It’s a Bird… It’s a Plane… It’s CISG 2.0?

On 10 July 2012, UN Information Services released a press release reporting about UN Commission on International Trade Law’s 45th annual session, which took place in New York from 25 June to 6 July 2012. While UNCITRAL finalized and adopted important new texts pertaining to public procurement and arbitration rules during this session, the much-anticipated issue beyond all others – at least within our little circle – was UNICITRAL’s response to Switzerland’s proposal for future work in the area of international contract law.

According to the press release, the Commission “agreed that a meeting or symposium should be held on the topic of general contract law with a view to determining the desirability of future work in that field.” If the Commission is to follow the scope of Switzerland’s proposal, this future “meeting or symposium” will likely focus on the Vienna Sales Convention (“CISG”) and to a lesser extent, other subsequent unification measures. This assumption is based on Switzerland’s statement that although CISG has enjoyed success in “bringing about unification of sales law,” as it is, “CISG cannot satisfy all the needs of the international commercial community in relation to contract law.”

The areas in which the CISG is grossly inadequate, according to Switzerland – or anyone else who has bothered to read the convention – are on issues such as agency, assignments, and mistakes where the text leaves the appropriate answers to domestic legislation. Moreover, in areas such as battle of the forms and specific performance, CISG is frustratingly open-ended, leaving gaps in the contract. This void creates the need for supplemental measures to the CISG, which defeats the whole purpose of having a “unifying law of contracts” in the first place.

It is the hopes of those with vested interest in the development of CISG that the upcoming “meeting or symposium” – which is suspiciously singular and not plural – will address these flaws so as to increase the value and utility of these unification rules. In considering ways to improve CISG or any of its subsequent offshoots tasked with a similar aim, we hope that UNCITRAL will take into consideration variety of voices. In other words, we hope that UNCITRAL will listen not only to member states, legislatures and lobbyists, but to truly listen and digest the opinions of academics, practitioners and most importantly, the end users of the new rule.

On a related but slightly different note (and I apologize for the forthcoming brazen self-promotion in advance), MEPLI recently hosted a conference, which brought together prominent academics, practitioners, and representatives from esteemed institutions including the Secretary of UNCITRAL, Renaud Sorieul. The conference, which was titled “Competition in International Sales Law–Perspectives on Choice”, provided a platform for these experts to exchange their opinions regarding the multitude of international contract/sales laws available and what it means to choose one over the other. The forthcoming conference report will provide a more detailed description of the items discussed during this conference, but suffice to say here, there is an alarming disconnect between how the academics perceive this availability of choice and how the practitioners see it.

In the mean time, proponents of CISG or other unification measures must hold their collective breathes and keep their fingers tightly coiled and crossed that this “meeting and symposium” will eventually lead to a new and improved CISG to usher in the new era of what some people have coined as “CISG 2.0”.

read more