APPLICATION AND AMBIT OF THE CISG

A Final Draft made by:

YOGANAND

Roll No: 1986

B.A.LL.B.(Hons.)

Semester: 6th

Submitted to:

Dr. PP. Rao

Faculty of International Trade Law

A research proposal submitted in partial fulfilment of the course

International Trade Law

for attaining the degree B.A.LL.B. (Hons.)

MARCH, 2021

CHANAKYA NATIONAL LAW UNIVERSITY

Nyaya Nagar, Mithapur, Patna (Bihar)-800001

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 DECLARATION BY THE CANDIDATE

I hereby declare that the work reported in the B.A.LL.B. (Hons.) Project Report entitled
“Application and Ambit of the CISG” submitted at Chanakya National Law University is an
authentic record of my work carried out under the supervision of Dr P.P.Rao. I have not
submitted this work elsewhere for any other degree or diploma. I am fully responsible for the
contents of my Project Report.

SIGNATURE OF CANDIDATE

NAME OF CANDIDATE: YOGANAND

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA

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 ACKNOWLEDGEMENT

I would like to thank my faculty Dr P.P. Rao, whose guidance helped me a lot with
structuring my project.

I owe the present accomplishment of my project to my friends, who helped me immensely

with materials throughout the project and without whom I couldn’t have completed it in the
present way.

I would also like to extend my gratitude to my parents and all those unseen hands that helped
me out at every stage of my project.

THANK YOU,

NAME: YOGANAND

COURSE: B.A. LL.B. (Hons.)

ROLL NO: 1986

SEMESTER – 6th

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 Table of Contents

Contents

DECLARATION BY THE CANDIDATE ................................................................................................ 2

ACKNOWLEDGEMENT ........................................................................................................................... 3

1.INTRODUCTION .................................................................................................................................... 5

2. CISG ......................................................................................................................................................... 8

3. VAGUENESS OF BURDEN OF PROOF........................................................................................... 10

4. VALIDITY AND FORMATION REGARDING VIENNA CONVENTION .................................. 12

3. THE SPHERE OF THE APPLICATION OF THE CISG .................................................................. 13

4. ARTICLES 2-5: EXCLUSION FROM THE CONVENTION .......................................................... 16

5. THE SCOPE OF THE CISG ................................................................................................. 17

6. ARTICLE – 6 ......................................................................................................................... 18

7. ANALYSIS OF THE APPLICATION ................................................................................. 19

CONCLUSION........................................................................................................................... 21

BIBLIOGRAPHY ...................................................................................................................... 22

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 1. INTRODUCTION
The CISG (United Nations Convention on Contracts for the International Sale of Goods) is a
treaty that aims for a uniform international sales law. 1 It has been ratified by 83 nations and the
latest member state to join is Guyana in September 2014. The CISG has been developed by
UNCITRAL (United Nations Commission on International Trade Law) and was signed in
Vienna in 1980. However, it came into force on 1st January, 1988.
The Convention prescribes a uniform law for the international sale of goods seeking to
substitute one law for the many legal systems that govern this area. The importance of CISG
lies in the fact that it establishes a comprehensive set of legal rules that could govern the
formation of contracts, the obligations of the buyer and seller, remedies for breach of contract
and other aspects of the contract in international sale of goods. To accomplish its objectives, it
is essential to interpret it properly. 2
The most important provision in this respect is Article 7 of the CISG. It provides for standards
and is the key to solve the interpretative issues involved in the international commercial
transactions.3

The text of CISG is divided into four parts:4

1. Part I – This comprises of Articles 1-13 that deal with the sphere of application of the
convention and its general provision.
2. Part II – This comprises of Articles 14-24 and contains the rules governing the formation of
contracts for the international sale of goods.
3. Part III – This comprises of Articles 25-88 and it deals with substantive rights and obligations
of buyer and seller arising from the contract.
4. Part IV – This comprises of Articles 89-101. It provides the final clauses of the Convention
concerning such matters as how and when it comes into force, the reservations and declarations
that are permitted, and the application of the Convention to international sales where both States
concerned have the same or similar law on the subject.

Before moving further, let us under the scope of the application of the CISG.

1
Refer to the preamble of the CISG
2
Jan heller gap filling by ananlogy : Art.7 of the UN Sales Convention in its historical context, studied in
international law.
3
ibid
4
Supra note 2
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Scope of the CISG
The CISG applies to contracts of sale of goods between parties whose places of business are in
different States and either both of those States are Contracting States, or the rules of private
international law lead to the law of a Contracting State. The CISG governs contracts for
international sales only.5 The CISG contains a list of types of sales that are excluded from its
application, either because of:6

1. The purpose of the sale

2. The nature of the sale
3. The nature of the goods

Article 4 of the CISG categorically states that the subject matter of the CISG is restricted to:
“The formation of the contract of sale and the rights and obligations of the seller and the buyer
arising from such a contract.”

