International Studies Journal (ISJ)

International Studies Journal (ISJ)

On the Necessity to Reform the CISG in the light of the Governments’ Approaches and Modern Global Requirements

Document Type : Original Independent Original Article

Authors
Farhad Kabali Samartoie 1
Moosa Akefi Ghaziani 2
1 Master of International Law, Department of Law, Payame Noor University (PNU), Tehran, Iran.
2 Assistant Prof. at International Law, Department of Law, Payame Noor University (PNU), Tehran.
10.22034/isj.2023.387217.1979
Abstract
Harmonisation of laws with the aim of increasing legal certainty and predictability has been on the agenda for decades. Particularly in the field of international trade, replacing multiple scattered national legislation and international regulations with uniform laws is of paramount importance since it can facilitate trade by mitigating the costs associated with acquiring information about different laws and adapting to them. The Convention on the International Sale of Goods (CISG) is one of these efforts. The overall success of international instruments purporting to create legal harmonisation is to be assessed based on the level of acceptability and certainty that they have. Still, 40 years after the adoption of this instrument, half of the Governments and some of the major economies including the UK, India, and South Africa have not ratified it. Criticisms have been received from Governments and lawyers about the certainty of its provisions. But how have the Governments approached the CISG and what are the necessary reforms in the light of trade and sustainable development? Drawing on a qualitative research this article attempts to answer this question and prove the hypothesis that the CISG needs to be reformed in order to meet modern global requirements. Therefore, it analyses the status of the CISG in the context of trade and the approach of States. Next, the development of international trade and sustainable development requirements have been analysed as an aspect of the global changes that reveal the weaknesses of the convention and call for the reform of this instrument.

Highlights

Introduction

International legal cooperation is essential for transferring experiences and legal interactions among States. It is through cooperation that legal systems can better overcome their challenges and increase their efficacy. Such cooperation may lead to the harmonisation of laws among states on several issues. It is a process through which two or more governments modify their laws to create compatibility and consistency of common standards in a certain field and across their jurisdictions. The World Trade Organisation (WTO), the Energy Charter Treaty (ECT), the UN Convention on the Law of the Sea (UNCLOS), and the UN Convention on the Contracts for the International Sale of Goods (CISG) are a few examples of this process.

The CISG is a prominent instrument aimed at the harmonisation of contract and commercial law principles. The CISG is particularly significant since it offers a modern and relatively fair uniform law in international sales and thereby considerably reduces the costs that may be associated with international commercial transactions. The Convention is the result of a series of broad comparative studies of different legal systems of common law and civil law carried out during 50 years of international endeavours within the framework of different international organisations, and the United Nations Commission on International Trade Law (UNCITRAL) in particular.

Today the CISG may apply to the contracts of sale of goods between the Contracting States, where the parties are from different States parties to the Convention, or where the contracting parties have their respective places of business in different States. Besides it is applicable by virtue of the choice of contracting parties (Libertas contractuum) or when the rules of private international law lead to the application of the law of a Contracting State.

However, 40 years after the adoption of this instrument, half of the Governments and some of the major economies including the UK, India, and South Africa have not ratified it. This indicates the failure of CISG compared to other international instruments such as the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958), the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (ICSID Convention) (1965), and the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement) (1994) that have been ratified by more than 150 States each. On the other hand, there are criticisms received from Governments and lawyers about the efficacy of the CISG and the certainty of its provisions. But what is the reason behind the non-acceptance of the CISG among Governments and the criticisms raised against it?

The fact is that despite the justifications provided by some Governments for not having ratified the CISG, the international community and the international trade mechanisms have experienced major changes in the last few decades and these changes have made the shortcomings of the CISG and the need to amend its provisions more visible.

 

Methodology

This research employs a qualitative data analytics technique and case study method. For this purpose, the recent approach of States and other stakeholders to the Convention is descriptively analysed. In this context, we have scanned and used more than 40 primary and secondary sources, including books, journal articles, research papers, reports, new publications, etc.

 

Results and Discussion

The main question this article tries to answer is: how have the Governments approached the CISG and what are the necessary reforms in the light of trade and sustainable development? This article attempts to answer this question and prove the hypothesis that the CISG needs to be reformed in order to meet modern global requirements and gain more acceptability. To this aim the present article examines its assumption after providing an introduction, research background, theoretical foundations, and a brief history of the concept. Firstly, it sheds some light on the peculiarities of the provisions of the CISG and analyses the overall approach of States to this instrument. Secondly, the emerging issues and the evolution of international trade and sustainable development requirements have been assessed as aspects of the global changes that reveal the weaknesses of the convention and call for the reform of this instrument.

