1. Proposed research question / Project Title
The title of the dissertation is ‘The Vienna Convention 1980 vs. the Sale of Goods Act 1979: whether the United Kingdom should ratify the Convention’. The research will be limited with the Vienna Convention and the Sale of Goods Act and their articles about passing of risk, passing of property and remedies of the buyer and the seller.
2. Aim of the dissertation
The aim of the dissertation is to investigate reasons for non-ratification of the Vienna Convention by the UK and is to draw a conclusion about necessity or unnecessity of ratification of the Vienna Convention by the UK in respect of findings.
3. Objectives of the dissertation
• To examine a definition of international trade and its historical development
• To clarify the role of the World Trade Organisation in international trade
• To understand the background and preamble of the Vienna Convention
• To examine the featured articles of the Vienna Convention
• To explore the advantages and disadvantages of the Vienna Convention in international sales transactions
• To discuss the potential deficiencies of the Vienna Convention in solving out the disputes
• To investigate the benefits of the Vienna Convention on the countries which ratified the Vienna Convention
• To examine the featured articles of the Sale of Goods Act 1979
• To discuss the potential deficiencies of the Sale of Goods Act 1979 in solving out the disputes
• To understand the characteristic of sale contracts such as Free On Board (FOB) and Cost, Insurance, Freight (CIF)
• To investigate the most common disputes that appeared under an FOB and a CIF agreement
• To determine the differences between the Vienna Convention and the Sale of Goods Act 1979
4. The dissertation’s position in the existing literature
The United Nations Convention on Contracts for the International Sale of Goods (hereafter CISG or the Vienna Convention), which was signed in Vienna in 1980, is an international convention for regulating international sales. However, the Vienna Convention was not ratified by the UK because of certain legal and political reasons, in spite of taking part in drafting the Vienna Convention effectively.
The literature has a variety of views that are positive and negative regarding the title of the dissertation. Firstly, Barry Nicholas, in 1993, who is a Professor of Law and member of the United Nations Commission on International Trade Law (UNCITRAL) Working Group addressed that there is a reason for ratifying the Vienna Convention rapidly and he believes that British lawyers’ and court’s practices will affect the UK Parliament for ratifying the Vienna Convention. Sally Moss addressed one of the political reasons for non-ratification; the matter of the ratification of the Vienna Convention is not an urgent legislative matter on the UK Parliament’s agenda.
Most of the countries have ratified the Vienna Convention, however, the UK did not and this situation may have been a problem for merchants in international trade. This argument can be found in a consultative document of The Department of Trade and Industry (DTI) in 1997. The DTI states that 48 countries, which are in commercial relationships with the UK, have already ratified the Vienna Convention since 1989, due to this reason non-ratification of the Convention has a negative effect on the UK’s international sales because the UK stays out of the standardisation. Especially the number of international sales transactions with China and Japan is increasing day by day and it is the one of reasons in reconsidering ratification of the Vienna Convention. In 2012, Silvia E. Nikolova observed that the UK has to ratify the Vienna Convention because of the same reasons, furthermore she expressed that this matter has to take first place in the UK Parliament by reason of ratification of the Vienna Convention will economically assist the UK’s small and medium-sized enterprises and help the UK to develop its economy. The positive effects of the ratification of these kinds of conventions are harmonisation and standardisation of international trade; this is the manner to provide a unity for merchants.
Additionally, it is important to compare the Convention relating to a Uniform Law on the International Sale of Goods 1964 (hereafter ULIS) and the Vienna Convention, the reason for comparing is the Vienna Convention is a new type of ULIS and it is a convenient way to understand the features of the Vienna Convention, especially for the new terms. In this point Peter Schlechtriem observes:
‘’The tendency to avoid inflexible and irrevocable legal remedies . . . influenced the formulation of the remedy provisions in the 1980 Convention. The need for greater judicial discretion in particular cases also became clear, such as in the requirement that a measure or waiting period should be ‘reasonable’. The new provisions on time limitations for giving notice in a timely manner show especially clearly the strongly felt need for flexible rules to accommodate the buyer’s difficulties’’
He addressed the point of inessentiality of the Vienna Convention and it is a criticism for the Vienna Convention. Arthur Rossett, in 1988, also described the Vienna Convention as ‘a cut-and-paste job’. On contrary these two views, in 2009, Harry M. Flechtner has defined ‘the United Nations Conventions on Contracts for the International Sale of Goods (CISG) has been recognized as the most successful attempt to unify a broad area of commercial law at the international level’. In the same way with Harry M. Flechtner’s view, the Vienna Convention was described as ‘the most significant legal instrument operative in the field of international sales’ by Roy Goode, et al. Beyond all these views, there are various kinds of secondary sources which have a chapter related to the Vienna Convention but these sources, especially textbooks will be used for the explanation of articles of the Vienna Convention.
