ENFORCEMENT AND JUSTICIABILITY OF THE CISG
The CISG is a unique transformation that signifiers a quantum shift in international business; it thus signifies a quite radical revision in the very prism through which we view transnational business deals and disputes.
It is highly debatable whether uniformity under the CISG exists or achieves justiciability and it is however crystal clear that wearing an international coat for a law does not automatically make it applicable and justiciable. Several oil deal contracts have been settled with reference to the CISG that was once consulted in the formation of the agreement.
So, In order to provide a uniform application and justiciability, the convention must be uniformed applied by national courts and tribunals. Under the United States of America law, the CISG is known to be a self executing document, it means that it needs no congressional pronouncement to make it enforceable or justiciable. It is at this point imperial to state that one solid distinction of the CISG which pronounces its justiciability is that it requires Courts to first consider the parties’ subjective intent when interpreting agreements . The Convention for International Sale of Goods automatically applies to contracts for the sale of goods between parties whose places of business are in different signatory countries unless the parties expressly opt out of the applicability of the convention. This simply implies that, once the contracting parties agrees that the position of the CISG is to govern the agreement , the convention becomes enforceable and justifiable which means the agreement reached or made under the CISG can be pronounced upon by the Court of Law. In an oil magnate case involving Iraq and the Finnish authorities, the arbitral court ruled that since the parties agreed to be governed by and followed the CISG, the agreement will be enforced upon and within the tenets of the Convention. So the CISG can be said to be the default applicable law when parties from two different signatory countries execute an agreement for the sale of good except the parties therein decides to “opt out” and not be bound by the provisions of the CISG, this makes the provision of the CISG enforceable and justiciable. It is important to state that the preamble of the Convention on its own has been invoked despite the fact that it does not contain substantive laws. Specifically, the preamble has been cited to support the conclusion that certain domestic law causes of action related to a transaction governed by the CISG were pre-empted by the convention
It is important to state that justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority, so in essence, the point driven by this chapter is that, the courts deciding on the CISG, That is the court delivering judgments and judicial views on the skeletal provisions of the CISG. There is no doubt about the justiciability of the CISG, courts from different countries have pronounced upon it and enforced its provisions. Infact, International Lawyers have been advised to encourage their clients to ensure the application of the CISG in their international contracts as its enforcement is easy to come by and largely shuts out conflicts of laws. It is important to state that the justiciability of the CISG is not automatic, the practitioner handling the agreement must be adequately informed of the current status of the contracting states including any declarations allowed under Article 90 to 96 of the CISG that the states or contracting parties have made . These declarations bind the contracting states that have not themselves made such declarations. For example, the Scandinavian states, for instance, declared in accordance with Article 92 (1) that they would not be bound by part II of the Convention that deals with the formation of contract and, in accordance with Article 94 (1) (2) , that the Convention would not apply to contracts of sale where the parties have their places of business in Denmark, Finland Sweden, Iceland or Norway. It can thus be said that an agreement or contract with Scandinavian states must be carefully made or drafted and consideration must be given to the already exempted part of the provision of the CISG so as to make such agreement enforceable and valid. It is so far established that the court can enforce the Convention for the International Sale of Goods, that makes conclusive that the CISG is highly justiciable, infact, England that has so far not sign or ratify the CISG has on many occasions have her courts refer to the CISG in numerous occasions, an instance is seen in James Buchanan & Co Ltd. V. Babco Forwarding and Shipping (UK) ltd (an unreported case).
In getting to enforce an agreement under the CISG or better put, in getting to enforce agreement made in tandem with the CISG, the position of certain countries to certain articles in the CISG must be adequately considered because the convention allows for the exclusion of certain articles in the convention. Pursuant to articles of the CISG, China, Singapore, St. Vincent and Grenediness, and even the United States have declared that they would not be bound by article 1 (1)(b) of the CISG, this means that any agreement not in tandem with this becomes unenforceable against this country or even their nationals. Infact, pursuant to article 93, several states have made territorial declarations, Australia declared that the convention shall not apply to the territories of Christmas Island, the Cocos (keeling ) Islands; Denmark also declared that the Convention shall not apply to the Faroe Islands and Greenland; New Zealand has declared that the Convention shall not apply to the Cook Islands, Nine and Tokelau. Again, Pursuant to the provisions of article 96 of the CISG, Argentina, Armenia, Belarus, Chile, Estonia, Hungary Latvia, Lithuania, Paraguay, Russian Federation, and Ukraine have declared that any provision of article 11, Article 29 or part II of the Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place in the country that has filed this declaration. China has filed a similar declaration
It can thus be said that once an agreement fails to recognize exemptions, it might make such an agreement unenforceable since the exempted articles cannot be made enforceable by the court against a wall stated and well recognized exemptions.
