Without doubt, the advantages of the CISG are numerous and established but criticism against the convention are also rife and cannot be brushed aside, although some unfounded because they grow from general misunderstanding of the convention and also most criticism arrive out of academic analysis and views which are majorly untested or not yet pronounced upon by a competent Court of Law.
UNIFORM INTERPRETATION: One major criticism against the CISG is that of uniform interpretation of the CISG, the CISG is blamed for its lack of precision and vagueness such as usage of terms like “reasonable” and for the usage of general clauses . According to the postulation of Koji Takahashi (2003) “ the CISG rules do not provide a high degree of legal certainty and predictability, in as much as they rely upon ambiguous concepts such as “fundamental breach” and “reasonable length”. This allows for vagueness and uncertainty, leaving loophole for parties to exploit and use if allowed to their advantage against the adverse party in the agreement. While it has been the position of common law attorneys who are extremely accustomed to common law background and accustomed to extremely detailed statutes, the delicate relationship of the Judiciary and the Lawyers having transcend into different views and interpretation supremacy leading to extensive and different catalogues of definitions for the vague and imprecise words of the CISG . And it is a well established fact that the CISG does not correspond to the common law system but has instead been greatly inspired by continental civil codes. Again, unlike the European communities or the partly African OHADA, the CISG member states have no common or overseeing supreme court guiding the interpretations of the uniform or harmonized CISG although it has been said that there is now a common ground to safeguard the uniformity of the CISG and that is the fact that it is now a common ground that the CISG is to be interpreted autonomously and regard is to be given to its international character.
In achieving this uniformity, due consideration is to be given foreign judgments and arbitral award which without doubt have shown to be important on the international level. Whatever the situation in a domestic legal system may be, there can be no doubt that foreign decisions do not have a binding effect upon national courts but the persuasive effect can never be over emphasized. The incapacity to adapt the CISG to changing conditions suggest clearly that it will grow as an inferior alternative to the more adaptable sales law rules of individual nations. This is well captured by Lord Wilberforce, who wrote that “to plead for complete uniformity may be to cry to the moon” . Therefore, like postulated earlier, the general opinion seems to be that some form of “consistent” Interpretation, may serve as a guide and helper in deciding on interpretation of certain postulations of the CISG . The lack of final court of Appeal that deals with disputes arising of the CISG has also been widely criticized and also the lack of a major CISG administrative body to give guidelines and guide on how to interpret the provisions of the CISG. Method used in interpreting The CISG are not too in line with the ambitious aim to have uniformity, the court is not allowed to rely on national laws but rather, should engaged in a truly autonomous decision and interpretation. This creates a big vacuum in the uniformity objective of the CISG
EXCLUSION BY CONTRACTING PARTIES: A second well established criticism against the CISG is that parties often excludes it. A survey by Koehler shows that 70.8%of parties in the United States of America, 72.2% of contracting parties in Germany exclude the applicability of the CISG . In a wider survey carried out at the Netherlands, smaller Dutch companies and infact government owned corporations exclude the applicability of the CISG. The usual (although feeble) arguments given for the exclusion of the CISG are that, in case parties are aware of the substantive rules of the CISG, they fear that it leaves too much room for varying interpretations and again, when the content is unknown to the parties, they are reluctant to invest the time. It is often surprising that this exclusion is most times perceived as a problem in the academic side of the CISG. It is to be noted that the CISG as a special convention is that it creates a uniform regime and does not mean or suffice to replace existing national laws or guides on the formation of contact in relation to sale of goods. It only serves to add extra option for parties to feel safer and assurred since it is universal and creates uniformity. It is important not to confuse the need for uniformity with interest of parties or the wish to promote international trade.