Negative opinions about ratification are considerably rational because there are no major differences between the Vienna Convention and the Sale of Goods Act, this statement will be critically discussed in this dissertation. Some articles of CISG might convey new aspects into English law, however, English law is still satisfactory without these new terms and the percentage of similarity between the Vienna Convention and the Sale of Goods Act is extremely high. That being said even though the Vienna Convention was not ratified by the UK, its court’s decisions will be coherent with decisions in worldwide. The most serious disadvantage of the Vienna Convention is its not including an article about passing of property and validity of contract. Hence, the Vienna Convention can be inadequate.
The dissertation will be critically compared the Vienna Convention and the Sale of Goods Act and examined reasons for non-ratification. The dissertation will also draw a conclusion regarding whether the UK should ratify the Vienna Convention.
5. Bibliography
Primary Sources:
International Conventions
The Convention Relating to a Uniform Law on the International Sale of Goods (1964, The Hague)
The United Nations Convention on Contracts for the International Sale of Goods (1980, Vienna)
UK Statutory materials
Sale of Goods Act 1979
Cases
United Kingdom
Ginzberg v Barrow Heamatite Steel Co Ltd [1966] 1 Lloyd’s Rep 343
Manbre Sacharrine Co Ltd v Corn Products Co Ltd [1919] 1 KB 189
Kwei Tek Chao v British Traders and Shippers Ltd [1954] 2 QB 459
United States
Alpha Prime Development Corporation v. Holland Loader Company, LLC; and Steven Michael Svatek, US, United States District Court for the District of Colorado, Available at <http://cisgw3.law.pace.edu/cases/100706u1.html> (last accessed 02.12.2015)
UK Documentary material
Official Publication of Department of Trade and Industry UK, United Nations Convention on Contracts for the International Sales of Goods, A Consultative Document (London, 1997), Available at <http://webarchive.nationalarchives.gov.uk/20070603164510/http://www.dti.gov.uk/> (last accessed 23.11.2015)
Secondary Sources:
Textbooks
Carr, I International Trade Law 5th ed (Routledge 2014)
Chuah, J Law Of International Trade: Cross-Border Commercial Transactions 5th ed (Sweet & Maxwell 2013)
DiMatteo, A. L and others International Sales Law: A Critical Analysis of CISG Jurisprudence (Cambridge University Press 2005)
Goode, R and others Transnational Commercial Law (OUP 2007)
Magnus, U (ed), CISG vs. Regional Sales Law Unification: With a Focus on the New Common European Sales Law (Sellier European Law Publishers 2012)
Murray, C and others Schmitthoff: The Law and Practice of International Trade 12th ed (Sweet & Maxwell 2012)
Schaffer, R Agusti, F and Earle, B International Business Law and Its Environment 7th ed (South-Western 2009)
Schlechtriem, P Uniform Sales Law: The UN-Convention on Contracts for the International Sale of Goods (Manz 1986)
Journal Articles
Babiak, A ‘Defining “Fundamental Breach” under the United Nations Convention on Contracts for the International Sale of Goods’ (1992) 6 (1) TICLJ 113-143
Bortolotti, F ‘Remedies Available to the Seller and Seller’s Right to Require Specific Performance (Articles 61, 62 and 28)’ (2005) 25 (6) JLC 335-338
Erauw, J ‘CISG Articles 66-70: The Risk of Loss and Passing It’ (2005) 25 (6) JLC 203-217
Flechtner, M. F ‘Remedies Under the New International Sales Convention: The Perspective from Article 2 of the U.C.C.’ (1988) 8 (1) JLC 53-108
Flechtner, M. F ‘United Nations Convention on Contracts for the International Sale of Goods, 1980’ (2009), Available at <http://legal.un.org/avl/ha/ccisg/ccisg.html> (last accessed 01.12.2015)
