Jie Luo

Peng Guo

The Uniform
Interpretation
of the UN Sales
Convention
(CISG)
The Uniform Interpretation of the UN Sales
Convention (CISG)
Jie Luo · Peng Guo

The Uniform Interpretation

of the UN Sales Convention
(CISG)
Jie Luo Peng Guo
School of Law Swinburne Law School
Zhongnan University of Economics Swinburne University of Technology
and Law Melbourne, VIC, Australia
Wuhan, China

ISBN 978-981-99-7843-4 ISBN 978-981-99-7844-1 (eBook)

https://doi.org/10.1007/978-981-99-7844-1

© The Editor(s) (if applicable) and The Author(s), under exclusive license to Springer Nature
Singapore Pte Ltd. 2024

This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether
the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse
of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and
transmission or information storage and retrieval, electronic adaptation, computer software, or by similar
or dissimilar methodology now known or hereafter developed.
The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication
does not imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.
The publisher, the authors, and the editors are safe to assume that the advice and information in this book
are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or
the editors give a warranty, expressed or implied, with respect to the material contained herein or for any
errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional
claims in published maps and institutional affiliations.

This Springer imprint is published by the registered company Springer Nature Singapore Pte Ltd.
The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721,
Singapore

Paper in this product is recyclable.

Introduction

Comprehensive political, economic, and technological developments have brought

human beings into a new era. Based on the allocation of labour and other resources,
countries, regions, and nationalities of the world become interrelated and mutually
dispensable. In today’s world, no state can survive and develop by its forces. It has to
build and maintain stable economic relations with other countries. Contracts are the
basic form of modern economic relations. International trade is also usually carried
out by the conclusion and performance of international commercial contracts. In
comparison with domestic contracts, international commercial contracts have many
international elements: the parties may be located in different countries, the conclu-
sion and performance of contracts may be carried out in different places, and goods
and services are often supplied across national boundaries. To safeguard their national
interests and the benefits of the merchants, most States enact their municipal laws
to regulate international commercial transactions. Divergences are common and
conflicts between the laws are inevitable. However, merchants in international busi-
ness are not willing to be bothered by these divergences and conflicts. They cry for a
stable international legal environment, which could be established through the unifi-
cation of national laws and the adoption of international conventions. The vision of
unification of law on international commerce turns into reality with the joint efforts
of academics, judicial authorities, and in particular, international organizations.
Till now, a basic legal framework for international commerce has been estab-
lished. Generally, the parties are free to agree on the law applicable to the contracts
between them, in accordance with private international law. However, the choice of
law approach is indirect in resolving legal conflicts. As Professor René David notes,
a legal expert should be aware that the modern world is laughing at the conflicts law
system of each state.1 On the contrary, uniform law gives people more predictability
and certainty.2 Where the law applicable to a particular transaction is consistent,
the performance of the transaction will be much easier. Regional and international

1 Clive M. Schmitthoff, Collection of Works on International Trade Law, translated by Zhao Xiuwen,
China Encyclopedia Press, 1993, pp. 263–264.
2 Ibid, p. 98.

v
vi Introduction

organizations have been continuously trying to achieve such an objective. The truly
international old lex mercatoria was replaced by national legislation. Now the new
merchant law regained its vigour. Under such an international context, the United
Nations Convention on Contracts for the International Sale of Goods (CISG)3 has
been adopted.
CISG set a model for the unification of international commercial law after World
War II. With the joint efforts of the international community and compromises
reached between different interest groups, CISG was adopted at the Vienna Diplo-
matic Conference held in 1980. With China and the United States ratifying CISG, it
came into force on 1 January 1988.4 Till now, there are 95 contracting states.5 The
goal of the CISG is to remove legal barriers to international trade and to promote its
further development.6
A uniform legal instrument is far from enough for uniformity of law in prac-
tice. International conventions like CISG must be uniformly interpreted; otherwise,
they connot be consistently applied by national judicial authorities. The same cases
with divergent judgments threaten people’s faith in the uniform law. To guarantee
uniform application, there has to be a set of principles and rules guiding the interpre-
tation of the Convention. Generally, interpretation of the law includes prescriptive
interpretation and judicial interpretation. Prescriptive interpretation is carried out by
legislative authorities to clarify concepts, terminologies, and definitions referred to in
the statutes.7 For international conventions like CISG, there is no such independent
legislative authority. Therefore, legal interpretation discussed in this book refers to
judicial interpretation, which is carried out by judicial authorities in their application
of CISG. The main theme of the book is why and how to promote and safeguard the
uniform interpretation of CISG.
CISG is far from reaching its objective of uniform interpretation and application.
Divergent interpretations of the same provisions in CISG are not rare. Many reasons
cause such chaos. Some are due to the defects of CISG. As a convention adopted with
compromises of the contracting states, some concepts, terminologies, and words are
either intentionally or unintentionally left ambiguous. In addition, as a huge legal
text, CISG has no choice, but to be abstract, and cannot cover all details of the
international sale of goods. Most importantly, the biggest obstacle is that judicial
authorities take nationalistic approaches in interpreting CISG. This issue had been
deliberated by representatives of the contracting states in drafting CISG. Article 7
of CISG is specially created to guide the interpretation of CISG. After clarifying
Article 7, the book defined the basic requirements on the principles of interpretation

3 United Nations Convention on Contracts for the International Sale of Goods, opened for signature
11 April 1980, 1489 UNTS 3 (entered into force 1 January 1988) (‘CISG’).
4 The eleven contracting states are Argentina, China, Egypt, France, Austria, Italy, Lethoto, Saudia

Arabia, the United States, Yugoslavia, and Zambia. Yugoslavia signed and ratified the Convention
in 1980 and 1985, respectively.
5 https://uncitral.un.org/en/texts/salegoods/conventions/sale_of_goods/cisg/status.
6 Preamble of the CISG.
7 Li Weimin, Sources of Legal Terminologies, China Workers Press, 1994, p. 310.
Introduction vii

of CISG and further discussed relevant supplementary materials in the interpretation

of CISG. In such a context, how to safeguard the uniform interpretation of CISG
becomes the core issue to be examined in this book.
This book is divided into four chapters. Chapter 1 briefly reviewed the historical
evolution of the law merchant, and examined the legislative history of CISG in detail
to clarify the background, history and process of its birth, and the obstacles it meets
in uniform interpretation. In Chap. 2, general approaches to legal interpretation were
introduced, the history of the adoption of Article 7 of CISG was examined, and
an autonomous interpretation of CISG was proposed. Chapter 3 discussed Article
7(2) and approaches to fill gaps left by CISG. In Chap. 4, the role of supplementary
materials, the UNIDROIT Principles of International Commercial Contracts (PICC),
foreign cases, CISG Advisory Council Opinions, and the United Nations Commission
on International Trade Law (UNCITRAL) Digest, the legislative history in particular,
in assisting the uniform interpretation of CISG was examined.
In this book, the comparative, historical, and empirical approaches were adopted.
The comparative approach was applied mainly to compare CISG and PICC, and occa-
sionally domestic laws. The historical approach was applied to examine the historical
background of CISG, the legislative history of CISG, and the relevant specific provi-
sions. In addition, cases concerning the interpretation and the application of CISG
were examined as empirical evidence in support of arguments.
Contents

1 Creation of CISG as a Uniform Sales Law . . . . . . . . . . . . . . . . . . . . . . . . 1

1 Historical Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2 Creation of CISG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
2 Legal Interpretation and Uniform Interpretation of CISG . . . . . . . . . . 23
1 Legal Interpretation and CISG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
2 Autonomous Interpretation of CISG . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
3 Gap Filling and Uniform Interpretation of CISG . . . . . . . . . . . . . . . . . . 41
1 Gap-Filling in CISG . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
2 General Principles of Law and Gap-Filling in CISG . . . . . . . . . . . . . . . 46
3 Good Faith as an Umbrella Principle . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
4 Supplementary Materials and Uniform Interpretation of CISG . . . . . 73
1 PICC and Uniform Interpretation of CISG . . . . . . . . . . . . . . . . . . . . . . . 73
2 Foreign Cases and Uniform Interpretation of CISG . . . . . . . . . . . . . . . . 87
3 Legislative History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98
4 Other Supplementary Materials . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119

ix
About the Authors

Dr. Jie Luo is an associate professor at the Zhongnan University of Economics and
Law. She obtained an M.A. in Law from the University of East Anglia in 2004, a Ph.D.
in International Law from Wuhan University in 2008, and a Ph.D. in Private Law from
the University of Paris Sud in 2010. Her main research interests lie in international
trade law, particularly the international sale of goods. She is the principal investigator
for several research projects, and she has published several articles in leading journals
in China.

Dr. Peng Guo is a Lecturer in Law at the Swinburne University of Technology. He

has worked across several Australian universities and has held visiting positions at
different European universities. He has received scholarships awarded by renowned
research institutions and international organizations, including but not limited to, the
Max Planck Institute for Comparative and International Private Law, the Interna-
tional Institute for the Unification of Private Law (UNIDROIT), the Swiss Institute
of Comparative Law, and the European Union. His research interests lie in compar-
ative contract law and international commercial law with a particular focus on the
international sale of goods and international commercial arbitration.

xi
Chapter 1
Creation of CISG as a Uniform Sales Law

CISG is not the very first legal instrument for the unification of international sales law.
The international attempts of combining diverse legal systems of various countries
go back to ancient times. However, CISG represents a landmark1 or milestone2 in the
course of the unification of international sales law and becomes the most successful
convention promoting uniformity in the application of international sales law.3 No
other conventions in this area have an impact as profound as the CISG does.4 It
creates a new era for the unification of laws on the international sale of goods, but
the uniform interpretation and application of such an international legal instrument
in national sovereignties face great challenges and difficulties.5 This Chapter briefly
reviewed the historical evolution of the lex mercatoria, and examined the legislative
history of CISG in detail, in order to clarify the background, history and process of
its creation, and the obstacles it meets in the uniform interpretation.

1 Michael Joachim Bonell, ‘The UNIDROIT Principles of International Commercial Contracts and
CISG – Alternatives or Complementary Instruments?’ (1996) 1 Uniform Law Review 26, 26.
2 Gyula Eörsi, ‘A Propos the 1980 Vienna Convention on Contracts for the International Sale of

Goods’ (1983) 31 The American Journal of Comparative Law 333, 334.

3 Bruno Zeller, ‘The Significance of the Vienna Convention on the International Sale of Goods for the

Harmonisation and Transplantation of International Commercial Law’ (2006) 17(3) Stellenbosch

Law Review 466, 479.
4 Reinhard Zimmermann, ‘European Contract Law: General Report’ (2007) 15 Europäische

Zeitschrift für Wirtschaftsrecht 455, 457.

5 Uniform legislation wins wide support. Lord Justice Kennedy, The Unification of Law, 10 J. Soc’y

of Comp. Legis. 21, 214–15 (1909); John O. Honnold, Uniform Law for International Sales under
the 1980 United Nations Convention, Kluwer, 2nd ed. 1991, pp. 1–8. Some scholars oppose such
a trend. Ronald Harry Graveson, The International Unification of Law, 16 Am. J. Comp. L. 4, 5–6
(1968).

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2024 1
J. Luo and P. Guo, The Uniform Interpretation of the UN Sales Convention (CISG),
https://doi.org/10.1007/978-981-99-7844-1_1
2 1 Creation of CISG as a Uniform Sales Law

1 Historical Background

Historically, the evolution of international trade law can be divided into three stages:
the old law merchant, its integration into municipal systems of law and the emergence
of the new law merchant.6 Each of them has its respective features and key symbols.
A brief review of the historical evolution of international sales law indicates that
commercial law went from international law to domestic law and back to international
law again. CISG, as the core international convention on international sales law, was
born in such a historical context.

1.1 The Old Lex Mercatoria

In the Middle Ages, commercial law appeared in the form of the “law merchant”.
Law merchant was a set of truly international customary rules governing business
transactions between merchants. The most important thing is that the rules were
all created by the merchants themselves. In the first work on commercial law, Lex
Mercatoria of 1685, the author, Gerard Malynes notes, lex mercatoria are customary
rules recognized by authorities in all kingdoms, but not laws given by any royal
powers.7 Law merchant was governing the cosmopolitan community of international
merchants who travelled through the civilized world, from port to port and fair to
fair, wherever business offered itself. Following the steps of the merchants, those
commercial customary rules were also spread all over the world gradually.8
There were five elements, which characterized the old law merchant and helped
preserve its uniformity.9 Firstly, it was transnational. The same law was applied to
the disputes between the merchants of the time, no matter where commerce was
being conducted, the venue of the tribunal was held, or what the local custom was.
Secondly, the principal source of the old lex mercatoria was mercantile customs,
which were derived from the law of the fairs and the customs of the sea. These customs
presented remarkable uniformity during those days. As we all know, the fairs were
the original form of commerce in Europe, which have been in the history civilization
incomparable tools of reconciliation, of unification and of peace. Therefore, the law
of the fairs could be applied outside and above civil statutes and local commercial

6 Clive M. Schmitthoff, International Business Law: A New Law Merchant, 2 Current Law and

Social Problems 129, 130 (1961).

7 Gerard Malynes, Lex mercatoria, F. Redmayne, 1685, p. 3; Fillip De Ly, International Business

Law and Lex Mercatoria, North Holland, 1992, p. 15.

8 Clive M. Schmitthoff, The Unification of the Law of International Trade, 1968 J. Bus. L. 105

(1968).
9 On the history of the law merchant, see Wyndham Anstis Bewes, The Romance of the Law

Merchant, Sweet and Maxwell, 1986, pp. 12–13; Theodore F.T. Plucknett, A Concise History of the
Common Law, Little Brown, 5th ed. 1956, pp. 657 et seq.; Lord McNair, The Generalized Principles
of Law Recognized by Civilized Nations, 33 Brit. Y.B. Int’l L. 1 (1957).
1 Historical Background 3

usages.10 The situation was similar for maritime law, which “was developed by
merchants and was not the law of territorial princes.”11 To the merchants, those
customs were drawn up by themselves, each one of them should be aware of the rules
as much as they knew about their goods. The creation, preservation and development
of the customs were all decided by whether they fit the need of international trade.
Their universal acceptance by the merchants was also crucial.
Thirdly, the old law merchant was administered not by professional judges but
by merchants themselves. Merchants settled their disputes in the special commercial
courts, and all the “judges” were merchants who were elected by the members of the
fairs.12 In fact, those courts were like “modern conciliation and arbitration tribunals
rather than courts in the strict sense of the word”.13 During the proceedings of the
settlements, they were speedy and informal, devoid of legal technicalities.
Fourthly, the old law merchant “stressed equity, in the medieval sense of fairness,
as an overriding principle.”14 It displayed a remarkable tendency “to decide cases
ex aequo et bono rather than by abstract scholastic deductions from Roman texts.”15
“Judges of the commercial courts” dealt with cases according to their conscience
and the principle of fairness. The principle of equity dominated the court.16 In the
eyes of the judges, the so-called conscience and fairness were those of the merchants,
rather than those of the church, philosophers or kings. It was based on commercial
customs, reciprocity of trade, and reciprocal arrangements made by contracts between
city-states. Interpretation of equity was also restricted to good faith and fairness in
commerce.17
Finally, the uniformity of the old law merchant was sustained by the activities
of the notary public. The function of the notary public was quite important in the
fourteenth century. Notarial contracts, which were roughly equivalent to modern
standard contracts, became very common in that era.18 This promoted the uniformity
of the old law merchant around the world.

10 Wyndham Anstis Bewes, The Romance of the Law Merchant, Sweet and Maxwell, 1986, p. 12.
11 René A. Wormser, The Law; the Story of Lawmakers and the Law We have Lived by, from the
Earliest Times to the Present day, Simon and Schuster, 1949, p. 500.
12 Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition, translated

by He Weifang, China Encyclopedia Press, 1993, p. 421.

13 Clive M. Schmitthoff, Collection of Works on International Trade Law, translated by Zhao

Xiuwen, China Encyclopedia Press, 1993, p. 7.

14 Harold J. Berman, Colin Kaufmann, The Law of International Commercial Transactions (Lex

Mercatoria), 19 Harv. Int’l. L. J. 221, 225 (1978).

15 Rudolf B. Schlesinger, Comparative Law, Cases, Texts and Materials, Stevens and Sons Limited,

2nd ed. 1960, p. 185.

16 Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition, translated

by He Weifang, China Encyclopedia Press, 1993, p. 422–423.

17 Munroe Smith, The Development of European Law, translated by Yao Meizhen, China University

of Political Science and Law Press, 1999, p. 225.

18 Wyndham Anstis Bewes, The Romance of the Law Merchant, Sweet and Maxwell, 1986, pp. 30–

31. In 1245, a notary public in Marseilles had to draft over one thousand pieces of commercial
documents.
4 1 Creation of CISG as a Uniform Sales Law

1.2 Incorporation of the Lex Mercatoria into Domestic Law

In the eighteenth and nineteenth centuries, as the idea of national sovereignty acquired
prominence, more and more countries were seeking a way to incorporate the law
merchant into their domestic legal system. This was the second stage of the devel-
opment of international trade law, which is so called the nationalization of the law
merchant. However, this process was carried out in various countries for different
reasons, in different manners, and through differing approaches.19
In France, the Code de Commerce, one of the five Napoleonic codes, was enacted
in 1807. In this code, underling the freedom of contracts, the notion of ownership was
brought up. It also clearly defined that the ownership was inviolable as an absolute
right.20 It has been noted that the French codification is a result of a victorious political
movement since the merchants and other professionals were prominent, and aligned
with the winners, in the political events of the time.21 On the other hand, in Germany,
the Commercial Code was adopted by most members of the German Confederation
including Austria and Prussia in 1861.22 The publication of a uniform code was
described as “the legal reflection of the struggle for political unity.”23 Meanwhile,
in the United Kingdom, law merchants had been out of the common law system for
a long time. However, when the Commercial Court and Maritime Court went into
decline, the common law system was unable to meet the requirements of the dynamic
international trade. The law merchant was incorporated into the English common
law in the middle of the eighteenth century.24 This incorporation was designed for
the simplification of commercial procedure and the harmonization of commercial
customs and the common law. Therefore, it was driven by economic interests rather
than political considerations.25
This integration of the law merchant into national systems may have benefited the
nations. However, it also brought about the significant and negative consequences of
nationalism and intellectual isolation in legal thought.26 Despite the integration of
commercial law into national systems of law, the origins of this branch of the law

19 Clive M. Schmitthoff, Collection of Works on International Trade Law, translated by Zhao

Xiuwen, China Encyclopedia Press, 1993, p. 4.
20 Clive M. Schmitthoff, Collection of Works on International Trade Law, translated by Zhao

Xiuwen, China Encyclopedia Press, 1993, p. 9.

21 Rudolf B. Schlesinger, Comparative Law, Cases, Texts and Materials, Stevens and Sons Limited,

2nd ed. 1960, p. 323.

22 Handelsgesetzbuch (HGB) was published in 1897, which was revised many times. The current

HG is a revised version of 2003. It has five sections and 905 articles. See Du Jinglin, The German
HGB, China University of Political Science and Law, 2000.
23 Clive M. Schmitthoff, Collection of Works on International Trade Law, translated by Zhao

Xiuwen, China Encyclopedia Press, 1993, p.9.

24 Huang Jin, Modern Lex Mercatoria, 2 Comparative Law Review 149, 1997.
25 Clive M. Schmitthoff, Collection of Works on International Trade Law, translated by Zhao

Xiuwen, China Encyclopedia Press, 1993, p. 10.

26 André Tunc, English and Continental Commercial Law, 1961 J. Bus. L. 234, 237 (1961). Rudolph

B. Schlesinger, Comparative Law 185 (London: Stevens and Sons Limited, 2d ed. 1960).
1 Historical Background 5

in the old law merchant and the universality of some of its fundamental elements
were still visible to some jurists. Lord Mansfield observed: “the mercantile law, in
this respect, is the same all over the world. For from the same premises, the same
conclusions of reason and justice must universally be the same.”27 However, it has
been proven that the statement of Lord Mansfield is only a fantasy, which could never
be reached in reality.

1.3 Revival of the Lex Mercatoria—The New Lex

Mercatoria

Technology brings us into a new era. The world economy goes on a process of integra-
tion, creating an economically interrelated and mutually reliant integral entity with
every nation, State and territory playing their respective role based on the interna-
tional allocation of resources. In the world today, no country can survive and develop
outside of the international community. Each State has to participate in international
trade and maintain stable trade relations.
The evolution of commercial law is closely related to the development of the
world economy and international trade. Since the 20th Century, a globalized world
economy and free trade require a predictable and uniform legal environment. Legal
conflicts due to divergent national legislations pose a great threat to international
trade. Coordination and convergence of national laws became a great mission for the
international community.
In practice, businessmen usually tend to make contracts and solve contractual
disputes without reference to or with minimal reference to the applicable law.28 There
are several reasons for this. Firstly, insistence on the legal forms can suggest distrust
between parties. It can also cause prejudice in future transactions between them.
Merchants are normally unwilling to express their concerns on the applicable law
issue. Secondly, general distrust and suspicion toward lawyers and litigation could
make businessmen more likely to keep their transactions private. Thirdly, because of
the development of modern techniques of information dissemination, most merchants
believe that litigation can cause potential damages to their commercial reputation.
Therefore, they try to avoid litigation as a solution to their dispute. Finally, the
unfamiliarity of national contact laws causes ignorance of the matter of applicable
law.
However, ignorance could not skirt around the problem ultimately. Once disputes
of international trade arise, we still need to identify the applicable law of the contract.

27 U.K.: Pelly v. Royal Exchange Assurance Co., 97 E. R. 342 (1757) 1 Burr. 341, p. 347.
28 Lawrence M. Freedman and Stewart Macaulay, Contract Law and Contract Teaching: Past,
Present and Future, 1967 Wis. L. Rev. 805, 820 (1967); Stewart Macaulay, Non-Contractual Rela-
tions in Business, 28 Am. Soc. Rev. 55 (1963); Hugh Beale and Tony Dugdale, Contracts between
Businessmen; Planning and the Use of Contractual Remedies, 2 Brit. J. of L. and Soc. 18, 45 (1975);
Stewart Macaulay, Elegant Models, Empirical Pictures and the Complexities of Contract, 11 L. and
Soc. Rev. 507 (1977).
6 1 Creation of CISG as a Uniform Sales Law

Therefore, we cannot agree more on the thought of making commercial law simpler
and more accessible is the best way. After all, it is less expensive to reach an agree-
ment on the legal issue ex-ante than to revolve it ex-post. Generally, there are two
possible approaches to resolving a conflicts law problem: “the preventive method
of conflict avoidance and the clinical method of conflict resolution.” The choice of
law clauses is usually inserted in most contracts. However, they can only act as a
“partial conflict avoidance device.” From a businessman’s point of view, conflict
avoidance is far better than conflict resolution. It is by adopting an autonomous and
uniform legal regime for all international transactions, irrespective of the locus in
quo, that legal predictability and security can be achieved, and the problems created
by diverse national laws can be overcome with a greater degree of certainty. Professor
Schmitthoff long ago declared that only a uniform law could act as a “total conflict
avoidance device.”29
Since the beginning of the twentieth century, efforts have been made to overcome
nationalism in commercial law, which originated from the emergence of national
States in Europe.30 Lord Justice Kennedy wrote extra-judicially in 1909: “The
certainty of enormous gain to civilized mankind from the unification of law needs no
exposition. Conceive the security and the peace of mind of the ship-owner, the banker,
or the merchant who knows that in regard to his transactions in a foreign country the
law of contract, of movable property, and of civil wrongs is practically identical to
that of his own country. … But I do not think that the advocate of the unification of
law is obligated to rely solely upon such material considerations, important as they
are. The resulting moral gain would be considerable. A common forum is an instru-
ment for the peaceful settlement of disputes which might otherwise breed animosity
and violence … [i]f the individuals who compose each civilized nation were by the
unification of law provided, in regard to their private differences or disputes abroad
with individuals of any other nation, not indeed with a common forum (for that is
an impossibility), but with a common system of justice in every forum, administered
upon practically identical principles, a neighborly feeling, a sincere sentiment of
human solidarity (if I may be allowed the phrase) would thereby gradually be engen-
dered amongst us all—a step onward to the far-off fulfillment of the divine message,
‘On earth peace, goodwill toward men’.31
In order to optimally allocate resources and take advantage of the development
of free trade, we need to create a new economic policy. The policy is accompanied
by “a correspondent legislative policy able to regulate the economic relationships:
this policy… had to cross national borders.”32 It is due to these economic needs
that the unification or harmonization of commercial law has acquired such central

29 Clive M. Schmitthoff, Conflict Avoidance in Practice and Theory in the Preventative Law of
Conflicts, 21 Law and Contemp. Probs. 429, 432 (1956).
30 Rudolf B. Schlesinger, Comparative Law, Cases, Texts and Materials, Foundation Press, 5th ed.

1987, p. 31.
31 Lord Justice Kennedy, The Unification of Law, 10 J. Soc’y of Comp. Legis. 21, 214–15 (1909).
32 See Franco Ferrari, Uniform Interpretation of the 1980 Uniform Sales Law, 24 Ga. J. Int’l and

Comp. L. 183, 184 (1994).

1 Historical Background 7

importance. The third stage of the development of international trade law is char-
acterised by the increased involvement of the United Nations and the activities of
specialised international organizations, such as UNCITRAL,33 UNIDROIT34 and the
International Chamber of Commerce.35 These organizations attempted to find a way
to achieve the unification of international trade law. Those activities were regarded
as the signals of the revival of the old “law merchant”. The new general trend of
commercial law is to move away from the restrictions of national law and towards
the creation of an autonomous body of “international conception of commercial law
which represents a common platform for the jurists of the East and West … [thus]
facilitating co-operation between capitalist and socialist countries.” Therefore, “com-
plementary to the return to the internationalism in the political and economic field,
in the legal sphere, the emergence of a new lex mercatoria … a law of universal char-
acter that, though applied by authority of the national sovereign, attempts to shed the
national peculiarities of municipal laws.”36 International trade law specialists of all
countries have found without difficulty that they speak a common language.37 “The
law governing trade transactions is neither capitalist, nor socialist; it is a means to
an end, and therefore the fact that the beneficiaries of such transactions are different
in this or that country is no obstacle to the development of international trade. The
law of international trade is based on the general principles accepted in the entire
world.”38 Only uniform international commercial law can safeguard free trade and
make the expectations of Justice Mansfield come true.
It is reasonable to conclude that international commercial law goes through a
circle, from international customary rules to municipal laws and back on the inter-
national track.39 Global participation in the formulation of the new law merchant
creates the best opportunity for the unification of international commercial law, and
the international sale of goods is the most possible area to achieve such a goal.
Through many years of work, the international community finally harvested the
sweetest fruit, CISG.

33 The General Assembly established the United Nations Commission on International Trade Law
by Resolution (XXI) 2 205.
34 International Institute for the Unification of Private Law, generally referred to by scholars as

Rome Institute or UNIDROIT was established in 1926, with the support of the International Union.
35 The International Chamber of Commerce (ICC) was founded in 1919.
36 Clive M. Schmitthoff, Collection of Works on International Trade Law, translated by Zhao

Xiuwen, China Encyclopedia Press, 1993, p. 4.

37 Clive M. Schmitthoff, Collection of Works on International Trade Law, translated by Zhao

Xiuwen, China Encyclopedia Press, 1993, p. 128. H.Trammer, The Sources of the Law of
International Trade 42 (1964).
38 Aleksander Goldstajn, The New Law Merchant Revisited, in Law and International Trade,

Festschrift für C.M.Schmitthoff Zum 70 Geburtstag 171, 174 (1973).

39 In the lecture at the University of Helsinki in 1957, Schimitthoff noted that we were seeking the

international nature of lex merchant again. The evolution process of lex merchant from international
law to national law and back to international law had been finished. Lex merchant was shaking off
restrictions of national law, and international trade law as a universal and international concept had
been created.
8 1 Creation of CISG as a Uniform Sales Law

1.4 Predecessors of CISG

The adoption of CISG did not come easy. It took many years of hard work from
the international community. The Draft of Uniform Law on International Sales
of 1935, the Convention Relating to a Uniform Law on the International Sale of
Goods (ULIS)40 and the Convention Relating to a Uniform Law on the Formation of
Contracts for the International Sale of Goods (ULF) of 1964,41 were not successful.
But these predecessors of CISG set a solid foundation for the adoption of CISG.
Attempts to unify international sales law can be traced back to the 1920s. Ernst
Rabel, the father of Uniform international sales law,42 proposed to UNIDROIT to
formulate uniform laws on international sales, after a thorough and comparative study
of the sales law of major trading powers. According to him, where the parties did
not explicitly exclude the application of international conventions, the application
of these conventions could decrease and avoid barriers to international trade caused
by divergent national legislation.43 While the old law merchant had developed from
usage and practice, the new law merchant is the result of careful and, at times, political
deliberations and compromises by large international organisations and diplomats.
Such deliberations and compromises have a great impact on the development of
international sales law.
In 1930, UNIDROIT started to draft a convention on the rights and obligations
of the parties to contracts of international sales. A special committee, composed of
mainly European scholars, was established.44 After finishing the First Draft Uniform
Law on the International Sale of Goods in 1935,45 the Committee heard opinions
of relevant countries and revised it. The first Draft was praised by Ernst Rabel as a
milestone in the development of private law and international law.46 After consulting
the opinions of the states, the Committee finished the second Draft in 1939, which
had 105 articles in total.47 World War II postponed the project temporarily. After the

40 Convention Relating to a Uniform Law on the International Sale of Goods, July 1, 1964, 834
U.N.T.S. 107, reprinted in 13 Am. J. Comp. L.453 (1964).
41 Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale

of Goods, July 1, 1964, 834 U.N.T.S. 169 (1972), reprinted in 13 Am. J. Comp. L 472 (1964).
42 Bernhard Grossfeld, Peter Winship, The Law Professor Refugee, 18 Syracuse J. Int’l L. and Com.

3, 10 (1992).
43 Jacob S. Ziegel, The Future of the International Sales Convention from a Common Law

Perspective, 6 NZBLQ 336, 337 (2000).

44 Members of the committee include Sir. Cecil Hurst (UK), Professor H. C. Gutteridge (UK),

Justice Algot Bagge (Sweden), Professor Martin Fehr (Sweden), Professor Henri Capitant (France)
and Professor Ernst Rabel (Germany).
45 Institut Internal de Rome pour L’Unification du Droit Privé, Société des Nations, Project d’une

Loi sur la Vente D’Objects Mobiliers Corporels (1935).

46 Ernst Rabel, Markstein in der Entwicklung des Privatrechts und des internationalen Rechts,

Der Entwurf eines einheitlichen Kaufgesetzes (part 1), 9 Zeitschrift Für Ausländisches Und Inter-
nationalen Privatrecht 1, 5 (1935). See Bernhard Grossfeld, Peter Winship, The Law Professor
Refugee, 18 Syracuse J. Int’l L. and Com. 3, 11 (1992).
47 Institut Internal de Rome pour L’Unification du Droit Privé, Société des Nations, Project d’une

Loi sur la Vente D’Objects Mobiliers Corporels et Rapport (1939). See also Kurt H. Nadelmann,
1 Historical Background 9

War, UNIDROIT became a permanent international organization. It proposed to the

Netherlands to hold a political conference, in order to discuss revision of the draft
Uniform Law on International Sales. On 1 November 1951, the first conference was
held in the Hague. Representatives from twenty-one countries joined the conference
that lasted for ten days.48 Representatives from the United Nations, UNIDROIT and
ICC participated in the conference. Five states joined the conference as observers.49
The success of the Draft was acknowledged by the conference. A new special
Committee was created,50 to further rectify the Draft.51 In 1956, the third Draft
was presented to the states and international organizations for comments. Its articles
were increased to 113.52 After a thorough examination, thirteen countries53 and the
ICC presented their detailed comments and suggestions.54 With reference to some
valuable suggestions, the Committee revised the Third Draft and issued a detailed
report in 1963.55 The Fourth Draft was finished in the same year and presented to
participants of the Hague Conference. Meanwhile, the First Draft of the Uniform Law
on the Formation of Contracts for the International Sale of Goods was presented to
the states for comment and suggestions.56
On 2 April 1964, the second Hague Political Conference was held. Representatives
from 28 countries participated in the conference, most of whom came from the
European Continent.57 At the conference, the two drafts of 1963 were deliberated,

The United States and Plans for a Uniform (World) Law on International Sales of Goods, 112 U.
Pa. L. Rev. 697 (1964); John O. Honnold, A Uniform Law for International Sales, 107 U. Pa. L.
Rev. 299 (1959).
48 These countries include the United States, Austria, Belgium, Denmark, Finland, France, Germany,

Greece, Ireland, Italy, Japan, Luxembourg, Netherlands, Norway, Portugal, San Mario, Spain,
Sweden, Switzerland, United Kingdom and the Vatican.
49 The five countries are the United States, Bolivia, Chile, Cuba and Yugoslavia.
50 Members of the committee include Chairman M. Pilotti, V. Angeloni (Italy), A.Bagge (Sweden),

F. de Castro y Bravo (Spain), L. Frédéricq (Belgium), M. Gutzwiller (Switzerland), J. Hamer, A.

Tunc (France), Baron F. van der Feltz, P. Eijssen (Netherlands), T. Ascarelli (UNIDROIT), O. Riese
(Germany), B. A. Wortley (United Kingdom).
51 Ernst Rabel, The Hague Conference on the Unification of Sales Law, 1 Am. J. Comp. L. 58

(1952).
52 Commission Spéciale Nommée par la Conférence de la Haye sur la Vante, Project d’une Loi sur

la Vente D’Objects Mobiliers Corporels, Nouveau Texte Élaboré par la Commission et Rapport de
la Commission (1956).
53 The countries include Austria, Denmark, France, Germany, Hungary, Italy, Luxembourg,

Netherlands, Norway, Portugal, Sweden, Switzerland and the United Kingdom.

54 Observations of Governments and of the ICC on the Draft Uniform Law on the International Sale

of Goods (1963) (Doc./V./Prep.2). One year before the Diplomatic Conference, observation reports
of over 100 pages were presented by thirteen governments and the ICC.
55 Note of the Special Commission on the Observations Presented by Various Governments Relating

to the Draft of a Uniform Law on International Sale of Goods (1963) (Doc./V./Prep.2).

56 E. Allan Farnsworth, Formation of International Sales Contract: Three attempts at Unification,

110 U. Pa. L. Rev. 305, 306–307 (1962).

57 Gyula Eörsi, A Propos the 1980 Vienna Convention on Contracts for the International Sale of

Goods, 31 Am. J. Comp. L. 333, 335 (1983).

10 1 Creation of CISG as a Uniform Sales Law

and final versions of French and English were formulated.58 After the first plenary
session, deliberations were divided into two parts. The largest working group with 55
representatives discussed the draft Uniform Law on the International Sale of Goods,
while the other group was responsible for deliberations on the draft Uniform Law on
the Formation of Contracts for the International Sale of Goods. On 25 April 1964,
ULIS and ULF were adopted at the Conference, both of which came into force in
1972.59
As milestones in the development of the new law merchant, the Hague conferences
are attempts of great importance in the development of uniform law on international
sales of goods. The success of the conferences indicates the enthusiasm of the inter-
national community for participation in the unification of international commercial
law and reflects the importance of uniform law on commerce to the development
of the international community. In fact, uniform law represents the need for polit-
ical, economic and cultural coordination of each member state of the international
community.60 The common objective held fast by the member states enabled the
Hague Conference to unite the international community as a close family. Such a
united international community is also a necessity for the future development of
international commercial law.61
In addition, although World War II precluded the unification of law, unification of
law in countries outside of Europe was accelerated after the War.62 Because ULIS and
ULF did not reflect the willingness and standpoints of countries outside of Europe,
the Soviet Union and the United States in particular,63 the two conventions did not
achieve their present goal of completely unifying national laws on international
sales.64

58 Because the first draft in English had many problems, a committee was appointed to make the final
English Draft. Members of the committee include Van der Feltz (Netherlands), O. Riese (Germany),
A. Tunc (France), W. Evans (United Kingdom), and J. Honnld (United States).
59 Documents and records of the conference have been compiled. Diplomatic Conference on the

Unification of Law Governing the International Sale of Goods, The Hague, 2–25 April (1964) Vol.
I: Records; Vol II: Documents (1966).
60 René David, The International Unification of Private Law, 2 International Encyclopedia of

Comparative Law 21 (1971); D.H.N. Johnson, Harmonisation and Standardisation of Legal Aspects
of International Trade, 51 Australian L. J. 608 (1977).
61 Mari Matteucci, UNIDROIT: The First Fifty Years, in New Directions in International Trade Law

xvii UNIDROIT, 1977. It is noted in the paper that the unification of private law would facilitate
the establishment of peaceful relations between the countries and the development of international
commercial activities.
62 René David, The International Unification of Private Law, 2 International Encyclopedia of

Comparative Law 21, 149–50, 194–95 (1971).

63 Franco Ferrari, Uniform Interpretation of the 1980 Uniform Sales Law, 24 Ga. J. Int’l and Comp.

L. 183, 191–192 (1994).

64 Member states of ULIS include Belgium, Zambia, Germany, Israel, Italy, San Mario and the

United Kingdom. Member states of ULF include all of the above states except Israel.
2 Creation of CISG 11

2 Creation of CISG

The international community had to continue its efforts on the unification of law on
the international sale of goods since the two conventions of 1964 did not achieve their
expected objectives. However, this did not mean that the international community had
to reinvent the wheels. The United Nations took over the relay baton. Discussion on
the unification of international sales law in the United Nations was originally econom-
ically motivated. Economic benefits that could be achieved through a uniform sales
law were highlighted65 in particular, the benefits obtainable for developing coun-
tries. Barriers to international trade should be eliminated, legal barriers included.
Free trade was manifestly beneficial for developing countries that relied on export
to gain national economic growth. Developed countries would also gain from free
trade since their amounts of trade would be correspondingly increased.66 Later it was
proposed that if international trade could be regulated by a set of fair and uniform legal
rules, such trade activities were the very foundation for the maintenance of mutually
beneficial relations between members of the international community. Such a propo-
sition won support from the majority of the General Assembly of the United Nations
very quickly. While discussing the establishment of UNCITRAL, representatives of
Romania noted, the development of international trade reflected the true need of the
international community. It was a necessity for a world of peace and stability and for
peaceful and friendly relations between the states based on the principle of respect
for the equality of the people and the principle of self-determination. Meanwhile,
based on the principle of respect for national sovereignty, national independence,
non-interference in internal affairs and mutual benefit, the international community
needed to create a set of uniform legal rules to facilitate economic growth.67 The
development of international trade and world peace were two highly interrelated and
mutually promotive objectives, which also accorded with the Charter of the United
Nations.68

65 Progressive Development of the Law of International Trade: Report of the Secretary-General,

[1970] 1 Y.B. U.N. Comm’n on Int’l Trade L. 41, U.N. Doc. A/CN.9/SER.A/1970.
66 Summary Record of the 948th Meeting, [1970] 1 Y.B. U.N. Comm’n on Int’l Trade L. 47, para.

1, U.N. Doc. A/CN.9/SER.A/1970.

67 Sixth Committee of the General Assembly on Agenda Item 88: Progressive Development of the

Law of International Trade; Excerpts from the Summary Records, [1970] 1 Y.B. U.N. Comm’n on
Int’l Trade L. 54, U.N. Doc. A/CN.9/SER.A/1970. Representatives of the USSR, Poland, India,
Romania, and Bulgaria delivered similar opinions. Progressive Codification of the Law of Inter-
national Trade: Note by the Secretariat of the International Institute for the Unification of Private
Law (UNIDROIT), [1970] 1 Y.B. U.N. Comm’n on Int’l Trade L. 285, U.N. Doc. A/CN.9/ER.A/
1970. Similar opinions were given by international organizations, such as UNIDROIT. It noted that
international trade was an important part of economic development. Meanwhile, it was also a means
to promote mutual understanding and peaceful co-existence of the people in different states.
68 René David, The International Unification of Private Law, 2 International Encyclopedia of

Comparative Law 21, 318 (1971).

12 1 Creation of CISG as a Uniform Sales Law

2.1 UNCITRAL and CISG

Due to the above reasons, UNCITRAL was established by the United Nations General
Assembly by resolution 2205 (XXI) of 17 December 1966.69 UNCITRAL is the core
legal body of the United Nations specializing in international trade law. It plays a
vital role in pursuing harmonization and modernization of international trade law by
preparing and promoting the adoption and use of legislative and non-legislative texts
in significant areas of commercial law.70
When UNCITRAL decided in 1968 to initiate the unification of international
trade law, a majority of the members agreed that such a great project should start
with contracts on the international sale of goods.71 The creation of CISG can be
categorized into three phases: (a) 1970–1977, drafting of CISG by UNCITRAL, (b)
1977–1978, deliberations on the two drafts proposed by UNCITRAL, (c) adoption
of the Convention on the Vienna Diplomatic Conference in 1980.72

2.1.1 Drafting of CISG (1970–1977)

During the preliminary preparation period, UNCITRAL had 36 members in total,

among which 9 were from Africa, 7 from Asia, 5 from Europe, 6 from Latin America
and 9 from Western Europe and other regions.73 Compared to the member states
of the General Assembly of the United Nations, the number appeared small, but
it had been extremely rare for drafting an international convention with so many
participating parties. On the second annual meeting of UNCITRAL held in March of
1969, the Commission decided to establish a working group composed of members
from 14 countries,74 to take charge of the work of drafting a new convention on the
international sale of goods. According to the Commission, such a convention on the
international sale of goods had to be acceptable to countries of divergent legal, social
and economic backgrounds.75

69 UNCTIRAL: ‘A Guide to UNCITRAL: Basic facts about the United Nations Commission on
International Trade Law’ 1, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-doc
uments/uncitral/en/12-57491-guide-to-uncitral-e.pdf.
70 UNCTIRAL: ‘A Guide to UNCITRAL: Basic facts about the United Nations Commission on

International Trade Law’ 1, available at https://uncitral.un.org/sites/uncitral.un.org/files/media-doc

uments/uncitral/en/12-57491-guide-to-uncitral-e.pdf.
71 In its first session, UNCITRAL decided that the unification of international sales law was one

of the three main themes. UNCITRAL, Report on First Session, [1970] 1 Y.B. UNCITRAL 71,
pp. 77–78.
72 Records and materials on the Conference can be referred to in the 9th volume of the Yearbook

of UNCITRAL and the UN official record on the Conference in 1980.

73 These countries include Australia, Canada, the United States and New Zealand.
74 Members of the working group are from Brazil, France, Ghana, Hungary, India, Iran, Japan,

Kenya, Mexico, Norway, Tunisia, USSR, the United Kingdom and the United States. The chairman
is Professor Jorge Barrera-Graf from Mexico.
75 UNCITRAL, Report on Second Session, [1970] 1 Y.B. UNCITRAL 91, pp. 91–100, para.38.
2 Creation of CISG 13

One dilemma faced by UNCITRAL then was to make a choice between urging
more states to join ULIS and ULF and drafting a new convention on the international
sale of goods.76 Whether more states were willing to join UNLIS and ULF became the
decisive factor that affected the decision of the Commission. As a result, UNCITRAL
asked the Secretary General in 1964 to distribute the two uniform laws with comments
by Professor André Tunc to all member states of the United Nations, requesting
them to indicate their attitude and provide explanations.77 Replies from the member
states were quickly collected, which became the basis for UNCITRAL to make the
decision at its second annual meeting in 1969.78 Opinions of the member states
showed that it would be extremely difficult for the two uniform laws adopted at the
Hague Conference to win wide recognition and acceptance. In consideration of this,
the Commission decided to establish a working group to draft a new convention on
the international sale of goods.
After a complete rectification of ULIS, the working group of UNCITRAL finished
the Draft Convention on International Sale of Goods in 1976,79 with commentaries on
the provisions.80 This Draft mainly prescribed rights and obligations of the parties
to the contract of international sale of goods. Based on the rectification of ULF,
the group finished in September 1977 the Draft Convention on the Formation of
Contracts for the International Sale of Goods.81 UNCITRAL requested the Secretary
General to distribute the drafts with commentaries to the member states and relevant
international organizations to learn their opinions.82

2.1.2 Deliberations on the Two Drafts by UNCITRAL (1977–1978)

During this phase, the key mission of UNCITRAL was to deliberate on the two draft
conventions. The Draft Convention on Contracts for the International Sale of Goods
was expected to be deliberated at the tenth annual meeting of UNCITRAL to be
held in Vienna from May to June of 1977. Therefore, on 23 May 1977, a provisional

76 UNCITRAL took the former approach in the New York Convention of 1958, which was very
successful.
77 UNCITRAL, Report on First Session, [1970] 1 Y.B. UNCITRAL 71, p. 79. Diplomatic Confer-

ence on the Unification of Law Governing the International Sale of Goods, The Hague, 2–25 April
(1964) Vol. I, pp. 355–391.
78 UNCITRAL, A/CN.9/11 and Addenda 1–4, [1970] 1 Y.B. UNCITRAL 159–167.
79 Draft Convention on International Sale of Goods, A/CN.9/116, annex I, [1976] 7 Y.B.

UNCITRAL 89–96.
80 Commentary on the Draft Convention on International Sale of Good, A/CN.9/116, annex II,

reprinted in VII Yearbook 96–142.

81 Text of the Draft Convention on the Formation of Contracts for the International Sale of Goods,

Report of the Working Group on the International Sale of Goods on the Work of Its Ninth Session,
[1978] 9 Y.B. UNCITRAL 61, pp. 83–85.
82 Report of the Secretary-General: Commentary on the draft Convention on the Formation of

Contracts for International Sale of Goods, A/CN.9/144, [1978] 9 Y.B. UNCITRAL 106–121.
14 1 Creation of CISG as a Uniform Sales Law

Committee of the Whole was established83 to take charge of the incoming deliber-
ations. Based on the Draft Convention and comments made by the working group
in 1976, the Committee took into account suggestions from the states and interna-
tional organizations,84 and discussed and revised this draft.85 After negotiations and
discussions through 32 sessions, the Committee finished the Draft Convention in
1977, which was later adopted by the Committee of the Whole.86
At its 11th annual meeting held in June of 1978, UNCITRAL finished delibera-
tions on and revisions of the Draft Convention on the Formation of Contracts for the
International Sale of Goods of 1977.87 In accordance with the report delivered by the
working group at its 9th annual meeting,88 UNCITRAL decided to incorporate the
Provision of the Draft Convention on the Formation of Contracts for the International
Sale of Goods into the Draft Convention on Contracts for the International Sale of
Goods,89 and worked out the Draft Convention on Contacts for the International Sale
of Goods of 1978.90 This Draft Convention covered both rules on the formation of
contracts for the international sale of goods, and the rights and obligations of the
parties to the contract. UNCITRAL passed the Draft Convention unanimously and
proposed to hold a political conference by the General Assembly to deliberate on
the Draft Convention.91 UNCITRAL requested the Secretary-General to distribute
the Draft Convention to the member states and relevant organizations. It is fair to
say that the Draft Convention of 1978 was the basis for all activities at the Vienna
Diplomatic Conference of 1980.