 

Conclusion

Harmonisation of laws with the aim of increasing legal certainty and predictability has been on the agenda for decades. Particularly in the field of international trade, replacing multiple scattered national legislation and international regulations with uniform laws is of paramount importance since it can facilitate trade by mitigating the costs associated with acquiring information about different laws and adapting to them. The CISG is one of these efforts. The overall success of international instruments purporting to create legal harmonisation is to be assessed based on the level of acceptability and certainty that they have.

As we have seen this research proves the hypothesis that the CISG suffers from shortcomings and criticisms have been received from Governments and lawyers about the certainty of its provisions and structure that call for an alternative to this instrument or a modified version of it. From the proofs of the hypothesis we should remark that, so far, the CISG has neither gained a significant political acceptance nor enjoyed its expected legal admissibility.

Still, 40 years after the adoption of this instrument, half of the Governments, and some of the major economies including the UK, India, and South Africa have not ratified it. On the other hand, despite the ratification of the convention, some governments such as Switzerland remain critical of its provisions and the efficacy of this mechanism in toto. Criticisms that have also been approved by the UNCITRAL. Given the staggering status of this instrument, it is clear that even assuming most States ratify the CISG that will not necessarily lead to greater legal admissibility. The prevailing approach among the lawyers and businessmen of many member countries in excluding their contracts from the rule of the CISG is proof of this claim. Moreover, the CISG is not a self-contained regime and there is always a need to refer to internal laws and/or conflict resolution rules to fill its gaps. In contrast, by using English contract law, for instance, there is no need to deal with different and sometimes inconsistent interpretations or other scattered regulations governing the contracts for the sale of goods. As a result, the internal laws of the UK appear to have much more efficacy in this regard compared to the CISG. The CISG unlike other international law instruments such as the Agreement Establishing the WTO and the UNCLOS does not contend its provisions as a preferable and mandatory mechanism to govern contracts of sale of goods. It grants the contracting parties a considerable amount of contractual freedom (Libertas contractuum) that along with language difficulties often leads practitioners to exclude their contracts from the CISG's sphere of application.

Furthermore, the legal doctrine is critical of the way in which the Convention responds to the emerging requirements of international trade and sustainable development. For instance, environmental challenges have grown in number and severity since the adoption of the CISG in 1980. Frustratingly there is no single interpretation of how the Convention meets the emerging requirements of international trade and sustainable development. This has resulted in the uncertainty and unpredictability of the decisions of tribunals.

Another concern is about the definition of goods in the CISG, and the increasing combination of goods and services in the same economic transactions has raised controversies about the efficacy of the CISG since it provides no specific criterion for measuring the ratio of the value of services to goods in the sale of goods-service systems.

All these shortcomings of the provisions of the CISG prove the hypothesis of this research that the CISG needs to be reformed in order to meet modern global requirements and gain more acceptability.