Forte, A ‘The United Nations Convention on Contracts for the International Sale of Goods: Reason or Unreason in the United Kingdom’ (1997) 26 (3) UBLR 51-66
Hofmann, N ‘Interpretation Rules and Good Faith as Obstacles to the UK’s Ratification of the CISG and to the Harmonization of Contract Law in Europe’ (2010) 22 (1) PILR 145-181
Moss, S ‘Why the United Kingdom Has Not Ratified the CISG’ (2005) 25 (1) JLC 483-488
Nikolova, E. S ‘UK’s Ratification of the CISG – An Old Debate or a New Hope for the Economy of the UK on Its Way Out of the Recession: e Potential Impact of the CISG on the UK’s SME’ (2012) 3 (3) PILR 70-110
Rosett, A ‘CISG Laid Bare: A Lucid Guide to a Muddy Code’ (1988) 21 (3) CILJ 575-589
Zeller, B ‘Fundamental Breach and the CISG – a Unique Treatment or Failed Experiment?’ (2004) 8 (1) VJICLA 81-94
Zhou, Q ‘CISG Versus English Sales Law: An Unfair Competition’ (2011). DiMatteo, A. L (ed) International Sale Law A Global Challenge (Cambridge University Press 2014), 669-682
Websites
Nicholas, B ‘The United Kingdom and the Vienna Sales Convention: Another Case of Splendid Isolation?’ (Rome, 1993), Available at <http://www.cisg.law.pace.edu/cisg/biblio/nicholas3.html> (last accessed 21.11.2015)
6. Methodology
The research mainly employs non-empirical methods but also has an empirical method known as an interview. The primary and secondary sources will be both used in the research. I will firstly focus on United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG or known as the Vienna Convention) and Sale of Goods Act 1979 (SGA) in the UK. Additionally, a diverse range of textbooks related to the research title alongside journal articles from legal databases will be used. The research consists of quantitative analysis such as face-to-face interview and telephone interview. ‘Black letter’ methodology will also help me on the dissertation because as mentioned before, the research will focus on the CISG and the SGA as primary sources. Due to the nature of the research cases play an enormous role for understanding the legislation under CISG and especially in the English law. The practice of law will embodied with related cases. In researching cases and journal articles, I will use legal databases that are Westlaw, LexisNexis, HeinOnline, Business Source Complete and Academic Source Complete as well as the Pace University’s CISG Database. Cases and journal articles, which are shown in the bibliography, will be adopted when I explain featured articles under the CISG and the SAG.
When I do my research, the Lanchester Library will be visited for reading and collecting textbooks such as (Carr, I 2014), (Chuah, J 2013), (Murray, C and others 2012) and (Goode, R 2007). All these books have a chapter about the CISG. Related textbooks will be used to explain certain articles under Sale of Goods Act, as well as the definition of an FOB and a CIF agreement. I can also reach the books that are not in the Lanchester Library with Coventry University’s system. In this way, unique and unpaired resources in the UK will be accessible.
As an empirical method, I will set an interview with two lawyers who work for Maritime Law Firms in London and in Istanbul. Turkey has ratified the Vienna Convention and the UK has not, this is the reason for choosing London and Istanbul. I will have a chance to compare the results of ratification and non-ratification end of the interview. Because of the travel, I need to make a budget allocation from Coventry to London and returns. On the other hand, I intend to make a telephone interview with the lawyer who works in Istanbul. I am planning to ask interviewed lawyers questions to understand the necessity of the Vienna Convention and the problems that they have been confronted in international trade.