INCOMPLETENESS OF THE CISG: Another criticism plaguing the CISG relates to the incompleteness of the convention. Article 4 states that the scope of the CISG encompasses the formation of contracts and the rights and obligations. The CISG is however not concerned with the validity of the contract or of any of its provisions. While some authors have stated that “Validity” as a team is unclear this has led to wide range of inconsistent application and definitions across jurisdictions, for example, it is clear that a contract relating to nonexistent goods is valid not minding the otherwise stated position of the domestic law . This is because the CISG provide for the risk of loss in cases where at the time of concluding the agreement, the goods (which is the object) of the agreement had already been lost or damaged, for instance, in oil contracts, probably while trying to ship in the product, the ship capsize or ran aground, leading to the complete loss of the oil and unsalvageable. The same holds true for the sale of goods that the seller does not own at the time of the conclusion of the contract . Likewise errors in expression that are only recognized as relevant in a few legal systems does not qualify as a matter of validity to be resolved by domestic law but from the general principles of the CISG. It can be drawn that where the party that is to receive a declaration was aware or could not have been unaware of the real intent of the party making the declaration as seen in article 8 (1) of the CISG, it is important to state that the receiving party bears the risk that the declaration has not been expressed the proper way. This some holds where a reasonable third party in the mold of a receiving party would have recognized the real intention of the party that made the declaration. Conclusively, under the CISG, the risk of error of transmission of a declaration has to be borne solely by the receiving party. It is important to state that a special defect of the CISG needs to be addressed and that has to do with the validity of general conditions or Standard Business Terms, it is crystal clear that incorporation of standard terms is regulated solely by the provisions of the CISG on the formation of contract this concerns basically issues that have to do with accessibility, language, transparency, battle of forms as well as interpretation. However, sadly, in light of the provision of the clear wordings of article 4 of the CISG, the substantive validity of clauses has to be determined by otherwise applicable domestic law.
HARDSHIP: Several authors have complained about the hardship created by the absence of rules pertaining to a severe change of circumstances and the lack of an express provision on Hardship . It is important to stress that academics in area of international law have pointed out other uniform projects or domestic laws which have introduced such provision to regard to hardships and as such, authors have criticized the CISG for lacking such provision and thus advocate the applicability of the remedies laid down in these various rules to matters or cases arising out of the CISG. Authors and practitioners emphasize particularly the duty to renegotiate and the possibility that a court may adjust the contractual obligation to the changed circumstances.
CONTENT: Another criticism that has been advanced against the CISG is that the content or positions therein are seller friendly. Again some commentators argue that the positions therein are buyer friendly. Again, it is still argued that the CISG conflicts with international practice and widely used trade terms and widely contested is the suitability of the CISG to govern commodity trade. The argument in support that the convention is seller friendly is basically based on the obligation of the buyer to examine the goods and give notice of non- conformity . At the Vienna conference, this position was supported by countries whose legal systems did not provides for any notice requirements but it merits emphasis to stress that interpretation of Articles 38 and 39 CISG invalidates such criticism.
On the other hand, practitioners of German background criticize the CISG for being too buyer friendly pointing specifically to the Anglo-American concept of “strict liability” as well as somewhat ironically , to the alternation of the notice requirement. Yet, in practice, the differences between the liability systems are readily negligible
Conclusion and Recommendations
The Convention for International Sale of Goods also known as the Vienna Convention has gained worldwide acceptance and as it stands today, 72 states have ratified it; nine out of ten leading trade nations being member states it has been estimated that about seventy to eighty percent of all international sales transactions are governed by the CISG. It has been described as a world wide success and applauded by many as the greatest international sale agreement guide. Infact, countries like England that have failed to ratify the CISG have referred to it in various articles and court decisions. Despite few criticisms and loopholes, the convention has faced the test of time. The uniformity standard which the convention sets to achieve although somehow violated by exclusion clauses of the CISG has not been utterly defeated as well as it is well established that the convention seeks to establish uniformity for the formation of international sales contract and save parties of unforeseeable crisis arising out of conflict of laws. This thesis explicitly speaks about the traditional offer and acceptance. While the failure of some countries to ratify the convention cannot be overlooked, it must be stated that it has not frustrated the global acceptance of the convention as many countries as of today are considering or even working on ratifying the CISG. All in all, the story of the CISG has been one of worldwide success. Criticism that has been put forward can largely be either rejected as unfounded or met by a correct interpretation of the convention. The success of the CISG shows that pursing the unification of laws is the right was to help international transactions and agreements reach a friendly and profitable height.
It is recommended that for the CISG to establish an implementation or monitoring council/committee like the economic and social council that monitors the implementation of the economic, social and cultural rights, such as committee will again serve as a body of review and make necessary interpretations that can serve a persuasive purpose and also send Repporteurs to sell the goal of the convention to non-member states. It is also recommended that a special arbitral tribunal that serves solely the purpose of adjudicating on matters that arise out of the convention should be established, this will allow for a uniformity in interpretation of the Articles of the CISG and save the convention from different pronouncements on the same subject matter.