83 Members of the provisional committee include almost all members of UNCITRAL. It was named
the Committee of the Whole to differentiate it from the UNCITRAL Commission.
84 Comments by Governments and International Organizations on the draft Convention on the

International Sale of Goods, A/CN.9/125/ADD. 1–3, [1977] 8 Y.B. UNCITRAL 109–142; Report
of the Secretary-General: Analysis of Comment by Governments and International Organizations
on the draft Convention on the International Sale of Goods as Adopted by the Working Group on
the International Sale of Goods, A/CN.9/126, [1977] 8 Y.B. UNCITRAL 142–163.
85 The drafting Group of the Committee was established on the third session of the Committee of

the Whole, to discuss and revise the provisions of drafts in different languages.
86 UNCITRAL, Report on the Tenth Session, [1977] 8 Y.B. UNCITRAL 15–21, para. 34–35.
87 UNCITRAL, Report on the Eleventh Session, Annex I, [1978] 9 Y.B. UNCITRAL 31–45.
88 Report of the Working Group on the International Sale of Goods of the work of its ninth session

(Geneva, 19–33 September 1977) A/CN.9/142, para. 303, reprinted in IX Yearbook 83.
89 Incorporation of the Provision of the Draft Convention on the Formation of Contracts for Interna-

tional Sale of Goods into the Draft Convention on International Sale of Goods, A/CN.9/145, [1978]
9 Y.B. UNCITRAL 121–126.
90 Text of the Draft Convention on Contact for the International Sale of Goods, UNCITRAL, in

Report of the Commission on the Work of its Eleventh Session, U.N. GAOR, 32nd Sess., [1978] 9
Y.B. UNCITRAL 11, pp. 14–21.
91 UNCITRAL, Report on the Eleventh Session, [1978] 9 Y.B. UNCITRAL 14, para.27.
2 Creation of CISG 15

2.1.3 Vienna Diplomatic Conference of 1980

The General Assembly of the United Nations responded quickly to the proposal
of UNCITRAL. On 10 March 1980, the Vienna Diplomatic Conference was held,
with 62 participating countries. Unlike the Hague conferences, participants of this
Conference were more geographically representative, with 22 developed countries
from Europe and other continents, 11 socialist countries, 11 Latin American coun-
tries, 7 African countries, and 11 Asian countries. In other words, around 22 devel-
oped countries, 11 socialist countries and 29 developing countries participated in the
Conference.92 After intensive deliberations that lasted for five weeks, the General
Assembly finally adopted the Convention on the International Sale of Goods.
During the preparation period for the Conference, the secretariat of UNCITRAL
issued a new commentary on the Draft Convention of 1978, i.e., the secretariat
Commentary on the 1978 Draft Convention.93 This commentary was extremely
helpful for the representatives to understand the text of the Draft Convention. To
some extent, it is reasonable to deem it an official commentary on CISG. Although
this Commentary cannot work like the official interpretation of the UCC of the United
States,94 it is indeed great work done by an excellent international working group and
an important part of the legislative history of CISG. In addition, over 20 states and
international organizations presented their comments and suggestions on the Draft
Convention of 1978.95
Very similar to the Hague Conference of 1964, the General Assembly was divided
into two committees, each of which was composed of representatives of all partici-
pating states. Such a task distribution enabled the General Assembly to take action
on different parts of the Convention. The majority of work was accomplished by
the first committee.96 On 8 April 1980, the Commission of UNICTRAL started to
vote on draft articles presented by the two committees. Among the total 88 articles
from part one to part three, 74 won unanimous approval, and 8 were approved with
no more than two negative votes. Except for the two articles that did not win a 2/3
majority of votes,97 other articles were all adopted. After revision, the two articles
were also unanimously passed by the Committee of the Whole. On 11 April 1980,
the Conference adopted a protocol to revise the United Nations Convention on the

92 Gyula Eörsi, A Propos the 1980 Vienna Convention on Contracts for the International Sale of
Goods, 31 Am. J. Comp. L. 333, 335 (1983).
93 Secretariat Commentary on the 1978 Draft, 1980 U.N. Official Records, pp. 14–66.
94 Uniform Commercial Code.
95 Pre-Conference Proposal on the 1978 Draft, 1980 U.N. Official Records, pp. 71–82. States that

proposed opinions include Australia, Austria, Belorussia, Canada, Czechoslovakia, Finland, France,
Germany, Ireland, Israel, Norway, Portugal, Sweden, Switzerland, United Kingdom, United States
and Yugoslavia. International organizations include the World Intellectual Property Organization,
the Central Office of International Railway Transport, Berne (OCTI) and the International Chamber
of Commerce.
96 The first committee was responsible for the first three chapters (Article 1–88); the second

committee was responsible for chapter four and final provisions (Article 89–101).
97 The two Articles were Article 80 (Article 68 of CISG) and Article 73 (Article 78 of CISG).
16 1 Creation of CISG as a Uniform Sales Law

Limitation Period in the International Sale of Goods of 1974, in order to coordinate

the two Conventions.
The procedure of adoption of CISG indicates that joint efforts of scholars,
UNIDROIT, UNCITRAL and representatives of different countries are indispensable
for enacting an international convention on commercial law in today’s context.

2.2 CISG as a Uniform Sales Law

The adoption of CISG has been a giant step taken by the international community in
the unification of international sales law. Since CISG came into effect in 1988, it has
been accepted and ratified by more and more States. With Japan adhering to CISG
on 1 July 2008, CISG covers almost all major trading powers of the world98 -with
the exception however of Great Britain. CISG’s aim to unify international sales law
comes across various obstacles, difficulties and challenges, in particular uniformity
in the interpretation and application of the Convention.

2.2.1 Main Contents of CISG

CISG is the fruit harvested with the continuous and joint efforts of the international
community since the 1920s. As a uniform substantive law on the international sale of
goods, it has detailed provisions on the formation of contracts, rights and obligations
of the parties to the contract, breach of contract and remedies.
Besides the Preface, the Convention is divided into four chapters, with 101 arti-
cles in total. Chapter one has 13 articles, which define the scope of application of
the Convention and general principles of law. Chapter two has 11 articles, which
cover issues related to the formation of contract. Chapter three is the core of the
Convention, with five Sections and 64 articles. Section one is on general issues, such
as fundamental breach of contract and invalidity of contract. Section two is on the
obligations of the seller: delivery of the goods, handing over documents, conformity
of the goods and third-party claims. Section three is on the obligations of the buyer:
payment of the price, taking delivery and remedies for breach of contract by the
buyer. Section four is on the passing of risks. Section five is provisions common to
the obligations of the seller and of the buyer. Chapter four is the final provisions of
CISG.99

98 Camilla Baasch Andersen, The Uniform International Sales Law and the Global Jurisconsulto-
rium, 24 J. L. and Com. 159 (2005).
99 Zhang Yuqing, International Uniform Law on Sale of Goods: Commentary on CISG, China

Foreign Economics and Trade Press, 1998, pp. 4–5.

2 Creation of CISG 17

2.2.2 Effects of CISG

Compared to its predecessors, CISG is successful in many aspects. Firstly, it meets

the need for a uniform law on the international sale of goods by the international
community. As the uniform law on contractual relations, CISG coordinates current
international trading practices. Customary rules followed by merchants in many
member states are fully acknowledged by the Convention. Furthermore, the short-
comings of these customs and traditions are improved. Meanwhile, CISG decreases
the conflicts of national laws on the international sale of goods and provides certainty
and predictability in the application of the law for both merchants and dispute
resolution institutions.
Secondly, CISG deliberately balances the interests of the buyer and the seller.
Provisions on the formation of contract, due diligence of the parties and remedial
measures to be taken when the other party breaches the contract, reflect the principle
of equity and balance of interests. In addition, obligations, waiver of liability and
remedial measures for breach of contract are listed explicitly in the Convention, in
order to help the parties to the contract to be fully informed of their respective rights
and obligations.
Thirdly, CISG takes into account different social, economic and legal traditions
and economic development levels of the Member States, removes trade barriers,
promotes the development of international trade, and stabilizes trade relations
between the Member States based on the principle of equality.
Finally, CISG coordinates relevant mechanisms and theories of the common law
system and continental law system. Meanwhile, it reflects the hope and expectations
of the developing countries. This could be seen from the wide representativeness of
the participating countries during the adoption of the Convention. Many provisions
of the Convention are coordinated result of the common law and the continental law
systems. Principles, rules and mechanisms in the common law, the UCC in particular,
have a great impact on provisions of the Convention. For instance, in regard to passing
of risks, Articles 67–70 of the Convention incorporate the main contents of sections 2-
303, 2-509, and 2-510 of the UCC.100 Meanwhile, the Convention takes the views and
principles of the continental legal system. For instance, on revocation of promises
with a time limit on acceptance, the Convention (article 16) takes the practice of
the continental countries, the majority of which do not allow such revocations. In
respect of remedy for breach of contract, Articles 45–47 of the Convention follow
the practice of the continental legal system. On many issues, the Convention tries to
coordinate and harmonize principles and practices of both legal systems, so that it
could be widely accepted and applied.

100U.C.C., §2–303 Allocation U.C.C., §2–303 Allocation or Division of Risks, §2–509 Risk of
Loss in the Absence of Breach, §2–510 Effect of Breach on Risk of Loss.
18 1 Creation of CISG as a Uniform Sales Law

2.2.3 Functions of CISG

As substantive law regulating contractual relations on the international sale of goods,

CISG has a direct effect on the avoidance of legal conflicts. Choice of law rules is
an indirect tool to resolve legal conflicts between municipal laws. They do not touch
the rights and obligations of the parties, which shall be determined by applicable
laws identified through the choice of law rules. Besides divergences and conflicts of
substantive laws of different countries, national choice of law rules may also run into
conflicts. As a result, a particular international sale of goods dispute may be brought
to courts in two or more states. Application of law may not be certain and predictable.
Unlike the choice of the law rules, CISG directly regulates the international sale of
goods relations, and clarifies the rights and obligations of the parties to the contracts.
Once requirements are met, contracts concluded by the parties on the international
sale of goods shall be governed by CISG. Such an approach avoids legal conflicts,
enables the parties to be certain of the law applicable and the consequences of their
actions, and provides necessary certainty and stability for international trade.
The functions of CISG are categorized into seven points by Professor Magnus in
Zweites Buch. Recht Der Schuldverhaltnisse. Wiener Un-Kaufrecht: (a) application
of CISG makes the same issues governed by the same legal texts; (b) application of
CISG can avoid various complicated and uncertain procedures in deamination of the
applicable law through private international law rules, such as renvoi; (c) application
of CISG makes it unnecessary to apply foreign law; (d) application of CISG can
avoid forum shopping; (e) uniform rules on the international sale of goods clarify the
allocation of legal risks, increase legal certainty and decrease the costs of negotiation
and resolution of disputes; (f) uniform international sales law makes it possible for
the majority of the business of trading companies to be subject to one Convention;
(g) CISG provides a uniform international commercial competition legal framework,
safeguarding fair and equal competitions between exporters and importers.101
In consideration of the historical backgrounds and objectives of CISG, CISG has
at least the following values: (a) uniform judgments could be delivered in courts of
different countries, making it recognizable and enforceable in other countries; (b)
application of CISG by dispute resolution institutions is helpful for the unification
of international sales law. In fact, world-wide uniform interpretation and application
of CISG has become an important force for the unification of international sales law.

2.2.4 Uniform Application of CISG

It is common knowledge that in order to create legal uniformity it is insufficient to

merely create and enact uniform laws or uniform law conventions, because “even
when outward uniformity is achieved …, uniform application of the agreed rules is
by no means guaranteed, as in practice different countries almost inevitably come

101Xu Guojian, On Uniform Application of CISG, 4 Translation and Review of Foreign Law 80,
1995.
2 Creation of CISG 19

to put different interpretations upon the same enacted words.”102 As John Fele-
megas observes, the uniform interpretation of CISG by courts and arbitration insti-
tutions in application of CISG is a necessity for its long-term success. Otherwise,
the Convention would be short living.103
For instance, practices of the German courts and Austrian courts vary in THE
determination of the “reasonable time” referred to in Article 39(1) on notification for
non-conformity of the goods delivered. The reasonable time, in the eye of German
courts, shall be one month, while in that of Austrian courts shall be 14 days.104 Such
differences have a great impact on the parties in seeking remedies against breach
of contract. Experienced lawyers may also select courts, and forum shopping is
inevitable.105
In fact, it is not rare that provisions of CISG are differently interpreted by national
dispute resolution institutions. In Beijing Metals and Minerals Import/Export Corp.
v. American Business Center, Inc,106 the Fifth Circuit Court of Appeals in the United
States declares that parol evidence rule applies to the case, no matter whether it
is governed by the law of the state of Texas or CISG. Even if an oral agreement
does not run into conflict with the written contract, parol evidence rule annuls the
effect of the oral agreement. However, in a case decided by the German court in
1992,107 it is held that one of the principles of CISG is that an oral agreement may
be different from a written contract. On the same issue, the courts of the two nations
have exactly contrary answers. Therefore, the adoption of uniform legal text does not
mean uniform interpretation and application of the legal text. As Honnold predicts,
“even if you get uniform laws, you won’t get uniform results.”108 There is still a long
way to go for CISG to achieve its present objective to unify international sales law.

102 R.J.C. Munday, Comment, The Uniform Interpretation of International Conventions, 27 Int’l
and Comp. L.Q. 450, 450 (1978).
103 John Felemegas, The United Nations Convention on Contracts for the International Sale of

Goods: Article 7 and Uniform Interpretation, Pace Review of the Convention on Contracts for the
International Sale of Goods (CISG), 115–265 (2000–2001), available online at http://www.cisg.
law.pace.edu/cisg/biblio/felemegas.html.
104 Germany: New Zealand mussels case, Bundesgerichtshof [Federal Supreme Court], No. VIII ZR

159/94, 8 March 1995, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/950

308g3.html, CLOUT cases No.123; Austria: Timber case, Oberster Gerichtshof [Supreme Court],
No. 2 Ob 191/98x, 15 October 1998, available online at http://cisgw3.law.pace.edu/cases/981015a3.
html, CLOUT cases No.240.
105 John O. Honnold, Uniform Law for International Sales under the 1980 United Nations

Convention, Kluwer, 2nd ed. 1991, p. 142.

106 United States: Beijing Metals v. American Business Center, Circuit Court of Appeals (5th Circuit)

[Federal Appellate Court], No. 92–2171, 15 June 1993, available online at http://cisgw3.law.pace.
edu/cases/930615u1.html, CLOUT cases No.24.
107 Germany: Frozen bacon case, Oberlandesgericht Hamm [Provincial Court of Appeal], No.19 U

97/91, 22 September 1992, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/

920922g1.html, CLOUT cases No.227.
108 John O. Honnold, The Sales Convention in Action-Uniform International words: Uniform

Application?, 8 J. L. and Com. 207 (1988).

20 1 Creation of CISG as a Uniform Sales Law

2.2.5 Uniform Interpretation of CISG

The reasons for this non-uniformity are various. Some of the causes that can give rise
to diverging interpretations of a uniform law are problems that are “internal” to the
uniform law since they have their source in the uniform law itself. Such divergences
in interpretation are “normal” results of defects in the drafting of the uniform rules.
These include mistakes in grammar and translation, lack of clarity, or gaps in the
law. In this regard, it has been pointed out that the existence of different official
versions of the same uniform law is a circumstance that can, by itself, give rise to
interpretative doubts because textual differences impede uniformity.109

Ambiguity in Words

We have to admit that the CISG is not a perfect legal text. It is an international legal
instrument based on compromises reached between different types of countries.
Although such compromises increase the compatibility of the CISG and expand its
territorial scope of application, they also lead to ambiguity in words used by CISG.
Many critical concepts are not explicitly defined in the CISG, such as the buyer,
the seller and goods, in order to sustain consensus between contracting parties, to
avoid local conflicting interpretations or to make CISG understandable for people
of divergent legal traditions.110 CISG has to use many ambiguous words, such as
good faith in Article 7(1) and fundamental breach of contract in Article 25. These
ambiguous words cover up the fact that the contracting parties have not reached a
consensus on these issues. As a result, uniform interpretation of CISG lacks macro
guidance, due to the fact that words used in the CISG could be differently interpreted.

Gaps in the CISG

Many legal gaps are left in CISG. Controversial issues that cannot achieve consensus
of the contracting parties are excluded from the scope of the CISG, such as the validity
of contract, effect a contract may have on the property in goods sold (Article 4), the
liability of seller for death or injury caused by the goods to any person (Article
5). Although these issues are intentionally excluded, the interpretation of the CISG
may still have to fill these gaps. Gaps referred to in this book concentrate on issues
covered but not clearly defined by the CISG. For instance, CISG prescribes the sum
of damage, but not damage for breach of contract and earnest money; interests have
to be paid for delayed payment, but the criteria of calculating the interests are not

109 Michael F. Sturley, International Uniform Laws in National Courts: The Influence of Domestic
Law in Conflicts of Interpretation, 27 Va. J. Int’l. L. 729, 731 (1986).
110 Bruno Zeller, Four-Corners-The Methodology for Interpretation and Application of the UN

Convention on Contracts for the International Sale of Goods, available online at http://www.cisg.
law.pace.edu/cisg/biblio/4corners.html.
2 Creation of CISG 21

settled; the place of payment is determined in the CISG, but where place of payment
changes due to transfer of rights, the place of payment is not defined; revocation of
promises is prescribed in the CISG, but negligence liability in concluding contract
is not covered.

Nationalism in Interpretation of CISG

Other reasons that can lead to divergent interpretations are “external”, since they are
independent from the uniform law itself. On this aspect, it has been said that some
interpretative differences can result from various national interests that the different
interpreters want to prevail over the national interests of other States. In relation to
the CISG, it has been asserted that “the disparity of economic, political, and legal
structure of the countries represented at the Vienna Conference suggests the difficulty
of achieving legal uniformity.”111
The incorporation of national traditions and concepts in the interpretation of CISG
may be the biggest obstacle CISG comes across in its uniform interpretation. As
Honnold observes, CISG is normally interpreted and applied by judges and arbitrators
who are only familiar with national laws. These judges and arbitrators might be
excellent, but they are usually inclined to interpret international legal rules according
to some core legal reasoning approaches formulated in their knowledge-acquiring
process. What they see is actually what they intend to be seen.112
Uniformity is a fundamental and central value in CISG. The drafters of the CISG
did not particularly seek to devise new, improved, or reformed provisions of sales
law. Their primary goal was to create uniformity in the rules for international sales,
in order to supplant the complex and difficult-to-predict system that subjected inter-
national sales to the varying provision of national sales law.113 The problem of
interpretation would not only cause a lack of uniformity in the application of CISG
but would increase forum shopping.114 Such a result would undermine the purpose
of the uniform legislation and defeat the reasons for its existence.

111 Alejandro M. Garro, Reconciliation of Legal Traditions in the U.N. Convention on Contracts
for the International Sale of Goods, 23 Int’l Law. 443, 450 (1989).
112 John O. Honnold, Documentary History of the Uniform Law for International Sales: The Studies,

Deliberations, and Decisions that Led to the 1980 United Nations Convention with Introductions
and Explanations, Kluwer, 1989, p. 1.
113 Harry M. Flechtner, The Several Texts of the CISG in A Decentralized System: Observations on

Translations, Reservations and Other Challenges to the Uniformity Principle in Article 7(1), 17 J.
L. and Com. 187 (1997).
114 John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Conven-

tion, Kluwer, 2nd ed. 1991, p. 142. Some scholars hold contrary views. Fritz Enderlein, Uniform
Law and its Application by Judges and Arbitrators, in International Uniform Law in Practice, Acts
and Proceedings of the 3rd Congress on Private Law, UNIDROIT, Rome, September 1987, Oceana
(1988) 329–353, pp. 340–341. The author thinks that the lack of uniformity in the interpretation of
uniform laws has no influence on the choice of forum, so the danger of forum shopping is not real
in these circumstances.
22 1 Creation of CISG as a Uniform Sales Law

As stated in the Preamble of CISG, the States Parties to the CISG agree unani-
mously that “the adoption of uniform rules which govern contracts for the interna-
tional sale of goods and take into account the different social, economic and legal
systems would contribute to the removal of legal barriers in international trade and
promote the development of international trade.” In the process of applying CISG,
maintaining a uniform interpretation of the texts is crucial for CISG to achieve its goal
of unifying international sales law. As John Felemegas notes, the key to the success
of the unification of law is the interpretation of the legal instrument reached by the
contracting parties. On where CISG is uniformly interpreted in each contracting
state, were efforts in enacting the uniform law not in vain.115 In consideration of this,
uniform interpretation of CISG becomes the key issue to be discussed in this book.
In brief, the position and advantages and success of CISG cannot be underesti-
mated or neglected. It seeks the essence of national contract laws and sales laws,
to harmonize divergent legal principles and traditions of different legal systems, to
coordinate conflicting interests of different types of contracting states, and to balance
the rights and obligations of the buyer and seller. It is reasonable to say CISG is the
most successful international uniform law on trade, in consideration of the number of
contracting states and scope of application. Such a uniform international law on the
international sale of goods decreases legal obstacles to international trade and facili-
tates legal coordination and unification in the globalized context. However, a conven-
tion has to be uniformly interpreted and applied by national judicial authorities;
otherwise, it is not truly a uniform convention.

115 John Felemegas, The United Nations Convention on Contracts for the International Sale of
Goods: Article 7 and Uniform Interpretation, Pace Review of the Convention on Contracts for the
International Sale of Goods (CISG), 115–265 (2000–2001), available online at http://www.cisg.
law.pace.edu/cisg/biblio/felemegas.html.
Chapter 2
Legal Interpretation and Uniform
Interpretation of CISG

Interpretation of a legal text is the prerequisite for its application. CISG is no excep-
tion. Textual interpretation, system interpretation, historical interpretation, inten-
tional interpretation and comparative interpretation are the major general approaches
to interpreting the legal text, which could be applied to the interpretation of inter-
national conventions, CISG included. Meanwhile, the interpretation of CISG has its
characteristics. The international nature of CISG and its objective to unify interna-
tional sales law require not only accuracy but also uniformity in the interpretation of
provisions of CISG. In consideration of the importance of the uniform interpretation
of CISG, a special article is incorporated in CISG, clarifying its fundamental require-
ment (consideration of the international nature and uniform application of CISG),
the basic approach (autonomous interpretation), and detailed steps and means of
gap-filling (general principles and private international law). In this Chapter, general
approaches to legal interpretation were introduced, the history of the adoption of
Article 7 of CISG was examined, and the autonomous interpretation of CISG was
analysed.

1 Legal Interpretation and CISG

Legal interpretation is a process in which specific legal texts are defined by certain
subjects according to particular criteria and rules. Simply speaking, it defines the
meaning of particular legal provisions applicable to a certain case or cases. Abstract-
ness, ambiguity, uncertainty and incompleteness of legislation, and transformation
of social relations, require a legal instrument to be interpreted both accurately and
timely. A group of approaches has been adopted to achieve such an objective, such
as textual, systematic, historical, intentional, and comparative interpretation. As an
international code of international sale of goods, CISG also needs to be accurately
interpreted in practice. Article 7 of CISG requires interpretation to take into account

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2024 23
J. Luo and P. Guo, The Uniform Interpretation of the UN Sales Convention (CISG),
https://doi.org/10.1007/978-981-99-7844-1_2
24 2 Legal Interpretation and Uniform Interpretation of CISG

the international nature of CISG and its uniform application. In addition, steps and
rules of gap-filling are also prescribed in this Article.

1.1 Definition of Legal Interpretation

1.1.1 Concepts of Legal Interpretation

Legal interpretation is an indispensable tool and prerequisite of legal application.1 If

a legal provision has not been clearly interpreted, application of the provision would
be impossible. Through legal interpretation, the judge intends not only to understand
the legal text but to apply it to specific cases in order to resolve relevant problems and
disputes. The close interaction between legal interpretation and case handling makes
the interpretation of legal text meaningful when it is related to specific judgments.
Without interpretation, any legal rule would remain abstract and inflexible. Through
interpretation, legal rules are applied to specific cases, to determine their conflicting
interests and they are finally transformed into effective rules.
Richard Posner deems interpretation a chameleon because it is the decoding of
communications and could be understanding translation, expansion, supplementa-
tion, transformation or replacement.2 Legal interpretation has a long history. It is born
with the law and developed with it. Different traditions, principles and approaches
exist. The difficulty in defining legal interpretation can be expected to be extremely
great. At least nine definitions are identified and discussed.3 The book does not aim
to find the most appropriate definition but to identify the core of legal interpretation.
In this paper, legal interpretation refers to a process in which specific legal texts are
defined by certain subjects according to particular criteria and rules.
Legal interpretation is a broad concept, which includes the interpretation of legal
texts and gap-filling. The former refers to illustrations and explanations of legal texts
or their purpose. Sometimes, the judges have to take some innovative approaches to
finish the task of legal interpretation. The latter refers to a process in which issues
uncovered but should have been covered or have to be resolved, are properly handled
by the judges through interpretation of the legal texts or its purpose.
In respect of CISG, interpretation refers to a process in which particular provisions
of the CISG or its purpose are clarified by certain subjects according to certain criteria
and principles, in order to handle a case governed by the CISG. Such a pragmatic
approach in defining interpretation means that the interpretation of CISG includes
both textual interpretation and gap-filling of the CISG.

1 Liang Huixing, Interpretation of the Civil Law, China University of Political Science and Law
Press, 1995, pp. 192–193.
2 Richard Bosner, The Problems of Jurisprudence, translated by Su Li, China University of Political

Science and Law Press, 1994, pp. 376 and 342.

3 Zhang Zhiming, On Concept of Legal Interpretation, 5 Legal Research (1998).
1 Legal Interpretation and CISG 25

1.1.2 Subjects of Legal Interpretation

Lack of interpretation, judicial authorities cannot state law. Neither could judicial
authorities accurately implement the law. The transformation of statutes to judgments
is not simply a factual process, but a process of participation by relevant parties. In
such a process, the core tool indispensable is understanding and interpretation of facts
and the law.4 In other words, legal interpretation is in fact a process in which the
law is made alive by judicial authorities.5 In most western States, legal interpretation
refers to the interpretation of legal texts by judges.6
Several reasons may be relied on to argue that judges are the proper persons to
interpret the law. Firstly, case handling is the task of judges. To make judgments, they
have to understand the law and accurately interpret relevant provisions. In fact, legal
interpretation exists not only in complicated cases but also in simple cases, because
even in these cases the law has to be interpreted to make judgments.7 The universality
of the law and specialty of a particular case is bridged by the judge through legal
interpretation and application. Therefore, legal interpretation is not only the power
of judges but also their tasks. A law could be implemented in real life only when it
is accurately interpreted by judges.
Secondly, as noted by Gustav Radbruch, legal interpretation is understanding the
already known, reflections on previous thought. Compared to legislators, interpreters
may have a better understanding of the law. The judges might be more intelligent, or
we might say that they have to be more intelligent.8 Legal interpretation is performed
in deciding specific cases. Compared to other legal professionals, judges are more
closely accessible to cases and legal rules. They apply the law properly to each case by
interpreting the law accurately. Modern legal interpretation becomes a professional
job, which could be done by judges.
In respect of CISG, there exists no independent judicial institution in the interna-
tional arena over national sovereignties. Many disputes concerning the international
sale of goods are subject to the jurisdiction of two more states. As a result, the
subjects that interpret CISG are mainly judges of the contracting states. In addition,
arbitration becomes popular since it is more efficient and cost-effective. Furthermore,
national and international arbitration institutions may also interpret and apply CISG
to handle relevant cases. Therefore, uniform interpretation of CISG can be defined as
clarification and explanation of provisions of the CISG by national and international
dispute resolution authorities according to certain criteria and principles, in order to
safeguard correct and uniform interpretation of the CISG.

4 Chen Jinzhao, Philosophy of Legal Interpretation, Shandong Renmin Press, 1999.

5 Qi Yanping, Human Right and Rule of Law, Shandong Renmin Press, 2003, pp. 306–321.
6 Dong Hao, Judicial interpretation, China University of Political Science and Law Press, 1999,

p.11.
7 Chen Jinzhao, Legal Methodology, Shandong Renmin Press, 2003, p. 55.
8 Arthur Kaufmann, Winfied Hassemer, Einführung in Rechtsphilosophie und Rechtstheorie

der Gegenwart, translated by Zheng Yongliu, Contemporary legal philosophy and legal theory
Introduction, China Law Press, 2002, p.164.
26 2 Legal Interpretation and Uniform Interpretation of CISG

1.2 Values and Characteristics of Legal Interpretation

1.2.1 Values of Legal Interpretation

Codification of the law reflects the hope of human being to adjust social relations
through one special code. But defects of such an approach are also obvious. Firstly,
statutes may lag behind social development. Normally, statutes are enacted by legis-
lators in a particular social context. It is unreasonable to expect legislators to shake
off from the social condition and environment they live in and make laws for the
remote future. Historical experiences indicate that statutes cannot be relied upon to
well adjust all social relations in detail, no matter how wise the legislators may be.
Secondly, the law is expressed in language, the characteristics of which make inter-
pretation necessary. Languages and words are born with uncertainty and mobility,
which develop with social progress. Therefore, laws expressed in language and
written in words need interpretation, to identify the real intent of the legislator and
to meet the need of social development.
In addition, social activities are diverse and changeable. The law has to be abstract
and general, in order to cover vast amounts of similar social problems. The abstract-
ness of legal provisions makes legal interpretation extremely necessary when such
provisions shall be applied to handle specific cases. When the law meets specific
cases, explicit provisions become unclear.9 Judges have to explain and clarify the
meaning of particular provisions according to certain criteria.
Similarly, it has to be admitted that words used in CISG are abstract. As an inter-
national Convention created with joint efforts of the international community, CISG
also needs to keep up with the pace of social development. Without an international
judicial authority delivering uniform interpretations, the uniform interpretation of
CISG encounters more challenges.

1.2.2 Subjectiveness and Objectiveness of Legal Interpretation

As an activity of understanding and comprehension, legal interpretation has to

balance subjectiveness and objectiveness, creativity and stability, flexibility and
certainty, and legality and fairness. The legal interpretation is neither a mechanical
reference to inflexible legal rules and facts, nor careless reasoning beyond the law
and its objectives. Legal interpretation shall be confined by the legal texts. Consid-
erations have to be taken on the reasonableness of the understanding in the current
social context. Objectives of the legislation, value choices and interest balances shall
be taken into account.
For CISG, the balance of the subjectiveness and objectiveness of interpretation is
of particular importance. Interpreters from contracting states around the globe have
to consider the intent of legislation, and the meaning of legal texts, and coordinate

9John Henry Merryman, The Civil Law Tradition, translated by Gu Peidong, China Law Press,
2004, p. 43.
1 Legal Interpretation and CISG 27

divergent opinions on the values of CISG, to ensure that the objective of CISG to
unify international sales law would not simply be a slogan.

1.3 Approaches to Legal Interpretation

Approaches to legal interpretation are divergently categorized by academics

according to various criteria. According to the purpose of this book, only basic
and feasible approaches applicable to the interpretation of CISG are to be introduced
here.

1.3.1 The Textual Approach

According to the textual approach, the legal text is the basis and object of legal
interpretation, which shall focus on the text and define its meaning according to the
meaning of words or its contexts. Legal provisions are made of sentences and words.
To define the meaning of a particular provision, the meaning of the words used shall
be first determined.10 Therefore, legal interpretation shall start with the words of the
text. The legal interpretation shall not go beyond the possible meaning of a provision;
otherwise, it would turn into legislation.11
For the interpretation of CISG, such an approach is also fundamental. To maintain
uniformity in the interpretation of CISG, authenticate texts of CISG shall be carefully
examined. Where the legal texts are disregarded by judicial authorities, the efforts of
the international community in making such an international convention would be
in vain. Therefore, uniform interpretation of CISG shall also be based on the textual
approach.
However, due to the fact that a word has multiple meanings, and some matters
are extremely complicated, the textual approach alone may not determine the true
meaning of a legal provision. Over-reliance on words can distort the true intent of
legislators. As a result, the contextual, historic and intentional approaches are created
to supplement the textual approach.

1.3.2 The Contextual Approach

The contextual approach is also called the systematic approach. According to such
an approach, any legal provision to be interpreted and applied has to be put into its
context, in order to determine its real meaning according to a systematic consideration
of the context and environment it is in. The position of a provision in a statute and

10Liang Huixing, On Approaches to Legal Interpretation, 1 Journal of Comparative law (1993).

11Wang Zejian, Legal Thinking and Examples of Civil Law, China University of Political Science
and Law Press, 2001, p. 220.
28 2 Legal Interpretation and Uniform Interpretation of CISG

the legal system shall be determined, in particular in chapters, sections, articles and
clauses it is in, in order to define its meaning, content, scope of application and legal
effect. Consistency is achieved via examination of the context of a provision. Where
the meaning of a provision cannot be determined by studying its relations with other
provisions, judges shall treat the legal system as a whole.12 As the Roman saying
goes: “Injustum est, nisi tota lege inspecta, de una aligua ejus particular propostita
judicare vel respondere.”
According to the contextual approach, the interpretation of a provision of CISG
shall be based on a general comprehension of the whole body of the CISG. Judges of
the contracting states have to go back and forth from particular provisions to the whole
CISG, in order to accurately determine the meaning of a provision. However, unlike
municipal laws, the international commercial legal system to which the CISG belongs
is uncertain. Other legally binding and secondary legal instruments on the interna-
tional sale of goods share both commonalities and differences with CISG. Even if
another legal instrument is an international convention like CISG, its contracting
states, the scope of application and legal effect may be different. It is still debatable
whether such conventions and other legal instruments could be directly referred to
in interpreting CISG.

1.3.3 The Historical Approach

The historical approach is also called the innovative approach, which requires refer-
ences to the preparatory work of a statute to confirm the meaning of a provision. The
legislative history of a statute includes: (a) the general historical background of the
statute, in particular social, economic, political and international conditions it is in;
(b) the adoption process of the statute; (c) the revision and development history of
the law. It has to be admitted that historical materials are very helpful supplementary
materials in confirmation of the intent of the legislator.
The historical approach is of particular importance to the interstation of CISG,
as an international convention with many contracting states. Legislative history is
not only the starting point but also the destination of interpretation. Much useful
information could be acquired through an examination of the legislative history of
a convention. For instance, ULIS and ULF are predecessors of CISG. Some of the
provisions of the two conventions are kept, some are revised, some are discarded,
and some are added. A thorough examination of the legislative history can clearly
show the opinions of different contracting states and the intents of the legislators.
In practice, the historical approach is widely applied by national judicial author-
ities in the interpretation of CISG. For example, in the New Zealand Mussels Case

12Zhi Yuan, Theory and Practice of Systematic Legal Interpretation Approach, 2 Journal of
Application of Law, (2002).
1 Legal Interpretation and CISG 29

and in the Condensate Crude Oil Mix Case,13 the German court and the Netherlands
Arbitration Institute examined the legislative history of Article 35 of CISG. It was
concluded that standards of the common law and the civil law should not be applied
to interpret Article 35 of CISG.
Of course, the historical approach is not perfect. Firstly, reference to legisla-
tive materials shall not only aim to identify the subjective intent of legislators
but shall confirm a reasonable and objective meaning according to current social
needs. Secondly, legislative materials are supplementary, which shall be re-evaluated
according to social progress. Generally, the newer a law is, the bigger the value of its
legislative materials; the older a law is, the smaller the value of its legislative mate-
rials.14 For CISG, since the day it becomes effective, it has a life of its own,15 and
the meaning of its provisions shall be confirmed according to social transformations.
In other words, the intent of legislators is simply one of the factors to be taken into
account for the current interpretation of a statute.

1.3.4 The Intentional Approach

According to the intentional approach, the true meaning of a provision shall be

confirmed by reference to the objectives of the law. Interpreters shall not simply
look to the texts, but the intents of legislators in formulating the provision and even
the objective of the law itself. The purpose of a law is the result expected to be
achieved by the legislators. In other words, it is the reason for enacting such a law.
As the Roman saying goes, “Rotio legis est anima legis” (the reason for making a
law is the spirit of the law itself). “Cessante ratione legis cessat et ipsa lex” (where
these reasons do not exist, the law does not need to exist anymore). Some laws may
have a single purpose, while others may have multiple purposes. Some purposes
are fundamental, some are more specific. It is even possible that several purposes
contradict each other. Interpreters have to carefully balance these purposes.
In most cases, conclusions made through the intentional approach accord with
those through the textual approach. In practice, interpreters aim to achieve four
purposes by the intentional approach: (a) to correct obvious mistakes in the law.
Legislation is a mission carried out by men, expressed in languages and words. As
a result, mistakes can be made. Generally, obvious mistakes could be corrected by

13 Germany: New Zealand mussels case, Oberlandesgericht Frankfurt [Provincial Court of Appeal],
No. 13 U 51/93, 20 April 1994, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cas
es2/940420g1.html, CLOUT cases No. 84; Germany: New Zealand mussels case, Bundesgerichtshof
[Federal Supreme Court], No. VIII ZR 159/94, 8 March 1995, available online at http://www.cisg.
law.pace.edu/cisg/wais/db/cases2/950308g3.html, CLOUT cases No.123; Netherlands: Condensate
crude oil mix case, Netherlands Arbitration Institute, No. 2319, 15 October 2002, available online
at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/021015n1.html, CLOUT cases No.720.
14 Wang Zejian, Legal Thinking and Examples of Civil Law, China University of Political Science

and Law Press, 2001, p. 228.

15 René David, The International Unification of Private Law, 2 International Encyclopedia of

Comparative Law 21, 328 (1971).

30 2 Legal Interpretation and Uniform Interpretation of CISG

interpreters; (b) to eliminate ambiguity in the provision. Where the textual approach
cannot confirm the meaning of an ambiguous provision, the intentional approach can
be applied to identify a meaning that best fits the purposes of the law; (c) to restrict
the scope of the law: the intentional approach may be applied to restrict the scope
of application of the law; (d) to expand the scope of the law: scope of application of
the law may be expanded through the intentional approach to cover newly emerged
issues.
The intentional approach plays divergent roles in the states and in various historical
periods: (a) to challenge the textual meaning of the law, in order to seek its true
meaning by reference to the purpose of the law; (b) to endow judges with broad
powers of discretion, who may decide the meaning of a provision and add new
meaning to the law, in disregard of the legal texts; (c) to further develop the law
according to the social progress, through this dynamic and pragmatic approach.
As a legally binding international convention, CISG cannot be easily revised to
keep up with the latest development in international trade and technological inno-
vations. From such a perspective, the intentional approach has a great role to play.
Although the texts of CISG may not be the optimal texts, it is the texts that could
be most broadly accepted then. Therefore, any interpretation that obviously strays
away from the legal texts shall be restricted. In addition, CISG is not drafted to cover
all issues related to the international sale of goods. The scope of application of the
CISG cannot be aimlessly expanded through the intentional approach.

1.3.5 The Comparative Approach

A national law could be interpreted by reference to relevant laws of other countries.

As supplementary material, a comparative study of practices in other countries may
be helpful for judges to confirm the true meaning of provisions in their national laws.
As for CISG, such an approach is indispensable, because uniformity could not be
achieved without the comparative approach. A convention made by the international
community shall be interpreted through global and comparative means; otherwise,
the international nature of the convention cannot be safeguarded.
In practice, the above approaches are mutually supportive of each other. The
true meaning of the provisions could be confirmed through the textual approach,
supplemented by other approaches. This is particularly true for CISG. Of course, the
interpretation of CISG is more difficult and complicated because it not only requires
accuracy but uniformity. In consideration of this, the drafters of CISG add a special
provision, Article 7, into CISG, to guide its interpretation. Therefore, interpreters
of CISG shall refer to general principles, rules, and approaches to statutes, and in
particular treaties. Meanwhile, Article 7 of CISG provides golden rules to follow in
the interpretation of the CISG.
2 Autonomous Interpretation of CISG 31

2 Autonomous Interpretation of CISG

The interpretation of CISG is a key issue discussed by drafters of the Convention.

Article 7(1) states: “In the interpretation of this Convention, regard is to be had to
its international character and to the need to promote uniformity in its application
and the observance of good faith in international trade.” Article 7(2) goes on by
declaring: “Questions concerning matters governed by this Convention which are
not expressly settled in it are to be settled in conformity with the general principles
on which it is based or, in the absence of such principles, in conformity with the
law applicable by virtue of the rules of private international law.” The two clauses
provide principles for the interpretation of CISG, but steps and detailed approaches
are not given.
Through the textual and contextual approaches, it can be seen that Article 7(1)
prescribes the basic principles to be followed and the objectives to be achieved in the
interpretation of CISG. Article 7(2) concentrates on gap-fillings. In fact, this clause
may be deemed as rules on the interpretation of CISG, in case issues within the
scope of CISG are not properly addressed. Such kind of interpretation can be called
interpretation in the gap-filling of CISG.16
The principles prescribed in Article 7(1) of CISG include two elements: (a) regards
the international nature of CISG, (b) promotion of uniformity in the application of
CISG. These two elements are the core and guiding principles for the interpretation
of CISG. The international nature is the background for interpretation, while the
promotion of uniformity in its application is the ultimate goal of interpretation. The
two closely interrelated elements form the fundamental requirements for CISG’s
interpretation, i.e., autonomy.

2.1 Autonomous Interpretation and the International Nature

and Uniform Application of CISG

The key means to capture the core of CISG is to identify the exclusive and independent
criterion in the international legal instrument. CISG is an international convention
made with compromises of national sovereignties; the promotion of uniformity in its
application is critical to the ultimate goal of CISG to unify international sales law. As
a result, these two basic principles are set as the core criteria in the interpretation of
CISG. The position of the two principles in the provision of interpretation reflects the
drafters’ intent to lay its interpretation in an international context and to strengthen
the autonomous status of CISG. Autonomous interpretation restricts national judicial
authorities from relying on the nationalistic approach and interpreting CISG through
local methods, techniques and traditions.

16John O. Honnold, Uniform Laws for International Trade: Early “Care and Feeding” for Uniform
Growth, 1 Int’l Trade and Bus. L. J. 1, 7 (1995).
32 2 Legal Interpretation and Uniform Interpretation of CISG

2.1.1 The International Nature Requires Autonomous Interpretation

The creation of a uniform law is only the first step towards uniformity. It is uniformity
in the interpretation and application of the uniform law that determines the success or
failure of CISG.17 The bigger the number of contracting states is, the more compli-
cated the relevant economic, social, cultural and legal elements would be. Accord-
ingly, the greater the risks faced by uniform interpretation of the convention would
be.18 It is known that any international treaties have to be interpreted and applied
by national sovereignties. In particular, for international conventions that regulate
matters of private law, they have to be applied in practice mainly by national judicial
authorities. Judges and arbitrators from divergent legal backgrounds are inclined to
perceive the convention through techniques of national law and to incorporate it into
the national legal system. As a result, no matter whether the law of the home state of
the court or national law directed by private international law is applied, divergences
would occur between interpretations by national judicial authorities on the same
provisions in the convention. Different conclusions may be made on the application
of the same convention in judicial authorities of different states.
The international nature of CISG requires interpreters to be fully aware of the
fact that CISG as a compromise between divergent national legal systems remains an
independent and autonomous legal text. Such an independent and autonomous nature
of CISG has been acknowledged by the drafters and recognized by the contracting
states. Once a state becomes a party to CISG, CISG shall be incorporated into or
transformed into the national law, replacing other national legislation that covers the
same matters as those in CISG. “The Convention is a piece of legislation which has
been prepared and agreed on at an international level. It remains an autonomous body
of law even after its formal incorporation into the different national legal systems.
This is the case not only when such incorporation is the result of a simple act of
ratification by which the Convention is given the direct force of law, but also when a
special national legislation embodying its rules has been promulgated.”19 Although
the CISG has been formally incorporated into many different national legal systems,
the special nature of the CISG as a piece of legislation prepared and agreed upon at an

17 R.J.C. Munday, The Uniform Interpretation of International Conventions, 27 Int’l. and Comp.

L. Q. 450 (1978). The author states: “[t]he principal objective of an international convention is to
achieve uniformity of legal rules within the various States party to it. However, even when outward
uniformity is achieved following the adoption of a single authoritative text, uniform application
of the agreed rules is by no means guaranteed, as in practice different countries almost inevitably
come to put different interpretations upon the same enacted words.”.
18 Similar views can refer to Bernard Audit, La Vente Internationale de Marchandises: Convention

des Nations-Unies du 11 Avril 1980, L.G. D. J., 1990, p. 47; Franco Ferrari, Uniform Interpretation
of the 1980 Uniform Sales Law, 24 Ga. J. Int’l and Comp. L. 183, 198 (1994), the author stated:
“It seems evident that these issue may arise in relation to any international convention, but they
are most accentuated in the uniform sales law as resulting from the 1980 Vienna Sales Convention,
since such issues generally arise in proportion to the number of legal systems represented by the
various contacting States.”.
19 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, p. 73.

2 Autonomous Interpretation of CISG 33

international level helps it retain its independence from any domestic legal system.
It is essential for the long-term success of the CISG that the rules and techniques
traditionally followed in interpreting ordinary domestic legislation are avoided.
The interpretation of the provisions of CISG does not accord with its international
nature highlighted in Article 7(1).20 The Commentary on the Draft Convention on
Contracts for the International Sale of Goods (1978), which was prepared by the
Secretariat, also pointed out that: “National rules on the law of sales of goods are
subject to sharp divergencies in approach and concept. Thus, it is especially important
to avoid differing constructions of the provisions of this Convention by national
courts, each dependent upon the concepts used in the legal system of the country
of the forum.”21 On national approaches to legal interpretation, divergences exist.
In most common law countries domestic legislative instruments are traditionally
interpreted narrowly so as to limit their interference with the law developed through
jurisprudence.22 Other states support the historical approach, which refers heavily
to the legislative history of the law. In consideration of the international nature of
CISG, the selection and application of interpretation approaches shall be based on
their effects and impacts on the uniform interpretation of CISG.

2.1.2 Promotion of Uniformity Requires Autonomous Interpretation

At this point, the interrelation between the first two parts of Article 7(1) becomes more
apparent. The autonomous interpretation of the CISG is not simply a consequence of
the “international” characterization of the CISG, but also a necessity, if “the need to
promote uniformity in its application” is to be taken seriously. In CISG, the elements
of “internationality” and “uniformity” are inter-related thematically and structurally
because of their position in the same Part and Article of the Convention, functionally
because an autonomous approach to interpretation is necessary for the functioning of
both, and inter-dependently because the existence of one is a necessary prerequisite
for the existence of the other. The international, rather than national, interpretation is
necessary in order for uniformity in the application of the CISG to be achieved, and
uniformity of application is vital if the CISG is to maintain its international character.
The ultimate aim of the CISG, and arguably the reason for its existence, is to
achieve the broadest degree of uniformity in the law for international sales trans-
actions.23 Its adoption by the Contracting States is a necessary but insufficient step
towards this aim. What is also necessary is that the CISG, once incorporated into
the various domestic legal systems, is read, interpreted, and understood in the same

20 John O. Honnold, The Sales Convention in Action-Uniform International words: Uniform

Application? 8 J. L. and Com. 207, 208 (1988).
21 Secretariat Commentary on the 1979 Draft, A/CONF.97/5, 1980 U.N. Official Records, pp. 14–66.
22 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, pp. 72.

23 V. Susanne Cook, The Need for Uniform Interpretation of the 1980 United Nations Convention

on Contracts for the International Sale of Goods, 50 U. Pitt. L. Rev. 197, 261 (1988).
34 2 Legal Interpretation and Uniform Interpretation of CISG

uniform way by all its users, in any of the Contracting States.24 If national principles
or concepts are allowed to be used in the interpretation of the CISG, we will never
achieve this goal. In fact, a “nationalistic” approach to the interpretation of the CISG
would achieve results that are contrary to what was intended to be achieved by the
creation of the uniform law and would foster the emergence of divergent national
interpretations. The “nationalization” of the uniform rules deprives the instrument
of its unifying effect.25
The negative consequences of a nationalistic interpretation have also been pointed
out by the courts in the 1960s.26 The dangers concerning the interpretation of the
CISG have been attributed to “a natural tendency to read the international text through
the lenses of domestic law.”27 This can be the result of a conscious, or unconscious,
inclination of judges to place the uniform law against the background of their own
municipal law (lex fori) and to interpret the uniform law on the basis of principles with
which they are already familiar, thus threatening the goal of international uniformity
in interpretation.
In conclusion, both the international nature of CISG and the promotion of unifor-
mity in its application require an autonomous interpretation. Such an approach does
not necessarily mean that national techniques and rules shall not be relied upon, but
the nationalistic approach shall be prohibited. The interpretation of CISG transcends
national boundaries and shall be uniform to be widely accepted by the contracting
states. As a result, interpreters need to take interpretation by others into account.28
The interpreter must consider decisions rendered by judicial bodies of foreign juris-
dictions because it is possible that the same, or similar, questions have already been
examined by other States’ courts.29 “The judge must not only consult other inter-
national opinions but also realize that his or her opinion will be consulted by the
judiciary from other jurisdictions for persuasive authority.”30

24 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna
Sales Convention, Giuffrè Milan, 1987, pp. 74–75.
25 Franco Ferrari, Uniform Interpretation of the 1980 Uniform Sales Law, 24 Ga. J. Int’l and Comp.

