The Convention on Contracts for the International Sale of Goods in United States Courts

Abstract

The Convention, faute de mieux, will often be applied by tribunals (fudges or arbitrators) who often will be intimately familiar only with their own domestic law. These tribunals, regardless of their merit, will be subject to a natural tendency to read the international rules in light of the legal ideas that have been imbedded at the core of their intellectual formation. The mind sees what the mind has means of seeing.(1) I. INTRODUCTION Black's Law Dictionary defines as [c]onforming to one rule, mode, pattern, or unvarying standard; not different at different times or places.(2) The purpose of a uniform statute is to provide a set of guidelines or rules from which all courts applying that statute will decide similar cases in the same way. Ideally, the application of a statutory provision in two different cases should vary only based on the facts of the case; the law should be clear and given. On the international level, a uniform code can serve the same function of deciding two factually similar cases in the same way. However, the goal of uniformity on the supranational level is more complex. First, the differences in legal systems among countries make enacting a uniform code with detailed provisions an elusive task.(3) Vagueness and generality are the alternative in order to satisfy countries with both common law and civil law systems.(4) Second, not only is there a difference in legal systems, there is more variance among substantive laws from country to country than among the fifty United States.(5) Finally, an international body to reconcile varying interpretations of different jurisdictions may be particularly necessary because of the difficulty in achieving uniformity between many nations with different languages and court systems.(6) The need for uniformity in international sales law resulted in the creation of the United Nations on Contracts for the International Sale of Goods (hereinafter Convention or CISG) in 1980.(7) On January 1, 1988, the went into effect with eleven ratifying states, including the United States.(8) As the CISG becomes the applicable law in many international transactions, case law on the is increasing among courts in numerous countries. Today, the number of judicial and arbitral awards exceeds 300, its international bibliography reaches well over 2000 pages, and its commentaries are published in numerous languages.(9) Over the past several years, U.S. federal courts have grappled with cases where the is the governing law.(10) This paper will examine the interpretative polices of U.S. courts when applying the CISG. Specifically, this paper will focus on five cases and examine the way U.S. federal courts have dealt with interpreting the CISG. Moreover, in many cases involving contracts for the sale of goods, a provision of the CISG will not be directly on point to solve the legal issue presented in the case. This article will look at various interpretation techniques or models for the advanced by numerous commentators and examine their applicability in U.S. courts. Part I looks at the creation of the CISG and the goals that it sets out to achieve. Part II examines Article 7 of the CISG, which governs the interpretation of the Convention. Part III looks at seven potential sources to interpret the CISG when an article in the CISG is not directly on point for the issue presented in a particular case. These seven sources in order of their degree of persuasiveness are: (1) general principles of contract law contained in the CISG; (2) the legislative history of the CISG; (3) case law from foreign jurisdictions interpreting the Convention; (4) treatises and commentary of noted scholars on the CISG; (5) general principles of private international law; (6) case law from domestic jurisdictions interpreting the Convention; and (7) case law from domestic jurisdictions interpreting domestic sales law such as Article 2 of the UCC. …