It is imperial to say that various scholarly articles and papers have been written on Article by Article enforcement and various courts and arbitral decisions have pronounced on different articles of the CISG. So also, each writer has been influenced in his/her writings by the country he or she belongs or even in comparism with the local contract legislation in his/her home country. That takes us to the earlier discussed position on various countries exploiting the allowed “exemption” privilege of the CISG, thereby countries exempt certain articles in CISG as unenforceable against them or unenforceable against their nationals involved in international agreements governed by the CISG. Authors like Franco Ferrari, Silva Ferrari has written various scholarly articles to push certain unenforceable articles against Italy and Italians. Peter Schlechtriem, Petre Butter have also written on how enforcement of articles of the CISG varies from country to country picking their different home countries as a stead. It is important to stress at this juncture that Article 7 (1) (2) of the CISG talks about the uniform interpretation for the CISG, the CISG is to be interpreted and enforced in such a manner that will promote the international character and the uniformity of the CISG, reference is to be made to its international character and promotion of good faith in international transactions is of opium importance in enforcing and in court pronouncements on agreements and contracts involving the CISG. Enforcing the tenets of Article 7 (1) and (2) requires a two pronged approach, there is to be determined whether the contract is governed by the CISG or domestic International Laws, secondly, whether there is a general CISG principle on which the issue at hand can be solved. This might appear a simple task upon the understanding of mere words, in application, delicate challenges are posed in practice. An illustration of the difficulties encountered in interpreting provisions of Article 7 (1) (2) of the CISG showed vividly in a Dutch case decided by the Dutch Supreme court. The case was in relation to a sale of tomato plants from a seller in Gran Canaria and it was clearly shown on expert evidence that the plants sold were infected by a bacteria, whereas there were no express warranties obtained from the seller in Gran Canaria and the Dutch seller relied on its general conditions of sale containing an exemption clause. At the trial court, it was held that under the CISG, there was agreement between the parties as to the application of the seller’s general conditions and that the Dutch seller was exempted from liability. However, the Belgian buyer wanted to escape the application of the CISG, he invoked Article 8 (2) of the Rome Convention on the Law applicable to Contractual obligations, a convention which protects a buyer against acceptance by silence if any such protection is afforded by the law of its place of residence. The Dutch Supreme Court stood its ground and insisted that the Rome convention was not applicable since the transaction was an international one and governed by the CISG. As such, Article 7 of the CISG seeks to protect against domestic rules that might seek to frustrate the enforcement of agreements under the CISG.
IN COROCRAFT LTD V. PAN AMERICAN AIRWAYS INC , the English court of Appeal in deciding on a contract made under the CISG said, “even if I disagreed, I would follow them in a matter which is of “International concerns, the court of all counties should interpret this convention this way” . The court in this case rejected two conflicting decisions which does not seek to protect the uniformity enforcement procedure and guide enunciated by the convention. One of the major problems faced by European countries in enforcing the CISG happens to be with the problem associated with “place of delivery” which renders the determination of a Court’s jurisdiction rather complex, most European countries that imports oil and gas for sustenance of automobiles and factory machines have encountered running battles with supplier states that have insisted on the cost of delivering at one part or being forced to a changed location of delivery for best reasons known to the buying countries. The question that has divided the Courts is, is the place of performance the place where the goods are handed over to the buyer, or the place at which the goods were handed to the first carrier for transmission to the buyer?
In a German Federal Supreme Court decision, INDUSTRIE TESSILI ITALIANA COMO V. DUNLOP AG owing to the contradicting approach adopted by state courts in Germany. In its decision of July 9,2008, the German Federal Supreme court decided to stay the proceedings and request a preliminary ruling by the ECJ. Meanwhile, in its preliminary position on the matter, the German Supreme court Seemed to regard “place of delivery” as the place where the actual buyer obtains or should have obtained under the contract control over the delivered goods .
In oil production, the Middle East has an enormous impact on international sales and the economy at large for example, Arab contributes the second major source of European Market funds , so in countries like Iraq, the buying and selling of petroleum is not just for massive oil conglomerates but smaller and companies as well. The constitutional role of Islamic laws in the Middle East maximally affects the enforcement of certain international documents, with Iraq and the CISG not exempted. As it stands, Iraq is a signatory to the CISG (alongside two other Islamic Nations, Egypt and Syria). Therefore it is important for any International Law practitioner to be aware of the implications of international sales transactions that many fall under the governance of the CISG and the influence of Islamic law (which could possibly vary the application of the CISG in Iraq) in certain circumstances .