L. 183, 203 (1994).

26 Scruttons Ltd. v.Midland Silicones Ltd. [1962] A.C. 446, p. 471. U.K.: Riverstone Meat Co.

Pty. Ltd. V. Lancashire Shipping Co. Ltd. [1961] A.C. 807. The House of Lords, in Scruttons
Ltd. v.Midland Silicones Ltd., stated that: “it would be deplorable if the nations, after protracted
negotiations, reach agreement … and that their several courts should then disagree as to the meaning
of what they appeared to agree upon.”.
27 John O. Honnold, The Sales Convention in Action-Uniform International words: Uniform

Application?, 8 J. L. and Com. 207, 208 (1988).

28 Elizabeth H. Patterson, United Nations Convention on Contracts for the International Sale of

Goods: Unification and the Tension between Compromise and Domination, 22 Stan. J. Int’l L. 263,
283 (1986).
29 V. Susanne Cook, The UN Convention on Contracts for the International Sale of Goods: A

Mandate to Abandon Legal Ethnocentricity, 16 J. L. and Com. 257, 261 (1997).

30 Phanesh Koneru: The International Interpretation of the UN Convention on Contracts for the

International Sale of Goods: An Approach Based on General Principles, 6 Minn. J. Global Trade
105, 109 (1997).
2 Autonomous Interpretation of CISG 35

Such an autonomous approach to the interpretation of CISG wins support not

only from academics, but also from judicial authorities. In an Italian case of 2004,31
the Court held that even if CISG did not contain an explicit definition of “sale”. The
concept should be defined in an autonomous way, without referring to national law.
Prescriptions on the basic rights and obligations of the parties to the contract capture
the essence of contracts on the international sale of goods. The court finally decided
that the contract concerned in the case should be governed by CISG.

2.2 International Context of CISG and Autonomous

Interpretation

Every legislative instrument raises issues of interpretation as to the precise meaning

of its provisions, even within the confines of a national legal system. Such problems
are more prevalent when the subject has been drafted at an international level. In the
interpretation of domestic legislation, reliance can be placed on methods of interpre-
tation and established principles within a particular legal system—the legal culture,
or infrastructure, upon which the particular legislation is seated. When dealing with
a piece of legislation such as the CISG, however, that has been prepared and agreed
upon at the international level and has been incorporated into many diverse national
legal systems, interpretation becomes far more uncertain and problematic because
there is no equivalent international legal infrastructure.
It should be said that the CISG does not live in a legal vacuum. For CISG, there do
not exist clearly defined international foundations, which are equivalent to those in a
domestic legal setting. However, in the international sale of goods, practices, general
rules and languages for trade have already been set up a long time ago. More impor-
tantly, they grow with the need for the international sale of goods as well. Therefore,
general principles of international commercial law (e.g., the UNIDROIT Principles)
can provide a part of the platform upon which the CISG, like any other piece of
domestic or international piece of legislation, must be based. With the development
of globalized world economy and trade and joint efforts made by the international
community, a legal foundation for the uniform interpretation and application of CISG
has been created. It is reasonable to expect that the foundation for such an interpre-
tation of CISG will be more solid and sound with the return of the new law merchant
and the growth of the international sale of goods.

31Italy: Pizza boxes case, Tribunale di Padova [District Court], No. 40466, 31 March 2004, available
online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/040331i3.html.
36 2 Legal Interpretation and Uniform Interpretation of CISG

2.3 Specific Requirements of Autonomous Interpretation

2.3.1 Neutral Language—A New Lingua Franca

The quality of the “international character” attributed to the CISG has yet a further
dimension. Such a characterisation denotes that the terms and concepts of the CISG
must be interpreted autonomously of meanings that might traditionally be attached
to them within national legal systems.32 Regard to the CISG’s international character
means that the interpreter should not apply domestic law to solve the interpretative
problems.33 The reading of the CISG in light of the concepts of the interpreter’s
domestic legal system would be a violation of the requirement that the CISG is to be
interpreted with regard to its “international character”. The terms of the CISG must
be interpreted “in the context of the Convention itself”. Such a conclusion becomes
necessary when one looks at the background of the CISG.
The form and content of the CISG are the outcomes of prolonged deliberations
between lawyers representing a multitude of diverse legal and social systems and
cultural backgrounds. The provisions of the CISG had to be formulated in the suffi-
ciently neutral language in order to reach a consensus not vitiated by misunder-
standing amongst its drafters. The choice of one word rather than another represents
the process of a compromise, rather than the acceptance of a concept peculiar to a
specific domestic legal system. The drafters attempted to avoid terms that have been
endorsed and shaped by diverse historical, social, economic and cultural structures
in the various legal systems. Any such terms would be abstract and disembodied in
the context of the CISG.
A good example of this effort can be found in the wording of Chapter IV of the
CISG. Chapter IV refers to the passing of the risk of loss to the buyer. Article 67(1)
states that in a contract of sale that involves carriage of the goods, the risk passes
to the buyer when the goods “are handed over” to the first carrier. In a similar tone,
Article 69(1) states that in contracts that do not involve carriage, the risk passes
when the buyer “takes over” the goods. Words such as “delivery” and concepts
such as “property” and “title”, loaded with peculiar domestic importance, have been
intentionally avoided. As Professor Honnold, one of the drafting fathers of the CISG,
has pointed out: “The idea is to use plain language that refers to things and events
for which there are words of common content in the various languages.”34

32 John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Conven-
tion, Kluwer, 2nd ed. 1991, p. 136. The author also states, “[t]o read the words of the Convention
with regard for their ‘international character’ requires that they be projected against an international
background.”.
33 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, p. 74.

34 John O. Honnold, Uniform Law for International Sales under the 1980 United Nations

Convention, Kluwer, 2nd ed. 1991, p. 136.

2 Autonomous Interpretation of CISG 37

In the instances where terms, or concepts, from a particular legal system were
used, it was not intended that the traditional meanings of these terms be adopted.35
The only conclusion we can make is that it is a drafting compromise. If concepts
in the CISG were taken from national law, there would be a danger of interpreting
these concepts in accordance with the law of their origin instead of interpreting them
autonomously.
In fact, “most authors in the literature of the Vienna Sales Convention seems to
stress that the Convention closely resembles the national law of sales of the author’s
country. … There is thus a considerable risk that concepts used in the Convention
will be believed to correspond to identical or even to similar concepts in national
law.”36 Therefore, the drafters of the CISG employed neutral language to avoid such
distortions. The neutrality of the words chosen for the CISG promotes the CISG’s
autonomy and advances UNCITRAL’s objectives of internationality and uniformity
of interpretation and application. Any perceived proximity of the CISG to various
national laws is not disturbing and should be seen as a mark of its success, since it
illustrates the outcome of multiple participation in its drafting.
Under such circumstances, if national concepts, principles, and techniques are
allowed to be used to interpret CISG, efforts made by drafters of CISG to maintain
its independence and autonomy from national laws would be severely damaged. As
a result, interpreters shall shift from the national legal context to the international
context of CISG. National concepts and terminologies shall not be simply trans-
planted into the interpretation of CISG. Exclusive terminologies and concepts of one
or several countries may be referred to in CISG, but this does not necessarily mean
that their meanings are the same as those in national laws.

2.3.2 Freedom and Flexibility

The consequence of realising the essence of CISG’s international character and

autonomy is that there should be no reason to adopt a narrow interpretation of the
CISG. Expressing support for this point is Professor Bonell: “Instead of sticking to its
literal and grammatical meaning, courts are expected to take a much more liberal and
flexible attitude and to look, wherever appropriate, to the underlying purposes and
policies of individual provisions as well as of the Convention as a whole.”37 Many

35 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna
Sales Convention, Giuffrè Milan, 1987, p. 74; John O. Honnold, Uniform Law for International
Sales under the 1980 United Nations Convention, Kluwer, 2nd ed. 1991, p. 136. Some scholars hold
contrary opinions. F.A. Mann, Uniform Statutes in English Law, 99 L. Q. Rev. 376, 383 (1983). See
also F.A.Mann, Uniform Statutes in English Law, 99 L. Q. Rev. 376, 383 (1983).
36 Leif Sevón, Method of Unification of Law for the International Sale of Goods, in Finnish National

Report to the Twelfth Congress of the International Academy Comparative Law, Sydney and
Melbourne, August 1986, Helsinki: Inst. Jurisprudentiae Comparativae Univ. Helsingiensis (1986)
11–26, p. 16.
37 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, p. 73; Bruno Zeller, The UN Convention on Contracts for
38 2 Legal Interpretation and Uniform Interpretation of CISG

words in CISG are ambiguous or unclear, which shall be uniformly interpreted in

consideration of the objectives of CISG and by references to legislative materials.
For instance, such an attitude has been adopted in the United States in the interpreta-
tion of the Uniform Commercial Code.38 Also, in a number of cases, American and
English Courts have shown a willingness to take a similarly liberal approach when
called to deal with other international conventions.39
It must be acknowledged, the broad and liberal approach, in this case, does not
mean the endorsement of many different national views, but the adoption of a single,
uniform, a-national approach. Such an approach is broad and liberal by definition
since it operates outside and above the restrictions, limitations and narrowness of
established national approaches to interpretation. The broad global scope of the
CISG requires that its interpretation is of a similar nature. For the “legal barriers
in international trade” to be successfully removed, a broad and liberal approach to
the interpretation of the CISG is required. Only such an approach can successfully
“take into account the different social, economic and legal systems” that the CISG is
aiming to unite, at least in the field of the sale of goods. If its interpreters realize the
true spirit of the CISG and enforce it in practice, then a liberal approach, far from
diversifying the results, will achieve uniform results.
It should be noted that a liberal and flexible approach does not mean that inter-
preters were given the discretion to stray from the basic verbal meanings of the
provisions. In so far as the meaning of a provision is clear, judicial authorities shall
rely on the textual and contextual approach, rather than intentional and historical
approaches to interpretation. In other words, proper interpretation of the CISG must
be broad and liberal but shall not be lax or abstract.

2.3.3 Empirical Analysis of Autonomous Interpretation

The MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D’Agostino S.p.A.40

illustrates why the nationalistic approach shall be abandoned and the autonomous
approach shall be upheld in the interpretation of CISG. In this case governed by
CISG, a U.S. Retailer, MCC-Marble Ceramic Inc. (the buyer), agreed orally with the

the International Sale of Goods (CISG)—A Leap Forward Towards Unified International Sales
Laws, 12 Pace Int’l L. Rev. 79, 105–106 (2000).
38 Article 1–103 of UCC.
39 U.S.: Lisi v.Alitalia S.p.a., 370 F.2d 508 (2d Cir. 1966); Day v.Trans World Airlines Inc., 528 F.2d

31 (2d Cir. 1975). Both cases concern the Warsaw Convention on International Carriage by Air
of 1929. U.S.: Mitsui and Co. Ltd. et Ataka and Co. Ltd. v. American Export Lines Inc., 636 F.2d
807 (2d Cir. 1981). This case concerns the Hague Rules of 1924. U.K.: Baltic Insurance Group v.
Jordan Grand Prix Ltd., 2 A.C. 127 (H.L. 1998). This case concerns the Hague-V Rules of 1968.
U.K.: Buchanan v. Babco Forwarding and Shipping, 1977 Q.B. 208 (Eng. C.A.); Thermo Engineers
Ltd. and Anhydro A/S v. Ferrymaster Ltd., 1 W.L.R. 1470 (Eng. 1981). These two cases concern the
Geneva Convention on International Carriage by Road of 1956.
40 United States: MCC-Marble Ceramic Center v. Ceramica Nuova D’Agostino, U.S. Circuit Court

of Appeals (11th Circuit) [Federal Appellate Court], No. 97–4250, 29 June 1998, available online
at http://cisgw3.law.pace.edu/cases/980629u1.html, CLOUT cases No. 222.
2 Autonomous Interpretation of CISG 39

seller, an Italian manufacturer of ceramic tiles on the basic terms for the purchase of
tiles. The parties then recorded these terms, such as price, quality, quantity, delivery
and payment, in the seller’s standard, pre-printed order form. The buyer brought a
breach of contract action in the U.S. District Court for the Southern District of Florida
against the seller for failure to deliver the tiles ordered in the recent three months. In
defence, the seller relied on a standard term on its order form which authorized it to
suspend deliveries if the buyer failed to pay. Then, the seller brought a counterclaim
for non-payment. To the buyer’s response that the tiles were nonconforming, the
seller stated that the buyer had not given written notice of defects within ten days of
receipt as required by a term on the order form. The buyer presented affidavits from
its president and two employees of the seller stating that the parties did not intend to
be bound by the standard terms on the order form.
The issue before the court was whether the parol evidence rule of the United
States law should be applied to the interpretation of a contract governed by CISG.
According to the parol evidence rule, where final agreements reached by the parties
to a contract had been expressed by a written contract, evidence “extrinsic” to the
contract in verbal or written form that was contradicting (or sometimes adding to)
the terms of the contract should not be admitted. Such a rule is unfamiliar to most
of the continental law countries. Furthermore, no provisions in CISG touched on
the relationship between oral and written evidence. The court rejected the claims of
MCC and held that the standard contract was valid by reference to the parol evidence
role. MCC appealed to the 10th Circuit Court, which overturned the decision of the
first trial. The court held that CISG was a self-sufficiency legal framework, which
should be interpreted within such a framework. In so far as the meaning of provisions
of CISG could be clearly defined, no national laws shall be referred to. Through an
examination of Article 8(3), the court decided that the parol evidence role should not
be applied to the case. More importantly, in its legal reasoning, the court referred
widely to classic works of representative scholars and tried to find relevant foreign
cases through the Internet and other channels. Although no relevant foreign cases
were found, the courts made great efforts in decreasing the impact of national law
and in the promotion of autonomous interpretation of CISG through an international
approach. The court was fully aware of its international obligation in interpreting
CISG, and emphasized the importance of restricting influences of the nationalistic
approach, in order to promote uniform interpretation and application of CISG.

2.4 The Comparative Approach and Autonomous

Interpretation

As emphasized above, CISG shall be autonomously and independently interpreted.

The nationalistic approach shall be restricted, which simply incorporated national
concepts and rules into the interpretation of CISG. However, this does not neces-
sarily mean that national laws cannot be used in the interpretation of CISG. Through
40 2 Legal Interpretation and Uniform Interpretation of CISG

the comparative approach, national legal materials could assist in its interpretation.
Commonalities and differences between national laws and CISG may be identi-
fied through the comparative approach, in order to better determine the meaning of
CISG’s provisions. As Professor Honnold notes, CISG requires us to take regard for
its international nature and promotion of uniformity in its application. If we put the
past aside, eradicate all traditions in national laws, perceive CISG in a pure manner,
and take account of the need for international trade, we could achieve such an objec-
tive. For the lack of such purity, we could take special attention to the differences
between national laws and CISG, in order to minimize the impact of the nationalistic
approach.41 In fact, many of the concepts, principles and rules in CISG were selected
by the drafters through comparative studies of national laws and practices. Therefore,
it will be easier for interpreters to define the true meaning of the provisions through
the comparative approach. Of course, the application of the comparative approach
shall be cautious and careful.

41 Li Wei, Commentary on CISG, China Law Press, 2002, p. 33.

Chapter 3
Gap Filling and Uniform Interpretation
of CISG

Almost every law has gaps to fill. For an international convention, this is particularly
true. CISG provides a set of rules on the international sale of goods, but it is impossible
that no gaps are left in such a big statute drafted by international experts.1 According
to Article 7(2), gaps can be filled through two approaches, general principles of law
and private international law. To some extent, gap-filling can be deemed as a type
of legal interpretation. As a result, the fundamental principles listed in Article 7(1)
shall also govern the gap-filling of CISG, which shall consider its international nature
and promotion of uniformity in its application. In addition, an autonomous approach
shall be taken to fill the gaps. National judicial authorities shall refrain from relying
on nationalistic means.2

1 Gap-Filling in CISG

Gaps in the law can be grouped into two categories: gaps within the scope of the
law, and gaps outside of the scope of the law. Article 7 of CISG is on gaps within the
scope of CISG, because it aims to resolve issues that should have been resolved by
CISG. Generally, two approaches can be adopted to fill gaps in the law, the true code
approach and the meta-code approach. CISG combines the two approaches, with
general principles as the key means and private international law as supplementary
means. In addition, the analogy could be used to fill gaps in CISG, which works
better in maintaining the uniformity of CISG.

1 Gyula Eörsi, General Provisions, in Nina M. Galston and Hans Smit eds., International Sales:
The United Nations Convention on Contracts for the International Sale of Goods, Matthew Bender,
1984, pp. 2–11.
2 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, p. 75.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2024 41
J. Luo and P. Guo, The Uniform Interpretation of the UN Sales Convention (CISG),
https://doi.org/10.1007/978-981-99-7844-1_3
42 3 Gap Filling and Uniform Interpretation of CISG

1.1 Gaps in CISG

Gaps in CISG shall be defined before we start examining Article 7(2). Normally,
gaps in the law are divided into gaps within the scope of the law (intra legem) and
gaps outside of the scope of the law (praeter legem). The former refers to matters
outside the scope of the application of CISG. Where it is clearly stipulated that certain
matters are not covered by CISG, they shall be resolved by reference to national laws.
For example, in Articles 2, 3(2), 4 and 5, several contracts and circumstances were
excluded from CISG.3 Since these matters are intentionally left out of the scope
of CISG, they shall be resolved according to private international law.4 Therefore,
Article 7(2) does not apply to such kinds of gaps.
Praeter legem refers to matters unresolved but should have been resolved by
CISG. Drafters of CISG are expected to resolve these issues by CISG, but due to
certain reasons, gaps exist in provisions on these matters. For these matters, Article
7(2) shall be applied to fill the gaps. In other words, only praeter legem is governed
by Article 7(2). For example, according to Article 78, “if a party fails to pay the
price or any other sum that is in arrears, the other party is entitled to interest on
it”. However, it does not specify how interest shall be calculated. Obviously, the
method to calculate interests is praeter legem to be filled. Further, in CISG, the
place to perform the main obligations for the buyer and the seller is specified; but
for supplementary obligations, such places are not defined in CISG. They are also
matters within the scope of CISG, but not resolved by CISG.
To maintain uniformity of CISG, both legal texts and the legislative history of
CISG shall be taken into account in order to decide whether gaps exist. For example,
generally speaking, product liability is outside the scope of CISG, because it is
excluded by Article 5. However, this Article only excludes matters on the liability of
the seller for death or personal injury caused by the goods to any person, but not on
the liability of the seller for damage on the buyer’s properties caused by defects of
the goods. If we turn to history, we can see that at the Vienna Conference of 1980,
it had been proposed that any claims based on product liability should be excluded
from CISG. But it did not win support from the majority of the contracting states.5
Therefore, liability of the seller for damages on the buyer’s properties caused by
defects of the goods delivered shall be governed by CISG.

3 CISG, Art.2, 3, 4, 5.
4 Alejandro M. Garro, The Gap-Filling Role of the UNIDROIT Principles in International Sales
Law: Some Comments on the Interplay between the Principles and the CISG, 69 TUL. L. REV.
1149, 1159 (1995).
5 United Nations Conference on Contract for the International Sale of Goods, First Committee,

5th Meeting, 1980 U.N. Official Records, U.N.Doc.A/CONF.97/19, U.N.Sales No.E.81.IV.3,II,

pp. 248–253.
1 Gap-Filling in CISG 43

1.2 Approaches to Gap-Filling in CISG

Two approaches may be adopted to fill gaps in the law, i.e., the true code approach and
the meta-code approach, which are respectively supported by the two legal systems.
As mentioned above, approaches to fill gaps in CISG were controversial issues in
drafting CISG. Debates on the two approaches also concern the autonomy of CISG.
Drafters had to coordinate national practices and combine the two approaches, to fill
gaps through general principles of law and private international law.

1.2.1 True Code Approach

According to the true code approach, interpreters must fill gaps in a legal instrument
by the instrument itself, because it is adequately comprehensive and detailed.6 A
real code is the most excellent, systematic and comprehensive law in a particular
field. It has no real gaps. Even if the reference to legal texts cannot properly fill the
gaps, principles and policies in the code will provide answers.7 As Grant Gilmore
observes, drafters of a code shall consider all possible issues. Where the court comes
across a gap or unpredicted issue, its job is to find the solution that best accords with
the basis, principles and policy of the code through analogy or other approaches.8
Such an approach is followed by most continental law countries, such as the civil
codes of Austria (Article 7), Egypt (Article 1(2)), Spain (Article 6(2)) and Switzerland
(Article 1). French and German law does not explicitly stipulate the general principles
approach, but according to their legal traditions, a code shall not be deemed simply
as a sum of all provisions. Where necessary, general principles inherent in particular
provisions shall be applied to interpret them and fill gaps in them.9

1.2.2 Meta-Code Approach

Unlike the true code approach, the meta-code approach relies on legal principles
external to the code in order to fill gaps in it. Unless explicitly prohibited by law, legal
principles outside of a code shall be adopted to fill gaps in its provisions.10 Obviously,

6 Robert A. Hillman, Construction of the Uniform Commercial Code: UCC Sections 1–103 and
“Code” Methodology, 18 B. C. Ind. and Comm. L. Rev. 655, 657 (1977).
7 William D. Hawkland, Uniform Commercial “Code” Methodology, 1962 U. Ill. L. F. 291, 292

(1962).
8 Grant Gilmore, Legal Realism: Its Cause and Cure, 70 Yale L. J. 1037, 1043 (1961); James W.

Bowers, Incomplete Law, 62 La. L. Rev. 1229, 1232 (2002); Gunther A. Weiss, The Enchantment
of Codification in the Common-Law World, 25 Yale J. Int’l. L. 435, 526 (2000).
9 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, p. 77; Mitchell Franklin, On the Legal Method of the
Uniform Commercial Code, 16 Law. and Contemp. Probs. 330, 333 (1951).
10 U.C.C., § 1–103 “that unless displaced by the particular provisions of the Act, the principles of

law and equity … shall supplement its provisions.”.

44 3 Gap Filling and Uniform Interpretation of CISG

such an approach is preferred by common law countries,11 because sources and

functions of legal principles in common law countries are different from those of
the civil law countries. Statutes in common law countries usually stipulate rules
for specific cases. Strictly speaking, they are not sources of general principles of
the law.12 As a result, most of these principles are derived from precedents, which
are the main source of law in the common law countries. Where new changes and
circumstances emerge, judicial authorities tend to use legal principles derived from
precedents to expansively interpret the code or to interpret it in a new manner.13

1.2.3 Gap-Filling Approaches of CISG

ULIS of 1964, a predecessor of CISG, took the true code approach. Article 2 of
ULIS excluded the application of private international rules. Further, Article 17
clarified that gaps in the uniform law shall be filled through general principles of
law, in order to absolutely avoid application of national laws.14 However, it was
widely challenged by scholars from the common law countries, who argued that it
was impossible to identify the so-called general principles in ULIS. Even if there
existed such principles, their clarity and certainty were not guaranteed. They were
concerned that judicial authorities in different countries might interpret the principles
in a nationalistic manner.15 Unfortunately, the attempt of ULIS drafters to make it
a truly independent and autonomous code was not a success. The interpretation
provisions were even one of the main reasons it did not gain wide acceptance from
members of the international community.16
After serious debate, CISG selected a scheme that combined the two approaches.
As Article 7(2) stipulates, general principles of law and private international law
are two means to fill gaps in CISG. In addition, general principles of law shall be

11 Isaak I. Dore and James E. DeFranco, A Comparison of the Non-Substantive Provisions of the
UNCITRAL Convention on the International Sale of Goods and the Uniform Commercial Code, 23
Harv. Int’l. L. J. 49, 63 (1982).
12 Otto Kahn-Freund, Common law and Civil Law—Imaginary and Real Obstacles to Assimila-

tion, in Mauro Cappelletti ed., New Perspectives for a Common Law of Europe, Kluwer Law
International, 1978, p. 154.
13 Franco Ferrari, Gap-Filling and Interpretation of the CISG: Overview of International Case Law,

7 V J 63, 81 (2003); John O. Honnold, Uniform Law for International Sales under the 1980 United
Nations Convention, Kluwer, 3rd ed. 1999, p. 101, available online at http://www.cisg.law.pace.edu/
cisg/biblio/honnold.html; Mark N. Rosenberg, The Vienna Convention: Uniformity in Interpretation
for Gap-Filling-An Analysis and Application, 20 Aust. Bus. Law Rev. 442 (1992).
14 Peter Winship, Private International Law and the U.N. Sales Convention, 21 Cornell Int’l L. J.

487, 492 (1988).

15 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, pp. 67, 88.

16 Isaak I. Dore and James E. DeFranco, A Comparison of the Non-Substantive Provisions of the

UNCITRAL Convention on the International Sale of Goods and the Uniform Commercial Code, 23
Harv. Int’l. L. J. 49, 63 (1982).
1 Gap-Filling in CISG 45

the first resort, while private international law is the last resort.17 In other words,
general principles of law are preferred to private international law by drafters of
CISG. Although many provisions of CISG are products of compromises reached
by the two legal systems, CISG is more heavily influenced by the continental legal
system and many principles are incorporated. Therefore, the meta-code approach
may work better for CISG.
In fact, such an inclination is an advantage for CISG, because it aims to replace
national laws on the international sale of goods. CISG is not a supplementary instru-
ment for national laws. It is a set of independent legal rules.18 Where private inter-
national law is preferred by CISG, the parties to the contract would still face uncer-
tainties and unpredictability in the application of law and the result of a dispute.19
Meanwhile, private international law may be used to supplement general principles
of law, where such principles could not be identified, or they could not resolve the
dispute fairly. Therefore, private international law is still kept as the last resort for
the gap-filling of CISG.
Secondly, in respect of the aim of CISG to unify national laws on the international
sale of goods, general principles of law work better than private international law.
General principles of law reflect the common understanding of CISG drafters and
the common ground of CISG. The interpretation of CISG through general principles
of law best reflects the spirit of international cooperation and understanding inherent
in CISG.20 Reference to private international law will not decrease legal obstacles to
international trade and promote the development of international trade on the basis
of equality and mutual benefit. Divergent national laws have to be applied. Further,
conflicts may even exist between private international law rules of different nations.
National judicial authorities are also more inclined to apply the law of their home
states.21

17 Albert H. Kritzer, Guide to Practical Applications of the United Nations Convention on Contracts
for the International Sale of Goods, Kluwer, 1989, pp. 108–109.
18 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, p. 78.

19 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, p. 9.

20 Phanesh Koneru, The International Interpretation of the UN Convention on Contracts for the

International Sale of Goods: An Approach on General Principles, 6 Minn. J. Global Trade 105, 115
(1997).
21 John O. Honnold, Uniform Laws for International Trade: Early “Care and Feeding” for Uniform

Growth, 1 Int’l Trade and Bus. L. J. 1, 7 (1995).

46 3 Gap Filling and Uniform Interpretation of CISG

2 General Principles of Law and Gap-Filling in CISG

General principles of law refer to legal principles that provide comprehensive and
macro guidance legal rules. According to the drafters of CISG, general principles of
law shall be examined to fill gaps in CISG.22 General principles of law must be those
on which CISG is based. They are basic principles that have a universal guiding effect
on the adoption and application of CISG in the field of the international sale of goods.
They shall be fundamental in contents, abstract in form, and consistent in application.
Generally, these principles include autonomy of will, reliability, communication and
cooperation, full compensation, good faith, etc. Functions of these principles could
be categorized into four groups: (a) to ensure the performance of the will of the
parties; (b) to guarantee the parties enjoy the fruit of the transaction; (c) to jointly
ensure the transaction is conducted successfully; (d) to adequately compensate the
party that incurs damages. As a compromise, private international law is incorporated
as the last resort in gap filling of CISG; but reference to general principles of law
could better promote uniformity in the application of CISG and avoid unnecessary
uncertainty, unpredictability and inconsistency in the application of law.

2.1 General Principles of Law vs. Private International Law

2.1.1 Incorporation of Private International Law into Gap-Filling

of CISG

As illustrated in the legislative history of Article 7, whether private international

law could be used as a means to fill gaps in CISG is an issue closely related to the
debate on the autonomy of CISG. The transformation from Article 2 and article 17
of ULIS to Article 7 of CISG makes it clear that the majority of drafters hold that
the autonomous status of CISG is the most basic and fundamental requirement on
the interpretation of CISG. In the final draft of Article 7(1), private international law
is excluded. But some drafters were not willing to give up private international law
so easily, in consideration of its supplementary function. Therefore, a compromise
was reached, making private international law the last resort to fill gaps in CISG.
In respect of gap filling of CISG, opinions of drafters were inconsistent. One
group held gaps should be filled by reference to general principles of law, which has
been adopted in Article 17 of ULIS. The other group held that general principles of
law were ambiguous. CISG neither gave a clear definition nor listed main general
principles. As a result, national laws directed by private international law rules should
be applied. To make the final provision acceptable to the majority of contracting

22 John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Conven-
tion, Kluwer, 3rd ed. 1999, p. 108; Nives Povrzenic, Interpretation and gap-filling under the United
Nations Convention on Contracts for the International Sale of Goods, available online at http://
www.cisg.law.pace.edu/cisg/biblio/gap-fill.html, part 4 B.
2 General Principles of Law and Gap-Filling in CISG 47

states, a compromise was reached. Questions concerning matters governed by CISG

which are not expressly settled in it are to be settled in conformity with the general
principles on which it is based or, in the absence of such principles, in conformity
with the law applicable by virtue of the rules of private international law.

2.1.2 Status of Private International Law in Gap-Filling of CISG

Although private international law is a means of gap-filling in CISG, such a means

goes against the ultimate aim of CISG to unify international sales law. As a compro-
mise reached by representatives of the contracting states, the application of private
international law threatens the ultimate aim of CISG. Interpreters should remind
themselves which approach could best safeguard the autonomous status of the
Convention. Application of private international law rules makes the parties uncer-
tain of the national law applicable. In addition, international treaties and conventions
are divergently treated in national legal systems. For example, in China, conventions
like CISG prevail over national laws. Where no international convention acceded or
national law covers an issue, international customary rules should be applied. Further,
private international laws are still mainly municipal laws. Conflicts between conflict
law rules are inevitable. Most importantly, the private international law approach of
gap-filling threatens the uniformity in the interpretation and application of CISG.
In filling gaps in CISG, national judicial authorities shall apply general principles
of law in favour of private international law rules. As the legislative history of Article
7(2) indicates, private international law shall be the last resort for interpreters to fill
gaps in CISG.
In conclusion, CISG is an international convention on the international sale of
goods based on compromises between different countries. Drafters of CISG did not
intend to make a code that covers all issues concerning the international sale of goods.
Such an international code is not feasible. It could not keep up with the development
of international trade. Where gaps need to be filled, judicial authorities should first
consider the analogical approach, which gives them less discretion and could promote
uniformity in the interpretation of CISG. As the core means of gap filling, reference to
general principles of law is an indispensable tool for gap filling. Without such a safety
valve, the interpretation of CISG would be extremely simple: judicial authorities
would turn directly to national laws.23 This simple approach would damage the efforts
of CISG in unifying international sales law. As a compromise, private international
rules were added to Article 7(2), as the last resort that judicial authorities may turn
to fill gaps in CISG.

23John O. Honnold, Uniform Law for International Sales under the 1980 United Nations
Convention, Kluwer, 2nd ed.1991, p. 102.
48 3 Gap Filling and Uniform Interpretation of CISG

2.2 Determination of General Principles of Law

2.2.1 Definition of General Principles of Law

Since legal principles are above normal rules, their certainty and predictability are
normally lower than legal rules. As a result, they could not be directly applied to
decide a specific case. Additional detailed standards and rules are needed.24 However,
some principles also tell people how to behave, in the form of order, permission and
preclusion. Combined with specific facts and legal rules, they could be used to judge
certain cases.25 In addition, as a legal rule, general principles of law can indirectly
regulate the behaviours of the people.26
CISG is a collection of the “common language” of the international sale of goods.
General principles of law in international sales are incorporated into CISG. As A.H.
Kastely observes from the rhetoric perspective, subjects and terminologies selected
by CISG reflect a set of values and principles that guide languages. These values and
principles are the very foundation for CISG to be uniformly interpreted. Meanwhile,
they also provide space for further development of CISG.27
“General principles of law” referred to in Article 7(2) shall be the foundation of
specific rules in CISG. Meanwhile, CISG is the greatest success in the unification of
international sales law; general principles of law in CISG shall reflect the fundamental
values in this field. General principles of law of CISG are basic principles that have
a universal guiding effect on the adoption and application of CISG in the field of
international sale of goods. They shall be fundamental in contents, abstract in form,
and consistent in application.

2.2.2 Scope of General Principles of Law

Although general principles of law are made as a preferable means to fill gaps in
CISG, despite Article 7(2), no other provision in CISG illustrates its determination
and application. As discussed above, the autonomous interpretation of CISG requires
issues to be resolved within the framework of CISG. Therefore, identifying those
general principles of law that could be used to fill gaps in CISG becomes a tough
task.
According to Article 7(2), general principles of law shall be those on which CISG
is based.28 Therefore, it is commonly accepted by academics that not all general
principles of law identified through comparative examinations on national laws could

24 Robert Alexy, A Theory of Constitutional Right, Oxford University Press, 2002, p. 45.
25 Robert Alexy, The Argument from Injustice, Clarendon Press, 2002, p. 79.
26 Robert Alexy, A Theory of Constitutional Right, Oxford University Press, 2002, p. 60.
27 Amy H. Kastely, Unification and Community: A Rhetorical Analysis of the United Nations Sales

Convention, 8 Nw. J. Int’l L. and Bus. 574, 590 (1988).

28 Ulrich Magnus, General Principles of UN-Sales Law, 3 Int’l. Trade and Bus. L. Ann. 33, 38

(1997).
2 General Principles of Law and Gap-Filling in CISG 49

be used to fill gaps in CISG.29 First of all, the application of all these principles does
not accord with the objective of CISG in unifying international sales law. CISG itself
is also an independent and complete system. Therefore, the identification of general
principles of law shall be based on CISG itself. Identification of these principles
through national concepts and national laws is not only unnecessary but poses a
potential threat to the autonomy and independence of CISG.
In practice, it is not feasible to identify general principles of law that CISG is
based on through comparative analysis of national laws. Which country’s law shall
be considered? Shall they be the contracting states, or other non-contracting states?
Shall the law of all contracting states be compared? For example, a German seller and
an English buyer concluded a contract on the sale of goods. Article 38 of CISG only
requires the buyer to check the good delivered within as short a period as is practicable
in the circumstances. It does not specify the place and means of checking. As a result,
the principle of reasonableness may be used to fill gaps. However, great differences
exist between the two countries on means, standards and time of reasonable checking
of goods. No matter whether a general standard could be identified by expanding the
countries of comparison, disputes exist concerning the application of such a so-called
general standard.
Secondly, the comparison process is heavily influenced by the subjectiveness of
the judge. It is not feasible to finish such a complex task by the sole force of the
judges.30 It is highly likely that judges will turn directly to their national approaches
to replace the so-called international general principles. Such a result obviously does
not accord with the original intent of the drafters of CISG.
Except for national laws, can other materials be referred to in the identification
of the general principles of law, such as PICC? According to Ulrich Magnus, as
the representative working on the unification of international commercial law after
the adoption of CISG, PICC reflects new developments in the uniform law on the
international level, with many universally accepted new principles and rules added.
In the gap-filling of CISG, it is not rational to give up these general principles and
rules. It is also a regress in the movement of unification of law.31
However, PICC more like a restatement of laws is fundamentally different from
CISG as an international convention. CISG concerns specific contracts, contracts on
the international sale of goods, while PICC regulates general contracts. The scope of
PICC is wider than that of CISG. It is debatable whether principles and rules in PICC

29 Ulrich Magnus, General Principles of UN-Sales Law, 3 Int’l. Trade and Bus. L. Ann. 33, 38–39
(1997); Gert Brandner, Admissibility of Analogy in Gap-filling under the CISG, available at http://
www.cisg.law.pace.edu/cisg/biblio/brandner.html, part II. B. 3. b).
30 Fritz Enderlein and Dietrich Maskow, International sales law, Oceana, 1992, p. 60.
31 Ulrich Magnus, General Principles of UN-Sales Law, 3 Int’l. Trade and Bus. L. Ann. 33, 38

(1997); M.J. Bonell, The UNIDROIT Principles of International Commercial Contracts and CISG –
Alternatives or Complementary Instruments?, 1 Unif. L. Rev. n.s. 26, 36 (1996); Franco Ferrari,
General Principles and International Uniform Commercial Law Conventions: A Study of the 1980
Vienna Sales Convention and the 1988 UNIDROIT Conventions, 2 Unif. L. Rev. n.s. 451, 459 (1997);
Martin Gebauer, Uniform Law, General Principles and Autonomous Interpretation, 5 Unif. L. Rev.
n.s. 683, 695 (2000).
50 3 Gap Filling and Uniform Interpretation of CISG

could be applied to fill gaps in CISG. In fact, no international convention could cover
all relevant issues. As an independent and autonomous convention, CISG’s general
principles shall come from itself. Of course, in practice, principles and rules of PICC
may be extremely valuable for the identification of general principles of law in CISG.

2.3 General Principles of Law on Which CISG is Based

As for the general principles of law on which CISG is based, it is proposed that
the Preface of the Convention has already listed three principles, i.e., the “bearing
in mind”, “considering” and “being in the opinion” principles. In detail, they cover
the establishment of a new international economic order, the development of inter-
national trade on the basis of equality and mutual benefit, taking into account the
different social, economic and legal systems, and removal of legal barriers in inter-
national trade and the promotion of the development of international trade. In fact,
these principles are guiding rules for the contracting states to deliberate on provisions
of CISG. They are not the general principles of law referred to in Article 7(2). Firstly,
the establishment of the new economic order is focused on the contracting states,
rather than parties to the international sale of goods. Secondly, equality and mutual
benefit also concern the contracting states, rather than the parties.
Many general principles of law have already been referred to in some provisions
of CISG, such as good faith (Article 7(1)), the autonomy of the will (Article 6), no
restrictions on forms of agreements (Article 11 and Article 29(1)), the immediate
effect of communications after the conclusion of contract (Article 27) and obligations
to pay interests for delay of payment (Article 78). However, the majority of general
principles have to be identified in the resolution of particular disputes by CISG. For
example, “reasonable” referred to in many provisions can be the general standard to
assess the activities of the parties where no such requirement is incorporated in rele-
vant provisions. Similar principles include: the principle of estoppel,32 the principle
in favour of the validity of contracts,33 the principle of necessary collaboration,34
the principle of taking reasonable measures to decrease the impact of the breach of

32 CISG, Art.16(2) b, 29(2).

33 CISG, Art.19(2), 25, 26, 34, 37, 48, 49, 51(1), 64, 71, 72.
34 CISG, Art.32(3), 48(2), 60, 65.
2 General Principles of Law and Gap-Filling in CISG 51

contract,35 and etc.36 Other principles are proposed by the academics, such as consid-
eration of customary rules,37 the liability principle,38 the right of expectation,39 the
principle of restricting damage to a predictable limit,40 etc.41
Many of the above principles are challenged by scholars, which are focused on
whether the principles are abstract, basic and fundamental.42 It is reasonable to say
that some principles do not meet the requirements of general principles. They are
simply specific rules established by CISG, such as the obligation to pay interests
incurred due to delay in payment.
Meanwhile, it is proposed that a simple list of general principles is not enough
for the gap-filling in CISG. The principles shall be grouped into a consistent system.
Robert A. Hillman observes that the majority of specific provisions of the CISG reflect
one or more basic principles and policies of CISG. The general principles shall be
grouped according to the policy means and purposes inherent in the specific provi-
sions.43 Such a grouping could assist judges in quickly identifying proper general
principles according to divergent needs and purposes of gap-filling. In addition,
the correctness and appropriateness of a general principle in gap-filling could be
effectively assessed through an examination of the policy means and purposes of
the general principles inherent in different provisions. It shall be noted that it is not
proper to conclude too many general principles, which do not have a universal effect.
Based on the above discussion, it is safe to conclude that the following principles
are the general principles of law on which CISG is based.

2.3.1 Principle of Autonomy of the Parties

It is generally believed that the principle of autonomy of the parties is collectively

manifested in Article 6. Under the legal framework of CISG, mutual agreement
between the parties shall be fully respected. The parties may exclude the application

35 CISG, Art.77, 85, 88.

36 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna
Sales Convention, Giuffrè Milan, 1987, pp. 80–81.
37 CISG, Art.8, 9.
38 CISG, Art.85, 86(1), 88(3).
39 CISG, Art.45(2), 47(2), 48(2), 61(2), 63(2), 65(1), 78, 79(5), 81(1).
40 CISG, Art.74.
41 Fritz Enderlein and Dietrich Maskow, International sales law, Oceana, 1992, pp. 59–60.
42 John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Conven-

tion, Kluwer, 2nd ed.1991, pp. 132–133; Gert Brandner, Admissibility of Analogy in Gap-filling
under the CISG, available online at http://www.cisg.law.pace.edu/cisg/biblio/brandner.html, part II
B. 4 a) bb).
43 Robert A. Hillman, Applying the United Nations Convention on Contracts for the International

Sale of Goods: The Elusive Goal of Uniformity, Cornell Review of the Convention on Contracts
for the International Sale of Goods, 21–49 (1995), available online at http://www.cisg.law.pace.
edu/cisg/biblio/hillman1.html, p. 26–27; Robert A. Hillman ed., Cross-References and Editorial
Analysis, Article 7, available online at http://www.cisg.law.pace.edu/cisg/text/hillman.html.
52 3 Gap Filling and Uniform Interpretation of CISG

of CISG, derogate from or vary the effect of any of its provisions. Some scholars even
deem it as the most fundamental principle, because it entitles the parties to decide
whether their contractual relations are subject to CISG. As a result, CISG becomes
a supplement to the will of the parties.44 This is also why the principle is also called
the principle of precedence of autonomy of will.45 The principle of autonomy of
the parties’ will is not only supported by academics but by judicial practices.46 In a
case concerning sale of wools in 1998,47 the Austrian court held that implicit consent
could not exclude the application of CISG, but it confirmed the non-mandatory effect
of CISG and the right of the parties to exclude CISG. In a German case of 2000,48 the
court also clearly noted that Article 6 of CISG reflected the principle of autonomy
of the parties. The parties were entitled to rectify provisions of CISG according to
their will.
The principle of autonomy of the parties’ will requires giving effect to the will,
despite how the will is expressed. Therefore, this group of general principles reflects
the aim of CISG to safeguard the will of the parties and to guarantee the freedom of
contract. In fact, besides Article 6, many provisions in CISG require respect for the
will of the parties, among which several abolish requirements in a form that restricts
freedom of contract. For example, Article 11 does not require a written form for the
conclusion of the contract. According to Article 19(2), “a reply to an offer which
purports to be an acceptance but contains additional or different terms which do not
materially alter the terms of the offer constitutes an acceptance, unless the offeror,
without undue delay, objects orally to the discrepancy or dispatches a notice to that
effect. If he does not so object, the terms of the contract are the terms of the offer
with the modifications contained in the acceptance.” Similarly, according to Article
14(2), “a proposal other than one addressed to one or more specific persons is to
be considered merely as an invitation to make offers, unless the contrary is clearly
indicated by the person making the proposal.” In fact, provisions of CISG on the
rights and obligations of the buyer and the seller are mostly based on the will of the
parties.

44 Franco Ferrari, Gap-Filling and Interpretation of the CISG: Overview of International Case Law,
7 V J 63, 82 (2003); Franco Ferrari, What Sources of Law for Contracts for the International Sale
of Goods? Why One Has to Look Beyond the CISG, 25 Int’l Rev. of Law and Eco. 314, 330 (2005).
45 Franco Ferrari, Gap-Filling and Interpretation of the CISG: Overview of International Case Law,

7 V J 63, 82 (2003).
46 Belgium: Design of radio phone case, Hof van Beroep [Appellate Court], No. 2001/AR/0180, 15

May 2002, available online at http://cisgw3.law.pace.edu/cases/020515b1.html; Belgium: Cooling

installations case, Rechtbank van Koophandel Ieper [District Court], 29 January 2001, available
online at http://cisgw3.law.pace.edu/cases/010129b1.html; Italy: Al Palazzo S.r.l. v. Bernardaud di
Limoges S.A., Tribunale di Rimini [District Court], No. 3095, 26 November 2002, available online
at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/021126i3.html, CLOUT cases No.608.
47 Austria: Timber case, Oberster Gerichtshof [Supreme Court], No. 2 Ob 191/98x, 15 October

1998, available online at http://cisgw3.law.pace.edu/cases/981015a3.html, CLOUT cases No.240.

48 Germany: Granite rock case, Landgericht Stendal [District Court], No. 22 S 234/94, 12 October

2000, available online at http://cisgw3.law.pace.edu/cases/001012g1.html, CLOUT cases No.432.

2 General Principles of Law and Gap-Filling in CISG 53

2.3.2 Principle of the Prevalence of Usage

In accordance with Article 9, many scholars put forward the principle of the preva-
lence of usage.49 This principle is derived from the principle of autonomy of the
parties’ will because the parties are bound by any usage to which they have agreed
and by any practices which they have established between themselves. In addition, the
parties are considered, unless otherwise agreed, to have impliedly made applicable
to their contract or its formation a usage of which the parties knew or ought to have
known and which in international trade is widely known to, and regularly observed
by, parties to contracts of the type involved in the particular trade concerned.50 Such
a principle makes customs and practices preferable to provisions of CISG. It is also a
guarantee for further development in the unification of law.51 This principle is widely
supported by national judgments.52 For example, in the Austrian case mentioned
above,53 the court had to decide whether Tegernsee was a custom widely known to
the parties in cross-border wood transactions. It was finally decided that it was a
custom. In an Argentine case handled in 1991,54 the court also held that payment of
interests was a custom widely known to international businessmen.
Similarly, it is proposed that Article 8 on the interpretation of contracts by the
parties also reflects the principle of autonomy of the parties’ will.55 In fact, such a
principle takes priority compared to other principles referred to in Article 7(2).56 Of
course, this does not mean that the will of the parties shall not be limited or restricted.
Generally, Article 12 and Article 96 are seen as limitations on the will of the parties.
According to the two articles, where the contracting states make reservations to the

49 Peter Schlechtriem, Ingeborg Schwenzer eds., Commentary on the UN Convention on the Inter-
national Sale of Goods (CISG), Oxford University Press, 2nd ed. 2005, Art. 7, para 36; Ulrich
Magnus, General Principles of UN-Sales Law, 3 Int’l. Trade and Bus. L. Ann. 33, 44–45 (1997).
50 Franco Ferrari, What Sources of Law for Contracts for the International Sale of Goods? Why

One Has to Look Beyond the CISG, 25 Int’l Rev. of Law and Eco. 314, 333 (2005).
51 Franco Ferrari, What Sources of Law for Contracts for the International Sale of Goods? Why

One Has to Look Beyond the CISG, 25 Int’l Rev. of Law and Eco. 314, 335 (2005).
52 Italy: Al Palazzo S.r.l. v. Bernardaud di Limoges S.A., Tribunale di Rimini [District Court],

No. 3095, 26 November 2002, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cas

es2/021126i3.html, CLOUT cases No.608; Belgium: Cooling installations case, Rechtbank van
Koophandel Ieper [District Court], 29 January 2001, available online at http://cisgw3.law.pace.edu/
cases/010129b1.html; Austria: Wood case, Oberster Gerichtshof [Supreme Court], No. 10 Ob 344/
99 g, 21 March 2000, available online at http://cisgw3.law.pace.edu/cases/000321a3.html.
53 Austria: Timber case, Oberster Gerichtshof [Supreme Court], No. 2 Ob 191/98x, 15 October

1998, available online at http://cisgw3.law.pace.edu/cases/981015a3.html, CLOUT No.240.

