Selected Topics on the Application of the CISG in China

Abstract

The Chinese courts and CIETAC arbitrators have demonstrated a homeward trend in applying the CISG, which is well manifested by the parallel application of the CISG and Chinese domestic law to the same matters, the reliance upon Chinese legal rationale in the interpretation of the CISG, the fallback role of the CISG to fill the gaps of Chinese domestic law, and the exclusive resort to Chinese domestic law despite the applicability of the CISG. Further, except in only a few cases, the provisions of the CISG are either regrettably distorted, or invoked without closely examination. In effect, the analysis of the CISG in most decisions and awards is so rough that it is difficult to explore whether this Convention has received uniform interpretation in China. Apparently, the Chinese courts and CIETAC arbitrators are familiar with Chinese domestic law and hence feel more confident when dealing with this body of law, while they are not well equipped with a comprehensive understanding of the CISG. Also, the ambiguous wording of Article 142 GPCL has, to some extent, contributed to these problems. Paradoxically, these erroneous applications actually have led to the spill-over effect of the CISG in cases beyond its sphere of application. Nevertheless, it is strongly suggested that more attention be paid by Chinese courts and CIETAC arbitrators to the text of the CISG as well as foreign authorities when applying the Convention, so as to secure uniformity and predictability in the application of the CISG.