UNIFORM INTERPRETATION: One major criticism against the CISG is that of uniform interpretation of the CISG, the CISG is blamed for its lack of precision and vagueness such as usage of terms like “reasonable” and for the usage of general clauses . According to the postulation of Koji Takahashi (2003) “ the CISG rules do not provide a high degree of legal certainty and predictability, in as much as they rely upon ambiguous concepts such as “fundamental breach” and “reasonable length”. This allows for vagueness and uncertainty, leaving loophole for parties to exploit and use if allowed to their advantage against the adverse party in the agreement. While it has been the position of common law attorneys who are extremely accustomed to common law background and accustomed to extremely detailed statutes, the delicate relationship of the Judiciary and the Lawyers having transcend into different views and interpretation supremacy leading to extensive and different catalogues of definitions for the vague and imprecise words of the CISG . And it is a well established fact that the CISG does not correspond to the common law system but has instead been greatly inspired by continental civil codes. Again, unlike the European communities or the partly African OHADA, the CISG member states have no common or overseeing supreme court guiding the interpretations of the uniform or harmonized CISG although it has been said that there is now a common ground to safeguard the uniformity of the CISG and that is the fact that it is now a common ground that the CISG is to be interpreted autonomously and regard is to be given to its international character.
In achieving this uniformity, due consideration is to be given foreign judgments and arbitral award which without doubt have shown to be important on the international level. Whatever the situation in a domestic legal system may be, there can be no doubt that foreign decisions do not have a binding effect upon national courts but the persuasive effect can never be over emphasized. The incapacity to adapt the CISG to changing conditions suggest clearly that it will grow as an inferior alternative to the more adaptable sales law rules of individual nations. This is well captured by Lord Wilberforce, who wrote that “to plead for complete uniformity may be to cry to the moon” . Therefore, like postulated earlier, the general opinion seems to be that some form of “consistent” Interpretation, may serve as a guide and helper in deciding on interpretation of certain postulations of the CISG . The lack of final court of Appeal that deals with disputes arising of the CISG has also been widely criticized and also the lack of a major CISG administrative body to give guidelines and guide on how to interpret the provisions of the CISG. Method used in interpreting The CISG are not too in line with the ambitious aim to have uniformity, the court is not allowed to rely on national laws but rather, should engaged in a truly autonomous decision and interpretation. This creates a big vacuum in the uniformity objective of the CISG
EXCLUSION BY CONTRACTING PARTIES: A second well established criticism against the CISG is that parties often excludes it. A survey by Koehler shows that 70.8%of parties in the United States of America, 72.2% of contracting parties in Germany exclude the applicability of the CISG . In a wider survey carried out at the Netherlands, smaller Dutch companies and infact government owned corporations exclude the applicability of the CISG. The usual (although feeble) arguments given for the exclusion of the CISG are that, in case parties are aware of the substantive rules of the CISG, they fear that it leaves too much room for varying interpretations and again, when the content is unknown to the parties, they are reluctant to invest the time. It is often surprising that this exclusion is most times perceived as a problem in the academic side of the CISG. It is to be noted that the CISG as a special convention is that it creates a uniform regime and does not mean or suffice to replace existing national laws or guides on the formation of contact in relation to sale of goods. It only serves to add extra option for parties to feel safer and assurred since it is universal and creates uniformity. It is important not to confuse the need for uniformity with interest of parties or the wish to promote international trade.