54 Argentina: Elastar Sacifia v. Bettcher Industries, Juzgado Nacional de Primera Instancia en lo

Comercail No.7 [National Commercial Court of First Instance], No. 50.272, 20 May 1991, available
online at http://cisgw3.law.pace.edu/cases/910520a1.html, CLOUT cases No.21.
55 Robert A. Hillman, Applying the United Nations Convention on Contracts for the International

Sale of Goods: The Elusive Goal of Uniformity, Cornell Review of the Convention on Contracts for
the International Sale of Goods, 21–49 (1995), available online at http://www.cisg.law.pace.edu/
cisg/biblio/hillman1.html, p. 27.
56 Franco Ferrari, Gap-Filling and Interpretation of the CISG: Overview of International Case Law,

7 V J 63, 82 (2003).
54 3 Gap Filling and Uniform Interpretation of CISG

written form of contract, the parties shall conclude contracts in written form. They
are not allowed to change the effect of Article 12 through their own agreements.
The most debated issue is whether the parties are entitled to exclude or to rectify
Article 7. Statutes in common law countries are strictly interpreted, supplemented
by precedents. This tradition is different from the interpretation approach stipulated
in Article 7. Then could businessmen from the common law countries choose a legal
interpretation approach they are familiar with? Or could this issue be decided by
judicial authorities?
Some argue that the party autonomy principle is the primary principle of CISG.
Article 6 entitles the party to the right to exclude the application of CISG, including
Article 7. Others argue the article applies to judicial authorities in the contracting
states, rather than the parties to the contract. Therefore, the parties are not entitled
to exclude Article 7. Article 28 has similar stipulations on the right of discretion
over the performance of contract. In fact, it is impossible for the parties to specially
exclude Article 7 and agree on a specific approach to interpreting CISG.
Any statute has to be interpreted according to its own provisions on interpre-
tation, in order to achieve its present goals. Where no such provision exists, the
statute shall be interpreted according to the most commonly accepted approaches of
the legal system.57 For international conventions, this is particularly important. For
CISG, there exists no authority to uniformly interpret and apply it. Uniformity in
its interpretation becomes extremely difficult. Only where judicial authorities follow
Article 7, could uniform interpretation be possible. The parties shall be subject to
CISG, where it is applicable to their contracts. This is determined by the interna-
tional nature of CISG. It is also a requirement for the promotion of uniformity in its
interpretation. Such a requirement is also due to the nature of Article 7 because it is
on the duties of judicial authorities rather than on the rights and obligations of the
parties.

2.3.3 Principle of Reasonableness

Merchants exchange resources freely on the market. They always expect to obtain
goods of higher value than goods of lower value to them. They expect the counterpar-
ties to act reasonably and collaboratively to achieve such a goal.58 Many provisions
in CISG aim to safeguard such expectations of the merchants. For example, the buyer
shall do all the acts which could reasonably be expected of him in order to enable the
seller to make delivery.59 Correspondingly, the seller shall take reasonable measures
to protect the legitimate interests of the buyer.60 Moreover, if the seller is bound to

57 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna
Sales Convention, Giuffrè Milan, 1987, pp. 65–85.
58 E. Allan Farnsworth, Contracts, Aspen Law and Business, 2nd ed. 1990; Richard A. Posner,

Economic Analysis of Law, Little Brown, 4th ed. 1992, pp. 10–11.
59 CISG, Art.60(a).
60 CISG, Art.31–34.
2 General Principles of Law and Gap-Filling in CISG 55

arrange for carriage of the goods, he must make such contracts as are necessary for
carriage to the place fixed by means of transportation appropriate in the circumstances
and according to the usual terms for such transportation.61
As a general principle, reasonableness wins universal recognition. It requires the
parties to evaluate behaviours of the others in the eyes of a reasonable man. Such a
principle shall be followed in conclusion and performance of contract, and in remedy
for breach of contract. Functions of the principle of reasonableness in CISG include:
(a) Many provisions of CISG require the parties directly or indirectly to act in a way
that a reasonable person deems appropriate.62 These provisions include Article 8(2)
on the interpretation of statement and acts of the parties, Article 25 on fundamental
breach of contract, Article 34 on curing lack of conformity in the documents, Article
44 on failure to give the required notice of non-conformity of goods, Article 46 on
the buyer’s request of repairment, Article 75 on substitute transactions, Article 79
on force majeure, Articles, 87 and 88 on protective measures, etc.
(b) Some provisions of CISG have a time limit on specific actions of the parties.
“Within a reasonable time” appears in many provisions of CISG.63 These provisions
include Article 18(2), Article 33(c)(1), Article 39(1), Article 43(1), Article 47(1),
Article 63(1), Article 49(2) and Article 64(2).
No matter whether reasonableness is on the time limit or actions of the parties, the
above provisions indicate that such a principle has been a general criterion to assess
the actions of the parties.64 Strict compliance with the principle of reasonableness
can ensure that provisions of CISG do not favour a party or particular types of
parties.65 In fact, as indicated in the Preface of CISG, to decrease legal obstacles
to international trade, and to promote the development of the international sale of
goods, CISG adopts uniform rules in consideration of divergent social, economic
and cultural systems.
In specific cases, it is necessary to take into account the international nature
of CISG, in the determination of what is reasonable. For example, according to
Article 38(1) and Article 39, the buyer must examine the goods, or cause them to be
examined, within as short a period as is practicable in the circumstances. The buyer
loses the right to rely on a lack of conformity of the goods if he does not give notice
to the seller specifying the nature of the lack of conformity within a reasonable time
after he has discovered it or ought to have discovered it. They do not specify the place
and means of conformity checking and obligation splitting. These matters are gaps
to be filled in according to the principle of reasonableness. Generally, the buyer shall
be responsible for conformity checking, and shall bear relevant costs. In addition,

61 CISG, Art.32(2).
62 CISG, Art.8(2), 25, 34, 35(2) (b), 44, 46, 48(1), 60 (a), 75, 79(1), 85, 86(1), 87, 88(2).
63 CISG, Art.18(2), 33(c), 39(1), 43(1), 47(1), 49(2) (a), 63(1), 64(2) (b), 65(1), 65(2), 75.
64 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, p. 81.

65 Cf. Arthur Rosett, Critical Reflections on the United Nations Convention on Contracts for the

International Sale of Goods, 45 Ohio St. L. J. 265, 285 (1984).

56 3 Gap Filling and Uniform Interpretation of CISG

the buyer shall select a reasonable place, and take appropriate measures to check
conformity of goods.
A German case handled in December of 2000 concerned these issues.66 In this
case, the buyer ordered a machine from the seller. After 48 days of delivery of goods,
the buyer notified the seller that defects existed, and he declared the invalidity of
the contract. The seller claimed payment of full prices. The first trial court made
a judgment in favour of the seller. In the appeal, the court upheld the judgment
made by the first trial court. It decided that the buyer did not make a notification
within a reasonable time referred to in Article 39(1). He lost the right to claim the
right on non-conformity of goods. The court noted specific circumstances should be
taken into account in determining the reasonable time. The obligation of conformity
checking and notification aimed to ensure that the seller could remedy goods with
defects. Therefore, the checking methods should indicate identifiable defects. The
buyer had to test the machine to confirm it can run normally. The court decided two
weeks would be adequate for such a test. Such a time limit started from the day of
delivery of the machine, in spite of when the buyer intended to use it in its business.
Since the buyer in the cases had not made a notification within the time limit, it was
too late for him to claim the right of conformity of goods.
In a Swiss case decided in September in 1993,67 the principle of reasonableness
is also applied. The court decided the buyer was obliged to check the goods within
the time limit referred to in Article 38 and made notification referred to in Article 39.
Meanwhile, it should bear the burden of proving that he had exercised the obligation
of notification. Otherwise, his argument for the non-conformity of goods would not
be upheld. In this case, the Italian seller sold furniture to the Swiss buyer. The buyer
claimed that defects existed on the goods delivered, but it denied the request of
the seller to take remedial measures and did not pay the price. The court held that
Article 28 and Article 39 did not specify the time limit on conformity checking
and notification making, but according to the principle of reasonableness, the buyer
should prove his claims. Since he was not able to prove he had taken the required
measures, the court decided that the buyer should pay the price and relevant interests.

2.3.4 Principle of Reliability

Merchants expect the words and actions of the counterparties reliable. Many provi-
sions in CISG aim to safeguard the expectations of the party to believe that the words
and actions of the other parties are reliable.68 For example, according to Article
16(2), an offer cannot be revoked if it was reasonable for the offeree to rely on the

66 Germany: Tiller case, Oberlandesgericht Oldenburg [Provincial Court of Appeal], No. 12 U 40/
00, 5 December 2000, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/001
205g1.html, CLOUT cases No. 431.
67 Switzerland: Furniture case, Handelsgericht Zürich [Commercial Court], No. HG930138. U/

HG93, 9 September 1993, available online at http://cisgw3.law.pace.edu/cases/930909s1.html,

CLOUT cases No.97.
68 CISG, art.16 (2), 29(2), 35, 47, 64.
2 General Principles of Law and Gap-Filling in CISG 57

offer as being irrevocable and the offeree has acted in reliance on the offer. In accor-
dance with Article 29(2), a contract in writing which contains a provision requiring
any modification or termination by agreement to be in writing may not be otherwise
modified or terminated by agreement. However, a party may be precluded by his
conduct from asserting such a provision to the extent that the other party has relied
on that conduct. In addition, Article 35, Article 47 and Article 63 also reflect the
principle of reliability.
Such a principle gains wide support from academics.69 According to this prin-
ciple, the parties shall not only think from their own perspectives and neglect the
legitimate interests of the counterparties.70 In fact, to ensure the fruit of the trans-
action, both parties shall be responsible for their respective expressions and actions.
Such a principle also gains support from national judicial authorities. In a Finnish
case handled in 2000, the seller sold the carpet to the buyer.71 Due to the fact that
the seller suddenly stopped delivering goods, the buyer claimed damages. The court
confirmed that the maintenance of consistency of contracts was of critical importance.
According to the principle of liability, both parties had to act in order to achieve such
an objective. Both parties had been conducting such sales for two years. It would not
be reasonable to expect that the buyer’s business could run when the seller stopped
delivering goods suddenly. Therefore, the seller should bear the responsibility for
maintaining the continuance and stability of the contractual relationship.
Safeguarding a party’s reasonable reliance on the words and actions of the other
party means the party shall not turn against the will he has expressed. Such a prin-
ciple is commonly known as estoppel. In a case heard by an Austrian Arbitration
institution in 1994,72 the Austrian seller agreed to sell to the German buyer sheet
metal by instalment delivery. After receiving the two instalments, the buyer sold
immediately to a Belgian company, which sold it again to a Portugal manufacturer.
The manufacturer found defects existed and objected to accepting the rest instalment
of goods. The German buyer quickly notified the Austrian seller. The seller refused
to pay damages. According to the contract, notification on non-conformity of goods
should be made within two months of delivery. However, the notification was made
six months after the delivery goods. The German buyer argued that the seller had
given up the right of defending because he requested the buyer to provide detailed
materials and negotiated with the buyer to resolve the disputes. The arbitral tribunal
held that giving up right by the parties should be normally explicitly expressed, but

69 Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer, Marisa Pagnattaro, The

Interpretive Turn in International Sales Law An Analysis of Fifteen Years of CISG Jurisprudence,
24 Nw. J. Int’l L. and Bus. 299, 316–317 (2003).
70 Ralph Amissah, The Autonomous Contract: Reflecting the borderless electronic-commercial envi-

ronment in contracting, available online at http://www.cisg.law.pace.edu/cisg/biblio/amissah2.html,

part 2.3.4.
71 Finland: Plastic carpets case, Helsingin hoviokeus [Helsinki Court of Appeals], No. S 00/82, 26

October 2000, available online at http://cisgw3.law.pace.edu/cases/001026f5.html.

72 Austria: Rolled metal sheets case, Internationales Schiedsgericht der Bundeskammer der

gewerblichen Wirtschaft [Arbitral Tribunal—Vienna], No. SCH-4318, 15 June 1994, available at

http://cisgw3.law.pace.edu/cisg/wais/db/cases2/940615a4.html, CLOUT cases No.94.
58 3 Gap Filling and Uniform Interpretation of CISG

this rule did not apply to this case. The actions of the seller had made the buyer
to believe that it would not defend on the excuse of late notification. Although the
principle of estoppel is not clearly stipulated in CISG, such a principle is one of the
principles on which CISG is based. As a result, the tribunal decided that the seller
should pay relevant damages.

2.3.5 Principle of Communication and Collaboration

Communication and collaboration between the parties are necessary for the accom-
plishment of an international sale of goods transaction from the conclusion of the
contract to the performance of contract. Such communication and collaboration obli-
gations under the CISG legal framework are mainly mutual notifications of important
information between the parties. As for the obligation of notification in the conclu-
sion of contract, Article 19(2) is on notification of rejection to immaterial changes
to the acceptance; Article 21(2) is on notification of rejection to late acceptance.
As for notification of non-conformity of goods delivered, Article 32, Article 39 and
Article 43 create relevant obligations on notification for the buyer and the seller. As
for remedies for breach of contract, Article 26, Article 46, Article 48, Article 65,
Article 71 and Article 72 prescribe obligations on notification. In addition, as for
the passage of risks, Article 67 and Article 68 create an obligation on notification.
Finally, Article 79 and Article 88 create an obligation on notification of force majeure
and security measures.
The principle of communication and collaboration is widely supported by
academics.73 Some scholars challenge the principle, because it is arguable the
detailed obligations on notification stipulated in provisions of CISG could be grouped
into an abstract principle.74 However, it is fair to say that it is impossible for the
drafters of CISG to identify all circumstances where the parties need communica-
tion and collaboration.75 Therefore, it is necessary that CISG has such a general
principle.

73 Peter Schlechtriem, Ingeborg Schwenzer eds., Commentary on the UN Convention on the Inter-
national Sale of Goods (CISG), Oxford University Press, 2nd ed. 2005, Art. 7, para 38; Franco
Ferrari, Uniform Interpretation of the 1980 Uniform Sales Law, 24 Ga. J. Int’l and Comp. L. 183,
226 (1994); John O. Honnold, Uniform Law for International Sales under the 1980 United Nations
Convention, Kluwer, 2nd ed.1991, p. 130–131.
74 Ulrich Magnus, General Principles of UN-Sales Law, 3 Int’l. Trade and Bus. L. Ann. 33, 46

(1997).
75 John O. Honnold, Uniform Law for International Sales under the 1980 United Nations

Convention, Kluwer, 2nd ed.1991. p. 106.

2 General Principles of Law and Gap-Filling in CISG 59

The principle of communication and collaboration is widely applied in cases

handled by judicial authorities.76 In a case handled in October 2001,77 the German
court confirmed the obligation of the parties in communication and collaboration.
The case mainly concerned the validity of standard clauses referred to in the contract.
The seller was a German company, which sold a second-hand gear-cutting machine
to a Spanish company. The seller referred to standard sales conditions in its confir-
mation of the written order. However, the standard condition was not appended to the
confirmation. In the standard condition, there was an escape clause, which excluded
any obligation on defects of the second facilities. The court held that CISG did not
have any provision on reference to standard contractual clauses. If the standard condi-
tion were to be incorporated into the promise, reasonable opportunities should be
provided to the receiver of the promise to consider the condition. The party receiving
the promise should know of the intention of the other party of incorporating the
standard clauses into the contract. Therefore, the receiver of the promise should have
the opportunity to see these conditions. The court held due to divergences between
national legal systems and traditions, standard clauses in one country might be very
different from that of the other country. Therefore, for parties that expected to rely
on these conditions, it was not too difficult to append it in the promise. The court
decided that in this case, the seller’s expectation did not accord with the principle of
good faith and the principle of communication and collaboration.
Where the promiser appended the standard clauses to the promise, and the receiver
does not object, the result would be completely different. In a case handled by a New
York court in 1992,78 the Italian seller concluded a contract with the buyer for the sale
of shoes. In the promise made by the buyer, a general agreement that was signed with
a Russian company was referred to. There was also evidence proving that the buyer
had already provided such an agreement to the seller. The court held the seller was
obliged to express its objection in time. According to the principle of communication
and collaboration, a non-reply or untimely reply turned into acceptance of the promise
made by the buyer.

76 Germany: Machinery case, Bundesgerichtshof [Federal Supreme Court], No. VIII ZR 60/01,
31 October 2001, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/011031g1.
html, CLOUT cases No.445; United States: Filanto S.p.A. v. Chilewich International Corp., U.S.
District Court, Southern District of New York [federal court of first instance], No. 92 Civ. 3253
(CLB), 14 April 1992, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/920
414u1.html, CLOUT cases No.23; China: China International Economic and Trade Arbitration
Commission [CIETAC], 8 November 2002, available online at http://www.cisg.law.pace.edu/cisg/
wais/db/cases2/021108c1.html; China: Hot-rolled coils case, China International Economic and
Trade Arbitration Commission [CIETAC], No. CISG/1997/34, 15 December 1997, available online
at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/971215c1.html, CLOUT cases No.715.
77 Germany: Machinery case, Bundesgerichtshof [Federal Supreme Court], No. VIII ZR 60/01,

31 October 2001, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/011031g1.

html, CLOUT cases No.445.
78 United States: Filanto S.p.A. v. Chilewich International Corp., U.S. District Court, Southern

District of New York [federal court of first instance], No. 92 Civ. 3253 (CLB), 14 April 1992, avail-
able online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/920414u1.html, CLOUT cases
No.23.
60 3 Gap Filling and Uniform Interpretation of CISG

2.3.6 Principle of Promotion and Maintenance of Contract

The performance of contract requires the parties to fully cooperate in maintaining the
validity of the contract. Therefore, according to provisions of CISG, the validity of
contract shall be upheld in the conclusion and performance of contract. The principle
of maintenance of contract also becomes a widely accepted general principle of law,
reflected in many provisions of CISG.79 For example, according to Article 11, a
contract of sale need not be concluded in or evidenced by writing and is not subject
to any other requirement as to form. It may be proved by any means, including
witnesses. According to Article 19(2), a reply to an offer that purports to be an
acceptance but contains additional or different terms which do not materially alter
the terms of the offer constitutes an acceptance, unless the offeror, without undue
delay, objects orally to the discrepancy or dispatches a notice to that effect. If he
does not so object, the terms of the contract are the terms of the offer with the
modifications contained in the acceptance. In accordance with Article 21(2), if a
letter or other writing containing a late acceptance shows that it has been sent in such
circumstances that if its transmission had been normal, it would have reached the
offeror in due time, the late acceptance is effective as an acceptance unless, without
delay, the offeror orally informs the offeree that he considers his offer as having
lapsed or dispatches a notice to that effect. Article 25 states: “a breach of contract
committed by one of the parties is fundamental if it results in such detriment to the
other party as substantially to deprive him of what he is entitled to expect under the
contract, unless the party in breach did not foresee and a reasonable person of the
same kind in the same circumstances would not have foreseen such a result.”
According to Article 48(1), the seller may, even after the date for delivery, remedy
at his own expense any failure to perform his obligations, if he can do so without
unreasonable delay and without causing the buyer unreasonable inconvenience or
uncertainty of reimbursement by the seller of expenses advanced by the buyer.
However, the buyer retains any right to claim damages as provided for in CISG.
Article 49(2) and Article 64 restrict the right of the parties to declare the invalidity of
contract. According to Article 71 and Article 72, where the party causing anticipatory
breach of contract provides a safeguard for the performance of contract, the other
party shall not suspend the performance of contract or declare invalidity of contract.
The principle of maintenance of contract aims to safeguard validity and perfor-
mance of the contract. Even if problems occur during transactions, the parties shall
try to keep the contract. This is critically important for the creation and mainte-
nance of a positive environment for international trade. Meanwhile, relevant costs of
negotiation and litigation can be avoided or decreased.

79 CISG, art.11, 19(2), 21(2), 25, 26, 48(1), 49(2), 64, 71, 72.
2 General Principles of Law and Gap-Filling in CISG 61

The principle of maintenance of contract is also widely relied upon by judicial

authorities.80 In a case handled by the Federal Court of Switzerland in 1998,81 the
German seller agreed to ship frozen meat from Egypt to Jordan for the Swiss buyer.
The buyer claimed that the goods did not meet relevant standards and refused to
pay the price. The court had to decide whether the buyer was entitled to declare the
invalidity of the contract. According to the estimation of experts, the value of the meat
dropped by 25.5% because it was too fat and wet. However, the difference in quality
between the agreed goods and the delivered goods was not large enough to entitle the
buyer to declare the invalidity of the contract. The court held contracts could only be
declared invalid in abnormal cases. Declaration of invalidity was the strictest remedial
measure for the buyer. All relevant circumstances had to be considered in deciding
whether it was reasonable to take such a remedial measure. These circumstances
included whether the buyer was capable of processing the goods in other manners,
whether it was capable to sell the goods at a lower price, etc. Finally, the court rejected
the claim of the buyer to declare invalidity of the contract.

2.3.7 Principle of Full Compensation

Problems in the performance of contract may be caused by force majeure or by

breaches of contract. Remedial measures become an indispensable tool in modern
contract law for the maintenance of the safety of contractual transactions. As an inter-
national uniform law on the international sale of goods, CISG pays great attention to
this tool. The principle of full compensation aims to provide a remedy to the parties
that incur damages caused by other parties.
It is a general principle of law referred to in Article 7(2) of CISG, that full
compensation shall be given to the party where the other party breaches the contract.
According to Article 45, Article 46, Article 61 and Article 62, where a party breaches
the contract, the other party shall be entitled to claim damages. Article 74 expands
the scope of damage to profit losses. The difference between the contract price and
the price in the substitute transaction and the difference between the price fixed by
the contract and the current price at the time of avoidance are included in the scope of
damage by Article 75 and Article 76. Article 78 entitles the other party to interest on
it, where a party fails to pay the price or any other sum that is in arrears. According
to Article 81 (2), a party who has performed the contract either wholly or in part
may claim restitution from the other party of whatever the first party has supplied or
paid under the contract. If both parties are bound to make restitution, they must do
so concurrently. Article 84(2) entitles the seller to claim from the buyer all benefits

80 Switzerland: Meat case, Bundesgericht [Supreme Court], No. 4C.179/1998/odi, 28 October

1998, available online at http://cisgw3.law.pace.edu/cases/981028s1.html, CLOUT cases No. 248;
Austria: Tombstones case, Oberster Gerichtshof [Supreme Court], No. 8 Ob 22/00v, 7 September
2000, available online at http://cisgw3.law.pace.edu/cases/000907a3.html, CLOUT cases No.428.
81 Switzerland: Meat case, Bundesgericht [Supreme Court], No. 4C.179/1998/odi, 28 October 1998,

available online at http://cisgw3.law.pace.edu/cases/981028s1.html, CLOUT cases No.248.

62 3 Gap Filling and Uniform Interpretation of CISG

which he has derived from the goods or part of them. Article 88 entitles the party
that preserves the goods to reasonable compensation from the sale of the goods.
As a general principle of law incorporated into CISG, the principle of full compen-
sation gains support from the majority of scholars82 and judicial authorities.83 The
principle of full compensation was applied in a case handled by an arbitration insti-
tution in Austria in 1994.84 In this case, the Austrian seller and the German buyer
agreed to trade roller rolling metal plates. The seller permitted the buyer to take the
goods in instalment. The buyer should pay the price and storage fees once he received
the documents. The buyer took some goods, did not pay the price and rejected to
take the rest of the goods. The seller brought the dispute to the arbitration institution
and claimed damages, including losses he incurred for selling the goods rejected by
the buyer to the third parties. The arbitral tribunal held that the interest issue was a
gap to fill for CISG. According to Article 7(2), it held that such an issue should be
resolved according to general principles of law. The principle of full compensation
was one of these general principles.
It should be noted, however, that according to Article 74, damages for breach of
contract by one party may not exceed the loss which the party in breach foresaw or
ought to have foreseen at the time of the conclusion of the contract. Therefore, the
principle of full compensation aims to ensure the right of one party, rather than to
punish the other party that breaches the contract.

82 Peter Schlechtriem, Ingeborg Schwenzer eds., Commentary on the UN Convention on the Inter-
national Sale of Goods (CISG), Oxford University Press, 2nd ed. 2005, Art.7, para.30; Franco
Ferrari, Gap-Filling and Interpretation of the CISG: Overview of International Case Law, 7 V J 63,
85 (2003).
83 Austria: Roofing material case, Oberster Gerichtshof [Supreme Court], No. 6 Ob 311/99z, 9

March 2000, available online at http://cisgw3.law.pace.edu/cases/000309a3.html, CLOUT cases

No.424; Austria: Rolled metal sheets case, Internationales Schiedsgericht der Bundeskammer der
gewerblichen Wirtschaft [Arbitral Tribunal—Vienna], No. SCH-4366, 15 June 1994, available
online at http://cisgw3.law.pace.edu/cases/940615a3.html, CLOUT cases No. 93; Austria: Rolled
metal sheets case, Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft
[Arbitral Tribunal—Vienna], No. SCH-4318, 15 June 1994, available at http://cisgw3.law.pace.edu/
cisg/wais/db/cases2/940615a4.html, CLOUT cases No.94.
84 Austria: Rolled metal sheets case, Internationales Schiedsgericht der Bundeskammer der

gewerblichen Wirtschaft [Arbitral Tribunal—Vienna], No. SCH-4366, 15 June 1994, available

online at http://cisgw3.law.pace.edu/cases/940615a3.html, CLOUT cases No. 93.
3 Good Faith as an Umbrella Principle 63

3 Good Faith as an Umbrella Principle

According to Article 7(1), in interpreting CISG, observance of good faith in inter-

national trade shall be taken into account. The principle of good faith has been
incorporated into most national laws, in particular the contract law.85 As an interna-
tional convention on the sale of goods, CISG also has this general principle. From
the legislative history of CISG, we can see that drafters were divided into two groups
on the principle of good faith. One group held the principle should be added to the
sections on rights and obligations of the parties; even in the conclusion of contract,
fair dealing and good faith should be obligations for both parties. The other group
held the principle of good faith should be avoided where possible, since it was
ambiguous and would bring unnecessary uncertainties.86 The compromise reached
at the Vienna Diplomatic Conference was that such a principle was made part of the
legal framework of CISG on its interpretation. Since CISG was adopted, the prin-
ciple of good faith has been a hot topic in the academic world. Till today, it can be
reasonably concluded that the principle of good faith shall not be simply a principle
on interpretation, but a general principle referred to in Article 7(2) on which CISG
is based.87
The principle of good faith shall actually be put on top of all general principles as an
umbrella principle. Many of the above-discussed principles, such as reasonableness,
reliability, communication and collaboration are derived from the principle of good
faith. These comparatively more specific and detailed principles shall be taken into
account in favour of the principle of good faith in filling gaps in CISG. The principle
of good faith, as the empire provision in the international sale of goods, shall be the
last safety valve or the last resort to fill gaps in CISG.

85 Peng Guo, Good Faith in Long-Term Relational Supply Contracts in the Context of Hardship
from A Comparative Perspective (Springer 2021) pp. 66–86; Peng Guo and Shu Zhang, ‘Is the
CISG an Appropriate Option for Australian and Chinese Businesses? A Good Faith Perspective’
(2019) 23(1) Vindobona Journal of International Commercial Law and Arbitration 81–104.
86 John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Conven-

tion, Kluwer, 2nd ed.1991, p. 146; C.M. Bianca and M.J. Bonell eds., Commentary on the
International Sales Law: The 1980 Vienna Sales Convention, Giuffrè Milan, 1987, pp. 83–84.
87 Secretariat Commentary on The 1979 Draft, A/CONF.97/5, at O.R. 14–66, Art.19 (2) [final

Art.21], Art. 27(2) [final Art.29 (2)], Art.35 [final Art.37], Art.38 [final Art.40], Art.44 [final
Art.48], Art.45 (2) [final Art.49 (2)], Art.60 (2) [final Art.64 (2)], Art.67 [final Art.82], Art 74–77
[final Art.84–88]; Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer, Marisa
Pagnattaro, The Interpretive Turn in International Sales Law An Analysis of Fifteen Years of CISG
Jurisprudence, 24 Nw. J. Int’l L. and Bus. 299, 319 (2003); Switzerland: Lambskin coat case,
Handelsgericht [Commercial Court], No. HG 930,634/O, 30 November 1998, available online at
http://cisgw3.law.pace.edu/cases/981130s1.html, CLOUT cases No.251.
64 3 Gap Filling and Uniform Interpretation of CISG

3.1 Good Faith in CISG

According to Article 7(1), in interpreting the provisions of CISG one shall have
regard to the need of promoting the “observance of good faith in international trade.”
Principles and rules commanding the observance of good faith and fair dealing in rela-
tionships governed by the law of obligations, in particular those created by contract,
are common stock of most legal systems. Therefore, as the uniform law on the
international sales contract, CISG could not step away from this issue as well. The
principle of good faith caused plenty of arguments at the UNCITRAL and Vienna
Conference. Calling back to the draft history of Article 7(1), we might realize how
hard it was for the representatives to reach a compromise.
The principle of good faith was one of the most controversial concepts in the
adoption of CISG, due to divergences in theories and practices on the principle in civil
law and common law countries. The legislative history of Article 7 shows that the final
inclusion of the good faith principle represented a compromised solution between
those delegates to the Vienna Convention who supported its inclusion stating that, at
least in the formation of the contract, the parties should observe the principles of “fair
dealing” and act in “good faith”; and those who were opposed to any explicit reference
to the principle in CISG, on the ground that it had no fixed meaning and would
lead to uncertainty and non-conformity.88 The final compromise was to incorporate
the principle of good faith into Article 7, to guarantee uniform interpretation and
application of CISG. However, in practice, divergences still exist on the role of the
principle of good faith while interpreting CISG.

3.1.1 Good Faith as a Mere Instrument of Interpretation

Scholarly opinion on the issue is divided. Some commentators insist on the literal
meaning of the provision and conclude that the principle of good faith is nothing more
than an additional criterion to be used by judges and arbitrators in the interpretation
of the CISG.89 Under this approach, good faith is merely a tool of interpretation at the
disposal of the judges to neutralise the danger of reaching inequitable results. Even
if included in the CISG as a mere instrument of interpretation, good faith can pose
problems in achieving the ultimate goal of the CISG—uniformity in its application
because the concept of good faith has not only different meanings between different
legal systems but also multiple connotations within legal systems.90 Consequently,

88 John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Conven-
tion, Kluwer, 2nd ed.1991, p. 146; C.M. Bianca and M.J. Bonell eds., Commentary on the
International Sales Law: The 1980 Vienna Sales Convention, Giuffrè Milan, 1987, pp. 83–84.
89 E. Allen Farnsworth, The Convention on the International Sale of Goods from the Perspective

of the Common Law Countries, in Dott. A.Giuffrè ed., La Vendita Internazionale, La Convenzione
di Vienna dell, 1980, p. 8; Peter Winship, International Sales Contracts Under the 1980 Vienna
Convention, 17 UCC L. J. 55, 67 (1984).
90 Arthur Rosett, Critical Reflections on the United Nations Convention on Contracts for the

International Sale of Goods, 45 Ohio St. L. J. 265, 289 (1984).

3 Good Faith as an Umbrella Principle 65

it will be difficult for a uniform definition of the concept to be developed. This can
lead to differing interpretations of the CISG.91 It is even held by some scholars that
the principle as it now stands represents “a strange compromise, in fact burying the
principle of good faith.”92

3.1.2 Good Faith as a Requirement on the Parties

There is academic opinion favouring a broader interpretation of the reference to good

faith as contained in Article 7(1), pointing out that the duty to observe “good faith in
international trade is also necessarily directed to the parties to each individual contract
of sale.”93 Bonell, one of the principal supporters for the inclusion of the principle
of good faith in the CISG, explains that, even as a simple aid to the interpretation of
the CISG’s specific provisions, the principle of good faith may have some impact on
the behaviour of the parties—for instance, in cases where a party is prevented from
invoking rights and remedies normally granted to him under the CISG.94
Such a view is supported by Honnold’s argument that a party to an international
contract of sale governed by the CISG, who demands specific “performance within
an additional period [according to Articles 47 or 63] may not, in good faith, refuse
to accept the performance that he requested.” It is further suggested that compelling
specific performance or avoiding a contract after a market change that permits a party
to speculate at the other’s expense, “may well be inconsistent with the Convention’s
provisions governing these remedies, when they are construed in the light of good

91 Isaak I. Dore, James E. DeFranco, A Comparison of the Non-Substantive Provisions of the

UNCITRAL Convention on the International Sale of Goods and the Uniform Commercial Code,
23 Harv. Int’l. L. J. 49, 63 (1982); Gyula Eörsi, Problems of Unifying the Law on Formation of
Contracts for the International Sale of Goods, 27 Am. J. Comp. L. 311, 314 (1979).
92 Gyula Eörsi, A Propos the 1980 Vienna Convention on Contracts for the International Sale of

Goods, 31 Am. J. Comp. L. 333, 349 (1983).

93 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, p. 84; Gyula Eörsi, General Provisions, in Nina M. Galston
and Hans Smit eds., International Sales: The United Nations Convention on Contracts for the
International Sale of Goods, Matthew Bender, 1984, pp. 8–9; Peter Schlechtriem ed., Uniform
Sales Law—The U.N. Convention on Contracts for the International Sale of Goods, Manz, 1986,
p. 39.
94 Many provisions of CISG follow the principle of good faith. Articles 40, 76, 85 and 86 are

examples. According to Article 40, the seller is not entitled to rely on the lack of conformity if it
relates to facts of which he knew or could not have been unaware and which he did not disclose to
the buyer. In accordance with Article 76, if the contract is avoided and there is a current price for
the goods, the party claiming damages may, if he has not made a purchase or resale, recover the
difference between the price fixed by the contract and the current price at the time of avoidance as
well as any further damages recoverable. If, however, the party claiming damages has avoided the
contract after taking over the goods, the current price at the time of such taking over shall be applied
instead of the current price at the time of avoidance. Articles 85 and 86 require the seller and the buyer
to take reservation measures for the goods where the other party breaches the contract. Otherwise,
they are not entitled to losses that could have been avoided if proper preservation measures were
taken.
66 3 Gap Filling and Uniform Interpretation of CISG

faith.” Bonell is of the opinion that even contractual agreements or usages might be
disregarded if their application in accordance with CISG Articles 6 and 9 would in
the specific case appear to be contrary to good faith.95
One of the main obstacles for such a viewpoint is that interpreters of CISG were
expanded from judges and arbitrators to the parties to the contracts.96 Where the
parties are permitted to interpret Article 7, they could exclude the provision according
to Article 6 of CISG. This consequence obviously runs against the intent of the
drafters, since it poses a threat to the uniform interpretation and application of CISG.
Therefore, the interpretation of CISG shall not be mixed up with the interpretation
of contract.97 Article 8 of CISG is on the interpretation of contract. According to this
Article, “For the purposes of this Convention statements made by and other conduct
of a party are to be interpreted according to his intent where the other party knew or
could not have been unaware what that intent was. (2) If the preceding paragraph is
not applicable, statements made by, and other conduct of a party are to be interpreted
according to the understanding that a reasonable person of the same kind as the other
party would have had in the same circumstances. (3) In determining the intent of a
party or the understanding a reasonable person would have had, due consideration
is to be given to all relevant circumstances of the case including the negotiations,
any practices which the parties have established between themselves, usages and any
subsequent conduct of the parties.”
In addition, such a viewpoint neglects the difference between the interpretation
of CISG by judicial authorities and the performance of contract by the parties. As
a result, additional obligations are created for the parties on the performance of
contract. As discussed above, the meaning and functions of the ambiguous principle
of good faith are divergent in different countries. For example, in the United States, the
application of the principle of good faith is confined to the period of the performance
of contract. However, in most civil law countries, the principle not only applies to the
conclusion and performance of contract, but even to the interpretation of contract.98
Even in two countries that belong to a legal system, the application of the principle
also varies. As a result, such a viewpoint will lead to more conflicts and divergences
between national judicial authorities on the interpretation of CISG. In fact, CISG is
different from both the UCC and the Civil Code of Germany, because it does not
create a general obligation for the parties to perform the contract in good faith.99

95 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980
Vienna Sales Convention, Giuffrè Milan, 1987, pp. 84–85. This viewpoint is also supported by
Prof. Honnold. See John O. Honnold, Uniform Law for International Sales under the 1980 United
Nations Convention, Kluwer, 2nd ed.1991, p. 125.
96 Fritz Enderlein and Dietrich Maskow, International sales law, Oceana, 1992, p. 55.
97 Albert H. Kritzer, Guide to Practical Application of the United Nation Convention on Contracts

for the International Sale of Goods, Kluwer, 1989, p. 110.

98 E. Allen Farnsworth, Precontractual Liability and Preliminary Agreements: Fair Dealing and

Failed Negotiations, 87 Colum. L. Rev. 217 (1987).

99 John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Conven-

tion, Kluwer, 1st ed. 1987, p. 101; Robert A. Hillman, Article 29(2) of the United Nations Convention
3 Good Faith as an Umbrella Principle 67

This viewpoint does not accord with the intent of the drafters either. During the
drafting process, although the positive effect of incorporation of the principle of good
faith was strongly proposed by the representatives, it was objected by delegates from
the United Kingdom and other countries. The final compromised solution was that
the principle of good faith was incorporated only in Article 7 as a criterion for the
interpretation of CISG. Therefore, giving the parties a general obligation to act in
good faith runs against the initial intent of the drafters. The intent of the drafters was
to confine the role of good faith to the interpretation of CISG. Only interpretations
that accord with such an intent could be widely accepted. As strengthened in an ICC
case, the interpretation of CISG cannot go beyond its historical conditions. Neither
could subjective intentions be aimlessly put upon CISG, even if they are in good
will.100 On the other hand, other functions of the principle of good faith for CISG
shall not be neglected.

3.1.3 Good Faith as a Tool to Fill Gaps in CISG

Although the majority of scholars object to the proposal to make the principle of good
faith a general obligation for the parties to the contract, they agree that the principle as
one of the principles on which CISG is based shall be used to fill gaps left by CISG.101
Literally, the phrase good faith appears only in Article 7(1), but many provisions of
CISG reflect requirements of good faith on the parties. In the Commentary of 1978
conducted by the Secretariat of UNCITRAL, commentaries on many provisions refer
to the principle of good faith or similar principles.102 Therefore, it is generally held
that the principle of good faith is one of the general principles of law referred to in
Article 7(2). In filling gaps of CISG, the function of the principle of good faith works
more like prescriptions of UCC on the obligations of good faith for the parties.103

on Contracts for the International Sale of Goods: A New Effort at Clarifying the Legal Effect of No
Oral Modification Clauses, 21 Cornell Int’l L. J. 449, 458 (1988).
100 ICC Court of Arbitration—Paris, Industrial equipment case, No. 8611/HV/JK, 23 January 1997,

available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/978611i1.html.

101 Bernard Audit, The International Sales of Goods-UN Convention of 11 April 1980, L.G.D.J.,

1990, p. 51. Fritz Enderlein and Dietrich Maskow, International Sales Law, Oceana Publications,
1992, p. 59. Rolf Herber and Beate Czerwenka, Analysis of Preamble, Arts. 1–7, 10, 89–101, in Peter
Schlechtriem, Ingeborg Schwenzer eds., Commentary on the UN Convention on the International
Sale of Goods (CISG), Oxford University Press, 2nd ed. 2005, p. 49. Amy H. Kastely, Unification
and Community: A Rhetorical Analysis of the United Nations Sales Convention, 8 Nw. J. Int’l L.
and Bus. 574, 597–607 (1988).
102 Secretariat Commentary on The 1979 Draft, A/CONF.97/5, 1980 U.N. Official Records, p. 14–

66, Art.19(2) [final Art.21], Art. 27(2) [final Art.29(2)], Art.35 [final Art.37], Art.38 [final Art.40],
Art.44 [final Art.48], Art.45(2) [final Art.49(2)], Art.60(2) [final Art.64(2)], Art.67 [final Art.82],
Art 74–77 [final Art.84–88].
103 Isaak I. Dore, James E. DeFranco, A Comparison of the Non-Substantive Provisions of the

UNCITRAL Convention on the International Sale of Goods and the Uniform Commercial Code, 23
Harv. Int’l. L. J. 49, 61 (1982).
68 3 Gap Filling and Uniform Interpretation of CISG

For example, according to Article 24, for the purposes of this part of CISG, an
offer, declaration of acceptance or any other indication of intention “reaches” the
addressee when it is made orally to him or delivered by any other means to him
personally, to his place of business or mailing address or, if he does not have a place
of business or mailing address, to his habitual residence. Where the place of business
and mailing address is named in the contract, but a party knows that the other party
has left that place for a reasonable period of time, could the party claim validity of
the statement sent to the place or address? If good faith is a general obligation, as an
inherent additional condition, the party shall not claim the validity of the statement.
Under CISG, the main obligation of the seller is to transfer all relevant documents
to the goods. Where the place of transfer is not mentioned in the contract, a gap in
CISG needs to be filled. According to the principle of good faith, the seller is required
to transfer the documents in places convenient to the buyer, and the buyer shall not
intentionally reject accepting the documents. Similarly, according to the principle of
reasonableness, the same results may be achieved. But in the first case, the place of
mailing address is prescribed in the contract, judicial authorities need to interpret the
contract in accordance with Article 7(1) and by reference to the principle of good
faith. Article 24 of CISG quite clearly requires the interpretation of contract to be
based on the terms, and no additional obligations of good faith shall be put on the
parties.

3.2 Good Faith and Uniform Interpretation of CISG

From the perspective of uniform interpretation of CISG, the most important values
and standards of good faith is the standard of what a reasonable person deems fair
and appropriate. For CISG, such a standard could be widely applied to the parties
to the international sale of goods. Of course, specific attention should be paid to the
term “international trade”, because the person must not only be reasonable but be a
man involved in the international sale of goods.

3.2.1 Good Faith in the Context of International Trade

In Article 7(1) of CISG, “international trade” is added as a requirement for obser-

vance of the principle of good faith. Good faith in CISG obviously excludes value
standards of national laws. Further, the reasonable person standard based on practices
of national traders could be directly used in defining the standard of a reasonable
person in international trade. Therefore, these national value standards of good faith
could be deemed as international only after they are commonly accepted in different
countries. For example, according to Article 9(2) of CISG, the parties are considered,
unless otherwise agreed, to have impliedly made applicable to their contract or its
formation a usage of which the parties knew or ought to have known and which in
international trade is widely known to, and regularly observed by, parties to contracts
3 Good Faith as an Umbrella Principle 69

of the type involved in the particular trade concerned. Therefore, the usage must be
widely known in international trade.104
In addition, the application of the principle of good faith in CISG must consider
the specific conditions and requirements of international commercial transactions.
The scope of application of CISG is focused on commercial contracts and does not
cover consumer contracts. The consumer contracts require a higher level of good
faith from the traders because the consumer is comparatively less well-informed
about the products and transactions. For professional dealers of international sale of
goods, such a standard does not apply, because good faith mainly requires the equal
parties to observe reasonable commercial code of conduct of specific sectors.105

3.2.2 Good Faith and the International Nature and Promotion

of Uniformity

Value standards of good faith in CISG shall also be confined by the international
nature and the promotion of uniformity in the application of CISG. CISG lists the
principle of good faith as a guiding rule of interpretation to curb the inclinations of
national judicial authorities to rush to national laws. Meanwhile, such a principle
also gives them necessary discretion. Although ambiguity of the principle of good
faith is heavily criticized,106 incorporation of the principle into Article 7 of CISG is
generally beneficial.
Existing cases governed by CISG indicate that judicial authorities pay high atten-
tion to the principle of good faith. In many cases, the importance of good faith in
the promotion of uniformity in the application of CISG is strengthened.107 In some
cases, provisions of CISG are directly interpreted by reference to the principle of

104 Peter Schlechtriem, Good Faith in German Law and in International Uniform Laws, Saggi,

Conferenze E Seminari, n.24, 17–19 (Rome 1997), available online at http://soi.cnr.it/~crdcs/crdcs/

frames24.htm.
105 Article 1 of Swedish Unfair Contract Terms Act 1971, Article 3 of United Kingdom Unfair

Contract Terms Act 1977 and Sections 2–103 of UCC.

106 Arthur Rosett, Critical Reflections on the United Nations Convention on Contracts for the

International Sale of Goods, 45 Ohio St. L. J. 265, 289 (1984); E. Allan Farnsworth, Problems
of the Unification of Sales Law from the Standpoint of the Common Law Countries, Digest of
Commercial Laws of the World, Oceana, 1980, pp. 3–18.
107 Mexico: Dulces Luisi v. Seoul International, (Arbitration) Compromex [Mexican Commis-

sion for the Protection of Foreign Trade], No. M/115/97, 30 November 1998, available online at
http://www.cisg.law.pace.edu/cisg/wais/db/cases2/981130m1.html; Mexico: Kolmar Petrochemi-
cals Americas, Inc. v. Idesa Petroquímica S.A. de C.V., Primer Tribunal Colegiado en Materia Civil
del Primer Circuito [Appellate Court], No. 127/2005, 10 March 2005, available online at http://
www.cisg.law.pace.edu/cisg/wais/db/cases2/050310m1.html.
70 3 Gap Filling and Uniform Interpretation of CISG

good faith.108 For example, in a German case,109 the seller fundamentally breached
the contract, the buyer made substituted transactions without declaring the invalidity
of the contract. According to Article 75 of CISG, damages for breach of contract by
one party consist of a sum equal to the loss, including loss of profit, suffered by the
other party as a consequence of the breach. Such damages may not exceed the loss
which the party in breach foresaw or ought to have foreseen at the time of the conclu-
sion of the contract, in the light of the facts and matters of which he then knew or
ought to have known, as a possible consequence of the breach of contract. However
the question is whether the declaration of invalidity of the contract is a precondition
for substitute transactions. The court held that in accordance with the principle of
good faith in international trade, where termination of contracts was inevitable or
where it was obvious the other party would not perform his obligations before the
termination, the party did not have to declare the invalidity of the contract before he
makes substitute transactions.
Interpretation and gap-filling of CISG by reference to the principle of good cannot
go beyond the basic order created by the legal texts of CISG. An appropriate inter-
pretation should first safeguard the certainty and appropriateness of the meaning of
the legal texts. This is of particular importance for CISG because literal interpreta-
tion is the key approach. In addition, observance of good faith in international trade
cannot be replaced by substantial justice between the parties. Good faith is just a prin-
ciple to be followed by judicial authorities to interpret the Convention. Otherwise,
interpreters would have too much power of discretion, which threatens the uniform
application of CISG.

108 Austria: Rolled metal sheets case, Internationales Schiedsgericht der Bundeskammer der
gewerblichen Wirtschaft [Arbitral Tribunal—Vienna], No. SCH-4318, 15 June 1994, available at
http://cisgw3.law.pace.edu/cisg/wais/db/cases2/940615a4.html, CLOUT cases No.94; ICC Court
of Arbitration—Paris, Industrial equipment case, No. 8611/HV/JK, 23 January 1997, available
online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/978611i1.html; Germany: Iron molyb-
denum case, Oberlandesgericht Hamburg [Provincial Court of Appeal], No. 1 U 167/95, 28
February 1997, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/970228g1.
html, CLOUT cases No.277; Germany: Furniture leather case, Oberlandesgericht München
[Provincial Appellate Court], No. 7 U 2959/04, 15 September 2004, available online at http://
www.cisg.law.pace.edu/cisg/wais/db/cases2/040915g2.html, CLOUT cases No.595; Netherlands:
Cooperative Maritime Etaploise v. Bos Fishproducts, Rb Zwolle [District Court], No. HA ZA
95–640, 5 March 1997, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/970
305n1.html; Netherlands: Plants case, Hof’s-Hertogenbosch [District Appeal Court], 16 October
2002, available online at http://www.unilex.info/case.cfm?pid=1&id=960&do=case; United States:
Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc., U.S. District Court for the Southern
District of New York [Federal Court of 1st Instance], No. 98 CIV 861 (RWS) and 99 CIV 3607
(RWS), 10 May 2002, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/020
510u1.html, CLOUT cases No.579; United States: BP Oil International v. Empresa Estatal Petroleos
de Ecuador, U.S. Court of Appeals (5th Circuit) [Federal Appellate Court], No. 02–20,166, 11
June 2003, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/030611u1.html,
CLOUT cases No.575.
109 Germany: Iron molybdenum case, Oberlandesgericht Hamburg [Provincial Court of Appeal],

No. 1 U 167/95, 28 February 1997, available online at http://www.cisg.law.pace.edu/cisg/wais/db/

cases2/970228g1.html, CLOUT cases No.277.
3 Good Faith as an Umbrella Principle 71

In conclusion, it is not feasible to clearly define the principle of good faith

at present. Value standards of the principle of good faith in CISG need to be
further improved and developed through increasing national judicial activities until a
commonly accepted faith is defined as good by the international community. During
such a process, national values and standards of good faith should be avoided.
National experiences may be referred to in order to formulate such standards for the
principle of good faith in international trade. Until then, perhaps the most balanced
position to adopt is that uttered by Maskow: “the most objective criterion for what
the principle of good faith in international trade means is the Convention itself.”110
As the most controversial but significant concept in CISG, a uniform definition
of good faith is critical for the uniform interpretation of CISG. Each party involved
in the application of CISG, including merchants, lawyers, judges and arbitrators,
shall remind themselves that divergent comprehension of the principle of good faith
threatens the objective of CISG in unifying international sales law. Uniformity in
defining the role and place of good faith in the interpretation and application of CISG
can ultimately ensure that the Convention is uniformly interpreted and applied.

