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Area of Operation of the International Sales Conventions,
László Réczei   * 


Much criticism has been vented against the omission in ULIS of a "conflicts" orientation among the conditions of its availability.  12  Indeed, this has even been cited as a reason why the developing countries declined to accede to ULIS; it may also account for the demand by UNCITRAL for revision of ULIS. Yet the concept prevailed again in the conference of 1974 which discussed the wording of the Convention on Limitation.  13 

The VIENNA TEXT (Art. 1) defines the scope of its application as follows:

"This Convention applies to contracts of sale of goods between parties whose places of business are in different States:

a. when the States are Contracting States;

b. when the rules of private international law lead to the application of the law of a Contracting State."

Hence, the VIENNA TEXT has taken over the subjective condition of ULIS: the places of business of Contracting parties must be in two different States.

Similarly the VIENNA TEXT retained the expedient that in the mutual relationship between two Contracting States the Convention applied unconditionally rather than being made dependent [page 517] on whether the conflicts rules of the Contracting countries or of either of them "approved" the application of the Convention.

Hence for the VIENNA TEXT it is sufficient for the application of the uniform law that the Contracting parties have their places of business in two different countries ratifying the Convention. By contrast, ULIS demands additionally that any three objective conditions -- delivery of goods beyond the frontier, offer-acceptance across the frontier, close of the deal and performance in two different countries -- be established.

Is the scope of application of the VIENNA TEXT any wider than ULIS as a result of abandoning these conditions? It appears not. No doubt it is the common goal of both instruments to bring about uniform regulation of the international sale of goods. Neither positive defines what a sales contract is,  14  but the three objective conditions of ULIS define which contracts should be regarded as "international". ULIS uses a rule of extreme complexity to define this notion, which is perhaps the least contested question in international judicial practice. Since the subsequent articles of both ULIS and the VIENNA TEXT except certain types of sales contracts from uniform law, any incongruity between the spheres of application of the two instruments should be attributed to these exceptions rather than to their first articles.

Condition (a) of VIENNA's Art. 1 will come into full operation only when the forum is also in either of the Contracting countries. In the court of a non-Contracting country the Convention cannot preclude application of the conflicts law of the forum. Hence the VIENNA TEXT will not come into operation if a lawsuit is instituted in a country whose conflicts rule selects the law of the forum or of another non-Contracting State. This possibility however also obtains, under ULIS. On the other hand, if the forum selects the law of either Contracting party, the court of a non-Contracting country will be deciding in accordance with the VIENNA TEXT. However the forum will be mindful of the rule that a foreign law has to be applied as the judge of the foreign country would apply it.

 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).

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