The CISG is a unique transformation that signifiers a quantum shift in international business; it thus signifies a quite radical revision in the very prism through which we view transnational business deals and disputes.
It is highly debatable whether uniformity under the CISG exists or achieves justiciability and it is however crystal clear that wearing an international coat for a law does not automatically make it applicable and justiciable. Several oil deal contracts have been settled with reference to the CISG that was once consulted in the formation of the agreement.
So, In order to provide a uniform application and justiciability, the convention must be uniformed applied by national courts and tribunals. Under the United States of America law, the CISG is known to be a self executing document, it means that it needs no congressional pronouncement to make it enforceable or justiciable. It is at this point imperial to state that one solid distinction of the CISG which pronounces its justiciability is that it requires Courts to first consider the parties’ subjective intent when interpreting agreements . The Convention for International Sale of Goods automatically applies to contracts for the sale of goods between parties whose places of business are in different signatory countries unless the parties expressly opt out of the applicability of the convention. This simply implies that, once the contracting parties agrees that the position of the CISG is to govern the agreement , the convention becomes enforceable and justifiable which means the agreement reached or made under the CISG can be pronounced upon by the Court of Law. In an oil magnate case involving Iraq and the Finnish authorities, the arbitral court ruled that since the parties agreed to be governed by and followed the CISG, the agreement will be enforced upon and within the tenets of the Convention. So the CISG can be said to be the default applicable law when parties from two different signatory countries execute an agreement for the sale of good except the parties therein decides to “opt out” and not be bound by the provisions of the CISG, this makes the provision of the CISG enforceable and justiciable. It is important to state that the preamble of the Convention on its own has been invoked despite the fact that it does not contain substantive laws. Specifically, the preamble has been cited to support the conclusion that certain domestic law causes of action related to a transaction governed by the CISG were pre-empted by the convention
It is important to state that justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority, so in essence, the point driven by this chapter is that, the courts deciding on the CISG, That is the court delivering judgments and judicial views on the skeletal provisions of the CISG. There is no doubt about the justiciability of the CISG, courts from different countries have pronounced upon it and enforced its provisions. Infact, International Lawyers have been advised to encourage their clients to ensure the application of the CISG in their international contracts as its enforcement is easy to come by and largely shuts out conflicts of laws. It is important to state that the justiciability of the CISG is not automatic, the practitioner handling the agreement must be adequately informed of the current status of the contracting states including any declarations allowed under Article 90 to 96 of the CISG that the states or contracting parties have made . These declarations bind the contracting states that have not themselves made such declarations. For example, the Scandinavian states, for instance, declared in accordance with Article 92 (1) that they would not be bound by part II of the Convention that deals with the formation of contract and, in accordance with Article 94 (1) (2) , that the Convention would not apply to contracts of sale where the parties have their places of business in Denmark, Finland Sweden, Iceland or Norway. It can thus be said that an agreement or contract with Scandinavian states must be carefully made or drafted and consideration must be given to the already exempted part of the provision of the CISG so as to make such agreement enforceable and valid. It is so far established that the court can enforce the Convention for the International Sale of Goods, that makes conclusive that the CISG is highly justiciable, infact, England that has so far not sign or ratify the CISG has on many occasions have her courts refer to the CISG in numerous occasions, an instance is seen in James Buchanan & Co Ltd. V. Babco Forwarding and Shipping (UK) ltd (an unreported case).
In getting to enforce an agreement under the CISG or better put, in getting to enforce agreement made in tandem with the CISG, the position of certain countries to certain articles in the CISG must be adequately considered because the convention allows for the exclusion of certain articles in the convention. Pursuant to articles of the CISG, China, Singapore, St. Vincent and Grenediness, and even the United States have declared that they would not be bound by article 1 (1)(b) of the CISG, this means that any agreement not in tandem with this becomes unenforceable against this country or even their nationals. Infact, pursuant to article 93, several states have made territorial declarations, Australia declared that the convention shall not apply to the territories of Christmas Island, the Cocos (keeling ) Islands; Denmark also declared that the Convention shall not apply to the Faroe Islands and Greenland; New Zealand has declared that the Convention shall not apply to the Cook Islands, Nine and Tokelau. Again, Pursuant to the provisions of article 96 of the CISG, Argentina, Armenia, Belarus, Chile, Estonia, Hungary Latvia, Lithuania, Paraguay, Russian Federation, and Ukraine have declared that any provision of article 11, Article 29 or part II of the Convention that allows a contract of sale or its modification or termination by agreement or any offer, acceptance or other indication of intention to be made in any form other than in writing does not apply where any party has his place in the country that has filed this declaration. China has filed a similar declaration
It can thus be said that once an agreement fails to recognize exemptions, it might make such an agreement unenforceable since the exempted articles cannot be made enforceable by the court against a wall stated and well recognized exemptions.