110 Dieter Maskow, The Convention on the International Sale of Goods from the Perspective of the
Socialist Countries, in Dott. A.Giuffrè ed., La Vendita Internazionale, La Convenzione di Vienna
dell, 1980, p. 55.
Chapter 4
Supplementary Materials and Uniform
Interpretation of CISG

Interpretation of the law, international conventions, in particular, is a complicated

task. Appropriate approaches should be taken. Meanwhile, legal text, legislative
history and other legislative materials, precedents and authorised works should be
carefully examined. These supplementary materials are helpful for interpreters to
define the correct meaning of legal texts, to identify the true intent of legislators,
and to testify to the result reached by interpreters. For the uniform interpretation of
CISG, supplementary materials are also of great importance. PICC and cases handled
according to CISG are two core supplementary materials. Of course, these materials
are only supplementary to the autonomous interpretation of CISG.

1 PICC and Uniform Interpretation of CISG

Autonomous interpretation of CISG requires avoidance of the nationalistic approach

and highlights the international nature of the supplementary materials used in
the interpretation of CISG. Among them, the most important is PICC drafted by
UNIDROIT. PICC and CISG share a common historical background. The former
actually further expand international sales law. PICC could be used to clarify provi-
sions of CISG and to fill gaps in CISG. PICC and CISG are different in respect of the
nature, scope of application and contents. These differences restrict the role of PICC
in the interpretation and filling gaps in CISG. This chapter discussed the feasibility
of using PICC to interpret CISG, examined the role of PICC in filling gaps in CISG,
and noted limitations on the supplementary functions of PICC.

© The Author(s), under exclusive license to Springer Nature Singapore Pte Ltd. 2024 73
J. Luo and P. Guo, The Uniform Interpretation of the UN Sales Convention (CISG),
https://doi.org/10.1007/978-981-99-7844-1_4
74 4 Supplementary Materials and Uniform Interpretation of CISG

1.1 Feasibility of Using PICC to Interpret CISG

1.1.1 Common Historical Background of PICC and CISG

It is unwise to neglect the inherent relations between PICC and CISG. Although
PICC was published after the adoption of CISG, the history of both international legal
instruments can be traced to the same period. They both went on the international
scenario in the context of the revival of the new law merchant. As the key milestones
of the unification of commercial law, they have had enormous effects on national
laws and other international legal instruments. As legal instruments in international
commerce, PICC and CISG obviously become part of the international legal order
of trade.
UNCITRAL takes the international convention approach to unify international
commercial law, while UNIDROIT adopts the model law approach. In the early 20th
Century, it had been proposed that non-legislative approaches should be adopted to
unify international commercial law, in order to promote the development of interna-
tional trade. As strengthened by the French scholar, Edouard Lambert, the legislative
approach might not be the best means to make supranational laws.1
In a way, UNIDROIT followed the approach taken by the American Law Institute
in drafting Restatements of the Law. In April 1968, an international conference
was held in Rome, in celebration of the 40th anniversary of the establishment of
UNIDROIT. At this conference, it was proposed by scholars that UNIDRIOT should
follow the practice of the American Law Institute in drafting the Restatement of the
Law and make a Restatement of the Law on international commercial contracts. The
Restatement is not legally binding international rules, but it absorbs all commonly
accepted practices and customary rules on international commerce. Such a project
was put onto the agenda by a resolution made in 1971. A year later, UNIDROIT
established a special working group and started drafting PICC. Members of the
working group included legal experts in the academic or practical fields from different
legal systems, most of whom were scholars, judges and lawyers. Reporters were
appointed to take charge of the drafting work on respective chapters of PICC.
After fourteen years of hard work, and by reference in particular to CISG, the
working group finished the draft texts of PICC in February 1994. The draft text
was approved by UNIDROIT in May 1994 and was revised in 2004. As indicated
in the Preamble of PICC, these Principles set forth general rules for international
commercial contracts. They shall be applied when the parties have agreed that their
contract be governed by them. They may be applied when the parties have agreed
that their contract be governed by general principles of law, the lex mercatoria or
the like. They may be applied when the parties have not chosen any law to govern
their contract. They may be used to interpret or supplement international uniform law
instruments. Further, UNCITRAL at its 40th session (2007) formally endorsed the

1E. Balogy ed., Mémoires de l’Académie Internationale de droit comparé, Berlin-London-Paris,

1928, p. 126.
1 PICC and Uniform Interpretation of CISG 75

2004 UNIDROIT Principles of International Commercial Contracts and commended

their use for their intended purposes.

1.1.2 PICC’s Improvement of CISG

Subject to the international convention nature of CISG and characteristics of its

provisions, in particular, due to the fact that it is a compromise reached by different
contracting states, CISG focuses on the formation of contract, rights and obligations
of the parties, breach of contract and remedies. Since consensus could not be reached
on many matters, CISG does not provide clear solutions. Strictly speaking, CISG
is not a comprehensive international sales code. Interpretation and gap-filling are
inevitable for the application of CISG. PICC is not a legislative instrument, which
makes it possible that PICC is not unduly restricted by national legal traditions.
Neither shall it unduly balance the interests of different legal systems. As a succeeding
international instrument on the international sale of goods, PICC improves CISG in
many aspects.
Besides the Preamble, PICC have seven chapters in total, covering general prin-
ciples of international commercial contract, and formation, validity, interpretation,
contents, performance and non-performance of contracts. The 2004 PICC adds five
chapters on agency, third party rights, set-off, transfer of rights and obligations,
transfer of contract and time limit. Besides a comparatively wider scope, PICC is
more detailed in its provisions. In addition, formal commentary is appended to each
provision, as an explanation. The commentaries are part of PICC and interpret the
provisions and illustrate their application in practice.
Compared to CISG, PICC is both wider in scope and more detailed in content. But
they share many subject matters. Issues adjusted by CISG are covered by PICC. As
a successor, PICC refers to CISG on these matters, in consideration of the place of
CISG in the unification of law on the international sale of goods.2 Meanwhile, PICC
has more detailed provisions on the same matter. For example, neither PICC nor
CISG requires the contract to be concluded in written form. Writing is not defined
in CISG, which only stipulates that writing includes telegram and telex.3 According
to PICC, nothing in these Principles requires a contract, statement or any other act
to be made in or evidenced by a particular form. It may be proved by any means,
including witnesses.
This is why CISG is called the Godfather of PICC.4 There is no reason why we
should reject using PICC to interpret CISG. As observed by some scholars, on the

2 M.J. Bonell, The UNIDROIT Principles in Practice-The Experience of the First Two Years, 2 Unif.
L. Rev. n.s. 34 (1997).
3 CISG, Art.13.
4 Maria del Pilar Perales Viscasillas, UNIDROIT Principles of International Commercial Contracts:

Sphere of Application and General Provisions, 13 Ariz. J. Int’l & Comp. L. 381, 385 (1996); Ulrich
Magnas, General Principles of UN-Sales Law, 3 Int’l. Trade and Bus. L. Ann. 33 (1997); Sylvette
Guillemard, A Comparative Study of the UNIDROIT Principles and the Principles of European
Contracts and Some Dispositions of the CISG Applicable to the Formation of International Contracts
76 4 Supplementary Materials and Uniform Interpretation of CISG

same matters subject to CISG, experts of the supernational committee in drafting

PICC could be deemed as the wise men, whose opinions usually accord with the
understanding and expectations of reasonable persons. PICC becomes an important
reference for the theoretical and practical world to understand and apply CISG.5
On the same matters, the provisions of PICC are more detailed and specific.
For example, in respect of the performance of contract, PICC also has provisions on
fundamental breach of contract. A party may terminate the contract where the failure
of the other party to perform an obligation under the contract amounts to a funda-
mental non-performance. In determining whether a failure to perform an obligation
amounts to a fundamental non-performance regard shall be had, in particular, to
whether: (a) the non-performance substantially deprives the aggrieved party of what
it was entitled to expect under the contract unless the other party did not foresee
and could not reasonably have foreseen such result; (b) strict compliance with the
obligation which has not been performed is of essence under the contract; (c) the non-
performance is intentional or reckless; (d) the non-performance gives the aggrieved
party reason to believe that it cannot rely on the other party’s future performance; (e)
the non-performing party will suffer disproportionate loss as a result of the prepa-
ration or performance if the contract is terminated. These provisions improve and
develop provisions of CISG on fundamental breach of contract.

1.2 PICC and Interpretation of CISG

In practice, PICC are mainly used on the following aspects in interpreting and filling
gaps of CISG.

1.2.1 Clarification of Provisions of CISG by Reference to PICC

In interpreting some ambiguous concepts in CISG, national judicial authorities may

take divergent approaches. Reference to PICC and its commentaries makes such a job
easier. For example, according to Article 25 of CISG, a breach of contract committed
by one of the parties is fundamental if it results in such detriment to the other party
as substantially to deprive him of what he is entitled to expect under the contract
unless the party in breach did not foresee and a reasonable person of the same kind

from the Perspective of Harmonization of Law, in Pace Review of the Convention on Contracts for
the International Sale of Goods(CISG), Kluwer Law International, 2001, pp. 83–113.
5 M.J. Bonell, Proposal for the Establishment of a “Permanent Editorial Board” for the Vienna Sales

Convention, in International Uniform Law in Practice, Acts and Proceedings of the 3rd Congress on
Private Law, UNIDROIT, Rome, September 1987, Oceana (1988) 241–244 and 321–322; Ulrich
Drobnig, Observations, in International Uniform Law in Practice, Acts and Proceedings of the 3rd
Congress on Private Law, UNIDROIT, Rome, September 1987, Oceana (1988) 305–307, p. 306;
Francis A. Gabor, Stepchild of the New Lex Mercatoria: Private International Law from the United
States Perspective, 8 Nw. J. Int’l L. and Bus. 557 (1998).
1 PICC and Uniform Interpretation of CISG 77

in the same circumstances would not have foreseen such a result. Such a system
on fundamental breach of contract is different from both those of the common law
and continental law countries. As noted by some scholars, a fundamental breach of
contract is a concept created due to compromises between different legal systems.6
However, CISG does not define what “substantial deprival” is. As the textual and
contextual approaches do not work, we have to historical and intentional approaches.
Unfortunately, from the legislative history of CISG, we cannot find such a concept
either. The only exception is the Secretariat Commentary of 1978, which notes that
circumstances of a specific event, such as the amount of contract, losses caused by
a breach of contract, and impact on activities of the other party, shall be taken into
consideration to determine whether the breach is fundamental. The Commentary fills
gaps in CISG to some extent, but it is still too general and concise. As a result, in
practice, national judicial authorities are inclined to turn to their national laws to
determine whether a breach of contract substantially deprives the other party of what
he is entitled to expect under the contract.7
As discussed above, provisions of PICC on fundamental breach of contract is
more detailed, specific and practical. The following five factors are actually what
judicial authorities usually consider: (a) the non-performance substantially deprives
the aggrieved party of what it was entitled to expect under the contract unless the other
party did not foresee and could not reasonably have foreseen such a result; (b) strict
compliance with the obligation which has not been performed is of essence under the
contract; (c) the non-performance is intentional or reckless; (d) the non-performance
gives the aggrieved party reason to believe that it cannot rely on the other party’s
future performance; (e) the non-performing party will suffer disproportionate loss as
a result of the preparation or performance if the contract is terminated.
Similarly, according to Article 48 of CISG, subject to Article 49, the seller may,
even after the date for delivery, remedy at his own expense any failure to perform
his obligations, if he can do so without unreasonable delay and without causing the
buyer unreasonable inconvenience or uncertainty of reimbursement by the seller of
expenses advanced by the buyer. Article 49 is on the right of the buyer to declare
the contract avoided. Relations between the two provisions are not clarified in CISG.
Article 7.1.4 of PICC is on the cure by a non-performing party, which manifestly
improves provisions of CISG on such an issue.
PICC is used by many judicial authorities to clarify provisions of CISG and to
prove their understanding of a particular word or provision. For example, in a case
heard by ICC,8 the arbitral tribunal referred to Article 2.1.17 and Article 2.1.18 of
PICC to confirm the meaning of Article 29(2) of CISG. In this case, the Canadian
buyer claimed that the Russian seller did not deliver the goods before the American

6 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna
Sales Convention, Giuffrè Milan, 1987, p. 210.
7 Chen An, Theory and Practice of Economic Contracts With Foreign Elements, China University

of Political Science and Law Press, 1994, p. 224.

8 ICC Court of Arbitration—Zurich, No. 9117, March 1998, available online at http://www.unilex.

info/case.cfm?pid=1&id=399&do=case.
78 4 Supplementary Materials and Uniform Interpretation of CISG

import permit had aspired. The seller broke its oral promise for the buyer to have an
exclusive right of import to the United States. The buyer refused to pay part of the
price. According to Article 29, a contract may be modified or terminated by the mere
agreement of the parties. A contract in writing which contains a provision requiring
any modification or termination by agreement to be in writing may not be otherwise
modified or terminated by agreement. However, a party may be precluded by his
conduct from asserting such a provision to the extent that the other party has relied on
that conduct. This is further explained in PICC. According to Article 2.1.17, a contract
in writing which contains a clause indicating that the writing completely embodies
the terms on which the parties have agreed cannot be contradicted or supplemented by
evidence of prior statements or agreements. However, such statements or agreements
may be used to interpret the writing. In accordance with Article 2.1.18, a contract
in writing which contains a clause requiring any modification or termination by
agreement to be in a particular form may not be otherwise modified or terminated.
However, a party may be precluded by its conduct from asserting such a clause
to the extent that the other party has reasonably acted in reliance on that conduct.
Therefore, the arbitral tribunal held that the contract had merger clauses and written
modification clauses. The buyer could not rely on oral promises or guarantees made
by the seller.

1.2.2 Gap-Filling in CISG by Reference to PICC

In filling gaps in CISG, reference to general principles of law shall prevail over
the application of private international law rules, in order to safeguard the uniform
interpretation of CISG. In consideration of the abstractness of these general principles
of law, judicial authorities usually derive more specific standards from the principles.
During such a process, rules of PICC may be referred to specify general principles of
law. For example, the principle of good faith is a highly abstract principle. National
interpretations of such a principle vary. Therefore, reference to Article 1.7 of PICC is
more appropriate in defining good faith and fair dealing in international commerce.
There are many similar examples. Price payment is one of the main obligations
of the buyer. Articles 54 to 59 of CISG cover matters such as the basic obligation,
determination of price, time of payment, etc. However, matters such as the means of
payment and currency, are not clarified. As a gap to fill, we should first turn to the
general principle of law, in particular the principle of reasonableness. How should
judge reasonableness then? National laws and individual judicial authorities may
give different answers. Therefore, a reference to PICC may be a better option. Article
6.1.7 is on payment by cheque or other instruments; Article 6.1.8 is on payment by
funds transfer; Article 6.1.9 is on the currency of payment. Therefore, as a selection
of commonly accepted practices and customary rules on international commercial
contracts, PICC has many rules that could be used to fill gaps in CISG.
According to Article 78 of CISG, when a party fails to pay the price or any other
sum that is in arrears, the other party is entitled to interest on it. But the interest
1 PICC and Uniform Interpretation of CISG 79

calculation methods are not specified. Article 7.4.9 of PICC further clarifies issues
on Interest for failure to pay money, which could be referred to fill gaps in CISG.
In practice, PICC is referred to in many cases to fill gaps in CISG. Such references
are firstly focused on interest issues. In two cases heard by an Austrian arbitration
institution,9 the arbitral tribunals turned to clause 2 of Article 7.4.9 of PICC to fill
gaps left by CISG. In a case handled by ICC,10 the arbitral tribunal also referred to
clause 2 of Article 7.4.9 to calculate interests. In two cases heard by the Russian
courts,11 this clause was applied again.
On other matters, judicial authorities also attempted to use PICC to fill gaps left
by CISG. In a case heard by the French court,12 it was decided that the seller should
return the extra price paid by the buyer in accordance with CISG. However, the
place of payment of the extra price was not specified in CISG. After a thorough
examination, the court rejected the application of both French and German laws and
referred to PICC. According to Article 6.1.6, the place of the buyer was decided as
the place of payment.
In a dispute heard by an arbitration institution in Russia,13 both parties to the
contract agreed that 0.5% of the price should be added where the buyer delayed
payment of the price of one day. When the seller claimed the money, the buyer
deemed it unreasonable and rejected it. In CISG, there was no specific provision on
this matter. The arbitral tribunal held that the principle of reasonableness should be
applied to fill the gap. In order to determine what was reasonable, Article 7.4.13 of
PICC was applied. Where the contract provides that a party who does not perform
is to pay a specified sum to the aggrieved party for such non-performance, the
aggrieved party is entitled to that sum irrespective of its actual harm. However,

9 Austria: Rolled metal sheets case, Internationales Schiedsgericht der Bundeskammer der
gewerblichen Wirtschaft [Arbitral Tribunal—Vienna], No. SCH-4366, 15 June 1994, available
online at http://cisgw3.law.pace.edu/cases/940615a3.html, CLOUT cases No. 93; Austria: Rolled
metal sheets case, Internationales Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft
[Arbitral Tribunal—Vienna], No. SCH-4318, 15 June 1994, available at http://cisgw3.law.pace.edu/
cisg/wais/db/cases2/940615a4.html, CLOUT cases No.94.
10 ICC Court of Arbitration—Basel, Chemical fertilizer case, No. 8128, November 1995, avail-

able online at http://cisgw3.law.pace.edu/cases/958128i1.html; ICC Court of Arbitration—Zurich,

Electrical appliances case, No. 8769, December 1996, available online at http://www.unilex.info/
case.cfm?pid=1&id=397&do=case.
11 Belarus: Holzimpex Inc. v. State Farm-Combine Sozh, Supreme Economic Court of the Republic

of Belarus, No. 7–5/2003, 20 May 2003, available online at http://www.unilex.info/case.cfm?pid=

1&id=1011&do=case; Belarus: Holzimpex Inc: v. Republican Agricultural Unitary Enterprise,
Supreme Economic Court of the Republic of Belarus, No. 8–5/2003, 20 May 2003, available online
at http://www.unilex.info/case.cfm?pid=1&id=1010&do=case.
12 France: Gaec des Beauches v. Teso Ten Elsen, Cour d’Appel de Grenoble [Appeal Court], No.

94/3859, 23 October 1996, available online at http://cisgw3.law.pace.edu/cisg/wais/db/cases2/961

023f1.html, CLOUT cases No.205.
13 International Arbitration Court of the Chamber of Commerce and Industry of the Russian Feder-

ation, No. 229/1996, 15 June 1997, available online at http://www.unilex.info/case.cfm?pid=1&id=

731&do=case; M.J. Bonell, The UNIDROIT Principles of International Commercial Contracts and
the Harmonization of International Sales Law, in Ian Fletcher, Loukas Mistelis, Marise Cremona
eds., Foundations and Perspective of International Trade Law, Sweet and Maxwell, 2001, p. 307.
80 4 Supplementary Materials and Uniform Interpretation of CISG

notwithstanding any agreement to the contrary the specified sum may be reduced to
a reasonable amount where it is grossly excessive in relation to the harm resulting
from the non-performance and to the other circumstances. The arbitral tribunal held
that this provision represented the principle of reasonableness in the calculation of
the sum for non-performance of contract.

1.2.3 Good Faith in PICC

PICC incorporated the principle of good faith in its first edition published in 1994.
It remained unchanged in the following 2004, 2010 and 2016 editions. The official
comments added to the articles dealing with the principle of good faith have expanded
to assist the potential user of PICC to understand the principle of good faith better.
It should be noted that PICC display a great tendency towards civil law concepts in
general, and a great preference for good faith in particular, for which PICC have been
heavily criticised by many common lawyers.14 This part focuses on what good faith
requires the parties to do and what it prohibits them from doing. Based on similarities
and differences of good faith in CISG and PICC, it seems that good faith in PICC
might not be a very useful tool for the uniform interpretation of CISG.

Positive Duty to Act in Good Faith

Article 1.7 of PICC imposes a positive duty on the parties to act in accordance with
the principle of good faith in international trade. According to the official comment
to Article 1.7, the principle of good faith may be regarded as one of the fundamental
ideas underlying PICC in the light of the fact that many provisions contained in
different chapters of PICC constitute a direct or indirect application of the principle
of good faith in one way or another.15
Article 1.7, by establishing the principle of good faith as a general duty that each
party must act in accordance with good faith and fair dealing in international trade,
makes it clear that the parties’ behaviour must be in conformity with the principle of
good faith from the birth to the death of the contract.16
Unlike the CISG, the drafters of PICC purported to extend the application of the
principle of good faith to a broader scope. Under PICC, it extends to all the stages of
an international commercial contract.17 The principle of good faith applies not only

14 Ingeborg Schwenzer, ‘Global Unification of Contract Law’ (2016) 21 Uniform Law Review 60,
67.
15 Comment 1 to Article 1.7 PICC 2016. Articles 1.8, 1.9(2), 2.1.4(2)(b), 2.1.15, 2.1.16, 2.1.18,

2.1.20, 2.2.4(2), 2.2.5(2), 2.2.7, 2.2.10, 3.2.2, 3.2.5, 3.2.7, 4.1(2), 4.2(2), 4.6, 4.8, 5.1.2, 5.1.3, 5.2.5,
5.3.3, 5.3.4, 6.1.3, 6.1.5, 6.1.16(2), 6.1.17(1), 6.2.3(3)(4), 7.1.2, 7.1.6, 7.1.7, 7.2.2(b)(c), 7.4.8,
7.4.13, 9.1.3, 9.1.4 and 9.1.10(1) are listed in the Comment 1.
16 Comment 1 to Article 1.7 UNIDROIT Principles 2016.
17 Vogenauer, Commentary on the UNIDROIT Principles of International Commercial Contracts

(PICC), above n 363, 209–210.

1 PICC and Uniform Interpretation of CISG 81

in the process of the conclusion of an international commercial contract but also in

the course of the performance thereof. It covers different periods of the contractual
relationship between the parties directly or indirectly, ranging from contract negotia-
tions to contract formation, from contract performance to contract non-performance,
from contract re-negotiation to contract adaptation, and from contract interpretation
to contract termination.18
Another difference between the CISG and PICC relating to good faith lies in
whether good faith applies to the interpretation of both documents themselves. The
CISG’s attitude is clear in this regard as discussed above, whereas PICC are silent
on this matter. Article 1.6 of PICC deals with the interpretation of PICC; however, it
does not explicitly state that the principle of good faith can be applied for the purpose
of interpretation.19 The official comment of Article 1.6 nevertheless states that the
principle of good faith, despite the fact that it aims at the contractual relationship
between the parties, may be regarded as an expression underpinning the purposes of
PICC20 and therefore may be applied in the interpretation of PICC.21
The most salient problem is that PICC, like CISG, do not offer a clear definition of
the principle of good faith. Although what good faith means still remains a mystery,
the fact that good faith is coupled with fair dealing makes it clear that the principle
of good faith should be considered and understood in an objective sense, as being
synonymous with what is elsewhere in PICC referred to as ‘reasonable commercial
standard of fair dealing’22 Notwithstanding the vagueness of the meaning, it is at
least clear that the parties are under a duty to act in accordance with the principle of
good faith in the light of Article 1.7.23
Like the CISG, the principle of good faith referred to in PICC is confined to
international trade. It is clear that in the context of PICC, the principle of good faith
is to be applied in accordance with an international standard rather than according
to the standards originally adopted in national legal systems.24 This proposition is
confirmed by the official comment which states that national standards may probably
be taken into account only to the extent that it is clear that they are generally accepted
among the various national legal systems.25 In addition, there is also a considerable
and huge distinction in the standard of business practice among different trade sectors.

18 Michael J Bonell, An International Restatement of Contract Law: The UNIDROIT Principles of

International Commercial Contracts (Martinus Nijhoff Publishers, 3rd ed, 2010) 136–150.
19 Article 1.6 UNIDROIT Principles 2016, which reads as follows:

(1) In the interpretation of these Principles, regard is to be had to their international character
and to their purposes including the need to promote uniformity in their application.
(2) Issues within the scope of these Principles but not expressly settled by them are as far as
possible to be settled in accordance with their underlying general principles.
20 Comment 3 to Article 1.6 PICC.
21 Magnus, ‘Remarks on Good Faith’, above n 634, 90.
22 Bonell, An International Restatement of Contract Law, above n 640, 131.
23 Farnsworth, ‘Duties of Good Faith and Fair Dealing under the UNIDROIT Principles, Relevant

International Conventions, and National Laws’, above n 610, 58.

24 Bonell, An International Restatement of Contract Law, above n 640, 132.
25 Comment 3 to Article 1.7 PICC.
82 4 Supplementary Materials and Uniform Interpretation of CISG

Even within one given trade sector, differences may still exist and may be more or less
stringent in accordance with the socio-economic environment in which the trade is
operated by various companies of different size and having various technical skills.26
This implies that the principle of good faith must be interpreted by virtue of the special
conditions of international trade.27
By referring to the principle of good faith in international trade, PICC, like the
CISG, intend to better confine and explain its meaning and scope.28 The problem
arising from this is what the principle of good faith means in terms of international
trade. There is no unequivocal answer to this question, just as there is no one definition
of good faith. Although it is argued that in some sectors of international trade, a
principle of good faith may exist or be emerging, and may be already well and
clearly defined and understood in business circles, no concrete example is given.29
Neither can the existence of a uniform concept of the principle of good faith that
may be valid to contracts of all kinds be discerned at an international level, nor can a
concept generally be recognised and accepted for contracts merely of a single kind.30
The impossibility of defining the principle of good faith in international trade has
led to the failure of the attempts of Article 1.7 in PICC and Article 7 in the CISG,
respectively. In addition, the reference to international trade may cause confusion. To
avoid the interference and application of domestic laws, the principle of good faith is
confined by PICC and the CISG to be understood in the light of international trade,
which might be of value and use; however, to support the principle of good faith
in international trade, reference is made to PICC and the CISG themselves, which
makes the argument a vicious circle that is confusing and unhelpful.31

Negative Prohibition on Behaviour Against Good Faith

PICC are directed, by and large, at redressing behaviour that does not comply with the
principle of good faith. Three general rules are stipulated in PICC that are designed
for, and imposed on, the parties to control their behaviour in their contract. If the
parties’ behaviour is not compatible with either of the rules, what they have done is
considered a contravention of what the principle of good faith requires.
On the one hand, a typical instance of the parties’ behaviour contrary to the
principle of good faith is the so-called rule of ‘abuse of rights’, which is characterised

26 Ibid.
27 Ibid.
28 Giuditta Cordero Moss, ‘International Contracts between Common Law and Civil Law: Is Non-

State Law to Be Preferred? The Difficulty of Interpreting Legal Standards Such as Good Faith’
(2007) 7 Global Jurist 28, 30.
29 Ulrich Magnus, ‘Comparative editorial remarks on the provisions regarding good faith in CISG

Article 7(1) and the UNIDROIT Principles Article 1.7’ in John Felemegas (ed), An International
Approach to the Interpretation of the United Nations Convention on Contracts for the International
Sale of Goods (1980) as Uniform Sales Law (Cambridge University Press, 2007) 45, 46.
30 Moss, above n 650, 30–1.
31 Ibid 32–4.
1 PICC and Uniform Interpretation of CISG 83

by a party’s malicious behaviour that occurs when a party exercises a right merely
with a view of damaging the other party or of achieving a purpose other than the one
for which it had been granted, or when the exercise of a right is disproportionate to
the originally contemplated consequences.32
On the other hand, the behaviour of the parties is also controlled by the rule
of ‘inconsistent behaviour’ contained in Article 1.8 of PICC. This indicates that
a duty has been imposed on a party that he cannot cause detriment to the other
party by acting inconsistently with an understanding in relation to their contractual
relationship which the other party has been led to have and upon which the other
party has reasonably acted in reliance.33 The understanding may be the outcome of
a representation, of a conduct, or of silence when a party would reasonably expect
to be informed by the other party of the existence of an error, a misunderstanding
or a misrepresentation that was being relied on.34 In addition, as long as the under-
standing concerns the contractual relationship of the parties in one way or another,
this understanding for the purposes of Article 1.8 is not limited to any particular
subject-matter and it may relate not only to a matter of fact but also to a matter of
law or to a matter of intention, or to the parties’ behaviour under their contract.35
There is, however, a significant restriction on the understanding that it must be one
upon which, in the light of the circumstances of the contract, the other party actually
can and reasonably does rely.36 To decide whether the reliance is reasonable is a
matter of interpretation which should take into account the nature and the terms of the
contract, the communications and conduct of the parties, the nature and surrounding
circumstances of the parties’ dealings and the expectations they could reasonably
have.37 The prohibition provided in Article 1.8 may lead to the creation of rights
and to the loss, suspension or modification of rights otherwise than by agreement of
the parties by reason of the fact that the understanding on which the parties purport
to rely upon may itself be inconsistent with their agreed or actual rights under the
contract.38 The rule of ‘inconsistent behaviour’ is reflected in many articles of the
UNIDROIT Principles, which provide specific guidelines for the parties’ behaviour
in order to maintain its consistency.39
Apart from the two general rules on ‘abuse of rights’ and ‘inconsistent behaviour’
discussed above, Article 2.1.15 provides for the third rule with a view to advancing the
principle of good faith, albeit negatively. It does not promote the principle of good
faith directly; instead, it prohibits bad faith relating to the negotiation process.40
According to Article 2.1.15, parties have some freedom when negotiating a contract.

32 Bonell, An International Restatement of Contract Law, above n 640, 133.

33 Comment 1 to Article 1.8 PICC.
34 Bonell, An International Restatement of Contract Law, above n 640, 134.
35 Comment 2 to Article 1.8 PICC.
36 Ibid.
37 Ibid.
38 Ibid.
39 Article 2.1.4(2), Article 2.1.18, Article 2.2.5, PICC.
40 Article 2.1.15 PICC.
84 4 Supplementary Materials and Uniform Interpretation of CISG

They are able to not only freely decide when and with whom to enter into negotiations
in order to conclude a contract, but also freely determine how and for how long to
proceed in order to reach an agreement.41 Although the parties are free to enter
into negotiations and to decide on the terms to be negotiated and contained in their
contract, their freedom is not unlimited, which means their behaviour must not be
contrary to the principle of good faith provided in Article 1.7.42 For instance, once
an offer has been made, a party cannot break off negotiations abruptly and without
justification at will.43 Whether a party may simply break off negotiations depends on
the contract and the surrounding circumstances of the case, in particular, the extent
to which the other party, based on the behaviour of the first party, has reasonably
believed that the negotiations will lead to a positive outcome, and also on the number
of agreed issues to be incorporated into their future contract.44 Therefore, one party’s
misuse of the negotiation process to the detriment of the other party contravenes the
duty to act in accordance with the principle of good faith imposed on the parties by
Article 1.7 and is, accordingly, prohibited by Article 2.1.15.
No clear definition of bad faith is provided by Article 2.1.15. It offers only one
particular example of negotiating in bad faith in paragraph (3) where a party enters
into or proceeds with negotiations with the other party in spite of the fact that he or she
does not intend to conclude a contract. In addition, another example of bad faith in
negotiation where one party has deliberately or by negligence misled the other party
as to the nature or terms of the proposed contract, either by actually misrepresenting
facts, or by not disclosing facts which, given the nature of the parties and/or the
contract, should have been disclosed.45 These examples are probably insufficient
to define and understand what bad faith means in PICC and therefore may have a
negative impact on the application of Article 2.1.15 and eventually Article 1.7.
Article 1.7 is silent on the consequences of the failure of the parties to act in
accordance with good faith. Also, the illustrations in the Official Comments to Article
1.7 do not address this issue explicitly. Only one illustration may implicitly indicate
a consequence.46 It seems that one probable consequence of the parties’ failure to
act in good faith is ‘the loss of a right that would otherwise have been available to
that party.’47 Whether there may be other consequences remains unclear from the
text of PICC.48

41 Comment 1 to Article 2.1.15 PICC.

42 Comment 2 to Article 2.1.15 PICC.
43 Comment 3 to Article 2.1.15 PICC.
44 Ibid.
45 Comment 2 to Article 2.1.15 PICC.
46 Illustration 7 to Article 1.7 PICC.
47 Vogenauer, Commentary on the UNIDROIT Principles of International Commercial Contracts

(PICC), 224.
48 It is argued that the loss of a right is the only consequence. Vogenauer argues that ‘[t]he only

consequence attached to Art 1.7 is the non-application of a particular contractual term or a black
letter rule of the PICC.’ Ibid 223–4.
1 PICC and Uniform Interpretation of CISG 85

1.3 Restrictions on Functions of PICC

1.3.1 Reasons for Restrictions

Common legal foundations, similar subject matters and contents make it feasible
that PICC is used to interpret and fill gaps in CISG. However, great differences still
exist between them in respect of nature, characteristics and scope of application. As
a result, to safeguard uniformity in the interpretation of CISG, reference to PICC
should be cautious.
Since its establishment, UNCITRAL has been working to make binding uniform
rules.49 One of its greatest achievements is CISG, which regulates the international
sale of goods. As a multilateral international convention, CISG has been rectified by
71 countries. Such an international legislation approach has many advantages, but
it also has disadvantages. As for the nature of PICC, Professor Bonell holds that it
is a restatement of international law.50 Meanwhile, it is also an interpretative and
supplementary legal instrument for existing international conventions.51 Professor
Joseph Lookofsky turns to the Preamble of PICC and deems it an international
restatement of general principles of contract law. As the key drafter and chairman of
the working group, Professor Bonell’s opinion on the nature of PICC is autoreactive.
Of course, different opinions on the nature of PICC exist in the academic world. PICC
is also defined as international customs,52 model contracts,53 general principles of
law,54 etc. This book does not intend to debate the exact nature of PICC. It aims to
examine the impact of differences between PICC and CISG in nature on the role of
PICC in interpreting and filling gaps in CISG. It is reasonable to conclude that PICC
is not legally binding.
The non-legislative model of PICC makes it a collection of national traditions,
experiences, and practices. In many aspects, PICC innovate traditional contract laws.
PICC aim to combine the general principles, rules, and practices of national states, to
provide a commonly accepted uniform legal framework for international commercial
contracts. The criterion in the selection of rules is not simply whether a rule is widely

49 M.J. Bonell, The UNIDROIT Principles of International Commercial Contracts and CISG –
Alternatives or Complementary Instruments?, 1 Unif. L. Rev. n.s. 26, 26–27 (1996).
50 M.J. Bonell ed., A New Approach to International Commercial Contracts: The UNIDROIT Prin-

ciples of International Commercial Contracts, in General Report to the Fifteenth Congress of the
International Academy Comparative Law, Bristol, August 1998, Kluwer Law International (1999)
444, pp. 446–447.
51 M.J. Bonell ed., A New Approach to International Commercial Contracts: The UNIDROIT Prin-

ciples of International Commercial Contracts, in General Report to the Fifteenth Congress of the
International Academy Comparative Law, Bristol, August 1998, Kluwer Law International (1999)
444, p. 451–452.
52 Huang Jianqiu, An Examination of the Choice of Law Rules in PICC, 1 Journal of Suzhou

University (2002), p. 41.

53 Fu Jingkun, Conflicts Law of Contracts, China Law Press, 1999, p. 156.
54 Wu Xingguang, The Second Milestone in Unification of Contract Law—PICC, 1 Research on

International Economy and Trade (1997), p. 43.

86 4 Supplementary Materials and Uniform Interpretation of CISG

used, but whether it is valuable and appropriate for international commerce. From
such a perspective, some rules embodied in PICC are future-oriented. Not all of the
provisions of PICC have been commonly accepted by the international community.
Therefore, judicial authorities should be cautious in deciding which concepts,
rules and provisions can be referred to interpret CISG. In a case settled by ICC in
1998, the arbitral tribunal rejected to deem PICC as the law merchant. The tribunal
held there was no need at present to link individual principles of PICC with lex
mercatoria.55 Therefore, not all principles and rules in PICC are lex mercatoria.
Meanwhile, UNIDROIT develops some new rules and mechanisms. It is debatable
whether they could be used to interpret CISG. For example, provisions of PICC on
the battle of forms are clearly different from Article 19 of CISG. In conclusion, in
interpreting CISG by reference to PICC, judicial authorities should be cautious.

1.3.2 Restrictions on Interpretation

Limitations on the interpretation of CISG by reference to PICC are manifested in

two aspects. Firstly, general principles of law may be available, and there is no
need to rely on PICC. Secondly, the objectives of the two legal instruments vary. For
example, on the battle of forms, PICC takes the knock-out doctrine. CISG is not clear
on this. Currently, there are two schools of opinions, the agreement of will doctrine
and the last shot doctrine. Where judicial authorities are unclear of the objective of
CISG and the legislative history of Article 19, they may very likely refer to PICC.
But such a reference may not be proper.56 Therefore, PICC can be used to clarify
provisions of CISG. However, as an independent legal instrument, PICC could only
be a supplementary tool in the interpretation of CISG.

1.3.3 Restrictions on Gap-Filling

Similarly, judicial authorities should be cautious in filling gaps in CISG by reference

to PICC, which is not an independent approach like analogy and reference to general
principles of law. PICC is mainly used to support general principles of law. In other
words, it is neither necessary nor appropriate to conclude general principles of law
from PICC. Only when general principles derived from PICC are also principles
referred to in Article 7(2) on which CISG is based, could they be used to fill gaps in
CISG.57

55 Charles N. Brower, Jeremy K. Sharpe, The Creeping Codification of Transnational Commercial

Law: Arbitrator’s Perspective, 45 Va. J. Int’l L. 199, 209–210 (2004).
56 Maria del Pilar Perales Viscasillas, UNIDROIT Principles of International Commercial

Contracts: Sphere of Application and General Provisions, 13 Ariz. J. Int’l and Comp. L.
381,406–410 (1996).
57 M.J. Bonell, The UNIDROIT Principles of International Commercial Contracts and CISG –

Alternatives or Complementary Instruments?, 1 Unif. L. Rev. n.s. 26, 36–39; S.N. Martinez Cazon,
A Practitioner’s View of the Applicability of the UNIDROIT Principles of International Commercial
2 Foreign Cases and Uniform Interpretation of CISG 87

In fact, similar supplementary materials like PECL could be used in the interpre-
tation and gap-filling of CISG. In many cases, both PICC and PECL were referred
to by judicial authorities. In the Hof’S-Hertogenbosch Case of 2002,58 the Dutch
buyer only paid part of the price to the French seller. The seller not only claimed the
unpaid price, but also the fine referred to at the back of the invoice. The court held
the standard contractual clauses issue should be resolved according to CISG, even
though CISG did not clarify it. The court referred to Article 2.20 of PICC and Article
2.104 of PECL to interpret CISG. After a comparative examination, the court held
that both provisions reflected the principle of good faith. According to such a prin-
ciple, only when a party knew or should know the contents of the standard clauses,
could they be binding for the party. Similarly, in the above-mentioned case of ICC,59
the arbitral tribunal turned both to Article 7.4.9 of PICC and relevant provisions of
PECL to resolve the interest issue.

2 Foreign Cases and Uniform Interpretation of CISG

Besides PICC, another supplementary material that could be referred to in the inter-
pretation of CISG is cases handled by national judicial authorities and arbitration
institutions. CISG is not applied by just one country or a particular international
organization. To ensure its worldwide uniform interpretation and application, judi-
cial authorities should be familiar with how CISG is interpreted and applied in similar
cases by judicial authorities in other countries. Of course, such an approach is under
great challenge, since the sources and binding force of these cases are not clearly
defined. In fact, UNILEX, CLOUT and the database on CISG created by Pace Univer-
sity have already set a solid foundation for the interpretation of CISG by reference to
foreign cases. This section examined the necessity of using foreign cases, available
sources of foreign cases, and practices of using foreign cases to interpret CISG.

2.1 Necessity of Using Foreign Cases

As mentioned above, Article 7 clarifies the basic requirement of CISG on its interpre-
tation and provides the fundamental criteria and rules. As noted by Franco Ferrari,
those people that have to apply CISG must try to adopt an international solution,

Contracts in Interpreting International Uniform Law, in papers of the 25th IBA Biennial Conference,
Melbourne, October 1994; Fritz Enderlein, The UNIDROIT Principles as a Means for Interpreting
International Uniform Laws, in papers of the 25th IBA Biennial Conference, Melbourne, October
1994.
58 Netherlands: Plants case, Hof’s-Hertogenbosch [District Appeal Court], 16 October 2002,

available online at http://www.unilex.info/case.cfm?pid=1&id=960&do=case.

59 ICC Court of Arbitration—Basel, Chemical fertilizer case, No. 8128, November 1995, available

online at http://cisgw3.law.pace.edu/cases/958128i1.html.
88 4 Supplementary Materials and Uniform Interpretation of CISG

by reference to approaches taken by other contracting states.60 As a result, similar

foreign cases should be taken into account in interpreting particular provisions of
CISG. Similar issues might have been examined and decided by judicial authorities
in other countries. Judicial authorities will benefit from sharing their experiences.61
Reference to foreign cases can promote uniformity in the interpretation and appli-
cation of CISG.62 In practice, many national judicial authorities have strengthened
that regard should be had on the international nature of CISG in its interpretation.
For example, in a Swiss case, the court held that in interpreting CISG, the interna-
tional character of CISG referred to in Article 7(1) shall be taken into account.63 The
German court64 and Italian arbitration institution65 made similar declarations.
Of course, not in all cases subject to CISG, should foreign cases be referred
to. Where difficulties exist as to the interpretation of CISG, should it be necessary
to refer to foreign cases? Since the provisions and matters to be interpreted have
already been fully discussed and explained in judgments of foreign cases, reference
to these cases may save the time and resources of judicial authorities. In addition,
reference to similar cases to interpret CISG makes judgments and legal reasoning
more convincing. It could also promote uniformity in the interpretation of certain
matters by national judicial authorities.

2.2 Challenges to Using Foreign Cases

2.2.1 Binding Forces of Foreign Cases

In order to strengthen the need to consider foreign cases, some scholars put forward
the concept of international case law, which is legally binding.66 This concept is

60 Franco Ferrari, Tribunale di Vigevano: Specific Aspects of the CISG Uniformly Dealt With, 20 J.
L. and Com. 225, 227 (2000).
61 M.J. Bonell, Fabio Liguori, The U.N. Convention on the International Sale of Goods: a Critical

Analysis of Current International Case Law, 2 Unif. L. Rev. n.s. 385 (1997); Franco Ferrari, CISG
Case Law: A New Challenge for Interpreters?, 17 J. L. and Com. 245, 246–250 (1998).
62 Franco Ferrari, Interpretation of the Convention and Gap-filling, in Franco Ferrari, Ronald A.

Brand ed., The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in
the UN Sales Convention, European Law Publishers, 2004, p. 138.
63 Switzerland: Automatic storage system case, Gerichtspräsident von Laufen [District Court], 7

May 1993, available online at http://www.unilex.info/case.cfm?pid=1&id=105&do=case, CLOUT

cases No.201.
64 Germany: New Zealand mussels case, Oberlandesgericht Frankfurt [Provincial Court of Appeal],

No. 13 U 51/93, 20 April 1994, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cas

es2/940420g1.html, CLOUT cases No. 84.
65 Italy: Tessile v. Ixela, Tribunale di Pavia [District Court], 29 December 1999, available online at

http://www.cisg.law.pace.edu/cisg/wais/db/cases2/991229i3.html, CLOUT cases No.380.

66 Larry A. DiMatteo, The CISG and the Presumption of Enforceability: Unintended Contractual

Liability in International Business Dealing, 22 Yale Int. L. J. 111, 133 (1997); Franco Ferrari,
Uniform Interpretation of the 1980 Uniform Sales Law, 24 Ga. J. Int’l and Comp. L. 183, 204–205
2 Foreign Cases and Uniform Interpretation of CISG 89

opposed by academics67 and judicial authorities.68 Firstly, the discretion of national

judicial authorities may be refined by foreign cases.69 CISG is applied in the
contracting states, each of which has no incentive to seek such restrictions for itself.
For arbitral tribunals, the power of them to hear disputes come from the parties. The
effect of foreign cases on them is even smaller.
Secondly, it is not practical to make foreign cases legally binding. Foreign cases
on a particular matter covered by CISG may be abundant but they may also be
disordered for foreign courts. Moreover, their interpretation of CISG may not be
correct.70 Divergences in the interpretation of certain provisions of CISG by national
juridical authorities are still common. Without an international court to coordinate
these differences,71 it is impossible to make the decision of a particular court legally
binding.
Most scholars believe foreign cases should be considered even if they are not
legally binding. Neglect of foreign cases should be condemned.72 It is even held that
the interpretation of UCC by American courts by reference to precedents should be a
model for CISG.73 When courts apply CISG, they shall record the decisions of other
courts as they do in the application of the UCC.74
In practice, the court and arbitral tribunals generally refer to foreign cases to
decide on similar issues. Where the two cases are extremely similar in facts and law,
and the legal reasoning of the foreign court is reasonable, the court could refer to that
case to interpret CISG.75 Meanwhile, the court and arbitral tribunal could also refer

(1994). Franco Ferrari, CISG Case Law: A New Challenge for Interpreters?, 17 J. L. and Com. 245,
260–261 (1998).
67 Fritz Enderlein, Dietrich Maskow, International sales law, Oceana, 1992, p. 348.
68 Italy: Rheinland Versicherungen v. Atlarex, Tribunale di Vigevano [District Court], 12 July 2000,

available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/000712i3.html, CLOUT

cases No. 405; Italy: Tessile v. Ixela, Tribunale di Pavia [District Court], 29 December 1999, available
online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/991229i3.html, CLOUT cases No.380.
69 Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U. Pa. L. Rev. 687 (1998).
70 Franco Ferrari, CISG Case Law: A New Challenge for Interpreters?, 17 J. L. and Com. 245,

260–261 (1998).
71 Franco Ferrari, Applying the CISG in a Truly Uniform Manner: Tribunale di Vigevano(Italy), 12

July 2000, 6 Unif. L. Rev. n.s. 203, 208 (2001).

72 Peter Schlechtriem, Uniform Sales Law—the Experience with Uniform Sales Laws in the Federal

Republic of Germany, available online at http://www.cisg.law.pace.edu/cisg/biblio/schlech2.html.

73 Harry M. Flechtner, The Several Texts of the CISG in A Decentralized System: Observations on

Translations, Reservations and Other Challenges to the Uniformity Principle in Article 7(1), 17 J.
L. and Com. 187 (1997).
74 Philip T. Hackney, Is the United Nations Convention on the International Sale of Goods Achieving

Uniformity?, 61 La. L. Rev. 473, 479 (2001).

