for Albert H. Kritzer CISG Database

of the Institute of International Commercial Law

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 * Professor of Law, Karl Marx University, Budapest. This is an updated extract from a paper delivered at the Colloquium on the UNCITRAL Convention held by the International Association of Legal Science at the Academy of Sciences of the GermanDemocratic Republic, Potsdam-Babelsberg, August 1979.

 1. United Kingdom, San Marino, Belgium, Israel, The Netherlands, Italy, Federal Republic of Germany, Gambia and Luxembourg. The Convention text is reproduced in 13 Am. J. Comp. L. 453 (1964) and Zweigert and Kropholler, IV Source, of Intern'l Uniform Law E 137 (1971).

 2. U.N. General Assembly, A/CONF. 97/18 (10 April 1980); 19 Internat. Leg. Mat. 668 (1980). The draft for the Vienna Text was published in 27 Am J. Comp. L. 325(1979) as part of a Symposium on the Draft Convention.

 3. "The present Law shall apply to contracts of sale of goods entered into by parties whose places of business are in the territories of different States, in each of the following cases:
(a) where the contract involves the sale of goods which are at the time of the conclusion of the contract in the course of carriage or will be carried from the territory of one State to the territory of another;
(b) where the acts constituting the offer and the acceptance have been effected in the territories of different States.
(c) where delivery of the goods is to be made in the territory of a State other than that within whose territory the acts constituting the offer and the acceptance have been effected. (Art.1(1))."

 4. Riese, "Die Haager Konferenz über die internationale Vereinheitlichung des Kaufrechts vom 2. bis 25. April 1964, Verlauf der materiellen Vereinheitlichung des Kaufrechts," 29 RabelsZ 10 (1965).

 5. See in particular the Hague Convention of 15 June 1955; Hague Conference on Private International Law, Documents, 8th Session, II, 225 (1957); English transl.: 1 Am. J. Comp. L. 275 (1952).

 6. "1. Any State which has previously ratified or acceded to one or more Conventions on conflict of laws in respect of the international sale of goods may, at the time of the deposit of its instrument of ratification or accession to the present Convention, declare by a notification addressed to the Government of The Netherlands that it will apply the Uniform Law in cases governed by one of those previous Conventions only if that Convention itself requires the application of the Uniform Law. 2. Any State which makes a declaration under paragraph 1 of this Article shall inform the Government of The Netherlands of the Convention or the Conventions referred to in that declaration."

 7. Almost all authors call attention to the open door of ULIS: Riese, supra n. 4 at 11; Tunc, "Commentary," Actes et Documents de la Conference Diplomatique sur l'Unification du Droit en Matière de la Vente Internationale 1: Actes 357, 362 (1964) Dölle, Kommentar zum Einheitlichen Kaufrecht xxxii(1976); Honnold, "The Hague Convention of 1964" 1965 Law and Cont. Prob. 327.

 8. This is not unprecedented. The Geneva Convention on Bills of Exchange of 1930 is at the same time the Hungarian Act on Bills of Exchange. Thus, if a dispute under an international bill must be decided according to Hungarian law, this will in effect be based on the Geneva Convention, even when the bill was signed by parties whose countries have not acceded to the Convention. Still, there is no special Hungarian law of bills, whereas ULIS exists parallel to municipal law.

 9. ". . . [T]hese difficulties will be deposited on the doorsteps of non-adopting states," Honnold, supra n. 7 at 333; Eörsi, "The Hague Conventions of 1964 and the International Sale of Goods," 11 Acta Juridica 321 (1969).

 10. Belgium, Israel and Italy have not resorted to this reservation. If, therefore the parties can foresee that a lawsuit might be instituted against them in any of these countries, they may by invoking Art. IV of ULIS exclude the application of the reservation. It is, of course, odd to exclude the application of a law that does not apply to the parties. On the other hand, if a party hopes to win on the basis of ULIS, all he has to do is to find grounds for the jurisdiction of any of the three states, and thereby subject the case to ULIS. This is an occasion for forum shopping and an example of uncertainty in law. The system of reservations allows only a ratifying state not to apply ULIS unconditionally; no similar protection is available to non-ratifying countries. So e.g. the Dutch act introducing ULIS (15 December 1971) requires its application even when, by either a foreign or a Dutch conflicts rule, Dutch law has to be applied (Dölle, supra n. 7 at 4). This also entails resort to renvoi, with the result that the Dutch court may apply domestic Dutch law by renvoi from a foreign conflicts rule. As to other acceding countries, the Dutch ratification may call into doubt the effectiveness of their reservation based on Art. III of the Convention: when country A has ratified with this reservation but country B has not acceded to ULIS, the Convention cannot be applied in country A in respect of a transaction in country B. Still, when for one reason or other the lawsuit is instituted in The Netherlands, and according to the Dutch conflicts rule the law of country A has to be applied, the Dutch judge will apply ULIS.

 11. Dölle, supra n. 7 at 16. A few questions still have to be answered: e.g. when the acceding country applies ULIS as foreign law, will it apply in conformity with the foreign interpretation? Is there a chance for legal remedy of the third instance (incase of a violation of the law)? According to Kropholler there is: "Der 'Ausschluss' des IPR im Einheitlichen Kaufgesetz," 38 RabelsZ 378 (1974).

 12. See Nadelmann, "The Uniform Law on the International Sale of Goods: A Conflict of Laws Imbroglio," 74 Yale L. J. 448 (1964); Kropholler, supra n. 12 at 385. To the contrary, von Caemmerer, ". . . das Haager Rauirecht . . . soll dem Richter und den Parteien bei Raufvertragen über die Grenzen hinweg die Unsicherheiten and Schwierigkeiten des IPR and der Anwendung fremden Rechts ersparen." "Probleme des Haager einheitlichen Raufrechts," 178 AcP 121,122 (1978).

 13. The text of this convention, with an Introduction, is reproduced in 23 Am. J./{Comp. L.}/ 337 (1975).

 14. "'Il a paru aux redacteurs . . . que le concept 'vente' etait suffisamment clair pour qu'il ne dut pas être defini dans l'acte international lui-même." Rigaux, Le contract économique international 70 (1975).

 15. This Convention does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement.

 16. "(1) Two or more Contracting States which have the same or closely related legal rules on matters governed by this Convention may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States. Such declarations may be made jointly or by reciprocal unilateral declarations. (2) A Contracting State which has the same or closely related legal rules on matters governed by this Convention as one or more non-Contracting States may at any time declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States. (3) If a State which is the object of a declaration under the preceding paragraph subsequently becomes a Contracting State, the declaration made will, as from the date on which the Convention enters into force in respect of the new Contracting State, have the effect of a declaration made under paragraph (1), provided that the new Contracting State joins in such declaration or makes a reciprocal unilateral declaration."

 17. General Conditions of Delivery of Goods between Organizations of the Member Countries of the Council for Mutual Economic Assistance 1968. (Amended in 1975 and 1979): Zweigert and Kropholler, supra n. 1, E 155.

 18. Czechoslovakia: Law of 4 Dec. 1963 ("Code du Commerce International," 1964 Bull. Dr. Czech 158-298; GDR. Gesetz über internationale Wirtschaftsverträge vom 5 Feb. 1976.

 19. "The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between or from information disclosed by, the parties at any time or at the conclusion of the contract."

 20. VII Yearbook 97 (1966).

 21. ULIS Art. I(3) and Art. VII; VIENNA TEXT Art. 1(3).

 22. A(CN.9.) 125 p. 41.

 23. Eörsi has argued that ULIS nevertheless does not apply to consumer's purchases (supra n. 9 at 342).

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