It is imperial to say that various scholarly articles and papers have been written on Article by Article enforcement and various courts and arbitral decisions have pronounced on different articles of the CISG. So also, each writer has been influenced in his/her writings by the country he or she belongs or even in comparism with the local contract legislation in his/her home country. That takes us to the earlier discussed position on various countries exploiting the allowed “exemption” privilege of the CISG, thereby countries exempt certain articles in CISG as unenforceable against them or unenforceable against their nationals involved in international agreements governed by the CISG. Authors like Franco Ferrari, Silva Ferrari has written various scholarly articles to push certain unenforceable articles against Italy and Italians. Peter Schlechtriem, Petre Butter have also written on how enforcement of articles of the CISG varies from country to country picking their different home countries as a stead. It is important to stress at this juncture that Article 7 (1) (2) of the CISG talks about the uniform interpretation for the CISG, the CISG is to be interpreted and enforced in such a manner that will promote the international character and the uniformity of the CISG, reference is to be made to its international character and promotion of good faith in international transactions is of opium importance in enforcing and in court pronouncements on agreements and contracts involving the CISG. Enforcing the tenets of Article 7 (1) and (2) requires a two pronged approach, there is to be determined whether the contract is governed by the CISG or domestic International Laws, secondly, whether there is a general CISG principle on which the issue at hand can be solved. This might appear a simple task upon the understanding of mere words, in application, delicate challenges are posed in practice. An illustration of the difficulties encountered in interpreting provisions of Article 7 (1) (2) of the CISG showed vividly in a Dutch case decided by the Dutch Supreme court. The case was in relation to a sale of tomato plants from a seller in Gran Canaria and it was clearly shown on expert evidence that the plants sold were infected by a bacteria, whereas there were no express warranties obtained from the seller in Gran Canaria and the Dutch seller relied on its general conditions of sale containing an exemption clause. At the trial court, it was held that under the CISG, there was agreement between the parties as to the application of the seller’s general conditions and that the Dutch seller was exempted from liability. However, the Belgian buyer wanted to escape the application of the CISG, he invoked Article 8 (2) of the Rome Convention on the Law applicable to Contractual obligations, a convention which protects a buyer against acceptance by silence if any such protection is afforded by the law of its place of residence. The Dutch Supreme Court stood its ground and insisted that the Rome convention was not applicable since the transaction was an international one and governed by the CISG. As such, Article 7 of the CISG seeks to protect against domestic rules that might seek to frustrate the enforcement of agreements under the CISG.
IN COROCRAFT LTD V. PAN AMERICAN AIRWAYS INC , the English court of Appeal in deciding on a contract made under the CISG said, “even if I disagreed, I would follow them in a matter which is of “International concerns, the court of all counties should interpret this convention this way” . The court in this case rejected two conflicting decisions which does not seek to protect the uniformity enforcement procedure and guide enunciated by the convention. One of the major problems faced by European countries in enforcing the CISG happens to be with the problem associated with “place of delivery” which renders the determination of a Court’s jurisdiction rather complex, most European countries that imports oil and gas for sustenance of automobiles and factory machines have encountered running battles with supplier states that have insisted on the cost of delivering at one part or being forced to a changed location of delivery for best reasons known to the buying countries. The question that has divided the Courts is, is the place of performance the place where the goods are handed over to the buyer, or the place at which the goods were handed to the first carrier for transmission to the buyer?
In a German Federal Supreme Court decision, INDUSTRIE TESSILI ITALIANA COMO V. DUNLOP AG owing to the contradicting approach adopted by state courts in Germany. In its decision of July 9,2008, the German Federal Supreme court decided to stay the proceedings and request a preliminary ruling by the ECJ. Meanwhile, in its preliminary position on the matter, the German Supreme court Seemed to regard “place of delivery” as the place where the actual buyer obtains or should have obtained under the contract control over the delivered goods .
In oil production, the Middle East has an enormous impact on international sales and the economy at large for example, Arab contributes the second major source of European Market funds , so in countries like Iraq, the buying and selling of petroleum is not just for massive oil conglomerates but smaller and companies as well. The constitutional role of Islamic laws in the Middle East maximally affects the enforcement of certain international documents, with Iraq and the CISG not exempted. As it stands, Iraq is a signatory to the CISG (alongside two other Islamic Nations, Egypt and Syria). Therefore it is important for any International Law practitioner to be aware of the implications of international sales transactions that many fall under the governance of the CISG and the influence of Islamic law (which could possibly vary the application of the CISG in Iraq) in certain circumstances .