75 France: Gaec des Beauches v. Teso Ten Elsen, CA Grenoble[Appeal Court], No. 94/3859,

23 October 1996, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/961023f1.

html, CLOUT cases No. 205; Italy: Rheinland Versicherungen v. Atlarex, Tribunale di Vigevano
[District Court], 12 July 2000, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cas
es2/000712i3.html, CLOUT cases No. 405; Italy: Al Palazzo S.r.l. v. Bernardaud di Limoges S.A.,
90 4 Supplementary Materials and Uniform Interpretation of CISG

to foreign cases to testify about the reasonableness of its interpretation of CISG.76 In

other words, foreign cases are simply supplementary materials for national judicial
authorities to interpret and apply CISG. They do not directly follow the reasoning
and decisions of foreign courts and arbitral tribunals.
On the one hand, such an approach of reference maintains consistency in the
interpretation of CISG by national judicial authorities. On the other hand, common
trends could be formulated where national judicial authorities interpret a particular
provision of CISG in a similar manner. Then, foreign cases are not simply tools to
prove the decisions of national courts and arbitral tribunals, which are more likely
to follow the common trends that have been formulated. Where an interpretation
does not accord with the common understanding, it would not be convincing or
acceptable.77

Tribunale di Rimini [District Court], No. 3095, 26 November 2002, available online at http://
www.cisg.law.pace.edu/cisg/wais/db/cases2/021126i3.html, CLOUT cases No.608; Italy: Agricul-
tural products case, Tribunale di Padova [District Court], No. 40552, 25 February 2004, available
online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/040225i3.html; Italy: Pizza boxes case,
Tribunale di Padova [District Court], No. 40466, 31 March 2004, available online at http://www.cisg.
law.pace.edu/cisg/wais/db/cases2/040331i3.html; Italy: Ostroznik Savo v. La Faraona soc. coop.
a.r.l., Tribunale di Padova Sez. Este [District Court], 11 January 2005, available online at http://
www.cisg.law.pace.edu/cisg/wais/db/cases2/050111i3.html, CLOUT cases No.651; United States:
Usinor Industeel v. Leeco Steel Products, U.S. District Court for the Northern District of Illinois,
Eastern Division [Federal Court of 1st Instance], No. 02 C 0540, 28 March 2002, available online at
http://cisgw3.law.pace.edu/cases/020328u1.html, CLOUT cases No. 613; United States: Chicago
Prime Packers, Inc. v. Northam Food Trading Co., et al., U.S. District Court for the Northern
District of Illinois [Federal Court of 1st Instance], No. 01 C 4447, 21 May 2004, available online at
http://www.cisg.law.pace.edu/cisg/wais/db/cases2/040521u1.html; Austria: Machines case, Ober-
ster Gerichtshof [Supreme Court], No. 2 Ob 100/00w, 13 April 2000, available online at http://www.
cisg.law.pace.edu/cisg/wais/db/cases2/000413a3.html, CLOUT cases No.426; Belgium: Roelants
Eurosprint v. Beltronic Engineering International, Rechtbankvan Koophandel Hasselt [District
Court], No. A.R. 2703/01, 6 March 2002, available online at http://www.cisg.law.pace.edu/cisg/
wais/db/cases2/020306b2.html; Germany: Tiller case, Oberlandesgericht Oldenburg [Provincial
Court of Appeal], No. 12 U 40/00, 5 December 2000, available online at http://www.cisg.law.
pace.edu/cisg/wais/db/cases2/001205g1.html, CLOUT cases No. 431; Germany: Frozen pork case,
Bundesgerichtshof [Federal Supreme Court], No. VIII ZR 67/04, 2 March 2005, available online
at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/050302g1.html, CLOUT cases No.774.
76 Italy: Tessile v. Ixela, Tribunale di Pavia [District Court], 29 December 1999, available

online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/991229i3.html, CLOUT cases No.380;

Australia: Downs Investments v. Perwaja Steel, Supreme Court of Queensland, No. 10680, 17
November 2000, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/001117a2.
html, CLOUT cases No.631; Germany: Paprika case, Bundesgerichtshof [Federal Supreme Court],
No. VIII ZR 321/03, 30 June 2004, available online at http://www.cisg.law.pace.edu/cisg/wais/db/
cases2/040630g1.html, CLOUT cases No.773;United Stated: Medical Marketing v. Internazionale
Medico Scientifica, U.S. District Court, Eastern District of Louisiana, No. 99–0380 Section “K”
(1), 17 May 1999, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/990517u1.
html, CLOUT cases No.418.
77 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna

Sales Convention, Giuffrè Milan, 1987, p. 91; M.J. Bonell, Fabio Liguori, The U.N. Convention on
the International Sale of Goods: a Critical Analysis of Current International Case Law, 2 Unif. L.
Rev. n.s. 385, 385–395 (1997); Franco Ferrari, CISG Case Law: A New Challenge for Interpreters?,
2 Foreign Cases and Uniform Interpretation of CISG 91

Regard and respect for foreign cases do not necessarily require a court to follow
foreign cases. Uniformity is the ultimate objective for CISG, but the correctness
of the interpretation and fairness of the decision could not be sacrificed. Foreign
cases are supplementary materials to the interpretation of CISG, and reference to
them is a supplementary tool for the uniform interpretation of CISG. Judges and
arbitrators shall apply the most appropriate approach to legal interpretation, assess
the correctness and reasonableness of the interpretation of CISG in the cases to be
referred to, and decide independently whether to refer to foreign cases.
For instance, in a case heard by the Netherlands Arbitration Institute,78 the arbitral
tribunal had to decide the conformity of goods delivered by the seller. As for the issue
of burden of proof, the tribunal referred to some foreign cases. The tribunal found
divergences existed. In some cases, the court held the buyer should bear the burden
to prove the unconformity of goods79 ; while in other cases, the court held that the
burden of proof was not regulated by CISG.80 The arbitral tribunal did not decide on
the issue, because no matter whether CISG or Dutch law should be applied, the buyer
should bear the burden of proof. Since the quality of goods was not specified in the
contract, the tribunal had to decide according to Article 35(2) of CISG. In order to
interpret clause A of this Article,81 the tribunal referred to a series of foreign cases.82
In these cases, some courts took the generally accepted quality for sale standard
in the common law; some took the average quality standard of the civil law. The
tribunal held that neither of them met the requirement of Article 7(1) of CISG on
uniformity of interpretation. The tribunal followed practices of some courts which

17 J. L. and Com. 245, 246–261 (1998); Franco Ferrari, Specific Topics of the CISG in the Light of
Judicial Application and Scholarly Writing, 15 J. L. and Com. 1, 8–13 (1995).
78 Netherlands: Condensate crude oil mix case, Netherlands Arbitration Institute, No. 2319, 15

October 2002, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/021015n1.

html, CLOUT cases No.720.
79 Switzerland: Furniture case, Handelsgericht Zürich [Commercial Court], No. HG930138. U/

HG93, 9 September 1993, available online at http://cisgw3.law.pace.edu/cases/930909s1.html,

CLOUT cases No.97; Switzerland: Lambskin coat case, Handelsgericht [Commercial Court], No.
HG 930,634/O, 30 November 1998, available online at http://cisgw3.law.pace.edu/cases/981130s1.
html, CLOUT cases No.251; Italy: Rheinland Versicherungen v. Atlarex, Tribunale di Vigevano
[District Court], 12 July 2000, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cas
es2/000712i3.html, CLOUT cases No. 405.
80 ICC Court of Arbitration—Paris, Steel bars case, No.6653, 26 March 1993, available online at

http://cisgw3.law.pace.edu/cases/936653i1.html, CLOUT cases No.103.

81 CISG, Art.35(2)(a).
82 Germany: New Zealand mussels case, Oberlandesgericht Frankfurt [Provincial Court of Appeal],

No. 13 U 51/93, 20 April 1994, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cas

es2/940420g1.html, CLOUT cases No.84; Germany: New Zealand mussels case, Bundesgerichtshof
[Federal Supreme Court], No. VIII ZR 159/94, 8 March 1995, available online at http://www.cisg.
law.pace.edu/cisg/wais/db/cases2/950308g3.html, CLOUT cases No.123; Germany: Shoes case,
Landgericht Berlin [District Court], No. 52 S 247/94, 15 September 1994, available online at http://
www.cisg.law.pace.edu/cisg/wais/db/cases2/940915g1.html.
92 4 Supplementary Materials and Uniform Interpretation of CISG

took the principle of reasonableness to decide conformity of goods.83 It believed that

such an approach accorded with the legislative history and spirit of Article 7.
It should be noted that judicial authorities should provide detailed and adequate
discussions and reasoning in interpreting CISG, because their decisions could be
referred to by other courts and arbitral tribunals. With reference to foreign cases,
national judicial authorities could further improve the interpretation of CISG, because
they may take the good part of foreign cases and give up the bad part.

2.2.2 Sources of Foreign Cases

The volume of resources might be enormous.84 In the beginning, it was argued that
reference to foreign cases was impossible, since foreign cases were not available. In
addition, even if foreign cases were found, they were often in languages unknown
to judges and arbitrators that handled a particular case. Aware of the importance of
foreign cases in promoting uniformity in the interpretation of CISG, many interna-
tional organizations and academic institutes have been collecting, translating and
compiling a large number of cases subject to CISG. Thanks to information tech-
nology, the Internet, in particular, national cases are readable for academics and
judicial authorities. Among them, the most successful are UNILEX, CLOUT, the
Pace University Database and CISG-Online.

Unilex

UNILEX is a database created by UNIDROIT in 1992.85 Cases subject to CISG and

PICC are collected, and new cases are added every six months. UNILEX provides
many convenient tools for searching. For each case, an abstract in English is provided.
The full texts of cases keep their original languages. In addition, cases collected in
UNILEX are mainly from European continental countries and ICC. The update of
the database has been very slow since the retirement of Prof Bonell.

Clout

Case Law on UNCITRAL Texts (CLOUT) is a system established by the Secretariat

of UNCITRAL in 1988. It is a database that collects and disseminates national court

83 Stockholm Chamber of Commerce, Beijing Light Automobile Co. v. Connell, 5 June 1998, avail-
able online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/980605s5.html, CLOUT cases No.
237.
84 For example, until December 2015, the CISG Database provided by the Institute of Interna-

tional Commercial Law at Pace University had collected about 3000 CISG cases and 10,000 case
annotations and it keeps updating new cases.
85 http://www.unilex.info/.
2 Foreign Cases and Uniform Interpretation of CISG 93

decisions and arbitral awards relating to the texts formulated by UNCITRAL.86 The
database aims to promote international awareness and understanding of legal texts
made by UNCITRAL and to facilitate their uniform interpretation and application.
A detailed reporting system on legal texts and cases is created. Till now, CLOUT
collects cases on CISG and the Model Law on International Commercial Arbitra-
tion. Assisted by national correspondents, CLOUT covers cases of many member
states, which are published in the six official languages of the United Nations. More
importantly, CLOUT is a tool for UNCITRAL to supervise the interpretation and
application of CISG. Where problems occur, UNCITRAL could provide relevant
solutions. However, only abstracts of cases are provided by CLOUT, which is not
detailed enough.

Pace Database

The Pace University in the United States is renowned for its achievements in the
research on CISG. Its database on CISG87 was awarded the best website in 2002
by the Association of International Law Databases. As indicated in the award, the
database is a great project, which covers nearly all materials relevant to CISG. Such an
innovative database gives us an opportunity to promote international collaborations
on the uniform application of CISG. On the websites, legal texts, commentaries,
books and papers on CISG are free to the users. In particular, Pace University and
Queen Mary of the University of London jointly conducted the project to translate
CISG cases. Full texts of over 2000 cases and abstracts of 5000 cases are now
available. However, this database requires registration now. It is unclear whether it
will still be open access in the future.

CISG-Online

CISG-online is another database that is dedicated to the law and practice of CISG.88
It collects and makes available case law that has interpreted and applied CISG in
jurisdictions throughout the world as well as in arbitral proceedings.89 With its current
coverage of 6269 decisions (5366 court decisions from 69 jurisdictions and 903
arbitral awards), CISG-online ranks among the most comprehensive collections of
CISG case law available today.90
Moreover, CISG-online, as an institutional CLOUT partner, provides access to
documents from CISG’S legislative history to all abstracts on CISG cases published

86 https://uncitral.un.org/en/case_law.
87 http://www.cisg.law.pace.edu/.
88 https://cisg-online.org/home.
89 https://cisg-online.org/home.
90 https://cisg-online.org/home.
94 4 Supplementary Materials and Uniform Interpretation of CISG

by in the (CLOUT) system and to the UNCITRAL Digest on the CISG.91 In addition,
CISG-online is a research platform that provides a Bibliography on the CISG.92 When
searching a case, it will not only give the researchers the case they look for but also
the list of publications relating to the case.
CISG-online is a project developed and maintained, first by Professor Dr. Ingeborg
Schwenzer and now by Professor Dr. Ulrich G. Schroeter and his team at the Faculty
of Law of the University of Basel (Switzerland).93 It receives valuable support from
a group of international contributors, too.94
CISG-online is a pro bono project for the benefit of the global community of
commercial lawyers.95 It is accessible free of charge.96 Unlike Pace University, no
registration is required, and therefore, more user-friendly.

Other Sources

With the development and widespread of CISG, more researchers and practitioners
collect and report CISG-related cases. There are also some websites dedicated to
CISG cases from a specific country, such as CISG Canada,97 CISG Portugal,98 and
CISG Japan.99 But it should be noted that these websites might not be updated
regularly, and the newest cases might not be found. Apart from the websites, scholars
also publish CISG cases relating to a specific country. For example, there is a series
on the Chinese CISG cases.100

2.3 Foreign Cases and Uniform Interpretation of CISG

In the information age, the availability of cases is no longer an obstacle for reference
to foreign cases. As long as judicial authorities are willing to refer to foreign cases,
it is possible that they will find them. Therefore, the biggest obstacle is the negative
attitude of judicial authorities toward foreign cases, which they are not familiar with,
or they do not trust.

91 https://cisg-online.org/home.
92 https://cisg-online.org/home.
93 https://cisg-online.org/home.
94 https://cisg-online.org/Home/international-contributors.
95 https://cisg-online.org/home.
96 https://cisg-online.org/home.
97 https://cisg.ca/about.html.
98 https://cisg-portugal.org.
99 https://lex.juris.hokudai.ac.jp/~sono/cisg/eng_index.html
100 Peng Guo, Haicong Zuo, Shu Zhang eds, Selected Chinese Cases on the UN Sales Convention

(CISG) Vol. 2 (Springer 2023); Peng Guo, Haicong Zuo, Shu Zhang eds, Selected Chinese Cases
on the UN Sales Convention (CISG) Vol. 1 (Springer 2022).
2 Foreign Cases and Uniform Interpretation of CISG 95

The success of the UCC of the United States indicates the importance of refer-
ence to cases handled by other judicial authorities. In the United States, UCC is
applied by courts in the states. Even though divergences exist in the interpretation
of UCC, the key provisions are uniformly interpreted. One of the most important
reasons is that American judges hold a common belief that the uniformity of UCC
should be kept though consideration of cases handled by other states.101 For CISG,
a convention applicable to parties of different contracting states, judges in national
authorities may not share the above common belief. But as long as they pay proper
attention to interpretations made by their peers in other countries, the uniformity in
the interpretation of CISG can be promoted.
The change in the attitude of American courts on foreign cases best illustrates
the importance of foreign cases in facilitating the uniform interpretation of CISG.
During the first ten years since CISG went into effect, the number of cases published
by American courts was extremely limited. A series of cases indicated that American
judges did not know how to interpret and apply conventions on the basis of interna-
tional law.102 For example, the first case governed by CISG heard by the American
Circuit Court of Appeals is extremely disappointing.103 In this case, the court held
it was unnecessary to decide whether CISG or states law governed the dispute. No
matter whether CISG was applicable or not, the court argued that the parol evidence
rule as a common law of the state of Texas should be applied. The court appeared to
follow provisions of Article 7(1) to interpret CISG, but it did not have regard to the
international nature of CISG or the promotion of its uniform application.104 In a later
case heard by the Northern District of New York, the interpretation of CISG was
also disappointing.105 On issues concerning the application of CISG, a fundamental
breach of contract, the scope of damage and interests, the court referred many times
to the common law.106 The Circuit Court of Appeals held that Article 7(1) of CISG

101 John O. Honnold, Uniform Laws for International Trade-Early Care and Feeding for Uniform
Growth, 1 Int’l Trade and Bus. L. J. 1 (1995).
102 United States: Calzaturificio Claudia v. Olivieri Footwear, U.S. District Court, Southern District

of New York, No. 96 Civ. 8052, 6 April 1998, available online at http://cisgw3.law.pace.edu/cases/
980406u1.html, CLOUT No.413; United States: Beijing Metals v. American Business Center,
Circuit Court of Appeals (5th Circuit) [Federal Appellate Court], No. 92–2171, 15 June 1993,
available online at http://cisgw3.law.pace.edu/cases/930615u1.html, CLOUT cases No.24; United
States: Delhi Carrier v. Rotorex, U.S. Circuit Court of Appeals (2d. Cir.) [Federal Appellate Court],
No. 95–7182, 95–7186, 6 December 1995, available online at http://cisgw3.law.pace.edu/cases/951
206u1.html, CLOUT cases No. 138.
103 United States: Beijing Metals v. American Business Center, Circuit Court of Appeals (5th Circuit)

[Federal Appellate Court], No. 92–2171, 15 June 1993, available online at http://cisgw3.law.pace.
edu/cases/930615u1.html, CLOUT cases No.24.
104 Franco Ferrari, Interpretation of the Convention and Gap-filling, in Franco Ferrari, Ronald A.

Brand ed., The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in
the UN Sales Convention, European Law Publishers, 2004, pp. 257–260.
105 United States: Delchi Carrier v. Rotorex, Northern District of New York [Federal Court of 1st

Instance], No. 88-CV-1078, 9 September 1994, available online at http://www.cisg.law.pace.edu/

cisg/wais/db/cases2/940909u1.html, CLOUT cases No. 85.
106 Joanne M. Darkey, A.U.S. Court’s Interpretation of Damage Provisions under the U.N. Conven-

tion on Contracts for the International Sale of Goods: A Preliminary Step towards an International
96 4 Supplementary Materials and Uniform Interpretation of CISG

should be followed in interpreting CISG. Unfortunately, no international materials

could be found in its final judgment.107 In these similar cases, the court treated them
like cases governed by national law. Supplementary materials were totally neglected
in their interpretations of CISG.
Till the MCC-Marble Case of 1998,108 the Circuit Court of Appeals began to
apply different approaches to interpreting CISG. The court took regard to works on
CISG and referred to relevant national and foreign cases. The case was extremely
important, because from then on American courts took an international approach
to interpreting CISG. Of course, the court was still cautious in interpreting such an
international convention.
Later, in a series of cases governed by CISG, American courts referred to foreign
cases to interpret CISG.109 In these cases, the courts strengthened the importance of
reference to foreign cases in safeguarding uniformity of interpretation and application
of CISG. Even though foreign cases are not legally binding, but they assisted judges
in making correct judgments. For example, in a case of 2004,110 in order to decide
whether the buyer was entitled to claim non-conformity of goods in accordance with
Article 38 and Article 39 of CISG, the court referred to many relevant cases collected
in UNILEX and similar cases handled by Dutch, German and Italian courts.111 After
a comparative examination, the court decided that the buyer had not checked the
conformity of goods within a reasonable period of time. This case is a milestone,

Jurisprudence of CISG or Missed Opportunity?, Journal of Law and Commerce, Vol. 15, 1996,
pp. 151–152.
107 United States: Delchi Carrier v. Rotorex, U.S. Circuit Court of Appeals (2d. Cir.) [Federal

Appellate Court], No. 95–7182, 95–7186, 6 December 1995, available online at http://cisgw3.law.
pace.edu/cases/951206u1.html, CLOUT cases No. 138.
108 United States: MCC-Marble Ceramic Center v. Ceramica Nuova D’Agostino, U.S. Circuit Court

of Appeals (11th Circuit) [Federal Appellate Court], No. 97–4250, 29 June 1998, available online
at http://cisgw3.law.pace.edu/cases/980629u1.html, CLOUT cases No. 222.
109 United States: Medical Marketing v. Internazionale Medico Scientifica, U.S. District Court,

Eastern District of Louisiana, No. 99–0380 Section “K” (1), 17 May 1999, available online at http://
cisgw3.law.pace.edu/cases/990517u1.html, CLOUT cases No.418; United States: Usinor Industeel
v. Leeco Steel Products, U.S. District Court for the Northern District of Illinois, Eastern Division
[Federal Court of 1st Instance], No. 02 C 0540, 28 March 2002, available online at http://cisgw3.
law.pace.edu/cases/020328u1.html, CLOUT cases No. 613.
110 United States: Chicago Prime Packers, Inc. v. Northam Food Trading Co., et al., U.S. District

Court for the Northern District of Illinois [Federal Court of 1st Instance], No. 01 C 4447, 21 May
2004, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/040521u1.html.
111 Netherlands: Fallini Stefano and Co.s.n.c. v. Foodic BV, Arrondissementsrechtbank Roermond

[District Court], No. 900336, 19 December 1991, available online at http://www.unilex.info/case.

cfm?pid=1&id=34&do=case, CLOUT cases No.98; Germany: Ham case, Amtsgericht Riedlingen
[Petty District Court], No. 2 C 395/93, 21 October 1994, available online at http://www.unilex.info/
case.cfm?pid=1&id=116&do=case; Germany: Shoes case, Landgericht Frankfurt am Main [District
Court], No. 3/13 O 3/94, 13 July 1994, available online at http://www.unilex.info/case.cfm?pid=
1&id=49&do=case; Italy: Sport D’Hiver di Genevieve Culet v. Ets. Louys et Fils, Tribunale Civile
di Cuneo [District Court], No. 45/96, 31 January 1996, available online at http://www.unilex.info/
case.cfm?pid=1&id=160&do=case.
2 Foreign Cases and Uniform Interpretation of CISG 97

because till now, it is the case in which the largest number of foreign cases was
referred to.112
Italian courts are also praised for their reference to foreign cases in interpreting
CISG. In an Italian case handled in 1996, the court referred to foreign judgments.
In this case,113 the court referred to similar cases handled by Swiss and German
courts. In accordance with Article 39, it decided that the Italian buyer did not make
the notification of non-conformity of goods within a reasonable period of time after
delivery of the goods.114 This is the first case that Italian courts turned to foreign
cases in interpreting CISG. Such a tradition is kept in later cases.
In Rheinland Versicherungen v. Atlarex,115 the court referred to relevant cases
handled by Australian, Dutch, French, German, Italian, American, Swiss courts and
ICC arbitration awards. In a case of 2002,116 the Italian court turned to nineteen cases
handled by German, Swiss, Belgian and Dutch courts and arbitration institutions. In
this case, the court also discussed whether it was necessary to refer to foreign cases
in interpreting CISG. After a comparative study of American, French, Belgian and
Austrian practices, the court held that foreign cases had to be taken into account even
though they were not legally binding. The number of foreign cases referred to in this
case reached thirty-seven.
As illustrated by the above-mentioned cases, reference to foreign cases in supple-
menting the interpretation of CISG has been a common practice. Besides Italian
and American courts, German courts also take the lead. The cases referred to by
German courts are not limited to those handled by judicial authorities in European
Continental countries, but by those of other countries. In addition, the courts in
France, Australia, Australia, Belgium, Netherlands and Spain also pay more and
more attention to foreign cases in interpreting CISG.
The cases referred to by national judicial authorities remain mainly judgments
of the courts. Due to the requirement of confidentiality, the number of arbitration
awards made public is still limited. In the above-mentioned databases on CISG,
cases collected are mainly judgments of courts in Western and Northern Europe. Of

112 Annabel Teiling, CISG: U.S. Court Relies on Foreign Case Law and the Internet, 9 Unif. L.
Rev. n.s. 431, 434 (2004).
113 Italy: Sport D’Hiver di Genevieve Culet v. Ets. Louys et Fils, Tribunale Civile di Cuneo [District

Court], No. 45/96, 31 January 1996, available online at http://www.unilex.info/case.cfm?pid=1&

id=160&do=case.
114 Switzerland: Furniture case, Pretura di Locarno-Campagna [District Court], No. 6252, 27 April

1992, available online at http://www.unilex.info/case.cfm?pid=1&id=41&do=case, CLOUT cases

No.56; Germany: Shoes case, Landgericht Stuttagrt [District Court], No. 3 KfH O 97/89, 31 August
1989, available online at http://www.unilex.info/case.cfm?pid=1&id=1&do=case, CLOUT cases
No.4.
115 Italy: Rheinland Versicherungen v. Atlarex, Tribunale di Vigevano [District Court], 12

July 2000, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/000712i3.html,

CLOUT cases No. 405; Franco Ferrari, Applying the CISG in a Truly Uniform Manner: Tribunale
di Vigevano(Italy), 12 July 2000, 6 Unif. L. Rev. n.s. 203 (2001).
116 Italy: Al Palazzo S.r.l. v. Bernardaud di Limoges S.A., Tribunale di Rimini [District Court], No.

3095, 26 November 2002, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/

021126i3.html, CLOUT cases No.608.
98 4 Supplementary Materials and Uniform Interpretation of CISG

the 700 cases assembled in UNILEX, nearly 30% are German cases.117 However,
with more and more contracting states collecting and compiling cases governed by
CISG, such a situation will be gradually improved. Therefore, the international legal
background for the autonomous interpretation of CISG will be further consolidated.
Another gratifying phenomenon in reference to foreign cases is that on certain
matters mostly discussed by judicial authorities, uniform interpretations have been
reached. For example, in the determination of the reasonable time referred to in
Article 39 of CISG, judicial authorities cross-examined similar cases and reached
common ground on such a matter: reasonable time shall be strictly interpreted, and a
specific period of time shall be determined in regard of the goods, conditions the sales
contract, customs and practices of the parties.118 This can be called an aggregation
effect. With an interpretation becoming popular, it will be followed more easily by
judicial authorities. Therefore, after selection and disposal, only cases that best fit the
correct and appropriate meaning of a provision of CISG could be followed in later
judgments and awards. It is reasonable for us to expect that an equivalent consensus
could be reached by judicial authorities on other matters governed by CISG, such as
forms of contract and burden of proof.
A particular question may arise as when referring to foreign case law. Some
countries have a rich case law on CISG while other countries do not. One may
wonder whether cases from countries with a rich case law should be given greater
weight than cases from other countries with less cases with respect to questions of
law related to the CISG, as courts of countries with a rich case law might have more
experiences in hearing and deciding CISG cases. However, there is no need to weigh
foreign case law. A good CISG case is a good CISG case, as it is the commercial and
legal reasonings that speak for the value of a case, not the origin of the case nor the
status of the judge or other factors.119

3 Legislative History

Legislative history is a necessary tool for accurate understanding and interpretation of

a legal text. This is particularly true for CISG. As Professor John Honnold observes,
“when important and difficult issues of interpretation [of CISG] are at stake, diligent
counsel and courts will need to consult the CISG’s legislative history. In some cases,
this can be decisive.”120

117 http://www.unilex.info/dynasite.cfm?dssid=2376&dsmid=13354.
118 Belgium: Roelants Eurosprint v. Beltronic Engineering International, Rechtbankvan
Koophandel Hasselt [District Court], No. A.R. 2703/01, 6 March 2002, available online at http://
www.cisg.law.pace.edu/cisg/wais/db/cases2/020306b2.html.
119 Francesco G. Mazzotta and Camilla Baasch Andersen, Introduction in Camilla Baasch Andersen,

Francesco G. Mazzotta and Bruno Zeller (eds.) A Practitioner’s Guide to the CISG (Juris, 2nd ed,
2018) xv, xviii-xx.
120 John O. Honnold, Uniform Laws for International Trade-Early Care and Feeding for Uniform

Growth, 1 Int’l Trade and Bus. L. J. 1, 5 (1995).

3 Legislative History 99

The legislative history of the CISG has been published by UNCITRAL in its
Yearbooks.121 It meets criterion (1) without doubt. The publication of the legisla-
tive history by UNCITRAL could be seen as an effort to promote a better under-
standing and a uniform application of the CISG, although it is not expressly indicated.
Therefore, it may meet criterion (2).
Further, regarding (3), the legislative history is easily accessible via the UNCI-
TRAL website122 or CISG Database at Pace University,123 but unlike the Digest, it
does not have a full Chinese version. Regarding the contemporariness (criterion (4)),
the legislative history is originated from more than 40 years ago and could not reflect
the current view in practice.
As to criterion (5), however, since different views had been expressed in the
legislative process and the CISG was eventually a compromise to bridge the differ-
ences among the signatories, it would be a bit difficult to conclude that the legislative
history could provide certainty and coherence as the Digest. Thus, regarding criterion
(5), the contribution made by the legislative history may not be as significant as the
Digest.
To sum up, the legislative history of the CISG meets most of the criteria indicated
above but may be less significant and influential than the Digest. Thus, it might be less
valuable than the Digest, but could still be taken into account for the interpretation
and application of the CISG at the court’s discretion.
At first glance, the legal texts of Article 7 do not allow any other means to fill
gaps in CISG. As autonomous interpretation requires reference to legislative history
and other supplementary materials to confirm the meaning of a particular provision,
we could turn to legislative history to identify the real meaning of this article.
From a systematic viewpoint, Article 7 can be divided into three parts:
(a) the “international character of the Convention” and the “need to promote
uniformity in its application” are the basic criteria for the interpretation of the
Convention.
(b) “observance of good faith in international trade” is a supplementary criterion;
(c) means of gap filling are given in Article 7(2).124
In the triadic classification of Article 7, the first part is probably the most important
one since it not only stresses the character of CISG and its all-important goal of
uniform application, but it also describes “the process by which those called upon
to apply the Convention to a particular case ascertain the meaning and legal effect
to be given to its individual articles.” In effect, the first part of Article 7(1) is the

121 John Honnold, Documentary History of the Uniform Law for International Sales, (Kluwer 1989),
which represents a consolidation of the UNCITRAL Yearbooks recording the legislative history of
the CISG.
122 https://www.uncitral.org/pdf/english/texts/sales/cisg/a-conf-97-19-ocred-e.pdf last visited on

03/04/2020.
123 https://iicl.law.pace.edu/cisg/page/legislative-history-1980-vienna-diplomatic-conference last

visited on 03/04/2020.
124 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980

Vienna Sales Convention, Giuffrè Milan, 1987, p. 72.

100 4 Supplementary Materials and Uniform Interpretation of CISG

tool that determines the precise scope of the other two parts of Article 7.125 It is the
fundamental requirement of applying and interpreting the text of CISG, even in the
gap-filling process.
Secondly, this classification also declares how to confirm the accurate meaning
of CISG’s articles in the proper order, especially in a particular case. For instance, it
may control the operation of Article 7(2) since the interpretation of a given provision
is vital in determining whether that provision may be applied by analogy, or whether
a true gap exists in CISG’s provisions.
In brief, Article 7 sets up a criterion for interpreting the CISG. Therefore, when we
try to explain the meaning of a specific article of CISG, we must follow certain rules
stipulated by Article 7.126 Acting as a polestar for interpretation is its calling which
had been given to Article 7 by those drafters of CISG. To promote the uniformity of
interpretation, Article 7 of the CISG itself undertakes the formidable task of guiding
judges. This article is arguably the single most important provision in ensuring the
future success of the CISG.127
Travaux préparatoires is an indispensable tool for interpreters to identify the
judgments and selections made by drafters in drafting an international convention. It
is supplementary in confirmation of the true meaning of a particular provision. This
is particularly true for Article 7. An examination of the history of Article 7 could
enable us to be clear of the evolution of this article, and debates on it, in order to
capture its true meaning.

3.1 Legislative History of Article 7(1)

During the drafting process, the debate on Article 7(1) was focused on two key issues:
(a) autonomy in the interpretation of CISG, (b) status and function of the principle
of “good faith” in the interpretation of CISG.

3.1.1 Regard Over the International Nature and Promotion

of Uniformity

The predecessor to CISG, ULIS, had already addressed the problem of interpretation.
Article 2 of ULIS reads: “Rules of private international law shall be excluded for the

125 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980
Vienna Sales Convention, Giuffrè Milan, 1987, p. 72.
126 John Felemegas, The United Nations Convention on Contracts for the International Sale of

Goods: Article 7 and Uniform Interpretation, Pace Review of the Convention on Contracts for the
International Sale of Goods (CISG), 115–265 (2000–2001), available online at http://www.cisg.
law.pace.edu/cisg/biblio/felemegas.html.
127 Phanesh Koneru: The International Interpretation of the UN Convention on Contracts for the

International Sale of Goods: An Approach Based on General Principles, 6 Minn. J. Global Trade
105, 106 (1997).
3 Legislative History 101

purpose of the application of the present Law, subject to any provision to the contrary
in the said Law.”128 According to Article 17 of ULIS, “questions concerning matters
governed by the present Law which are not expressly settled therein shall be settled
in conformity with the general principles on which the present Law is based.”129
These two provisions strongly indicate that ULIS was intended to “constitute a self-
contained law of sales, to be construed and applied autonomously, i.e., without any
reference to or interference from the different national laws.”130 This approach of
autonomous and self-sufficient interpretation, in contrast, strengthens the position of
CISG as a uniform international law.
It was, however, strongly argued in UNCITRAL that the uniform law could not
be considered as totally separate from the various national laws and that it would
be unrealistic and impractical to construe many undefined terms contained without
having recourse to national laws. For example, Austria submitted that the requirement
laid down by Article 17 was of questionable practicability. The ULIS contained
many terms that existed in national laws but were not clearly defined. It did not seem
possible to separate their interpretation from the interpretation of the same terms as
they were used in national laws.131
At the first session of the Working Group in 1970, several proposals were
submitted for the revision of Article 17 of the ULIS. One suggestion was to redraft
the text as follows: “The present Law shall be interpreted and applied so as to further
its underlying principles and purposes, including the promotion of uniformity in the
law of international sales.”132 This proposal was not supported by a majority of the
Working Group.133
At the third session of UNCITRAL in 1970, they were unable to reach an agree-
ment as well.134 Therefore, the Working Group had to discuss the matter again at
its second session in 1971. At that meeting, the Working Group recommended that
the present article 17 be deleted and that the following language, for the present, be

128 ULIS, Art.2: “Rules of private international law shall be excluded for the purpose of the
application of the present Law, subject to any provision to the contrary in the said Law.”.
129 ULIS, Art.17: “Questions concerning matters governed by the present Law which are not

expressly settled therein shall be settled in conformity with the general principles on which the
present Law is based.”.
130 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980

Vienna Sales Convention, Giuffrè Milan, 1987, p. 66.

131 Report of the Secretary General, Analysis of Replies and Comments by Governments on the

Hague Conventions of 1964, [1970] 1 Y.B. UNCITRAL 159, p. 170; Analysis of Comments and
Proposals Relating to Articles 1–17 of the Uniform Law on the International Sale of Goods: Note
by the Secretary-General, [1972] 3 Y.B. UNCITRAL 69, pp. 77.
132 Report of the Working Group on the International Sale of Goods on its First Session, [1970]

1 Y.B. UNCITRAL 176, pp. 182, para.63. In the French text: “La présente loi sera interprétée et
appliquée conformément aux principes généraux dont elle s’inspire et à ses objectifs, en particulier
la promotion de l’uniformité du droit en matière de vente internationale.”.
133 Report of the Working Group on the International Sale of Goods on its First Session, [1970] 1

Y.B. UNCITRAL 176, pp. 182–183, para. 72.

134 Report of the United Nations Commission on International Trade Law on the Work of its Third

Session, U. N. GAOR, 25th Sess., [1970] 1 Y.B. UNCITRAL 129, p. 136.

102 4 Supplementary Materials and Uniform Interpretation of CISG

adopted: “In interpreting and applying the provisions of this Law, regard shall be had
to its international character and to the need to promote uniformity in its interpre-
tation and application.”135 This formula adopted by the Working Group expressed
two considerations not mentioned in the original article: the international character
of the law, and the need for uniform interpretation and application. These considera-
tions were emphasized since some courts might otherwise give local meanings to the
language of the Law—an approach that would defeat the law’s objective to produce
uniformity. It was also suggested that the provision would contribute to uniformity by
encouraging recourse to foreign materials, in the form of studies and court decisions,
in constructing the Law. This language might also help courts in some countries to
make reference to travaux préparatoires and other materials on the legislative history
of the Law, which they may not be otherwise able to do.136
At its fourth session, in 1971, the UNCITRAL approved the new provision as
proposed by the Working Group. At subsequent sessions, devoted to the revision of
the ULIS, the Working Group did not discuss the matter further. The only change
introduced to the original proposal was to delete the words “in its interpretation and
application” since they were considered to be redundant. Consequently, when the
Draft Convention on Contracts of the International Sale of Goods was adopted by
the Working Group at its seventh session in 1976, it contained Article 13 which read
as follows: “In the interpretation and application of the provisions of this Conven-
tion, regard is to be had to its international character and to the need to promote
uniformity.”137

3.1.2 Observance of Good Faith in International Trade

Meanwhile, UNCITRAL was revising the ULF as well. A new provision, Article 5
of the Draft Convention on the Formation of Contracts for the International Sale of
Goods, was adopted by the Working Group at its ninth session in 1978. It stated as
follows: “In the course of the formation of the contract the parties must observe the
principles of fair dealing and act in good faith.”138 This article was the subject of
intensive discussions at the eleventh session of the UNCITRAL in 1978.139

135 Report of the Working Group on the International Sale of Goods on its Second Session, [1971]
2 Y.B. UNCITRAL 50, p. 62, para127.
136 Report of the Working Group on the International Sale of Goods on its Second Session, [1971]

2 Y.B. UNCITRAL 50, p. 62, para130.

137 Draft Convention on International Sale of Good, [1976] 7 Y.B. UNCITRAL 89, p. 96.
138 Report of the Working Group on the International Sale of Goods on the Work of Its Ninth

Session, [1978] 9 Y.B. UNCITRAL 61, pp. 84; Report of the Secretary-General: Commentary on
the Draft Convention on the Formation of Contracts for International Sale of Goods, [1978] 9 Y.B.
UNCITRAL 106, pp. 112.
139 Report of the Secretary-General: Analytical Compilation of Comments by Governments and

International Organizations on the Draft Convention on the Formation of Contracts for the
International Sale of Goods, [1978] 9 Y.B. UNCITRAL 127, pp. 132–133.
3 Legislative History 103

According to those who favoured deletion of the provision, the principles of good
faith and fair dealing were highly desirable in international commerce, but the way
in which these principles were formulated was too vague. National courts applying
the provision of fair dealing and good faith would be influenced by their own legal
and social traditions. Different interpretations would be given to the provision in
different countries. It was also argued that the draft uniform law did not specify the
consequences of failure to observe the principles which were made binding on the
parties. This meant that the consequences of a violation of the principles of good
faith and fair dealing would be left to national law, with the result that no uniformity
of sanctions would be achieved either.
The arguments in support of the article’s retention were equally persuasive. First,
it was argued that because of the worldwide recognition of the principle of good
faith, there would be little harm in including it in the Convention. Countering the
objection that the proposed provision did not set out the consequences of a violation
of the principles of good faith and fair dealing, it was argued that sanctions should
be determined by the courts in a flexible manner and according to the particular
circumstances of each case. It was further added that, even without sanctions, the
existence of the provision would be of benefit because it would draw the attention of
the parties and the court to the fact that high standards of behaviour were expected
in international trade transactions.
Some possible compromises were suggested to resolve the differences in the
inclusion of the good faith provision. One suggestion was to include the substance of
the proposed Article 5 in a preamble to the Vienna Sales Convention. The supporters
of the good faith principle objected that this would deprive it of any effect. Another
proposal was to incorporate the requirement of the observance of good faith into
the rules for interpreting the statements and conduct of the parties. The argument
against this suggestion was based on the point that the proposed Article 5 was not
concerned with the intent of the parties. It sought to establish a standard of behaviour
to which the parties were obliged to conform. A third suggestion was to incorporate
the principle of observance of good faith into the article on the interpretation and
application of the provisions of CISG. The Commission eventually accepted the last
suggestion as a feasible compromise solution.140
In the same session, UNCITRAL decided to consolidate the text of the two Draft
Conventions into a new one, the Draft Convention on Contracts for the International
Sale of Goods (1978). In this new draft, Article 5 of the original Formation Draft had
ceased to exist. Instead, Article 6 which corresponded to Article 13 of the former
Sales Draft, and now appeared as Article 7 of the CISG, was revised so as to read
as follows: “In the interpretation and application of this Convention regard is to

140 Report of the Secretary-General: Analytical Compilation of Comments by Governments and

International Organizations on the Draft Convention on the Formation of Contracts for the
International Sale of Goods, [1978] 9 Y.B. UNCITRAL 127, pp. 132–33.
104 4 Supplementary Materials and Uniform Interpretation of CISG

be had to its international character and to the need to promote uniformity and the
observance of good faith in international trade.”141
Several amendments to Article 6 of the UNCITRAL Draft Convention were
submitted at the Vienna Conference. Some of these amendments were merely of
a drafting character and led to the small grammatical changes that now appear in
the wording of Article 7(1).142 But there were also some amendments of substance
submitted and they were related to the addition of a new paragraph to the provision
dealing with the problem of gaps in the CISG.
The appropriateness of referring to the principle of good faith in the article on the
interpretation and application of CISG was questioned again at the Vienna Confer-
ence. Two amendments were submitted, both suggesting the deletion of the last part
of Article 6, paragraph 1 (i.e., “the observance of good faith in international trade")
and transferring it to another context. Norway’s proposal was to delete the words:
“and the observance of good faith in international trade”, and at the end of Article 7
paragraph 3 (Article 8 of CISG), add the words: “having regard to the need to ensure
the observance of good faith in international trade”. Italy suggested inserting the
following new article after Article 6 (Article 7 of CISG) stating that: “In the forma-
tion [interpretation] and performance of a contract of sale the parties shall observe the
principles of good faith and international cooperation.”143 The prevailing view was
against reopening discussion on an issue that had already been the subject of exten-
sive debate within UNCITRAL leading to the present compromise solution. Thus,
at the 5th meeting, the amendment of Norway was withdrawn, and the amendment
by Italy was rejected. Article 7(1) of CISG was adopted without further changes by
the Conference.
An examination of the legislative history of Article 7(1) indicates that the
autonomy of CISG was recognized through the competition between CISG and
national laws. Although private international rules are kept in Article 7(2), it is a
means to fill gaps left by CISG. Since gap fillings shall follow the principles laid in
Article 7(1), regard of the international nature of CISG and the promotion of unifor-
mity in its application becomes the fundamental criterion to judge the legality of an
interpretation of CISG.
As to the principle of good faith, there were two completely contrary opinions
among the drafters of CISG. One group argued that the parties to the contract on
the international sale of goods should be bound by the principle of good faith; the
other group argued that such a principle should not be included in CISG, since it was
too uncertain and inconsistent in national practices.144 The compromised solution

141 Text of the draft Convention on Contact for the International Sale of Goods, Report of the
Commission on the Work of its Eleventh Session, [1978] 9 Y.B. UNCITRAL 11, pp. 15.
142 The Amendment of America, Report of the First Committee, 1980 U.N. Official Records, p. 87;

The Amendments of France, Report of the First Committee, 1980 U.N. Official Records, p. 87.
143 The Amendment of Norway; The Amendment of Italy, Report of the First Committee, 1980

U.N. Official Records, p. 87.

144 John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Conven-

tion, Kluwer, 2nd ed. 1991, p. 146; C.M. Bianca and M.J. Bonell eds., Commentary on the
International Sales Law: The 1980 Vienna Sales Convention, Giuffrè Milan, 1987, pp. 83–84.
3 Legislative History 105

reached at the Vienna Conference was that the principle of good faith was put into the
second paragraph of Article 7(1), as a criterion of interpretation. Such a compromise
has been under challenge by academics and national dispute resolution authorities
since CISG went into effect.145
The text of Article 7(1) covers only the application of CISG, rather than the parties’
rights and obligations and their exercise and performance directly. The wording was
agreed upon only after lengthy discussions in the UNCITRAL Working Group and
the plenary session of the Vienna Conference that adopted the text of the CISG, and
it was meant as a final rejection of more far-reaching proposals to apply the principle
of good faith and fair dealing to the obligations and the behaviour of the parties
themselves. There is, however, a strong body of academic opinion holding that the
evaluation of the relations, rights and remedies of the parties, could also be subject
to the principle of good faith and fair dealing. It is asserted that the principle of good
faith, in addition to its interpretative role on the CISG provisions, has also found its
way into the CISG as one of its important general principles under Article 7(2).

3.2 Legislative History of Article 7(2)

According to Article 7(2) of CISG, questions concerning matters governed by CISG

that are not expressly settled in it are to be settled in conformity with the general prin-
ciples on which it is based or, in the absence of such principles, in conformity with the
law applicable by virtue of the rules of private international law. The most controver-
sial issue in drafting this provision is whether CISG shall fill its gaps through general
principles of law or leave them to national laws according to private international
rules. In fact, such an issue could be deemed as part of the debate on the autonomy
of CISG.
As mentioned above, Article 2 and Article 17 of the ULIS strongly indicate
that ULIS was intended to “constitute a self-contained law of sales”. This strongly
supports that CISG should be applied and interpreted in its frame. Furthermore, it
states clearly that the CISG does not want to be interfered with by any domestic
law, even when gaps in the texts appear. As Professor Bonell argued, “if courts were
permitted to turn to their domestic law, this would preclude the application of the
uniform law in many cases that the drafters and the parties themselves had wanted
to be covered by the uniform law.”146 Furthermore, “it would also involve a great
amount of uncertainty because the relevant rules of private international law for the

145 Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer, Marisa Pagnattaro, The
Interpretive Turn in International Sales Law An Analysis of Fifteen Years of CISG Jurisprudence,
24 Nw. J. Int’l L. and Bus. 299, 319 (2003); Switzerland: Lambskin coat case, Handelsgericht
[Commercial Court], No. HG 930,634/O, 30 November 1998, available online at http://cisgw3.law.
pace.edu/cases/981130s1.html, CLOUT cases No.251.
146 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980

Vienna Sales Convention, Giuffrè Milan, 1987, p. 66.

106 4 Supplementary Materials and Uniform Interpretation of CISG

determination of which national law should be applied in each case are neither clear
nor uniform.”147
As to the two provisions of ULIS, the opinions of members of the working group
varied. Supporters held that Article 2 should be kept since it could safeguard the
uniform interpretation and application of such an international legal instrument. If
references to national laws were allowed, national courts would be more inclined
to apply national laws. As a result, the expectation of the drafters of ULIS and
the parties to the contract to apply the uniform law would be shattered. This would
affect the functions of the uniform law and bring more uncertainties. National private
international law rules were not unified. The domestic law of a nation would be
unfamiliar to at least one party. Disputes over the contents of the applicable domestic
law could not be avoided. In addition, domestic laws were usually not proper to
resolve special issues concerning international trade. Gap-filling through national
laws would not lead to uniform approaches to resolving the problem. On the contrary,
general principles listed in the ULIS could develop common approaches to filling
the gaps through the accumulation of experiences.
The opponents argued that the “general principles” is an unclear definition, and
the ULIS never clearly regulates or states those principles on which it is based.
Besides, it is questionable that we could actually find those principles in practice.
Austria also submitted that the requirement laid down by Article 17 was of question-
able practicability. Some questions of very great importance to transactions arising
from contracts of sales, such as prescription, were not dealt with at all in the ULIS.
Therefore, under this circumstance, it is not feasible to solve all these problems only
by relying on the spirit of the uniform law.148
At the first session of the Working Group in 1970, several proposals were
submitted for the revision of Article 2 and Article 17 of the ULIS. One was to delete
Article 17 completely. A second proposal called for the revision of Article 17 to read
as: “private international law shall apply to questions not settled by ULIS.”149 No
one of the various proposals was supported by a majority of the Working Group.150
However, at the second session of the Working Group in 1971, they still deleted the
present Article 17, and recommended the following text to be adopted: “In inter-
preting and applying the provisions of this Law, regard shall be had to its interna-
tional character and to the need to promote uniformity in its interpretation and appli-
cation.”151 In the report of the Working Group, they pointed out that the original

147 Ibid.
148 Report of the Secretary General, Analysis of Replies and Comments by Governments on the
Hague Conventions of 1964, [1970] 1 Y.B. UNCITRAL 159, p. 170; Analysis of Comments and
Proposals relation to article 1–17 of the ULIS 1964, [1971] 2 Y.B. UNCITRAL 37, p. 49.
149 Report of the Working Group on the International Sale of Goods on its First Session, [1970]

1 Y.B. UNCITRAL 176, p. 182, para.66. In the French text: “Le droit international privé sera
applicable aux questions non réglées par la présente loi.”.
150 Report of the Working Group on the International Sale of Goods on its First Session, [1970] 1

Y.B. UNCITRAL 176, p. 183, para.72.

