for Albert H. Kritzer CISG Database

of the Institute of International Commercial Law

at Pace University Law School

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

Another Open Door

Under paragraph (b) of Art. 1, even if the Contracting parties have no place of business in the Contracting country, it suffices that under the conflicts rule of the forum the law of a signatory country becomes applicable. This will, of course, hold only when the subjective condition of Art. 1 has also been met, i.e. the parties' places business are in different countries.

Thus the appetite of the VIENNA TEXT reveals itself as much smaller than that of ULIS. Can the forum stem this appetite? Is it proper that when neither the judge nor the two litigants belong [page 518] to a Contracting country, the case should still be decided under a convention that their countries have never ratified? Or is it acceptable that the forum apply the foreign law just like the foreign court? And what will happen when under the conflicts rule of a signatory state the law of some other state will prevail, as in the case of renvoi? Yet if the forum of the non-Contracting State ignores the renvoi, it would not determine the case as would the judge of the foreign forum. On the other hand, if this forum were to take account of the renvoi it would infringe its own law.

Paragraph (b) of Art. 1 gave rise to protracted disputes and provoked a series of counterproposals. Some delegates would have discarded the whole paragraph; others put forward less ambitious suggestions, but finally the above-quoted text was submitted to the diplomatic conference. Still, on the proposal of the Czechoslovak delegation the conference admitted the following new reservation (Art. 95):

"Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph l(b) of Article 1 of this Convention."


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