Hard Cases Under the Convention on the International Sale of Goods: A Proposed Taxonomy of Interpretative Challenges

CISG was formally uniform at the time of its adoption. It used the same words in all of the jurisdictions adopting it. But uniform words are not enough to guarantee uniform application. For many commentators, in fact, the most significant impediment to the continued existence or efficacy of the CISG is the lack of uniform interpretive outcomes in hard CISG cases – cases where a CISG provision is vague either on its face or in its application. Without greater uniformity of interpretive outcomes, these commentators suggest, the CISG will, over time, fail to supply standard solutions to similar contracting problems and thus fail to supply the predictability that parties need. In this Article, Professor Allen Blair argues that these commentators start with an exaggerated expectation about the kind and degree of uniformity called for by the CISG and demanded by parties. Contrary to the standard conception of CISG interpretation, uniformity of interpretive outcomes is an improper goal with respect to CISG provisions cast as open-textured standards, and any effort to harden these standards into rigid rules could, in fact, undermine the efficiency goals of contracting parties

Hard Cases Under the Convention on the International Sale of Goods: A Proposed Taxonomy of Interpretative Challenges

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Interpretation Rules and Good Faith as Obstacles to the UK\u27s Ratification of the CISG and to the Harmonization of Contract Law in Europe

This essay examines Article 7 of the CISG, the provision on the Convention’s interpretation, through the lenses of both German and English law in order to shed light on interpretative issues in which there are divergent views in common law and civil law systems. The essay further provides possible reasons for the non-ratification of the CISG by the UK in contrast to its broad acceptance in Germany. The author more closely examines the issue of good faith as a principle of contract law, its vagueness being one of the possible reasons for the reluctance to ratify the CISG in England. The essay will conclude with an outlook on current and future efforts to harmonize contract law in Europe, notably with regards to the new (Draft) Common Frame of Reference. The question raised is whether the Common Frame of Reference has a chance of being accepted by the European civil law countries as well as by England and Wales as common law jurisdictions

E Pluribus Unum – Out of Many, One Common European Sales Law?

In light of the fragmentation due to the nationalization of civil and commercial law and the growing intensity of cross-border trade in manufactured goods, arguments for the unification of private law surfaced already from the early 20th century. Such attempts resulted in, among others, the CISG, the UPICC or the PECL. In line with this pattern, as an attempt to make Out of Many, One Common European Sales Law, a Proposal for a Regulation on a Common European Sales Law (CESL) was published in 2011. The aim of the present contribution is to explore the background of the Proposal and to assess its significance for the future, with specific attention to the challenges of the digital age. Section I of the paper provides an overview of the process in the first decade of the 21st century leading to the publication of the Proposal, identifying the various stages of making an instrument. This is followed by the description of the Proposal and its evaluation in Section II. Although the immediate implementation and application of the instrument are not feasible, the text contains some promising elements to build on. According to the main findings of the paper, in the new millennium no longer merely international trade in manufactured goods is a chief factor triggering the implementation of international instruments of contract law. The innovations which pose new challenges and regulatory needs, also addressed in the CESL, are trade in digital content and e-commerce. Considering a digital key to the success of regulatory aspirations, the paper thus outlines ways European and international legislation might go in terms of regulating cross-border trade in the age of information technology. Accordingly, the areas to focus on for a start are transactions for the supply of digital content and e-commerce transactions