in the investment law context. Based on such principles, it further examines the extent to which existing regulatory mechanisms in the Netherlands are adequate in addressing security concerns posed by FDI while continuing to attract investments in the energy sector and related technologies. Specifically, this Article aims to identify trends in investment screening in the Netherlands, reflect on their coherence with overarching EU investment policy objectives and the multilateral guidance on a good policy design, and discuss the potential implications of recent regulatory developments for the future of the energy transition in Europe. More broadly, this Article contextualizes the case of the Netherlands within the global movement of tightening control over FDI and explores the relationship between the investment policy of a State, on the one hand, and its objectives to combat climate change and safeguard energy security, on the other

Smells Like Teen Exploitation: Nirvana's Nevermind Album Lawsuit and its Relation to Child Privacy Rights Online

The naked baby on the band Nirvana’s popular album, Nevermind, who is now in his thirties, sued Nirvana and other associated individuals in 2022 on the grounds that the cover of the album depicted child pornography. This note examines the validity of the lawsuit, as well as how “going viral” around the world can affect children, even before the Internet and social media. However, this note specifically assesses how social media can be detrimental on children and their development, especially when those children are social media influencers. Additionally, this note will discuss the current online privacy laws and how they can be improved to better protect one of our society’s most vulnerable population demographics

Volume 42 Issue 1 Front Matter

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The Decentralised Autonomous Organization: Legal Personality and the Problem of Governance

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The Lochneress Monster: The Evolving Fear of Lochnerism and its Continued Value for American Jurisprudence

This Note will canvas the history and legacy of Lochner v. New York, and examine the effect that Lochnerism has had on American judges.  It will discuss the Lochneress Monster, a new name for a familiar idea, and it will focus on how Lochnerism is utilized as an argumentative tool.  Finally, the Note will discuss the importance of continuing to give Lochnerism the measured apprehension that it deserves

Recailibrating the Use of Zero-Day Vulnerabilities

Zero-day vulnerabilities in critical software systems are of the highest priority for government agencies, black market hackers, and private software vendors. Each of these parties has different priorities and uses for zero-day vulnerabilities, but because of the global economy’s reliance on technology and software, they represent a significant threat to much of the critical infrastructure of the United States. The United States Intelligence Community is among one of the most sophisticated players in the zero-day market, and their decision making with respect to these unknown vulnerabilities has widespread impacts. This note examines the current state of the Vulnerabilities Equities Process, the executive branch policy designed to weigh various equities when determining the fate of a zero-day vulnerability discovered by the Intelligence Community; to use the zero-day to collect intelligence or to disclose the vulnerability and see that it is patched. I argue that the current Vulnerabilities Equities Process does not produce the most optimal outcomes, and that the decision making process must be ‘recalibrated’ to properly weigh all relevant equities and to ensure that zero-day vulnerabilities are not being used irresponsibly

Court-Ordered Interim Measures in International Arbitration: A Comparative Approach

This paper argues that there is a distinct cross-border law concerning court-ordered interim measures in aid of international arbitration, which is made up of two key (intertwined) sources, namely: the relevant provisions of the UNCITRAL Model Law on International Commercial Arbitration and supporting case law and legislation in both Model Law states and non-Model Law states. The principles identified in this paper are assumed to qualify as general principles of law. In order for a court at the seat to grant interim relief in international arbitral proceedings the requesting party must demonstrate a prima facie case worthy of consideration, the likelihood of irreparable harm and a balance of inconvenience. There is at present no general consensus as to ex parte interim measures, with many states and national courts showing significant reluctance to grant these on account of the absence of procedural guarantees that they entail. In equal measure, in the absence of bilateral or multilateral treaties that allow national courts to recognize and enforce foreign interim measures in respect of arbitral proceedings seated abroad, states are equally reluctant to allow parties seated in other jurisdictions to approach their courts for interim relief on the ground that the other party has assets or interests there. Although the courts of some powerful nations allow for such requests, there is no general rule in this regard and none is expected in the near future