Keywords
CISG
Harmonisation
Trade
Sustainable Development
Services

Subjects

  1. Akbari, M., & Hajian, H. (2021). Resale of Goods (self-help and emergency sales) in the Convention on International Sale of Goods (1980) and Iranian Law with Emphasis Transportation Laws. Journal of Comparative Law, 5(1), 7-30. (In Persian)
  2. Akefi Ghaziani, M., & Akefi Ghaziani, M. (2021). The Sources of International Investment Law: The Primacy of National Legislations. International Studies Journal (ISJ), 18(1), 63-82. doi: 10.22034/isj.2021.248930.1218. (In Persian)
  3. Baines, T., Lightfoot, H., & Kay, J. (2009). Servitized manufacture: Practical challenges of delivering integrated products and services. Journal of Engineering Manufacture, 223(9), 1207-1215.
  4. Clayton P., & Scott, R. (2005). The Political Economy of International Sales Law. International Review of Law and Economics, 25(3), 446-486.
  5. Cuniberti, G. (2014). The International Market for Contracts: The Most Attractive Contract Laws. Northwestern Journal of International Law & Business, 34(3), 455-517.
  6. Eiselen, S. (1999). Adoption of the Vienna Convention for the International Sale of Goods (the CISG) in South Africa. South African Law Journal, 116(2), 323-370.
  7. Fayzi Chakab, G., & Akefi Ghaziani, V. (2022). Software as Goods in CISG. Journal of Legal Studies, 14(1), 279-308. (In Persian)
  8. Foley, C., Hines, J., Mataloni, R., & Wessel, D. (2021). Global Goliaths: Multinational Corporations in the 21st Century Economy. Washington, DC: Brookings Institution Press.
  9. Hajiazizi, B., & Bayat, B. (2018). The Necessity of Accession to the Convention on the International Sale of Goods. International Law Review, 35(58), 299-328. doi: 10.22066/cilamag.2018.31691. (In Persian)
  10. Halson, D. (2011). A Common Lawyer's Perspective on Contract Codes. Jersey and Guernsey Law Review, 15(2), 1-18.
  11. Hoekstra, J. (2021). Political barriers in the ratification of international commercial law conventions. Uniform Law Review, 26(1), 43–66.
  12. Honnold, J. (2009). Uniform Law for International Sales under the 1980 United Nations Convention. Austin: Wolters Kluwer.
  13. Human Rights Council. (2011). Report of the Special Representative of the Secretary General on the issue of human rights and transnational corporations and other business enterprises, John Ruggie. UN Doc A/HRC/17/31, 21 March 2011.
  14. Jackson, R., & Sørensen, G. (2016). Introduction to International Relations: Theories and Approaches. Translated by Mehdi Zakerian, Ahamad Taghizadeh and Hasan Saeed kolahi, Tehran: Mizan Legal Foundation, First Edition. (In Persian)
  15. Kobayashi, S. Baobo, J., & Sano, J. (1999). The "Three Reforms" in China: Progress and Outlook. Japan Research Institute, September, at: https://www.jri.co.jp/english/periodical/rim/1999/RIMe199904threereforms/
  16. Kritzer, A.H. (2022). CISG: Table of Contracting States. Institute of International Commercial Law, May 5, at https://iicl.law.pace.edu/cisg/page/cisg-table-contracting-states.
  17. Kryla-Cudna, K. (2021). Adequate Assurance of Performance under the UN Convention on Contracts for the International Sale of Goods and the Uniform Commercial Code. International & Comparative Law Quarterly, 70(4), 935-960.
  18. Law Explorer. (2018). Legal Aspects of the Protection of the Environment. May 5, at: https://lawexplores.com/legal-aspects-of-the-protection-of-the-environment/.
  19. Maulana Haeruddin, M., Rifadli Mansur, M., Mansur, M., Ilham, T., Wardhana Haeruddin, M. (2020). Keeping up with The CISG: A Case of Indonesia. Econ. Rev., 24(4), 923-933.
  20. Miashchanava, M. (2016). Globalization and International Commercial Contracts: the UNIDROIT Principles. Modena: ADAPT University Press.
  21. Moccia, C. (1990). The United Nations Convention on Contracts for the International Sale of Goods and the “Battle of the Forms”. Fordham International Law Journal, 13, 649-679.
  22. Monroe, K. (2017). CISG: To Include or Exclude? That is the Question: United Nations Convention on Contracts for the International Sale of Goods. Phillips Nizer LLP, May 4, at: https://www.phillipsnizer.com/CISG-UN-Convention-International-Sale-of-Goods-KAMonroe.
  23. Mosavi, F., Mosavi, M., Vakili Moghadam, M., Golami, M. (2012). The Principles of Interpretation of Contract (A Comparative study). Private Law Research, 1(1), 183-213. (In Persian)
  24. Moss, S. (2005). Why the United Kingdom has not Ratified the CISG. Journal of Law and Commerce, 25, 483-485.