INCOMPLETENESS OF THE CISG: Another criticism plaguing the CISG relates to the incompleteness of the convention. Article 4 states that the scope of the CISG encompasses the formation of contracts and the rights and obligations. The CISG is however not concerned with the validity of the contract or of any of its provisions. While some authors have stated that “Validity” as a team is unclear this has led to wide range of inconsistent application and definitions across jurisdictions, for example, it is clear that a contract relating to nonexistent goods is valid not minding the otherwise stated position of the domestic law . This is because the CISG provide for the risk of loss in cases where at the time of concluding the agreement, the goods (which is the object) of the agreement had already been lost or damaged, for instance, in oil contracts, probably while trying to ship in the product, the ship capsize or ran aground, leading to the complete loss of the oil and unsalvageable. The same holds true for the sale of goods that the seller does not own at the time of the conclusion of the contract . Likewise errors in expression that are only recognized as relevant in a few legal systems does not qualify as a matter of validity to be resolved by domestic law but from the general principles of the CISG. It can be drawn that where the party that is to receive a declaration was aware or could not have been unaware of the real intent of the party making the declaration as seen in article 8 (1) of the CISG, it is important to state that the receiving party bears the risk that the declaration has not been expressed the proper way. This some holds where a reasonable third party in the mold of a receiving party would have recognized the real intention of the party that made the declaration. Conclusively, under the CISG, the risk of error of transmission of a declaration has to be borne solely by the receiving party. It is important to state that a special defect of the CISG needs to be addressed and that has to do with the validity of general conditions or Standard Business Terms, it is crystal clear that incorporation of standard terms is regulated solely by the provisions of the CISG on the formation of contract this concerns basically issues that have to do with accessibility, language, transparency, battle of forms as well as interpretation. However, sadly, in light of the provision of the clear wordings of article 4 of the CISG, the substantive validity of clauses has to be determined by otherwise applicable domestic law.
HARDSHIP: Several authors have complained about the hardship created by the absence of rules pertaining to a severe change of circumstances and the lack of an express provision on Hardship . It is important to stress that academics in area of international law have pointed out other uniform projects or domestic laws which have introduced such provision to regard to hardships and as such, authors have criticized the CISG for lacking such provision and thus advocate the applicability of the remedies laid down in these various rules to matters or cases arising out of the CISG. Authors and practitioners emphasize particularly the duty to renegotiate and the possibility that a court may adjust the contractual obligation to the changed circumstances.
CONTENT: Another criticism that has been advanced against the CISG is that the content or positions therein are seller friendly. Again some commentators argue that the positions therein are buyer friendly. Again, it is still argued that the CISG conflicts with international practice and widely used trade terms and widely contested is the suitability of the CISG to govern commodity trade. The argument in support that the convention is seller friendly is basically based on the obligation of the buyer to examine the goods and give notice of non- conformity . At the Vienna conference, this position was supported by countries whose legal systems did not provides for any notice requirements but it merits emphasis to stress that interpretation of Articles 38 and 39 CISG invalidates such criticism.
On the other hand, practitioners of German background criticize the CISG for being too buyer friendly pointing specifically to the Anglo-American concept of “strict liability” as well as somewhat ironically , to the alternation of the notice requirement. Yet, in practice, the differences between the liability systems are readily negligible
Conclusion and Recommendations
The Convention for International Sale of Goods also known as the Vienna Convention has gained worldwide acceptance and as it stands today, 72 states have ratified it; nine out of ten leading trade nations being member states it has been estimated that about seventy to eighty percent of all international sales transactions are governed by the CISG. It has been described as a world wide success and applauded by many as the greatest international sale agreement guide. Infact, countries like England that have failed to ratify the CISG have referred to it in various articles and court decisions. Despite few criticisms and loopholes, the convention has faced the test of time. The uniformity standard which the convention sets to achieve although somehow violated by exclusion clauses of the CISG has not been utterly defeated as well as it is well established that the convention seeks to establish uniformity for the formation of international sales contract and save parties of unforeseeable crisis arising out of conflict of laws. This thesis explicitly speaks about the traditional offer and acceptance. While the failure of some countries to ratify the convention cannot be overlooked, it must be stated that it has not frustrated the global acceptance of the convention as many countries as of today are considering or even working on ratifying the CISG. All in all, the story of the CISG has been one of worldwide success. Criticism that has been put forward can largely be either rejected as unfounded or met by a correct interpretation of the convention. The success of the CISG shows that pursing the unification of laws is the right was to help international transactions and agreements reach a friendly and profitable height.
It is recommended that for the CISG to establish an implementation or monitoring council/committee like the economic and social council that monitors the implementation of the economic, social and cultural rights, such as committee will again serve as a body of review and make necessary interpretations that can serve a persuasive purpose and also send Repporteurs to sell the goal of the convention to non-member states. It is also recommended that a special arbitral tribunal that serves solely the purpose of adjudicating on matters that arise out of the convention should be established, this will allow for a uniformity in interpretation of the Articles of the CISG and save the convention from different pronouncements on the same subject matter.