7. Structure
The dissertation will be divided up into four main chapters. Additionally, I will add two chapters that include an introduction, a conclusion and a bibliography. I will start with an introduction chapter which gives a general opinion about the dissertation’s subject, after that, I will answer the aims and objectives in three main chapters with explanation of the legislation relating to research title. Then, it is important to explain an FOB and a CIF agreement in the next chapter because these are most common sales agreements in international sales transactions. The last chapter will be included findings and comparison between the Vienna Convention and the Sale of Goods Act. Finally, the last chapter will be a conclusion and I will add the bibliography at the end of the dissertation.
My draft chapter headings and subheadings would be:
Introduction
1) The Vienna Convention and its history
1-a) Passing of Risk
1-b) Passing of Property
1-c) Remedies
1-c-a) The Seller’s
1-c-b) The Buyer’s
2) Sale of Goods Act
2-a) Passing of Risk
2-b) Passing of Property
2-c) Remedies
2-c-a) The Seller’s
2-c-b) The Buyer’s
3) FOB and CIF Agreements
4) Findings and Comparison
Conclusion
Bibliography
8. Research timetable
• After submitted my dissertation proposal in May 1, I have fifteen weeks to complete my chapters on the dissertation. My chapters will be comprised of approximately 2500 words.
• I will collect main data as primary and secondary sources by May 15, 2016.
• I will analyse sources that will have been collected by May 29, 2016.
• I will start to write my draft and I will complete each chapter almost in a week and I will complete my chapters including introduction and conclusion by July 10, 2016.
• After I will have completed my first draft, I will discuss it with my supervisor in July 11, 2016.
• According to my supervisor’s comment on my draft, I will revise my dissertation and complete my second draft by July 31, 2016.
• I will arrange a meeting with the supervisor in 1 August 2016 for discussing corrections on my draft.
• According to my supervisor’s comment on my draft, I will make necessary editing on my dissertation by August 4,2016.
• I will submit my draft of the dissertation through TURNITIN in August 6, 2016.
• A friend of mine will do the proofreading and I will make final editing according to draft and result of proofreading by August 12, 2016.
• I will arrange the final meeting with supervisor in August 13, 2016.
• I will submit my final dissertation through final TURNITIN for evaluation in August 15, 2016.
9. Ethical approval
Using someone’s idea or finding without citing as a reference with exactly the same on the dissertation can be a copyright infringement beyond being a plagiarism, it can be a copyright infringement. The way to avoid this issue is crediting the idea and citing as a reference in footnotes. I am planning to interview with lawyers, before an interview I need his/hers consent for using the interviews’ findings and notes on my dissertation.
On my dissertation, I cannot give professional advice. That being said my findings will be just for educational use. I need to show my research’s finding without harming anyone. Using not licensed databases and software is not ethical and I will always visit legal databases as an authorised user via Coventry University’s license. Beyond this, any illegal activity illegal should be avoided. To fabricate a source such as a journal that does not exist in the literature is not an ethical attitude. Some data on the Internet can be confidential and I will be careful when choosing websites for my research, I am always keen on using appropriate websites that are related to my dissertation. The requirement of the Data Protection Act 1998 (DPA) should be followed. I am aware of the eight data protection principles in the DPA. Personal data or sensitive data will not involve the research, so this cannot be an ethical problem for this research. Besides, I am aware that I have to use the ethics system of Coventry University and fill up ethics form.
10. How will you utilize the help of your supervisor?
The connection between the supervisor and student has to be continuous. I am planning to make a meeting with my supervisor in every three weeks. The appointment will be required an unplanned meeting or the other ways should be tried such as a phone call or e-mail. The questions about dissertation should be prepared before the session because creating questions spontaneously is not a proper way.
I do believe the supervisor’s comments are needed to increase a quality of dissertation. It should not be forgotten that the supervisor’s comment should be a fine adjustment because eventually this project will be my own project. When the supervisor criticises the dissertation, he/she needs to a use method that helps me to increase my self-confidence and he/she needs to warn me and show how to do everything in an academic way. I also expect to discuss my ethical concerns with my supervisor. The supervisor expects me to be honest, to act professional and with an ethic attitude, to adapt the dissertation timetable, to be prepare for the appointments, to give a plenty time for writing a dissertation and making research, to arrange regular meetings and to apply supervisor’s comments and corrections into the dissertation.