151 Report of the Working Group on the International Sale of Goods on its Second Session, [1971]

2 Y.B. UNCITRAL 50, p. 62, para127. The new provision read: “In interpreting and applying the
3 Legislative History 107

expression of “general principle” was vague and illusory; such a reference would
lead to uncertainty and possibly to a Court’s use of its own national rules on the
assumption that these were the general principles underlying the Uniform Law.152
The new provision was adopted by UNCITRAL in its fourth session in 1971.
However, some members still suggested adding a new paragraph to deal with the
gap-filling issue. Unfortunately, on this issue, the opinions were divided into two
camps. One camp insisted on using the “general principle”, which was in the original
Article 17, to deal with the gaps in the Uniform Law. On the contrary, the other
proposed that private international law should be applied to questions not settled by
the Uniform Law. One representative even submitted a written proposal suggesting
that the Uniform Law should contain a subsidiary uniform rule on conflict of laws
specifying which national law would be applied in cases where the Uniform Law
did not provide an answer to the question at issue. The Commission concluded that
it was not practicable to reach a decision on these questions at the intermediate stage
of the revision of the uniform rules. It was suggested that such problems could be
resolved more readily when a text proposed by the Working Group was reviewed as a
whole. For these reasons, it was concluded that the observations made at this session
of the Commission should be referred to the Working Group for its consideration at
an appropriate time.153
However, the Working Group did not discuss this further at the several subsequent
sessions. The Draft Convention on Contact for the International Sale of Goods (1978),
which the UNCITRAL submitted to the Diplomatic Conference held in Vienna in
1980, did not contain a provision dealing with the gap-filling issue. There was only
Article 6 concerning the interpretation of the uniform law. The discussion of this
problem was not reopened till the Conference. Some countries and international
organizations submitted their amendments to the Conference suggesting that a new
paragraph should be added to the provision dealing with the gap-fill in the convention.
The substantive amendments proposed for the gap-filling mechanism of the CISG
could be divided into two different groups. Countries in the first group, such as
Bulgaria and Czechoslovakia, proposed that gaps in the CISG should be filled
according to a certain set of legal rules already in existence. Bulgaria suggested
that gaps “shall be settled according to the law of the seller’s place of business”.
Czechoslovakia proposed that “the law applicable by virtue of the rules of private
international law” should determine unsettled matters. Meanwhile, some other coun-
tries insisted that the “general principles” of CISG should be applied as a primary
means of gap-filling. The amendment proposed by Italy stated as follows: “Ques-
tions concerning matters governed by this Convention which are not expressly settled
therein shall be settled in conformity with the general principles on which this

provisions of this Law, regard shall be had to its international character and to the need to promote
uniformity in its interpretation and application.”.
152 Report of the Working Group on the International Sale of Goods on its Second Session, [1971]

2 Y.B. UNCITRAL 50, p. 62, para129.

153 Report of the United Nations Commission on International Trade Law on the Work of its Fourth

Session, [1971] 2 Y.B. UNCITRAL 9, p. 21, para.81–91.

108 4 Supplementary Materials and Uniform Interpretation of CISG

Convention is based or, in the absence of such principles, by taking account of

the national law of each of the parties.”154
For a variety of reasons, none of the proposed amendments gained sufficient
support. Bulgaria’s proposal was rejected on the basis that it was biased in favour
of the seller too much. The representatives considered that “even if one intended to
accept its underlying idea according to which gaps in CISG should always be filled
on the basis of domestic law, it was not advisable to refer in every single case for
this purpose to the law of the seller’s place of business.”155 As to the amendment of
Italy, the representatives turned it down as well because its reference to “the national
law of each of the parties” was considered to be unclear and unable to cope with a
situation where the national laws of the parties provided irreconcilable solutions on
a particular issue of dispute.
The solution was a compromise, by combining the two amendments. The first part
of the Italian proposal was kept, but its troublesome last part was replaced with the
Czechoslovakian proposal. The resulting paragraph was added as a second paragraph
to Article 6 of the UNCITRAL Draft Convention—thus creating what is now Article
7(2): “Questions concerning matters governed by this Convention which are not
expressly settled in it are to be settled in conformity with the general principles on
which it is based or, in the absence of such principles, in conformity with the law
applicable by virtue of the rules of private international law.” This new provision
was adopted by the Conference by 17 votes to 14, with 11 abstentions.156
It is evident from the history of Article 7(2) of CISG that the gap-filling mechanism
is still a compromise. However, it is a compromise more favourable to the supporters
of the “general principles” than to its opponents. The key spirit of Article 7(1) has
been completely inherited by Article 7(2), which requests regard to the CISG’s
international character and to the need to promote its uniformity in gap-filling as
well. Gaps, which are not settled by the CISG, should not be filled on the basis of the
rules taken from a particular national law directly. Since the “general principles”, on
which the Convention is based, are the primary means of the gap-filling mechanism,
it should be applied prior to the rules of private international law. In the manner that
Article 7(2) is drafted, the risk of diversity in the Convention’s gap-filling from one
jurisdiction to another is minimized, since recourse to domestic laws is to be had
only when it is not possible to fill a gap applying the general principles on which the
Convention is based. This kind of situation is very rare.

154 The Amendment of Bulgaria; The amendment of Czechoslovakia; The Amendment of Italy,
1980 U.N. Official Records, p. 87.
155 C.M. Bianca and M.J. Bonell eds., Commentary on the International Sales Law: The 1980

Vienna Sales Convention, Giuffrè Milan, 1987, p. 70.

156 5th Meeting of the First Committee in United Nations Conference on Contract for the

International Sale of Goods, 1980 U.N. Official Records, pp. 255–257.

4 Other Supplementary Materials 109

4 Other Supplementary Materials

Apart from PICC and foreign case law, which are the most widely accepted supple-
mentary materials that could be used to assist in the interpretation and application of
CISG, there might be other materials that could be used, too. To identify and deter-
mine whether certain materials could be referred to, five criteria have been proposed
by scholars.
(1) reputation of the organisation producing the extrinsic materials;
(2) purpose of the extrinsic materials;
(3) accessibility of the extrinsic materials;
(4) contemporariness of the extrinsic materials;
(5) the extent of the contribution of the extrinsic materials to the uniform
interpretation and application of the CISG.
This section will apply the five criteria to some materials to test whether they
could be used to promote the uniform interpretation and application of CISG.

4.1 CISG Advisory Opinion

The CISG Advisory Council was established in 2001. It is a private initiative which
is chartered in the UK.157 It consists of the world’s leading scholars in the area of
international commercial law and aims at providing a more profound understanding
of the CISG and promoting a uniform interpretation of it.158 The name of the CISG
Advisory Council seems ‘official’, but it does not represent UNCITRAL. Therefore,
its opinions cannot be regarded as published by UNCITRAL and are not comparable
to the Digest and the legislative history under criteria (1). However, the reputation
of the CISG Advisory Council should still be highly regarded, as it represents the
collective thoughts of the most renowned scholars in this area.159 This guarantees the
independence of the Council and enables it to criticise the developments in certain
Member States of the CISG more objectively.160 Also, the reputation of the CISG
Advisory Council is reflected by the fact that it has been given the status of an
Observer of UNCITRAL since 2012.161

157 Ingeborg Schwenzer, The CISG Advisory Council, in Ingeborg Schwenzer (ed), The CISG
Advisory Council Opinions (Eleven International Publishing, 2017) 1, 5.
158 https://cisgac.com.
159 According to the CISG Advisory Council, “It is a private initiative in the sense that its members

do not represent countries or legal cultures, but they are scholars who look beyond the cooking pot
for ideas and for a more profound understanding of issues” relating to the CISG. https://www.cis
gac.com/home/ last visited on 03/04/2020.
160 Ingeborg Schwenzer, The CISG Advisory Council, in Ingeborg Schwenzer (ed), The CISG

Advisory Council Opinions (Eleven International Publishing, 2017) 1, 5.

161 https://cisgac.com.
110 4 Supplementary Materials and Uniform Interpretation of CISG

Further, the CISG Advisory Council’s Opinions obviously meet most of the other
criteria. The aim of the CISG Advisory Councils is to provide opinions to help
promote a uniform interpretation of the CISG (criterion (2)). As stated,
the Council is guided by the mandate of Article 7 of the Convention as far as its interpre-
tation and application are concerned: the paramount regard to international character of the
Convention and the need to promote uniformity.162

In addition, the CISG Advisory Council’s Opinions are well-organised and easily
accessible via the Council’s website (criterion (3)). To enhance its accessibility, the
Opinions have been translated into different languages.163
Moreover, the Opinions are contemporary (criterion (4)). The CISG Advisory
Council aims to address current contentious questions arising from the application of
the CISG by publishing new Opinions.164 To date, 22 Opinions have been published
covering various issues arising from or relating to CISG.165 They are:

CISG AC OPINION NO 1 Electronic Communications under CISG

CISG AC OPINION NO 2 Examination of the Goods and Notice of Non-Conformity
Articles 38 and 39
CISG AC OPINION NO 3 Parol Evidence Rule, Plain Meaning Rule, Contractual Merger
Clause and the CISG
CISG AC OPINION NO 4 Contracts for the Sale of Goods to Be Manufactured or
Produced and Mixed Contracts (Article 3 CISG)
CISG AC OPINION NO 5 The buyer’s right to avoid the contract in case of
non-conforming goods or documents
CISG AC OPINION NO 6 Calculation of Damages under CISG Article 74
CISG AC OPINION NO 7 Exemption of Liability for Damages Under Article 79 of the
CISG
CISG AC OPINION NO 8 Calculation of Damages under CISG Articles 75 and 76
CISG AC OPINION NO 9 Consequences of Avoidance of the Contract
CISG AC OPINION NO 10 Agreed Sums Payable on Breach of an Obligation in CISG
Contracts (Art 4)
CISG AC OPINION NO 11 Issues Raised by Documents under the CISG Focusing on the
Buyer’s Payment Duty (Art 58)
CISG AC OPINION NO 12 Claims for Damages Caused by Defective Goods or Services
under the CISG
CISG AC OPINION NO 13 Inclusion of Standard Terms under the CISG
CISG AC OPINION NO 14 Interest under Article 78 CISG
(continued)

162 https://cisgac.com.
163 https://cisgac.com/opinions/.
164 Ingeborg Schwenzer, Introduction, in Ingeborg Schwenzer (ed), Schlechtriem and Schwenzer

Commentary on the UN Convention on the International Sale of Goods (CISG) (Oxford University
Press, 4th ed, 2016) 1, 11–2.
165 https://cisgac.com/opinions/.
4 Other Supplementary Materials 111

(continued)
CISG AC OPINION NO 1 Electronic Communications under CISG
CISG AC OPINION NO 15 Reservations under Articles 95 and 96 CISG
CISG AC OPINION NO 16 Exclusion of the CISG under Article 6
CISG AC OPINION NO 17 Limitation and Exclusion Clauses in CISG Contracts
CISG AC OPINION NO 18 Set-off under the CISG
CISG AC OPINION NO 19 Standards and Conformity of the Goods under Article 35 CISG
CISG AC OPINION NO 20 Hardship under the CISG
CISG AC OPINION NO 21 Delivery of Substitute Goods and Repair under the CISG
CISG AC OPINION NO 22 The seller’s liability for goods infringing intellectual property
rights under Article 42 CISG

Finally, the contents of the Advisory Council’s opinions are comprehensive and
coherent, representing the leading opinions and contributing to the uniform applica-
tion of CISG significantly (criterion (5)). For example, many domestic courts have
relied on the views expressed in the Opinions as persuasive authority.166 On the
CISG Advisory Council’s website, 76 cases from 14 countries have been collected
and categorised based on the Opinions that they cite.167 Thus, from a functional
perspective, the CISG Advisory Council’s opinions could and should be used as an
appropriate reference and given due weight in the interpretation and application of
CISG.

4.2 UNCITRAL CISG Digest

In the light of the large number of CISG cases collected in the CLOUT, in 2001,
UNCITRAL designed the Digest to present selected, useful and persuasive CISG
case law in a clear, succinct and objective way to support and achieve the uniform
interpretation and application of the CISG.168 The Digest was first published in 2004,
and updated in 2008, 2012 and 2016, respectively, reflecting the gradual evolution and
recent development of CISG case law. It has been argued that the appearance of the
Digest is envisaged to revolutionize the understanding and practice of international
sales law.169 The Digest reflects the evolution process of CISG cases and identify
critical issues to be resolved and the trend of development for particular issues.

166 Ingeborg Schwenzer, Introduction, in Ingeborg Schwenzer (ed), Schlechtriem and Schwenzer
Commentary on the UN Convention on the International Sale of Goods (CISG) (Oxford University
Press, 4th ed, 2016) 1, 12.
167 https://cisgac.com/case-law/.
168 More details on Digest see, https://uncitral.un.org/en/case_law/digests.
169 Preface and Acknowledgements, in Franco Ferrari, Harry Flechtner and Ronald A. Brand (eds),

The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales
Convention, (Sellier. European Law Publishers, 2004) p. VIII.
112 4 Supplementary Materials and Uniform Interpretation of CISG

The Digest presents a comprehensive collection of cases decided by various State

courts and arbitral tribunals. It covers divergent and even conflicting decisions and
refrains from commenting on or criticising them.170 Thus, whether the collection
of cases, without a clear preferred or predominant view indicated, can promote the
development of the uniform interpretation of the CISG, is in doubt.171 However,
it has been pointed out that the illustration of the conflicts and gaps in the current
worldwide practice can still assist in the promotion of uniform interpretation of the
CISG.172
To date, the CLOUT and the Digest are the most important tools designed by
UNICTRAL to promote the uniform interpretation and application of the CISG
according to its mandate, particularly (d).173

170 Jernej Sekolec, “Digest of case law on the UN Sales Convention: The combined wisdom of
judges and arbitrators promoting uniform interpretation of the Convention”, in Franco Ferrari,
Harry Flechtner and Ronald A. Brand (eds), The Draft UNCITRAL Digest and Beyond: Cases,
Analysis and Unresolved Issues in the U.N. Sales Convention, (Sellier. European Law Publishers,
2004) 14.
171 Professor Schwenzer criticised that “the UNCITRAL Digest on the CISG offers compilations

of selected cases on Articles of the CISG. Since UNCITRAL is an administrative agency of the
UN, however, it must refrain from any critical comments on domestic developments in Member
States and thus is not able to give any valuable guidance on the future development of the CISG,
especially in cases of divergent interpretation. Hence, no authority interpreting the CISG existed
prior to the establishment of the CISG Advisory Council.” See Ingeborg Schwenzer, The CISG
Advisory Council, in Ingeborg Schwenzer (ed), The CISG Advisory Council Opinions (Eleven
International Publishing, 2017) 1, 4.
172 Report of the United Nations Commission on International Trade Law on its thirty fourth session,

25 June–13 July, 2001A/56/17, [391]–[385], http://www.uncitral.org/english/sessions/unc-34/A-

56-17e.pdf.
173 UNCITRAL’s mandate provides:

“(a) Coordinating the work of organizations active in this field and encouraging cooperation
among them;
(b) Promoting wider participation in existing international conventions and wider acceptance of
existing model and uniform laws;
(c) Preparing or promoting the adoption of new international conventions, model laws and
uniform laws and promoting the codification and wider acceptance of international trade terms,
provisions, customs and practices, in collaboration, where appropriate, with the organizations
operating in this field;
(d) Promoting ways and means of ensuring a uniform interpretation and application of
international conventions and uniform laws in the field of the law of international trade;
(e) Collecting and disseminating information on national legislation and modern legal develop-
ments, including case law, in the field of the law of international trade;
(f) Establishing and maintaining a close collaboration with the United Nations Conference on
Trade and Development;
(g) Maintaining liaison with other United Nations organs and specialized agencies concerned
with international trade; and.
(h) Taking any other action it may deem useful to fulfil its functions.”.
General Assembly resolution 2205 (XXI) of 17 December 1966, available on UNCITRAL’s
website at www.uncitral.org., reproduced in UNCTIRAL: ‘A Guide to UNCITRAL: Basic facts
about the United Nations Commission on International Trade Law’, 2 available at https://uncitral.
un.org/sites/uncitral.un.org/files/media-documents/uncitral/en/12-57491-guide-to-uncitral-e.pdf.
4 Other Supplementary Materials 113

The Digest is published by UNCITRAL. Its mandate includes ensuring a uniform

interpretation and application of international conventions and uniform laws in the
field of the law of international trade, such as CISG. The reputation of UNCITRAL
is well-recognised.
Also, the publication of the Digest is the concrete work of UNCITRAL giving
effect to its mandate. UNCITRAL’s reputation in promoting uniform interpretation
and application of the CISG is in no doubt on the basis of its mandate and the activities
that it has undertaken, such as the creation of the CLOUT.
In a leading Chinese case on CISG, Sinochem Case, the Supreme Peoples’ Court of
China has held that the Digest can be referred to in the interpretation and application of
the CISG, it would be of great value if certain criteria for the use of extrinsic materials
could be identified on the basis of the analysis of the Digest.174 The judgment stated:
The UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for
the International Sale of Goods submitted by the appellant and the respondent is not part of
the CISG, it cannot be used as a legal basis to adjudicate this case. However, the Supreme
People’s Court is of the opinion that in terms of how to accurately understand relevant articles
of the CISG, the Digest can be used as an appropriate reference.175

Justice Ren who was the presiding judge of the Sinochem Case stated he nature
of the Digest in an extra-judicial writing:
…(T)his Digest is published by the United Nations Commission on International Trade Law
(hereinafter: UNCTIRAL), one mandate of UNCITRAL is to draw up necessary tools for the
fully understanding and uniform interpretation of the CISG, the publication of this Digest is
the concrete work of UNCITRAL relating to this mandate.176

174 Peng Guo and Shu Zhang, ‘The Use of Extrinsic Materials in the Application and Interpretation
of the CISG—China’s Approach adopted by the Supreme People’s Court’ (2020) 6 Internationales
Handelsrecht 230–236.
175《中化国际(新加坡)有限公司诉蒂森克虏伯冶金产品有限责任公司国际货物买卖合同

纠纷案》 [Sinochem International (Overseas) Pte Ltd v ThyssenKrupp Metallurgical Products

GmbH—Dispute of Contracts for International Sale of Goods—Appeal], (2013)民四终字第35
号[Min Si Zhong Zi No.35], Supreme People’s Court, 30 June 2014.
176 任雪峰[Ren Xuefeng],《中化国际 (新加坡) 有限公司诉蒂森克虏伯冶金产品有限责任公司

国际货物买卖合同纠纷二审案评析》 [Commentary on the Case of Sinochem International (Singa-

pore) Co Ltd v ThyssenKrupp Metallurgical Products GmbH—Dispute of Contracts for Interna-
tional Sale of Goods—Appeal], in罗东川 [Luo Dongchuan] (Chief Editor), 最高人民法院民事
审判第四庭[The Fourth Branch of the Supreme People’s Court](ed.),《涉外商事海事审判指导
》 [China Trial Guide: Guide on Foreign-related Commercial and Maritime Trial], (2017)-1, Vol.34,
150.
114 4 Supplementary Materials and Uniform Interpretation of CISG

Moreover, the purpose of UNCITRAL’s work on publishing the Digest relevant.

The Digest is designed and prepared for the purpose of promoting the uniform inter-
pretation and application of the CISG in consideration of UNCITRIAL’s attitude in
the course of its preparation,177 and the clear statements in its introduction.178
Apart from the expressed purpose, the Digest is appreciated for other implied and
unique features of the Digest, among which the following are the most important:
its accessibility, contemporariness and the extent of its contribution to the uniform
interpretation and application of the CISG. UNCITRAL publishes the Digest on its
website and offers free access to the public. Also, the Digest has been translated
into the 6 official languages of the United Nations, which enhances its accessibility.
As to contemporariness, UNCITRAL updates the Digest regularly, based on past
experience, every four years. It covers a significant number of cases across most
jurisdictions and presents a very comprehensive summary of the worldwide prac-
tice on the interpretation and application of the CISG, which is valuable for the
development of a uniform approach in practice.

4.3 Burden of Proof as to Supplementary Materials

The CISG is silent on the use of supplementary materials supporting its application
and interpretation. Thus, no guidance is provided for the burden of proving the
relevant supplementary materials in judicial practice.
It might be reasonable to impose the burden of proof on the party who argues for
the inclusion or use of certain supplementary materials. Who supports the inclusion
or use of certain supplementary materials should bear the burden of proving their
contents? In the meanwhile, the court should also have a reasonable obligation to
find the contents of the supplementary materials on its own motion.. The application
of CISG is arguably both the States’ and the parties’ choice: on one hand, it relies
on the States’ intention to be a Contracting State of the CISG; on the other hand,
it only applies if the parties’ choose to not exclude the CISG when reaching their
contracts.179 Following this approach, the parties may bear a certain burden of proving
the contents of the CISG and the materials supporting its uniform interpretation,
especially when the interpretation and application of it are in dispute. Specifically,
regarding the supplementary materials, the parties may submit the materials to the
court, especially if they would argue or even mutually agree to their applicability.
Further, the court bears an ultimate burden of finding the contents of the relevant

177 Jernej Sekolec, “Digest of case law on the UN Sales Convention: The combined wisdom of
judges and arbitrators promoting uniform interpretation of the Convention”, in Franco Ferrari,
Harry Flechtner and Ronald A. Brand (eds), The Draft UNCITRAL Digest and Beyond: Cases,
Analysis and Unresolved Issues in the U.N. Sales Convention, (Sellier. European Law Publishers,
2004) 1, 8–17.
178 UNCITRAL Digest of Case Law on the United Nations Convention on Contracts for the

International Sale of Goods, 2016 edition, introduction.

179 CISG, Arts 1(1), 6.
4 Other Supplementary Materials 115

materials for the uniform application of the CISG, subject to its reasonable effort to
do so. This may coincide with the requirement of applying the CISG uniformly, as
imposed by Art 7 of the CISG.180

180 Art 7 requires the interpretation of CISG to be made with regards to “its international character”,
“the need to promote uniformity in its application” and “the observance of good faith in international
trade”.
Conclusion

The international sale of goods needs a uniform, certain and predictable legal envi-
ronment. CISG was born as an answer to such an urgent call. However, the adoption
of a unified legal text is only the first step in the process of unification of law. Uniform
interpretation and application of the legal text is the ultimate objective of an interna-
tional convention like CISG. To ensure uniformity in the interpretation of CISG by
national judicial authorities, a special article, Article 7 is incorporated into it.
Consideration of the international nature and the promotion of uniformity in its
application are the two basic requirements stipulated in Article 7 to regulate the
interpretation of CISG. Autonomous interpretation is the only way out of such a
complicated problem. The principle of good faith reflects the basic value of CISG.
It should be used to interpret and develop CISG. Article 7(2) gives two options for
filling gaps in CISG, reference to general principles of law on which CISG is based,
and application of private international law rules. Gap filling is part of the broad
interpretation issue. General principles of law could be categorized into different
groups according to their aims and policy tools.
Supplementary materials are also of great importance to CISG in their uniform
interpretation. In particular, PICC and foreign cases play significant roles in inter-
preting and filling gaps in CISG. As a successor of CISG, PICC inherit the core
provisions of CISG and further develop it. Foreign cases incorporate part of the
international background for autonomous interpretation of CISG. Judicial authori-
ties shall take into account foreign judgments and arbitration decisions. UNILEX,
CLOUT and the database on CISG of Pace University make it possible that foreign
cases may be found in interpreting CISG. In fact, reference to foreign cases has an
aggregation effect, which creates a trend for the interpretation of certain matters.
Provisions of Article 7 of CISG are followed by many later international legal
instruments made by UNCITRAL. For example, according to Article 8 of the UNCI-
TRAL Model Law on Cross-border Insolvency, in interpreting the model law, consid-
erations should be given to its international sources, the promotion of uniform appli-
cation and the necessity of observance of good faith. The UNCRITRAL Model Law

© The Editor(s) (if applicable) and The Author(s), under exclusive license 117
to Springer Nature Singapore Pte Ltd. 2024
J. Luo and P. Guo, The Uniform Interpretation of the UN Sales Convention (CISG),
https://doi.org/10.1007/978-981-99-7844-1
118 Conclusion

on Electronic Commerce of 1996 (Article 3), the United Nations Convention on

the Assignment of Receivables in International Trade of 2001 (Article 7), UNCI-
TRAL Model Law on Electronic Signatures of 2006 (Article 4) and the UNCITRAL
Model Law on International Commercial Arbitration of 2006 (Article 2A) almost
copy provisions of Article 7 of CISG. Besides the United Nations Convention on the
Assignment of Receivables in International Trade, the other legal instruments only
stipulate reference to the general principle of law as a sole means of gap-filling.
Provisions of Article 7 of CISG are followed by many legal instruments made by
many other international organizations. For example, provisions of PICC and PECL
on interpretation encourage the autonomy of the two legal instruments. According
to Article 1.6 of PICC, “in the interpretation of these Principles, regard is to be had
to their international character and to their purposes including the need to promote
uniformity in their application. Issues within the scope of these Principles but not
expressly settled by them are as far as possible to be settled in accordance with their
underlying general principles.” According to Article 1.106 of PECL, “the principles
should be interpreted and developed in accordance with their purposes. In particular,
regard should be had to the need to promote good faith and fair dealing, certainty in
contractual relationships and the uniformity of application. Issues within the scope
of the principles but not expressly settled by them are so far as possible to be settled
in accordance with the ideas underlying the principles. Failing this, the legal system
applicable by virtue of the rules of private international law is to be applied.”
References

I Books in English

A.

Robert Alexy, The Argument from Injustice, Clarendon Press, 2002

Patrick Selim Atiyah, The Rise and Fall of Freedom of Contract, Clarendon Press, 1979.
Bernard Audit, The International Sales of Goods-UN Convention of 11 April 1980, L.G.D.J., 1990.

B.

John Hamilton Baker, An Introduction to English Legal History, Butterworths, 2nd ed. 1979.
Jack Beatson, Daniel Friedmann eds., Good Faith and Fault in Contract Law, Oxford University
Press, 1995.
Wyndham Anstis Bewes, The Romance of the Law Merchant, Sweet & Maxwell, 1986.
C.M. Bianca & M.J. Bonell eds., Commentary on the International Sales Law: The 1980 Vienna
Sales Convention, Giuffrè Milan, 1987.
M.J. Bonell, An International Restatement of Contract Law: The UNIDROIT Principles of
International Commercial Contracts (Martinus Nijhoff Publishers, 3rd ed, 2010)
Stephanie Anne Brown, Good Faith Performance and Enforcement of Contracts in Canadian Law,
Columbia University, 1997.
Roger Brownsword, Norma J.Hird & Geraint Hhowells eds., Good Faith in Contract: Concept and
Context, Ashgate Publishing, 1999.

C.

Dennis Campbell ed., Remedies for International Sellers of Goods, Sweet & Maxwell, 1993.
J.W. Carter, D.J. Harland, Contract Law in Australia, Lexis Law Publishing, 2nd ed. 1991.

© The Editor(s) (if applicable) and The Author(s), under exclusive license 119
to Springer Nature Singapore Pte Ltd. 2024
J. Luo and P. Guo, The Uniform Interpretation of the UN Sales Convention (CISG),
https://doi.org/10.1007/978-981-99-7844-1
120 References

D.

Fillip De Ly, International Business Law and Lex Mercatoria, North Holland, 1992.

E.

Fritz Enderlein, Dietrich Maskow, International sales law, Oceana, 1992.

F.

E. Allan Farnsworth, Contracts, Aspen Law & Business, 2nd ed. 1990.
E. Allan Farnsworth, Problems of the Unification of Sales Law from the Standpoint of the Common
Law Countries, Digest of Commercial Laws of the World, Oceana, 1980.
E. Allan Farnsworth, John O. Honnonld eds, 1985–1993 Cases and Materials on Commercial Law,
Foundation Press, 4th ed. 1985.
James J. Fawcett, Jonathan M. Harris, Michael Bridge eds., International Sale of Goods in the
Conflict of Laws, Oxford University Press, 2005.
Silvia Fazio, The Harmonization of International Commercial Law, Kluwer Law International,
2007.
John Felemegas ed., An International Approach to the Interpretation of the United Nations Conven-
tion on Contracts for the International Sale of Goods (1980) as Uniform Sales Law, Cambridge
University Press, 2006.
P.D. Finn ed., Essays on Contract, Sydney The Law Book Company, 1987.
Ian Fletcher, Loukas A. Mistelis, Marise Cremona eds., Foundations and perspectives of interna-
tional trade law, Sweet & Maxwell, 2001.
23. Uli Foerstl, The general Principle of Good Faith under the CISG: A Functional Approach to
Theory and Practice of the United Nations Convention on Contracts for the International Sale
of Goods, VDM Verlag Dr. Müller, 2011
A.D.M. Forte ed., Good Faith in Contract and Property, Oxford-Port-land Pregon, 1999.
25. Charles Fried, Contract as Promise, A Theory of Contractual Obligation, Harvard University
Press, 1981.

G.

Nina M. Galston, Hans Smit eds., International Sales: The United Nations Convention on Contracts
for the International Sale of Goods, Matthew Bender, 1984
Gillette, Clayton P and Steven D Walt, The UN Convention on Contracts for the International Sale
of Goods: Theory and Practice (Cambridge University Press, 2nd ed, 2016)
Peng Guo, Good Faith in Long-Term Relational Supply Contracts in the Context of Hardship from
A Comparative Perspective (Springer 2021)
Peng Guo, Haicong Zuo, Shu Zhang eds, Selected Chinese Cases on the UN Sales Convention
(CISG) Vol. 1 (Springer 2022)
Peng Guo, Haicong Zuo, Shu Zhang eds, Selected Chinese Cases on the UN Sales Convention
(CISG) Vol. 2 (Springer 2023)
References 121

H.

Reziya Harrison, Good Faith in Sales, Sweet & Maxwell, 1997.

John O. Honnold, Documentary History of the Uniform Law for International Sales: The Studies,
Deliberations, and Decisions that Led to the 1980 United Nations Convention with Introductions
and Explanations, Kluwer, 1989.
John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention,
Kluwer, 1st ed. 1987.
John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention,
Kluwer, 2nd ed. 1991.
John O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention,
Kluwer, 3rd ed. 1999.

K.

Reed R. Kathrein, Daniel Barstow Magraw eds., The Convention for the International Sale of Goods:
A Handbook of Basic Materials, A.B.A. Section of Int’l Law and Practice, 2nd ed. 1990.
Albert H. Kritzer, Guide to Practical Application of the United Nations Convention on Contracts
for the International Sale of Goods, Kluwer, 1989.
Stefan Kröll, Loukas Mistelis and Pilar Perales Viscasillas (eds), UN Convention on Contracts for
the International Sale of Goods (CISG) (C H Beck, 2nd edition, 2018)

L.

Joseph M. Lookofsky, Understanding the CISG in Europe: A Compact Guide to the 1980 United
Nations Convention on Contracts for the International Sale of Goods, Kluwer, 1997.
Joseph M. Lookofsky, Understanding the CISG in the USA: A Compact Guide to the 1980 United
Nations Convention on Contracts for the International Sale of Goods, Kluwer, 1997.

M.

41. Peter Mankowski and Wolfgang Wurmnest (eds), Festschrift für Ulrich Magnus zum 70.
Geburtstag ,Sellier European Law Publishers, 2014
Gerard Malynes, Lex mercatoria, F. Redmayne, 1685.
R.P. Meagher et al., Equity Doctrines and Remedies, Butterworth, 3rd ed. 1992.
Straud Francis C. Milsom, Historical Foundations of the Common Law, Butterworths, 2nd ed.1981.

P.

45. Theodore F.T. Plucknett, A Concise History of the Common Law, Little Brown, 5th ed. 1956.
46. Richard A. Posner, Economic Analysis of Law, Little Brown, 4th ed. 1992.
122 References

S.

Peter Schlechtriem ed., Uniform Sales Law - The U.N. Convention on Contracts for the International
Sale of Goods, Manz, 1986.
Peter Schlechtriem, Ingeborg Schwenzer eds., Commentary on the UN Convention on the
International Sale of Goods (CISG), Oxford University Press, 2nd ed. 2005.
Ingeborg Schwenzer, Christiana Fountoulakis eds., International Sales Law, Routledge Cavendish,
2007.
Ingeborg Schwenzer (ed), Schlechtriem and Schwenzer Commentary on the UN Convention on the
International Sale of Goods (CISG) (Oxford University Press, 4th ed, 2016)
Ingeborg Schwenzer, Pascal Hachem and Christopher Kee, Global Sales and Contract Law (Oxford
University Press, 2012)
Rudolf B. Schlesinger ed., Formation of Contract, A Study of the Common Core of Legal Systems,
Dobbs Ferry, 1968.
Rudolf B. Schlesinger, Comparative Law, Cases, Texts & Materials, Stevens & Sons Limited, 2nd
ed. 1960.
Rudolf B. Schlesinger, Comparative Law, Cases, Texts & Materials, Foundation Press, 5th ed.1987.
Alfred William Brian Simpson, A History of the Common Law of Contract, Clarendon Press, 1975.

W.

René A. Wormser, The Law; the Story of Lawmakers and the Law We have Lived by, from the
Earliest Times to the Present day, Simon and Schuster, 1949.

Z.

Jacob Ziegel, William Foster eds., Aspects of Comparative Commercial Law, Oceana Publications,
1969.

II Papers in English

A.

Camilla Baasch Andersen, Furthering the Uniform Application of the CISG: Sources of Law ON
the Internet, 10 Pace Int’l L. Rev. 403 (1998).
Camilla Baasch Andersen, The Uniform International Sales Law and the Global Jurisconsultorium,
24 J. L. & Com. 159 (2005).
Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U. Pa. L. Rev. 687 (1998).
Paul Amato, U.N. Convention on Contracts for the International Sale of Goods-the Open Price
Term and Uniform Application: an Early Interpretation by the Hungarian Courts, 13 J. L. &
Com. 1 (1993).
References 123

B.

Hugh Beale, Tony Dugdale, Contracts between Businessmen; Planning and the Use of Contractual
Remedies, 2 Brit. J. of L. & Soc. 18 (1975).
Volker Behr, The Sales Convention in Europe: From Problems in Drafting to Problems in Practice,
17 J. L. & Com. 263 (1997).
Harold J. Berman, Colin Kaufmann, The Law of International Commercial Transactions (Lex
Mercatoria), 19 Harv. Int’l. L. J. 221 (1978).
Peter Klaus Berger and Thomas Arntz, ‘Good Faith as a ‘General Organising Principle’ of the
Common Law’ (2016) 32 Arbitration International 167
M.J. Bonell, International Uniform Law in Practice - Or Where the Real Trouble Begins, 38 Am.
J. Comp. L. 865 (1990).
M.J. Bonell, The UNIDROIT Principles in Practice-The Experience of the First Two Years, 2 Unif.
L. Rev. n.s. 34 (1997).
M.J. Bonell, The UNIDROIT Principles of International Commercial Contracts and CISG – Alter-
natives or Complementary Instruments? 1 Unif. L. Rev. n.s. 26 (1996).
M.J. Bonell, The UNIDROIT Principles of International Commercial Contracts and the Harmoni-
sation of International Sales Law, 36 R. J. T. n.s. 335 (2002).
M.J. Bonell, The UNIDROIT Principles of International Commercial Contracts and the Principles
of European Contract Law-Similar Rules for the Same Purposes? 1 Unif. L. Rev. n.s. 229 (1996).
M.J. Bonell, ‘The CISG, European Contract Law and the Development of a World Contract Law’
(2008) 56 American Journal of Comparative Law 1
M.J. Bonell, Fabio Liguori, The U.N. Convention on the International Sale of Goods: a Critical
Analysis of Current International Case Law, 2 Unif. L. Rev. n.s. 385 (1997).
Martin Boodman, The Myth of Harmonization of Laws, 39 Am. J. Comp. L. 700 (1991).
James W. Bowers, Incomplete Law, 62 La. L. Rev. 1229 (2002).
Ronald A. Brand, Harry M. Flechtner, Arbitration and Contract Formation in International Trade:
First Interpretations of the U.N. Sales Convention, 12 J. L. & Com. 239 (1992).
Michael G. Bridge, Does Anglo-Canadian Law Need a Doctrine of Good Faith? 9 Can. Bus. L. J.
385 (1984).
Michael Bridge, The CISG and the UNIDROIT Principles of International Commercial Contracts
(2014) 19 Uniform Law Review 623
Michael Bridge, Good Faith, the Common Law and the CISG (2017) 22 Uniform Law Review 98.
Charles N. Brower, Jeremy K. Sharpe, The Creeping Codification of Transnational Commercial
Law: Arbitrator’s Perspective, 45 Va. J. Int’l L. 199 (2004).
Harold S. Burman, Building on the CISG: International Commercial Law Developments and Trends
for the 2000’s, 17 J. L. & Com. 355 (1998).
Steven J. Burton, Breach of Contract and the Common Law Duty to Perform in Good Faith, 94
Harv. L. Rev. 369 (1980).
Steven J. Burton, Good Faith Performance of a Contract Within Article 2 of the Uniform Commercial
Code, 67 Iowa L. Rev. 1 (1981).
Steven J. Burton, More on Good Faith Performance of a Contract: A Reply to Professor Summers,
69 Iowa L. Rev. 497 (1984).

C.

James J. Callaghan, U.N. Convention on Contracts for the International Sale of Goods: Examining
the Gap-filling Role of CISG in Two French Decisions, 14 J. L. & Com. 183 (1995).
V. Susanne Cook, CISG: From the Perspective of the Practitioner, 17 J. L. & Com. 343 (1997).
124 References

V. Susanne Cook, The Need for Uniform Interpretation of the 1980 United Nations Convention on
Contracts for the International Sale of Goods, 50 U. Pitt. L. Rev. 197 (1988).
V. Susanne Cook, The U.N. Convention on Contracts for the International Sale of Goods: A Mandate
to Abandon Legal Ethnocentricity, 16 J. L. & Com. 257 (1996).
B. Blair Crawford, Drafting Consideration Under the 1980 United Nations Convention on Contracts
for the International Sale of Goods, 8 J. L. & Com. 187 (1988).

D.

René David, The International Unification of Private Law, 2 International Encyclopedia of

Comparative Law 21 (1971).
Frank Diedrich, Maintaining Uniformity in International Uniform Law via Autonomous Interpre-
tation: Software Contract and the CISG, 8 Pace Int’l L. Rev. 303 (1996).
Larry A. DiMatteo, Lucien Dhooge, Stephanie Greene, Virginia Maurer, Marisa Pagnattaro, The
Interpretive Turn in International Sales Law An Analysis of Fifteen Years of CISG Jurisprudence,
24 Nw. J. Int’l L. & Bus. 299 (2003).
Isaak I. Dore, James E. DeFranco, A Comparison of the Non-Substantive Provisions of the UNCI-
TRAL Convention on the International Sale of Goods and the Uniform Commercial Code, 23
Harv. Int’l. L. J. 49, 63(1982).
Louis F. Del Duca, Patrick Del Duca, Selected Topics under the Convention on International Sale
of Goods (CISG), 106 Dick. L. Rev. 205 (2001)

E.

Gyula Eörsi, A Propos the 1980 Vienna Convention on Contracts for the International Sale of
Goods, 31 Am. J. Comp. L. 333 (1983).
Gyula Eörsi, Problems of Unifying the Law on Formation of Contracts for the International Sale of
Goods, 27 Am. J. Comp. L. 311 (1979).

F.

E. Allan Farnsworth, An International Restatement: The UNIDROIT Principles of International

Commercial Contracts, 26 U. Balt. L. Rev. 1 (1997).
E. Allan Farnsworth, Duties of Good Faith and Fair Dealing under the UNIDROIT Principles,
Relevant International Conventions and National Laws, 3 Tul. J. Int’l & Comp. L. 47 (1995).
E. Allan Farnsworth, Formation of International Sales Contract: Three attempts at Unification, 110
U. Pa. L. Rev. 305 (1962).
E. Allan Farnsworth, Good Faith Performance and Commercial Reasonableness under the Uniform
Commercial Code, 30 U. Chi. L. Rev. 666 (1963).
E. Allen Farnsworth, Modernization and Harmonization of Contract Law: An American Perspective,
8 Unif. L. Rev. n.s. 97 (2003).
E. Allen Farnsworth, Precontractual Liability and Preliminary Agreements: Fair Dealing and Failed
Negotiations, 87 Colum. L. Rev. 217 (1987).
E. Allen Farnsworth, Review of Standard Forms or Terms under the Vienna Convention, 21 Cornell
Int’l L. J. 439 (1988).
E. Allen Farnsworth, The Vienna Convention: History and Scope, 18 Int’l Law. 17 (1984).
References 125

E. Allen Farnsworth, UNCITRAL - Why? What? How? When?, 20 Am. J. Comp. L. 314 (1972).
Celia Wasserstein Fassberg, Lex Mercatoria - Hoist with Its Own Petard?, 5 U. Chi. L. Rev. 67
(2004).
Bénédicte Fauvarque-Crosson, Comparative Law and Conflict of Laws: Allies or Enemies? New
Perspectives on an Old Couple, 49 Am. J. Comp. L. 407 (2001).
Franco Ferrari, Applying the CISG in a Truly Uniform Manner: Tribunale di Vigevano(Italy), 12
July 2000, 6 Unif. L. Rev. n.s. 203 (2001).
Franco Ferrari, CISG Case Law: A New Challenge for Interpreters?, 17 J. L. & Com. 245 (1998).
Franco Ferrari, Gap-Filling and Interpretation of the CISG: Overview of International Case Law,
7 V J 63 (2003).
Franco Ferrari, General Principles and International Uniform Commercial Law Conventions: A
Study of the 1980 Vienna Sales Convention and the 1988 UNIDROIT Conventions, 2 Unif. L.
Rev. n.s. 451 (1997).
Franco Ferrari, Remarks on the UNCITRAL Digest’s Comments on Article 6, 25 J. L. & Com. 13
(2005).
Franco Ferrari, Specific Topics of the CISG in the Light of Judicial Application and Scholarly
Writing, 15 J. L. & Com. 1 (1995).
Franco Ferrari, The CISG Uniform Interpretation by Courts-An Update, 9 V J 233 (2005).
Franco Ferrari, The Relationship between International Uniform Contract Law Conventions, 22 J.
L. & Com. 57 (2002).
Franco Ferrari, Tribunale di Vigevano: Specific Aspects of the CISG Uniformly Dealt With, 20 J.
L. & Com. 225 (2000).
Franco Ferrari, Uniform Interpretation of the 1980 Uniform Sales Law, 24 Ga. J. Int’l & Comp. L.
183 (1994).
Franco Ferrari, Uniform Law of International Sales: Issues of Applicability and Private International
Law, 15 J. L. & Com. 159 (1995).
Franco Ferrari, Universal and Regional Sales law: Can They Coexist?, 8 Unif. L. Rev. n.s. 177
(2003).
Franco Ferrari, What Sources of Law for Contracts for the International Sale of Goods? Why One
Has to Look Beyond the CISG, 25 Int’l Rev. of Law & Eco. 314 (2005).
Harry M. Flechtner, Another CISG Case in the U.S. Courts- Pitfalls for the Practitioner and the
Potential for Regionalized Interpretations, 15 J. L. & Com. 127 (1995).
Harry M. Flechtner, The Several Texts of the CISG in A Decentralized System: Observations on
Translations, Reservations and Other Challenges to the Uniformity Principle in Article 7(1), 17
J. L. & Com. 187 (1997).
John Felemegas, Comparative Editorial Remarks on The Concept of Good Faith in The CISG and
The PECL, 13 Pace Int’l L. Rev. 399 (2001).
Mitchell Franklin, On the Legal Method of the Uniform Commercial Code, 16 Law. & Contemp.
Probs. 330 (1951).
Lawrence M. Freedman, Stewart Macaula, Contract Law and Contract Teaching: Past, Present and
Future, 1967 Wis. L. Rev. 805 (1967).

G.

Francis A. Gabor, Stepchild of the New Lex Mercatoria: Private International Law from the United
States Perspective, 8 Nw. J. Int’l L. & Bus. 557 (1998).
Alejandro M. Garro, Reconciliation of Legal Traditions in the U.N. Convention on Contracts for
the International Sale of Goods, 23 Int’l Law. 443 (1989).
Alejandro M. Garro, The Gap-Filling Role of the UNIDROIT Principles in International Sales Law:
Some Comments on the Interplay between the Principles and the CISG, 69 TUL. L. REV. 1149
(1995).
126 References

Martin Gebauer, Uniform Law, General Principles and Autonomous Interpretation, 5 Unif. L. Rev.
n.s. 683 (2000).
K.B. Giannuzzi, The Convention on Contracts for the International Sale of Goods: Temporarily
Out of Service?, 28 Law & Pol’y Int’l Bus. 991 (1997).
Clayton P. Gillette, The Law Merchant in the Modern Age: Institution Design and International
Usages under the CISG, 5 Chi. J. Int’l L. 157 (2004).
Grant Gilmore, Legal Realism: Its Cause and Cure, 70 Yale L. J. 1037 (1961).
Ronald Harry Graveson, The International Unification of Law, 16 Am. J. Comp. L. 4 (1968).
Bernhard Grossfeld, Peter Winship, The Law Professor Refugee, 18 Syracuse J. Int’l L. & Com. 3
(1992).
Peng Guo and Shu Zhang, ‘The Use of Extrinsic Materials in the Application and Interpretation of
the CISG ---China’s Approach adopted by the Supreme People’s Court’ (2020) 6 Internationales
Handelsrecht.
Peng Guo and Shu Zhang, ’Is the CISG an Appropriate Option for Australian and Chinese Busi-
nesses? A Good Faith Perspective’ (2019) 23(1) Vindobona Journal of International Commercial
Law and Arbitration 81–104.

H.

Sunil R. Harjani, The Convention on Contracts for the International Sale of Goods in United States
Courts, 23 Hous. J. Int’l L. 49 (2000).
Helen Elizabeth Hartnell, Rousing the Sleeping Dog: The Validity Exception to the Convention on
Contracts for the International Sale of Goods, 18 Yale J. Int’l. L. 1 (1993).
William D. Hawkland, Uniform Commercial “Code” Methodology, 1962 U. Ill. L. F. 291 (1962).
Jennifer E. Hill, The Future of Electronic Contracts in International Sales: Gaps and Natural
Remedies under the United Nations Convention on Contracts for the International Sale of
Goods, 2 Nw. J. Tech. & Intell. Prop. 1 (2003).
Robert A. Hillman, Article 29(2) of the United Nations Convention on Contracts for the International
Sale of Goods: A New Effort at Clarifying the Legal Effect of No Oral Modification Clauses, 21
Cornell Int’l L. J. 449 (1988).
Robert A. Hillman, Construction of the Uniform Commercial Code: UCC Section 1–103 and
“Code” Methodology, 18 B. C. Ind. & Comm. L. Rev. 655 (1977).
John O. Honnold, A Uniform Law for International Sales, 107 U. Pa. L. Rev. 299 (1959).
John O. Honnold, The Draft Convention on Contracts for the International Sale of Goods: An
Overview, 27 Am. J. Comp. L. 223 (1979).
John O. Honnold, The New Uniform Law for International Sales and the UCC: A Comparison, 18
Int’l Law. 21 (1984).
John O. Honnold, The Sales Convention in Action-Uniform International words: Uniform
Application?, 8 J. L. & Com. 207 (1988).
John O. Honnold, The Sales Convention: Background, Status, Application, 8 J. L. & Com. 1 (1988).
John O. Honnold, The Uniform Law for the International Sale of Goods: The Hague Convention of
1964, 30 Law & Contemp. Probs. 326 (1965).
John O. Honnold, The United Nations Commission on International Trade Law: Mission and
Methods, 27 Am. J. Comp. L. 201 (1979).
John O. Honnold, Uniform Laws for International Trade-Early Care and Feeding for Uniform
Growth, 1 Int’l Trade & Bus. L. J. 1 (1995).
John O. Honnold, Uniform Law for International Trade-Progress and Prospects, 20 Int’l Law. 635
(1986).
References 127

J.

D.H.N. Johnson, Harmonisation and Standardisation of Legal Aspects of International Trade, 51

Australian L. J. 608 (1977).
Glower W. Jones, Impact of the Vienna Convention in Drafting International Sales Contract, 20
Int’l Bus. Law. 421 (1992).
Glower W. Jones, Warranties in International Sales: UN Convention on Contracts for the Interna-
tional Sale of Goods Compared to the US Uniform Commercial Code on Sales, 17 Int’l Bus.
Law. 497 (1989).

K.