  25. Nematollahi, E., & Fatemioon, S. (2020). Explaining the Concept of Fundamental Breach & Fundamental Non-Performance of Contract (In the 1980 ICISG & Other International Documents and A Comparison with Iranian Law). Comparative Studies on Islamic and Western Law, 6(4), 159-190. (In Persian)
  26. Nguyen, L. (2021). When does CISG apply and what are the benefits of CISG?. BLAWYERS W, August 3, at: https://www.blawyersvn.com/blog/when-does-cisg-apply-and-what-are-the-benefits-of-cisg/.
  27. (2011). Guidelines for Multinational Enterprises. Paris: OECD Publishing.
  28. Praštalo, B. (2020). A Potentially Greater Role of Arbitral Awards in Shaping the CISG Case Law: Could We Be Witnessing the Beginning of a New Dawn?. Regulating for Globalization: Trade, Labor and EU Law Perspectives, May 18, at: https://regulatingforglobalization.com/2020/05/18/a-potentially-greater-role-of-arbitral-awards-in-shaping-the-cisg-case-law-could-we-be-witnessing-the-beginning-of-a-new-dawn/
  29. Schefer, K. (2016). Emerging Issues in Sustainable Development: International Trade Law and Policy Relating to Natural Resources, Energy, and the Environment. Edited by M. Matsushita, T.J. Schoenbaum, Tokyo: Springer.
  30. Schwenzer, I. (2014). International Sales Law: A Global Challenge. Edited by L. DiMatteo, Cambridge: Cambridge University Press.
  31. Schwenzer, I., & Leisinger, B. (2007). Commercial Law Challenges in the 21st Century: Jan Hellner in Memoriam. Edited by R. Cranston, J. Ramberg, J. Ziegel, Uppsala: Stockholm Centre for Commercial Law.
  32. Smits, J. (2014). International Sales Law: A Global Challenge. Edited by L. DiMatteo, Cambridge: Cambridge University Press.
  33. Sono, K. (2004). The Limitation Convention: The Forerunner to Establish UNCITRAL's Credibility. Pace International Law Review, 16(1), 147-164.
  34. The Lawyers and Jurists. (2023). Why India is Hesitating from CISG?. February 15, at: https://www.lawyersnjurists.com/article/why-india-is-hesitating-from-cisg/#:~:text=The%20major%20reason%20as%20to,misrepresentation%20related%20to%20the%20contract.
  35. Tienhaara, K. (2008). Unilateral Commitments to Investment Protection: Does the Promise of Stability Restrict Environmental Policy Development?. Yearbook of International Environmental Law, 17, 139-167.
  36. Tiong Min, Y. (2015). The CISG as a Model for an International Contract Law. In UNCITRAL-Singapore Seminar of 35 Years of the CISG: Achievements and Perspectives, Singapore: Singapore Management University.
  37. Trading Economics. (2023). World - Trade (% Of GDP). February 15, at: https://tradingeconomics.com/world/trade-percent-of-gdp-wb-data.html#:~:text=Trade%20(%25%20of%20GDP)%20in,Bank%20on%20February%20of%202023.
  38. Tripodi, L. (2015). Towards a New CISG: The Prospective Convention on the International Sale of Goods and Services. Leiden: Martinus Nijhoff.
  39. UN General Assembly. (2012). Possible future work in the area of international contract law: Proposal by Switzerland on possible future work by UNCITRAL in the area of international contract law, UN Doc A/CN.9/758, 8 May 2012.
  40. UN General Assembly. (2012). Report of the United Nations Commission on International Trade Law, Official Records Sixty-seventh session, Supplement No. 17, UN Doc A/67/17, 6 July 2012.
  41. (2013). World Investment Report 2013: Global Value Chains: Investment and Trade for Development. Geneva: United Nations Publication.
  42. United Nations Commission on International Trade Law. (1971). Yearbook Volume I: 1968-1970. New York: United Nations Publication.
  43. United Nations. (2023). United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG). February 14, at: https://uncitral.un.org/en/texts/salegoods/conventions/sale_of_goods/cisg
  44. Vaughn, G., & Duggal, K. (2022). On International Arbitration, Choice of Substantive Law, and the CISG: a Case Law Study. Arbitration International, 38(3). 187–202.
  45. Wethmar-Lemmer, M. (2014). Regional Harmonisation of International Sales law via Accession to the CISG and the Importance of Uniform Interpretation of the CISG. De Jure (Pretoria), 47(2), 298-309.
  46. (2019). World Trade Statistical Review 2019. Geneva: World Trade Organization.
  47. WTO. (2023). Evolution of trade under the WTO: handy statistics. February 14, at: https://www.wto.org/english/res_e/statis_e/trade_evolution_e/evolution_trade_wto_e.htm#:~:text=World%20trade%20values%20today%20have,the%20WTO%20was%20first%20established.
  48. Zhou, Q. (2014). International Sales Law: A Global Challenge. Edited by L. DiMatteo, Cambridge: Cambridge University Press.
  49. Zhou, Q. (2019). China’s New Foreign Investment Law: A Backgrounder. China Briefing, October 17, at: https://www.china-briefing.com/news/china-new-foreign-investment-law-backgrounder/.