Amy H. Kastely, Unification and Community: A Rhetorical Analysis of the United Nations Sales
Convention, 8 Nw. J. Int’l L. & Bus. 574 (1988).
Troy Keily, Good Faith & the Vienna Convention on Contracts for the International Sale of Goods
(CISG), 3 V J 15 (1999).
Lord Justice Kennedy, The Unification of Law, 10 J. Soc’y of Comp. Legis. 21 (1909).
Colin King, The CISG-Another One of Equity’s Darlings?, 8 V J 249 (2004).
Rolf Knieper, Celebrating Success by Accession to CISG, 25 J. L. & Com. 477 (2005).
Alexander S. Komarov, Internationality, Uniformity and Observance of Good Faith as Criteria in
Interpretation of CISG: Some Remarks on Article 7(1), 25 J. L. & Com. 75 (2005).
Phanesh Koneru: The International Interpretation of the UN Convention on Contracts for the Inter-
national Sale of Goods: An Approach Based on General Principles, 6 Minn. J. Global Trade
105 (1997).
Herbert Kronke, International Uniform Commercial Law Conventions: Advantages, Disadvantages,
Criteria for Choice, 5 Unif. L. Rev. n.s. 13 (2000).
Herbert Kronke, The UN Sales Convention, the UNIDROIT Contract Principle and the Way Beyond,
25 J. L. & Com. 451 (2005).

L.

Henry Landau, Background to the U.S. Participation in United Nations Convention on Contracts
for the International Sale of Goods, 18 Int’l Law. 29 (1984).
Paul Lansing, The Change in American Attitude to the International Unification of Sales Law
Movement and UNCITRAL, 18 Am. Bus. L. J. 269 (1980).
Paul Lansing, Nacy R. Hauserman, A Comparison of the Uniform Commercial Code to UNCITRAL’s
Convention on Contracts for the International Sale of Goods, 6 N. C. J. Int’l L. and Com. Reg.
63 (1980).
Robert G. Lee, The UN Convention on Contracts for the International Sale of Goods: OK for the
UK?, 1993 J. Bus. L. 131 (1993).
Joseph M. Lookofsky, Digesting CISG Case Law: How Much Regard Should We Have?, 8 V J 181
(2004).
Joseph M. Lookofsky, Walking the Article 7(2) Tightrope between CISG and Domestic Law, 25 J.
L. & Com. 87 (2005).
Henning Lutz, The CISG and Common Law Courts: Is There Really a Problem?, 35 Vict. U.
Wellington L. Rev. 711 (2004).
Fillip De Ly, Source of International Sales law: an Eclectic Model, 25 J. L. & Com. 1 (2005).
128 References

M.

Stewart Macaulay, Elegant Models, Empirical Pictures and the Complexities of Contract, 11 L. &
Soc. Rev. 507 (1977).
Stewart Macaulay, Non-Contractual Relations in Business, 28 Am. Soc. Rev. 55 (1963).
Ulrich Magnus, General Principles of UN-Sales Law, 3 Int’l. Trade & Bus. L. Ann. 33 (1997).
F.A. Mann, Uniform Statutes in English Law, 99 L. Q. Rev. 376 (1983).
Henry Mather, Choice of Law for International Sales Issues not Resolved by the CISG, 20 J. L. &
Com. 155 (2001).
Lord McNair, The Generalized Principles of Law Recognized by Civilized Nations, 33 Brit. Y.B.
Int’l L. 1 (1957).
Errol P. Mendes, The U.N. Sales Convention & U.S.-Canada Transaction; Enticing the World’s
Largest Trading Bloc to Do Business under a Global Sales Law, 8 J. L. & Com. 109 (1988).
Errol P. Mendes, United Nations Convention on Contracts for the International Sale of Goods, 8 J.
L. & Com. 213 (1988).
R.J.C. Munday, The Uniform Interpretation of International Conventions, 27 Int’l. & Comp. L. Q.
450 (1978).
John E. Murray, The Definitive “Battle of the Forms”: Chaos Revisited, 20 J. L. & Com. 1 (2000).
John E. Murray, The Neglect of CISG: A Workable Solution, 17 J. L. & Com. 365 (1997).

N.

Kurt H. Nadelmann, The United States and Plans for a Uniform (World) Law on International Sales
of Goods, 112 U. Pa. L. Rev. 697 (1964).
Muna Ndulo, The Vienna Sales Convention 1980 and the Hague Uniform Laws on International
Sale of Goods 1964: A Comparative Analysis, 38 Int’l and Comp. L. Q. 1 (1989).
Barry Nicholas, The Vienna Convention on International Sales Law, 105 L. Q. Rev. 201 (1989).

P.

Chalarambos Pamboukis, Concept and Function of Usages in the United Nations Convention on
the International Sale of Goods, 25 J. L. & Com. 107 (2005).
Elizabeth H. Patterson, United Nations Convention on Contracts for the International Sale of Goods:
Unification and the Tension between Compromise and Domination, 22 Stan. J. Int’l L. 263 (1986).
Willibald Posch, Thomas Petz, Austrian Cases on the UN Convention on Contracts for the
International Sale of Goods, 6 V J 1 (2002).
Paul Power, Defining the Indefinable: Good Faith and the United Nations Convention on the
Contracts for the International Sale of Goods, 18 J. L. & Com. 333 (1998).

R.

Ernst Rabel, The Hague Conference on the Unification of Sales Law, 1 Am. J. Comp. L. 58 (1952).
Ernst Rabel, A Draft of an International Law of Sales, 5 Chi. L. Rev. 543 (1938).
Mark N. Rosenberg, The Vienna Convention: Uniformity in Interpretation for Gap-Filling-An
Analysis and Application, 20 Aust. Bus. Law Rev. 442 (1992).
References 129

Arthur Rosett, Critical Reflections on the United Nations Convention on Contracts for the
International Sale of Goods, 45 Ohio St. L. J. 265 (1984).
Michael F. Sturley, International Uniform Laws in National Courts: The Influence of Domestic Law
in Conflicts of Interpretation, 27 Va. J. Int’l. L. 729 (1986).
Robert S. Summers, “Good Faith” in General Contract Law and the Sales Provisions of the Uniform
Commercial Code, 54 Va. L. Rev. 195 (1968).

S.

Imtyaz M. Sattar, UNIDROIT Principles of International Commercial Contracts and the Vienna
Sales Convention: Competing or Completing ‘Lex Mercatoria’?, 4 Int’l. Trade & Bus. L. Ann.
13 (1999).
Clive M. Schmitthoff, Conflict Avoidance in Practice and Theory in the Preventative Law of
Conflicts, 21 Law & Contemp. Probs. 429 (1956).
Clive M. Schmitthoff, International Business Law: A New Law Merchant, 2 Current Law and Social
Problems 129 (1961).
Clive M. Schmitthoff, The Unification of the Law of International Trade, 1968 J. Bus. L. 105 (1968).
Ulrich Schroeter, Freedom of contract: Comparison between provisions of the CISG (Article 6 and
counterpart provisions of the Principles of European Contract Law, 6 V J 257 (2002).
Ulrich Schroeter, Interpretation of “Writing”: Comparison between provisions of the CISG (Article
13) and counterpart provisions of the Principles of European Contract Law, 6 VJ 267 (2002).
Ingeborg Schwenzer, The Danger of Domestic Pre-Conceived Views with Respect to the Uniform
Interpretation of the CISG: The Question of Avoidance in the Case of Non-Conforming Goods
and Documents, 36 Vict. U. Wellington L. Rev. 795 (2005).
Ingeborg Schwenzer, ‘Global Unification of Contract Law’ (2016a) 21 Uniform Law Review 60
Kazuaki Sono, The Rise of Anational Contract Law in the Age of Globalization, 75 Tul. L. Rev.
1185 (2001).
Kazuaki Sono, UNCITRAL and the Vienna Sales Convention, 18 Int’l Law. 7 (1984).

T.

Annabel Teiling, CISG: U.S. Court Relies on Foreign Case Law and the Internet, 9 Unif. L. Rev.
n.s. 431, 434 (2004).
Daniel Tricot, ‘La bonne foi dans les Principes d’UNIDROIT’ (2017) 22 Uniform Law Review 116
André Tunc, English and Continental Commercial Law, 1961 J. Bus. L. 234 (1961).

V.

François Vergne, The “Battle of the Forms” Under the 1980 United Nations Convention on Contracts
for the International Sale of Goods, 33 Am. J. Comp. L. 233 (1985).
Maria del Pilar Perales Viscasillas, UNIDROIT Principles of International Commercial Contracts:
Sphere of Application and General Provisions, 13 Ariz. J. Int’l & Comp. L. 381 (1996).
Stefan Vogenauer (ed), Commentary on the UNIDROIT Principles of International Commercial
Contracts (PICC) (Oxford University Press, 2nd ed, 2015)
130 References

W.

D.A. Walsh, K.W. Ryan, Harmonisation and Standardisation of Legal Aspects of International
Trade, 51 Austl. L. J. 608 (1977).
Gunther A. Weiss, The Enchantment of Codification in the Common-Law World, 25 Yale J. Int’l.
L. 435 (2000).
Peter Winship, A Note on the Commentary of the 1980 Vienna Convention, 18 Int’l Law. 37 (1984).
Peter Winship, An Introduction to the United Nations Sales Convention, 43 Consumer Fin. L. Q.
Rep. 23 (1989).
Peter Winship, Commentary on Profess Kastely’s Rhetorical Analysis, 8 Nw. J. Int’l L. & Bus. 623
(1987).
Peter Winship, Energy Contracts and the United Nations Sales Convention, 25 Texas Int’l L. J. 365
(1990).
Peter Winship, New Rules for International Sales, 68 A. B. A. J. 1231 (1982).
Peter Winship, Private International Law and the U.N. Sales Convention, 21 Cornell Int’l L. J. 487
(1988).
Peter Winship, The New Legal Regime for International Sales Contracts, 2 Rev. Int’l Bus. L. 107
(1988).
Claude Witz, First Decision of France’s Court of Cassation Applying the U.N. Convention on
Contracts for the International Sale of Goods, 16 J. L. & Com. 345 (1996).

Z.

Bruno Zeller, The UN Convention on Contracts for the International Sale of Goods (CISG) - A Leap
Forward Towards Unified International Sales Laws, 12 Pace Int’l L. Rev. 79 (2000).
Jacob S. Ziegel, The Future of the International Sales Convention from a Common Law Perspective,
6 NZBLQ 336 (2000).
Jacob S. Ziegel, The Scope of the Convention: Reaching out to Article one and Beyond, 15 J. L. &
Com. 127 (1995).

III Conference Papers

224. Bernard Audit, The Vienna Sales Convention and the Lex Mercatoria, in Thomas E. Carbonneau
ed., Lex Mercatoria and Arbitration: A Discussion of the New Law Merchant, Transnational
Juris Publications, 1990.
M.J. Bonell, The UNIDROIT Principles of International Commercial Contracts and the Harmo-
nization of International Sales Law, in Ian Fletcher, Loukas Mistelis, Marise Cremona eds.,
Foundations and Perspective of International Trade Law, Sweet & Maxwell, 2001.
Michael G. Bridge, Good Faith in Commercial Contracts, in Roger Brownsword, Norma J. Hird
and Geraint Hhowells eds., Good Faith in Contract: Concept and Context, Ashgate Publishing,
1999.
Roger Brownsword, Positive, Negative, Neutral: The Reception of Good Faith in English Contract
Law, in Roger Brownsword, Normal J. Hird & Geraint Howwells eds., Good Faith in Contract,
Ashgate Publishing, 1998.
Gyula Eörsi, General Provisions, in Nina M. Galston & Hans Smit eds., International Sales: The
United Nations Convention on Contracts for the International Sale of Goods, Matthew Bender,
1984.
References 131

E. Allen Farnsworth, Good Faith in Contract Performance, in Jack Beatson, Daniel Friedmann eds,
Good Faith and Fault in Contract Law, Oxford University Press, 1995.
E. Allen Farnsworth, The Convention on the International Sale of Goods from the Perspective of
the Common Law Countries, in Dott. A.Giuffrè ed., La Vendita Internazionale, La Convenzione
di Vienna dell, 1980.
Franco Ferrari, Interpretation of the Convention and Gap-filling, in Franco Ferrari, Ronald A. Brand
ed., The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the
UN Sales Convention, European Law Publishers, 2004.
Otto Kahn-Freund, Common Law and Civil Law - Imaginary and Real Obstacles to Assimila-
tion, in Mauro Cappelletti ed., New Perspectives for a Common Law of Europe, Kluwer Law
International, 1978.
Jan Hellner, Gap-filling by Analogy: Art. 7 of the U. N. Sales Convention in its Historical Context,
in Ramberg ed., Studies in International Law: Festskrift till Lars Hjerner, Norstedts, 1990.
234. Jan Hellner, The UN Convention on the International Sale of Goods: Its Influence on National
Sales Law and Contract Law, in Ross Cranston, Roy Goode, Commercial and Consumer Law:
National and International Dimensions, Clarendon Press, 1993.
H.K. Lücke, Good Faith and Contractual Performance, in P.D. Finn ed., Essays on Contract, Sydney
The Law Book Company.
Ewan Makendrick, Good Faith: A Matter of Principle?, in A. D. M. Forte ed., Good Faith in Contract
and Property, Oxford-Port-land Pregon, 1999.
Dieter Maskow, The Convention on the International Sale of Goods from the Perspective of the
Socialist Countries, in Dott. A.Giuffrè ed., La Vendita Internazionale, La Convenzione di Vienna
dell, 1980.
Scott Crichton Styles, Good Faith: A Principled Matter, in A.D.M. Forte ed., Good Faith in Contract
and Property, Oxford-Port-land Pregon, 1999.
M.J. Bonell, Proposal for the Establishment of a “Permanent Editorial Board” for the Vienna Sales
Convention, in International Uniform Law in Practice, Acts and Proceedings of the 3rd Congress
on Private Law, UNIDROIT, Rome, September 1987, Oceana (1988).
M.J. Bonell ed., A New Approach to International Commercial Contracts: The UNIDROIT Prin-
ciples of International Commercial Contracts, in General Report to the Fifteenth Congress of
the International Academy Comparative Law, Bristol, August 1998, Kluwer Law International
(1999).
S.N. Martinez Cazon, A Practitioner’s View of the Applicability of the UNIDROIT Principles of
International Commercial Contracts in Interpreting International Uniform Law, in papers of
the 25th IBA Biennial Conference, Melbourne, October 1994.
Ulrich Drobnig, Observations, in International Uniform Law in Practice, Acts and Proceedings of
the 3rd Congress on Private Law, UNIDROIT, Rome, September 1987, Oceana (1988).
Fritz Enderlein, The UNIDROIT Principles as a Means for Interpreting International Uniform
Laws, in papers of the 25th IBA Biennial Conference, Melbourne, October 1994.
E. Allan Farnsworth, The Concept of ‘Good Faith’ in American Law, Saggi, Conferenze E Seminari,
n.10, Rome, 1993.
Roy Goode, Good Faith in English Law, Saggi, Conferenze E Seminari, n.2, Rome, 1992.
Peter Schlechtriem, Good Faith in German Law and in International Uniform Laws, Saggi,
Conferenze E Seminari, n.24, Rome, 1997.
247. Leif Sevón, Method of Unification of Law for the International Sale of Goods, in Finnish
National Report to the Twelfth Congress of the International Academy Comparative Law, Sydney
and Melbourne, August 1986, Helsinki: Inst. Jurisprudentiae Comparativae Univ. Helsingiensis,
1986.
132 References

IV Electronic Materials

Ralph Amissah, The Autonomous Contract: Reflecting the borderless electronic-commercial envi-
ronment in contracting, available online at http://www.cisg.law.pace.edu/cisg/biblio/amissah2.
html.
Spiros V. Bazinas, Uniformity in the Interpretation and the Application of the CISG: The Role of
CLOUT and the Digest, available online at http://www.cisg.law.pace.edu/cisg/biblio/bazinas.
html.
Edgar Bodenheimer, Doctrine as a Source of the International Unification of Law, available online
at http://www.cisg.law.pace.edu/cisg/biblio/bodenheimer.html.
Gert Brandner, Admissibility of Analogy in Gap-filling under the CISG, available online at http://
www.cisg.law.pace.edu/cisg/biblio/brandner.html.
John Felemegas, The United Nations Convention on Contracts for the International Sale of Goods:
Article 7 and Uniform Interpretation, available online at http://www.cisg.law.pace.edu/cisg/bib
lio/felemegas.html.
Sylvette Guillemard, A Comparative Study of the UNIDROIT Principles and the Principles of Euro-
pean Contracts and Some Dispositions of the CISG Applicable to the Formation of International
Contracts from the Perspective of Harmonization of Law, available online at http://www.cisg.
law.pace.edu/cisg/biblio/guillemard1.html.
Robert A. Hillman, Applying the United Nations Convention on Contracts for the International
Sale of Goods: The Elusive Goal of Uniformity, available online at http://www.cisg.law.pace.
edu/cisg/biblio/hillman1.html.
Robert A. Hillman ed., Cross-References and Editorial Analysis, Article 7, available online at http://
www.cisg.law.pace.edu/cisg/text/hillman.html.
John O. Honnold, Symposium-Ten Years of the United Nations Sales Convention The Sales Conven-
tion: From Idea to Practice, available online at http://www.cisg.law.pace.edu/cisg/biblio/hon
nold4.html.
Amy Kastely, The Right to Require Performance in International Sales: Towards an International
Interpretation of the Vienna Convention, available online at http://cisgw3.law.pace.edu/cisg/bib
lio/kastelyl.html.
Troy Keily, Harmonisation and the United Nations Convention on Contracts for the International
Sale of Goods, available online at http://www.cisg.law.pace.edu/cisg/biblio/keily3.html.
John Klein, Good Faith in International Transactions, available online at http://www.cisg.law.pace.
edu/cisg/biblio/Klein.html.
Robert Koch, The Concept of Fundamental Breach of Contract under the United Nations Convention
on Contracts for the International Sale of Goods (CISG), available online at http://www.cisg.
law.pace.edu/cisg/biblio/koch.html.
Ulrich Magnus, General Principles of UN-Sales Law, available online at http://www.cisg.law.pace.
edu/cisg/biblio/magnus.html.
Francesco G. Mazzotta, The International Character of the UN Convention on Contracts for the
International Sale of Goods: An Italian Case Example, available online at http://www.cisg.law.
pace.edu/cisg/biblio/mazzotta.html.
Nives Povrzenic, Interpretation and gap-filling under the United Nations Convention on Contracts
for the International Sale of Goods, available online at http://www.cisg.law.pace.edu/cisg/bib
lio/gap-fill.html.
Peter Schlechtriem, Interpretation, gap-filling and further development of the UN Sales Convention,
available online at http://www.cisg-online.ch/cisg/Schlechtriem-e.pdf.
Evelien Visser, Gaps in the CISG: In General and with Specific Emphasis on the Interpretation of
the Remedial Provisions of the Convention in the Light of the General Principles of the CISG,
available online at http://www.cisg.law.pace.edu/cisg/biblio/visser.html.
Bruno Zeller, Four-Corners-The Methodology for Interpretation and Application of the UN Conven-
tion on Contracts for the International Sale of Goods, available online at http://www.cisg.law.
pace.edu/cisg/biblio/4corners.html.
References 133

Sara Zwart, The New International Law of Sales: A Marriage between Socialist, Third World,
Common, and Civil Law Principles, available online at http://cisgw3.law.pace.edu/cisg/biblio/
Zwart.html.

V Cases

Argentina:

May 1991, Elastar Sacifia v. Bettcher Industries, Juzgado Nacional de Primera Instancia en lo
Comercail No.7 [National Commercial Court of First Instance], No. 50.272, available online at
http://cisgw3.law.pace.edu/cases/910520a1.html, CLOUT cases No.21.
June 1994, Rolled metal sheets case, Internationales Schiedsgericht der Bundeskammer der
gewerblichen Wirtschaft [Arbitral Tribunal - Vienna], No. SCH-4318, available at http://cis
gw3.law.pace.edu/cisg/wais/db/cases2/940615a4.html, CLOUT cases No.94.
June 1994, Rolled metal sheets case, Internationales Schiedsgericht der Bundeskammer der
gewerblichen Wirtschaft [Arbitral Tribunal - Vienna], No. SCH-4366, available online at http://
cisgw3.law.pace.edu/cases/940615a3.html, CLOUT cases No. 93.
October 1998, Timber case, Oberster Gerichtshof [Supreme Court], No. 2 Ob 191/98x, available
online at http://cisgw3.law.pace.edu/cases/981015a3.html, CLOUT cases No.240.
March 2000, Roofing material case, Oberster Gerichtshof [Supreme Court], No. 6 Ob 311/99z,
available online at http://cisgw3.law.pace.edu/cases/000309a3.html, CLOUT cases No.424.
March 2000, Wood case, Oberster Gerichtshof [Supreme Court], No. 10 Ob 344/99g, available
online at http://cisgw3.law.pace.edu/cases/000321a3.html.
April 2000, Machines case, Oberster Gerichtshof [Supreme Court], No. 2 Ob 100/00w, avail-
able online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/000413a3.html, CLOUT cases
No.426.
September 2000, Tombstones case, Oberster Gerichtshof [Supreme Court], No. 8 Ob 22/00v,
available online at http://cisgw3.law.pace.edu/cases/000907a3.html, CLOUT cases No.428.
November 2000, Downs Investments v. Perwaja Steel, Supreme Court of Queensland, No. 10680,
available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/001117a2.html, CLOUT
cases No.631.

Belarus:

May 2003, Holzimpex Inc. v. State Farm-Combine Sozh, Supreme Economic Court of the Republic of
Belarus, No. 7–5/2003, available online at http://www.unilex.info/case.cfm?pid=1&id=1011&
do=case.
May 2003, Belarus: Holzimpex Inc: v. Republican Agricultural Unitary Enterprise, Supreme
Economic Court of the Republic of Belarus, No. 8–5/2003, available online at http://www.
unilex.info/case.cfm?pid=1&id=1010&do=case.

Belgium:

January 2001, Cooling installations case, Rechtbank van Koophandel Ieper [District Court],
available online at http://cisgw3.law.pace.edu/cases/010129b1.html.
134 References

March 2002, Roelants Eurosprint v. Beltronic Engineering International, Rechtbankvan

Koophandel Hasselt [District Court], No. A.R. 2703/01, available online at http://www.cisg.
law.pace.edu/cisg/wais/db/cases2/020306b2.html.
May 2002, Belgium: Design of radio phone case, Hof van Beroep [Appellate Court], No. 2001/
AR/0180, available online at http://cisgw3.law.pace.edu/cases/020515b1.html.

China:

December 1997, Hot-rolled coils case, China International Economic & Trade Arbitration Commis-
sion [CIETAC], No. CISG/1997/34, available online at http://www.cisg.law.pace.edu/cisg/wais/
db/cases2/971215c1.html, CLOUT cases No.715.

Finland:

October 2000, Plastic carpets case, Helsingin hoviokeus [Helsinki Court of Appeals], No. S 00/82,
available online at http://cisgw3.law.pace.edu/cases/001026f5.html.

France:

February 1995, BRI Production “Bonaventure” v. Pan African Export, Cour d’Appel de Grenoble
[Appellate Court], No. 93/3275, available online at http://cisgw3.law.pace.edu/cases/950222f1.
html, CLOUT cases No. 154.
October 1996, Gaec des Beauches v. Teso Ten Elsen, Cour d’Appel de Grenoble [Appeal Court],
No. 94/3859, available online at http://cisgw3.law.pace.edu/cisg/wais/db/cases2/961023f1.html,
CLOUT cases No.205.

Germany:

August 1989, Shoes case, Landgericht Stuttagrt [District Court], No. 3 KfH O 97/89, available
online at http://www.unilex.info/case.cfm?pid=1&id=1&do=case, CLOUT cases No.4.
September 1992, Frozen bacon case, Oberlandesgericht Hamm [Provincial Court of Appeal], No.19
U 97/91, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/920922g1.html,
CLOUT cases No.227.
July 1993, Veneer cutting machine case, Oberlandesgericht Düsseldorf [Provincial Court of Appeal],
No. 17 U 73/93, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/930
702g1.html, CLOUT cases No. 49.
April 1994, New Zealand mussels case, Oberlandesgericht Frankfurt [Provincial Court of Appeal],
No. 13 U 51/93, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/940
420g1.html, CLOUT cases No. 84.
July 1994, Shoes case, Landgericht Frankfurt am Main [District Court], No. 3/13 O 3/94, available
online at http://www.unilex.info/case.cfm?pid=1&id=49&do=case.
September 1994, Shoes case, Landgericht Berlin [District Court], No. 52 S 247/94, available online
at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/940915g1.html.
References 135

October 1994, Ham case, Amtsgericht Riedlingen [Petty District Court], No. 2 C 395/93, available
online at http://www.unilex.info/case.cfm?pid=1&id=116&do=case.
March 1995, New Zealand mussels case, Bundesgerichtshof [Federal Supreme Court], No. VIII ZR
159/94, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/950308g3.html,
CLOUT cases No.123.
February 1997, Iron molybdenum case, Oberlandesgericht Hamburg [Provincial Court of Appeal],
No. 1 U 167/95, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/970
228g1.html, CLOUT cases No.277.
January 1998, Insulating materials case, Oberlandesgericht [Appellate Court], No. 7 U 3506/97,
available online at http://cisgw3.law.pace.edu/cases/980121g1.html, CLOUT cases No.297.
December 2000, Tiller case, Oberlandesgericht Oldenburg [Provincial Court of Appeal], No. 12
U 40/00, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/001205g1.html,
CLOUT cases No. 431.
October 2000, Granite rock case, Landgericht Stendal [District Court], No. 22 S 234/94, available
online at http://cisgw3.law.pace.edu/cases/001012g1.html, CLOUT cases No.432.
October 2001, Machinery case, Bundesgerichtshof [Federal Supreme Court], No. VIII ZR 60/01,
available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/011031g1.html, CLOUT
cases No.445.
January 2002, Powdered milk case, Bundesgerichtshof [Supreme Court], No. VIII ZR 304/00,
available online at http://cisgw3.law.pace.edu/cases/020109g1.html.
June 2004, Paprika case, Bundesgerichtshof [Federal Supreme Court], No. VIII ZR 321/03, avail-
able online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/040630g1.html, CLOUT cases
No.773.
September 2004, Furniture leather case, Oberlandesgericht München [Provincial Appellate Court],
No. 7 U 2959/04, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/040
915g2.html, CLOUT cases No.595.
March 2005, Frozen pork case, Bundesgerichtshof [Federal Supreme Court], No. VIII ZR 67/04,
available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/050302g1.html, CLOUT
cases No.774.
August 2005, Pitted sour cherries case, Landgericht Neubrandeburg [District Court], No.10 O 74/
04, available online at http://www.unilex.info/case.cfm?pid=1&id=1097&do=case.

Italy:

January 1996, Sport D’Hiver di Genevieve Culet v. Ets. Louys et Fils, Tribunale Civile di Cuneo
[District Court], No. 45/96, available online at http://www.unilex.info/case.cfm?pid=1&id=
160&do=case.
December 1999, Tessile v. Ixela, Tribunale di Pavia [District Court], available online at http://www.
cisg.law.pace.edu/cisg/wais/db/cases2/991229i3.html, CLOUT cases No.380.
July 2000, Rheinland Versicherungen v. Atlarex, Tribunale di Vigevano [District Court], available
online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/000712i3.html, CLOUT cases No.
405.
November 2002, Al Palazzo S.r.l. v. Bernardaud di Limoges S.A., Tribunale di Rimini [District Court],
No. 3095, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/021126i3.html,
CLOUT cases No.608.
February 2004, Agricultural products case, Tribunale di Padova [District Court], No. 40552,
available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/040225i3.html
March 2004, Pizza boxes case, Tribunale di Padova [District Court], No. 40466, available online at
http://www.cisg.law.pace.edu/cisg/wais/db/cases2/040331i3.html.
January 2005, Ostroznik Savo v. La Faraona soc. coop. a.r.l., Tribunale di Padova Sez. Este [District
Court], available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/050111i3.html,
136 References

CLOUT cases No.651.

Netherlands:

December 1991, Fallini Stefano & Co.s.n.c. v. Foodic BV, Arrondissementsrechtbank Roermond
[District Court], No. 900336, available online at http://www.unilex.info/case.cfm?pid=1&id=
34&do=case, CLOUT cases No.98.
March 1997, Cooperative Maritime Etaploise v. Bos Fishproducts, Rb Zwolle [District Court],
No. HA ZA 95–640, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/970
305n1.html.
Condensate crude oil mix case, Netherlands Arbitration Institute, No. 2319, 15 October 2002,
available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/021015n1.html, CLOUT
cases No.720.
October 2002, Plants case, Hof’s-Hertogenbosch [District Appeal Court], available online at http://
www.unilex.info/case.cfm?pid=1&id=960&do=case.

Switzerland:

April 1992, Furniture case, Pretura di Locarno-Campagna [District Court], No. 6252, available
online at http://www.unilex.info/case.cfm?pid=1&id=41&do=case, CLOUT cases No.56.
May 1993, Automatic storage system case, Gerichtspräsident von Laufen [District Court], available
online at http://www.unilex.info/case.cfm?pid=1&id=105&do=case, CLOUT cases No.201.
September 1993, Furniture case, Handelsgericht Zürich [Commercial Court], No. HG930138.
U/HG93, available online at http://cisgw3.law.pace.edu/cases/930909s1.html, CLOUT cases
No.97.
October 1998, Meat case, Bundesgericht [Supreme Court], No. 4C.179/1998/odi, available online
at http://cisgw3.law.pace.edu/cases/981028s1.html, CLOUT cases No. 248.
November 1998, Lambskin coat case, Handelsgericht [Commercial Court], No. HG 930634/O,
available online at http://cisgw3.law.pace.edu/cases/981130s1.html, CLOUT cases No.251.

United States:

April 1992, Filanto S.p.A. v. Chilewich International Corp., U.S. District Court, Southern District
of New York [federal court of first instance], No. 92 Civ. 3253 (CLB), available online at http://
www.cisg.law.pace.edu/cisg/wais/db/cases2/920414u1.html, CLOUT cases No.23.
June 1993, Beijing Metals v. American Business Center, Circuit Court of Appeals (5th Circuit)
[Federal Appellate Court], No. 92–2171, available online at http://cisgw3.law.pace.edu/cases/
930615u1.html, CLOUT cases No.24.
September 1994, Delchi Carrier v. Rotorex, Northern District of New York [Federal Court of 1st
Instance], No. 88-CV-1078, available online at http://www.cisg.law.pace.edu/cisg/wais/db/cas
es2/940909u1.html, CLOUT cases No. 85.
December 1995, Delchi Carrier v. Rotorex, U.S. Circuit Court of Appeals (2d. Cir.) [Federal Appel-
late Court], No. 95–7182, 95–7186, available online at http://cisgw3.law.pace.edu/cases/951
206u1.html, CLOUT cases No. 138.
References 137

June 1998, MCC-Marble Ceramic Center v. Ceramica Nuova D’Agostino, U.S. Circuit Court of
Appeals (11th Circuit) [Federal Appellate Court], No. 97–4250, available online at http://cis
gw3.law.pace.edu/cases/980629u1.html, CLOUT cases No. 222.
April 1998, Calzaturificio Claudia v. Olivieri Footwear, U.S. District Court, Southern District of
New York, No. 96 Civ. 8052, available online at http://cisgw3.law.pace.edu/cases/980406u1.
html, CLOUT No.413.
May 1999, Medical Marketing v. Internazionale Medico Scientifica, U.S. District Court, Eastern
District of Louisiana, No. 99–0380 Section “K” (1), available online at http://www.cisg.law.
pace.edu/cisg/wais/db/cases2/990517u1.html, CLOUT cases No.418.
March 2002, Usinor Industeel v. Leeco Steel Products, U.S. District Court for the Northern District
of Illinois, Eastern Division [Federal Court of 1st Instance], No. 02 C 0540, available online at
http://cisgw3.law.pace.edu/cases/020328u1.html, CLOUT cases No. 613
May 2002, Geneva Pharmaceuticals Tech. Corp. v. Barr Labs. Inc., U.S. District Court for the
Southern District of New York [Federal Court of 1st Instance], No. 98 CIV 861 (RWS) and
99 CIV 3607 (RWS), available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/020
510u1.html, CLOUT cases No.579.
June 2003, BP Oil International v. Empresa Estatal Petroleos de Ecuador, U.S. Court of Appeals
(5th Circuit) [Federal Appellate Court], No. 02–20166, available online at http://www.cisg.law.
pace.edu/cisg/wais/db/cases2/030611u1.html, CLOUT cases No.575.
May 2004, Chicago Prime Packers, Inc. v. Northam Food Trading Co., et al, U.S. District Court for
the Northern District of Illinois [Federal Court of 1st Instance], No. 01 C 4447, available online
at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/040521u1.html

Arbitration:

March 1993, ICC Court of Arbitration - Paris, Steel bars case, No.6653, available online at http://
cisgw3.law.pace.edu/cases/936653i1.html, CLOUT cases No.103.
January 1997, ICC Court of Arbitration - Paris, Industrial equipment case, No. 8611/HV/JK,
available online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/978611i1.html.
November 1995, ICC Court of Arbitration - Basel, Chemical fertilizer case, No. 8128, available
online at http://cisgw3.law.pace.edu/cases/958128i1.html.
December 1996, ICC Court of Arbitration - Zurich, Electrical appliances case, No. 8769, available
online at http://www.unilex.info/case.cfm?pid=1&id=397&do=case.
June 1997, International Arbitration Court of the Chamber of Commerce and Industry of the Russian
Federation, No. 229/1996, available online at http://www.unilex.info/case.cfm?pid=1&id=731&
do=case.
December 1997, ICC Court of Arbitration - Paris, Food products case, No. 8817, available online
at http://www.unilex.info/case.cfm?pid=1&id=398&do=case.
March 1998, ICC Court of Arbitration - Zurich, No. 9117, available online at http://www.unilex.
info/case.cfm?pid=1&id=399&do=case.
June 1998, Stockholm Chamber of Commerce, Beijing Light Automobile Co. v. Connell, available
online at http://www.cisg.law.pace.edu/cisg/wais/db/cases2/980605s5.html, CLOUT cases No.
237.
138 References

VI Books in Chinese

陈安:《涉外经济合同的理论与实务》 , 中国政法大学出版社, 1994年版。(Chen An, Theory and

Practice of Economic Contracts with Foreign Elements, China University of Political Science
and Law Press, 1994.)
陈金钊:《法律解释的哲理》 , 山东人民出版社, 1999年版。(Chen Jinzhao, Philosophy of Legal
Interpretation, Shandong Renmin Press, 1999.)
董đ:《司法解释论》 , 中国政法大学出版社, 1999年版。(Dong Hao, Judical Interpretation, China
University of Political Science and Law Press, 1999.)
冯大同主编:《国际货物买卖法》 , 对外经济贸易大学出版社, 1991年版。(Feng Datong, Interna-
tional Sale of Goods Law, University of Foreign Economics and Trade Press, 1991.)
郭瑜:《国际货物买卖法》 , 人民法院出版社, 1999年版。(Guo Yu, International Sale of Goods Law,
Renmin Courts Press, 1999.)
何勤华主编:《法国法律发达史》 , 法律出版社, 2001年版。(He Qinhua, History of French Law,
China Law Press, 2001.)
李伟民:《法学辞源》 , 中国工人出版社, 1994年版。(Li Weimin, Sources of Legal Terminologies,
China Workers Press, 1994.)
梁慧星:《民法解释学》 , 中国政法大学出版社, 1995年版。(Liang Huixing, Interpretation of the
Civil Law, China University of Political Science and Law Press, 1995.)
梁治平编:《法律解释问题》 , 法律出版社, 1998年版。(Liang Zhiping, Legal Interpretation, China
Law Press, 1998.)
李巍:《联合国国际货物销售合同公约评释》 , 法律出版社, 2002年版。(Li Wei, Commentary
on CISG, China Law Press, 2002.)
卲景春:《国际合同法律适用论》 , 北京大学出版社, 1997年版。(Shao Jingchun, On Application
of Law in International Contracts, Beijing University Press, 1997.)
沈木珠:《国际贸易法研究》 , 法律出版社, 2002年版。(Shen Muzhu, International Commercial
Law, China Law Press, 2002.)
舒国滢编:《法理学导论》 , 北京大学出版社, 2006年版。(Shu Guoying, Introduction to Jurispru-
dence, Beijing University Press, 2006.)
王京禾:《联合国国际货物销售合同公约解释》 , 中国对外经济贸易出版社, 1987年版。(Wang
Jinghe, Commentaries on CISG, China Foreign Economic and Trade Publisher, 1987.)
王泽鉴: 《法律思维与民法实例》 , 中国政法大学出版社, 2001年版。(Wang Zejian, Legal
Thinking and Examples of Civil Law, China University of Political Science and Law Press,
2001.)
徐国栋:《诚实信用原则研究》 , 中国人民大学出版社, 2002年版。(Xu Guodong, On the Principle
of Goodfaith, China Renmin University Press, 2002.)
徐国栋:《民法基本原则解释》 , 中国政法大学出版社, 1992年版。(Xu Guodong, Interpretation of
General Principles of Civil Law, China University of Political Science and Law Press, 1992.)
杨仁寿:《法学方法论》 , 中国政法大学出版社, 1999年版。(Yang Renshou, Legal Methodology,
China University of Political Science and Law Press, 1999.)
张玉卿: 《联合国国际货物销售合同公约释义》 , 中国对外经济贸易出版社, 1988年版
。(Zhang Yuqing, Commentary on CISG, China Foreign Economics and Trade Press, 1988.)
张玉卿:《国际货物买卖统一法:联合国国际货物销售合同公约释义》 , 中国对外经济贸易出
版社, 1998年版。(Zhang Yuqing, International Uniform Law on Sale of Goods: Commentary
on CISG, China Foreign Economics and Trade Press, 1998.)
张玉卿: 《国际商事合同通则2004》 , 中国对外经济贸易出版社, 2005年版。(Zhang Yuqing,
UNIDROIT Principles on International Commerical Contracts 2004, China Foreign Economics
and Trade Press, 2005.)
张文显主编:《法理学》 , 高等教育出版社, 2000年版。(Zhang Wenxian, Jurisprudence, China
Higher Education Press, 2000.)
张志铭:《法律解释操作分析》 , 中国政法大学出版社, 1995年版。(Zhang Zhiming, Operational
Analysis of Legal Interpretation, China University of Political Science and Law Press, 1995.)
References 139

郑强:《合同法诚实信用原则研究——帝王条款的法理阐释》 , 法律出版社, 2000年版。(Zheng

Qiang, Principle of Goodfaith in Contract Law, China Law Press, 2000.)
郑远民:《现代商人法研究》 , 法律出版社, 2001年版。(Zheng Yuanmin, Model Lex Mactoria,
China Law Press, 2001.)
周晓燕主编:《国际商事合同通则》 , 法律出版社, 1996年版。(Zhou Xiaoyan, UNIDROIT Prin-
ciles on International Commercial Contracts, China Law Press, 1996.)
中国国际经济贸易仲裁委员会编:《中国国际经济贸易仲裁裁决书选编 (1995–2002) 》 [货物买
卖争议卷], 法律出版社, 2002年版。(CIETEC, Selection of Cases Handled by CIETAC (1995–
2002) (Sale of Goods Disputes), China Law Press, 2002.)
[德]阿列克西著, 舒国滢译: 《法律论证理论》 , 中国法制出版社, 2002年版。(Robert Alexy,
Theorie der juristischen Argumentation: Die Theorie des rationalen Diskrses als Theorie der
juristischen Begruendung, translated by Shu Guoying, China Fazhi Press, 2002.)
[德]彼得·施莱希特里姆著, 李慧妮编译:《联合国国际货物销售合同公约评释》 , 北京大学出
版社, 2006年版。(PeterSchleclltriem, Commentary on CISG, translated by Li Huini, Beijing
University Press, 2006.)
[德]莱茵哈德·齐默曼、[英]西蒙·惠特克主编, 丁广宇等译:《欧洲合同法中的诚信原则》 , 法律
出版社, 2000年版。(Reinhard Zimmermann, Goodfaith in European Contract Law, translated
by Ding Guangyu, China Law Press, 2000.)
[美]艾伦•沃森著, 李静冰等译:《民法法系的演变及形成》 , 中国政法大学出版社, 1992年版
。(Alan Watson, The Making of the Civil Law, translated by Li Jingbing, China University
of Political Science and Law Press, 1992.)
[美]E·博登海默著, 邓正来译:《法理学——法律哲学与法律方法》 , 中国政法大学出版社, 1999
年版。(Edgar Bodenheimer, Jurisprudence:the Philosophy and Method of the Law, translated by
Deng Zhenglai, China University of Political Science and Law Press, 1999.)
[美]哈罗德•伯尔曼著, 贺卫方译:《法律与革命: 西方法律传统的形成》 , 中国大百科全书出版
社, 1993年版。(Harold J. Berman, Law and Revolution: The Formation of the Western Legal
Tradition, translated by He Weifang, China Encyclopedia Press, 1993.)
[美]约翰·亨利·梅利曼著, 顾培东等译: 《大陆法系》 , 法律出版社, 2004年版。(John Henry
Merryman, The Civil Law Tradition, translated by Gu Peidong, China Law Press, 2004.)
[美]理查德·A·波斯纳著, 苏力译:《法理学问题》 , 中国政法大学出版社, 1994年版。(Richard
Bosner, The Problems of Jurisprudence, translated by Su Li, China University of Political
Science and Law Press, 1994.)
[美]孟罗·斯密著, 姚梅镇译:《欧陆法律发达史》 , 中国政法大学出版社, 1999年版。(Munroe
Smith, The Development of European Law, translated by Yao Meizhen, China University of
Political Science and Law Press, 1999.)
[英]J.H.C.莫里斯主编, 李双元等译:《戴西和莫里斯论冲突法》 , 中国大百科全书出版社, 1998
年版。(J.H.C. Morris, Deicy and Morris on Conflict of Laws, translated by Li Shuangyuan,
China Encyclopedia Press, 1998.)
[英]米歇尔·布里奇著, 林一飞译: 《国际货物销售法律与实务》 , 法律出版社, 2004年版
。(Michael Bridge, Law and Practices of Inernational Sale of Goods, translated by Lin
Yifei, China Law Press, 2003.)
[英]施米托夫著, 赵秀文译:《国际贸易法文选》 , 中国大百科全书出版社, 1993年版。(Clive M.
Schmitthoff, Collection of Works on International Trade Law, translated by Zhao Xiuwen, China
Encyclopedia Press, 1993.)

VII Papers in Chinese

包大明: 《我国与1980年联合国国际货物销售合同公约》 , 载
《丹东师专学报》 2001年第1期
。(Bao Daming, China and CISG, 1 Journal of Dandong Normal College, 2001.)
陈弘毅:《当代西方解释学初探》 ,载《中国法学》 1997年第3期。(Chen Hongyi, Modern Western
Science of Interpretation, 3 China Law Review, 1997.)
140 References

陈金钊:《法律的特性与法律解释—法律解释的一种本体论探索》 , 载广西师范大学学报 (哲
学社会科学版) 2003年第2期。(Chen Jinzhao, Features of Law and Legal Interpretation, 2
Journal of Guangxi Normal University, 2003.)
刁胜先: 《中西诚实信用原则的比较研究概念》 , 载 《甘肃社会科学》 2001年第4期。(Diao
Shengxian, A Comparative Study of the Principle of Goodfaith in China and Western
Countries, 4 Gansu Social Sciences, 2001.)
黄涧秋: 《国际商事合同通则法律适用规则评析》 , 载 《苏州大学学报》 (哲学社会科学版)
2002年1月第1期。(Huang Jianqiu, Commentary on the Application of Law Rules in PICC,
1 Journal of Suzhou University, 2002.)
黄娟: 《中西方适用诚实信用原则的比较》 , 载 《理论月刊》 2001年第6期。(Huang Juan, A
Comparative Study of Application of the Principle of Good faith in China and Western
Countries, 6 Lilun Yuekan, 2001.)
李江敏:《论中世纪的商人及商法》 , 载《山西大学学报》(哲学社会科学版) 2003年第3期。(Li
Jiangmin, Lex Mercatoria and Merchants in the Middle Ages, 3 Journal of Shanxi University,
2003.)
梁慧星:《诚实信用与漏洞补充》 , 载 《法学研究》 1994年第2期。(Liang Huixing, Goodfaith the
Gapfilling, 2 Journal of Legal Research, 1994.)
梁慧星:《论法律解释方法》 , 载 《比较法研究》 1993年第1期。(Liang Huixing, Approaches to
Legal Interpretation, 1 Comparative Law Research, 1993.)
马聪:《欧洲中世纪商人法对罗马法的继受》 ,载 《广西社会科学》 2006年第7期。(Ma Cong, Lex
Mactoria in the Middle Ages and Its Inheritence of Roman Law, 7 Guangxi Social Sciences,
2006.)
马新彦:《信赖规则之界定》 ,载 《民商法学》 2002年第10期。(Ma Xinyan, The Principle of Relia-
bility, 10 Journal of Civil and Commercial Law, 2002.)
沈禹钧:《对国际货物销售合同履行“根本违约”的探讨》 ,载《上海海运学院学报》 2001年第1期
。(Shen Yujun, Fundamental Breach of Contract in Performance of Contracts of International
Sale of Goods, 1 Journal of College of Shanghai Maritime Transportation, 2001.)
苏力:《解释的难题: 对几种法律文本解释方法的追问》 ,载 《中国社会科学》 1997年第4期。(Su
Li, Dillemma of Interpretation: Reflections on Several Legal Interpretation Approaches, 4
Journal of China Social Sciences, 1997.)
王春婕: 《多元与融合: 国际统一合同法的现代特性》 , 载 《法学论坛》 2001年第5期。(Wang
Chunjie, Diversification and Unification: Modern Features of International Uniform Contract
Law, 5 Legal Forum, 2001.)
王利明: 《关于诚信的法学思考》 , 载 《中国人民大学学报》 2005年第5期。(Wang Liming, On
Goodfaith, 5 Journal of China Renmin University, 2005.)
翁国民: 《全球化与国际商事合同规则的国际统一》 , 载《中国法学》 2001年第3期。(Ong
Guomin, Globalization and Unification of Rules on International Commercial Contracts,
3 China Law Review, 2001.)
吴兴光:《合同法统一化进程的第二个里程碑——国际商事合同通则探讨 (一) 》 , 载《国际
经贸探索》 1997年第1期。(Wu Xingguang, The Second Milestone in Unification of Contract
Law—PICC, 1 Research on Inernational Economy and Trade, 1997.)
徐国栋: 《诚实信用原则的概念及其历史沿革》 , 载 《法学研究》 1989年第4期。(Xu Guodong,
Definition of the Principle of Good faith and Its Historical Evolution, 4 Journal of Legal Research,
1989.)
徐国建: 《联合国国际货物销售合同公约的国际统一适用——评马格努斯的联合国国际货
物买卖法释义》 , 载《外国法译评》 1995年第4期。(Xu Guojian, On Uniform Application of
CISG, 4 Translation and Review of Foreign Law, 1995.)
徐国建:《现代商人法论》 ,载 《中国社会科学》 1993年第3期。(Xu Guojian, Modern Lex Mactoria,
3 Journal of China Social Science, 1993.)
张照东:《CISG和通则之比较》 ,载 《华侨大学学报》(哲学社会科学版) 1998年第3期。(Zhang
Zhaodong, A Comparative Study of CISG and PICC, 3 Huaqiao University Journal, 1998.)
张志铭:《法律解释概念探微》 ,载《法学研究》 1998年第5期。(Zhang Zhiming, Definition of Legal
Interpretation, 5 Journal of Legal Research, 1998.)
References 141

郑远民、陈令枫:《传统冲突法缺陷分析与现代商人法的补位功能》 ,载《青岛科技大学学报》
(社会科学版) 2004年第6期。(Zheng Yuanmin, Defects of Traditional Conflicts Law and the
Default Function of Modern Lex Mercatoria, 6 Qingdao University of Science and Technology
Journal, 2004.)
致远:《系统解释法的理论与应用》 ,载《法律适用》 2002年第2期。(Zhi Yuan, Theory and Practice
of Systematic Legal Interpretation Approach, 2 Journal of Application of Law, 2002.)
周晓唯:《货物买卖法律制度的国际趋同化》 , 载《西北大学学报》(哲学社会科学版) 2003年
第1期。(Zhou Xiaowei, International Integration of Sale of Goods Law, 1 Northwest University
Journal, 2003.)