5
ibid
6
Vivian Crosswald Curran, the interpretive challenge to Uniformity, 15J.L. & Com.175,176 (1995)
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Objective of study:

The main objective of the researcher is to understand the concept of CISG,

Hypothesis:

 CISG provide modern, fair and uniform regime for contracts for international sales of
goods.
 The CISG contributes significantly to introducing certanityin commercial exchanges and
decreasing transaction costs.

Research Question:

The researcher has conducted research on following research questions:

 What are the rules of application of CISG?
 Discuss the various provision mentioned in different articles of CISG?

Research Methodology:

The researcher has relied on doctrinal method of research methodology.

Sources of data:

PRIMARY SOURCE: - Preamble of the CISG

SECONDARY SOURCES :- Books, Websites, Articles, Journals

Limitations of Study:

Owing to the large number of topics that could be included in the project, the scope of this
research project is exceedingly vast. However, in the interest of brevity, this paper has been
limited to the specified topics and is limited to the context of India.

Also, the researcher ha time and money limitations while making of this project.

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 2. CISG
The contract of sale is the backbone of international trade in all countries, irrespective of their
legal tradition or level of economic development. The CISG is therefore considered one of the
core international trade law conventions whose universal adoption is desirable.

The CISG is the result of a legislative effort that started at the beginning of the twentieth
century. The resulting text provides a careful balance between the interests of the buyer and of
the seller. It has also inspired contract law reform at the national level.

The adoption of the CISG provides modern, uniform legislation for the international sale of
goods that would apply whenever contracts for the sale of goods are concluded between parties
with a place of business in Contracting States. In these cases, the CISG would apply directly,
avoiding recourse to rules of private international law to determine the law applicable to the
contract, adding significantly to the certainty and predictability of international sales contracts.

Moreover, the CISG may apply to a contract for international sale of goods when the rules of
private international law point at the law of a Contracting State as the applicable one, or by
virtue of the choice of the contractual parties, regardless of whether their places of business are
located in a Contracting State. In this latter case, the CISG provides a neutral body of rules that
can be easily accepted in light of its transnational nature and of the wide availability of
interpretative materials.

Finally, small and medium-sized enterprises as well as traders located in developing countries
typically have reduced access to legal advice when negotiating a contract. Thus, they are more
vulnerable to problems caused by inadequate treatment in the contract of issues relating to
applicable law. The same enterprises and traders may also be the weaker contractual parties and
could have difficulties in ensuring that the contractual balance is kept. Those merchants would
therefore derive particular benefit from the default application of the fair and uniform regime of
the CISG to contracts falling under its scope7.

The CISG governs contracts for the international sales of goods between private businesses,
excluding sales to consumers and sales of services, as well as sales of certain specified types of
goods. It applies to contracts for sale of goods between parties whose places of business are in
different Contracting States, or when the rules of private international law lead to the
application of the law of a Contracting State. It may also apply by virtue of the parties' choice.
Certain matters relating to the international sales of goods, for instance, the validity of the
7
Rosett, CISG Laid Bare: A Lucid Guide to a Muddy Code, 21 CORNELL INT'L L.J. 576 (1988).
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contract and the effect of the contract on the property in the goods sold, fall outside the
Convention's scope. The second part of the CISG deals with the formation of the contract,
which is concluded by the exchange of offer and acceptance. The third part of the CISG deals
with the obligations of the parties to the contract. Obligations of the sellers include delivering
goods in conformity with the quantity and quality stipulated in the contract, as well as related
documents, and transferring the property in the goods. Obligations of the buyer include
payment of the price and taking delivery of the goods 8. In addition, this part provides common
rules regarding remedies for breach of the contract. The aggrieved party may require
performance, claim damages or avoid the contract in case of fundamental breach. Additional
rules regulate passing of risk, anticipatory breach of contract, damages, and exemption from
performance of the contract. Finally, while the CISG allows for freedom of form of the
contract, States may lodge a declaration requiring the written form 9.

8
E. Allan Farnsworth, Review of Standard Forms or Terms Under the Vienna Convention, 21 CORNELL INT'L
L.J. 440 (1988).
9
https://www.lawteacher.net/free-law-essays/international-law/cisg-scope-of-application
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 3. VAGUENESS OF BURDEN OF PROOF
As it is know that the burden of proving is not mentioned explicitly, but as Huber mentioned
that such an issue of proofing falls with the scope of the convention but it is not settled in its
provision. He also said that it is such a big gap that exists in the internal part of the general
principles of the CISG. The main party wishing to proof is the party who wants to use one of
the CISG factual requirements of its conditions (2006).Kroll stated that no general provisions
were met for this issue because burden of proofing exists in conflicting of laws, and it is hard to
find an explicit law for such an issue. Two cases supporting this argument which are Clout case
No.261 (Bezirksgericht der Sanne (District Court), Switzerland, 20 February.1997) based its
proof on the Swiss burden of proof rules on the second concept of Article 7(2).This showed that
it is within the matter of the CISG scope of application general principles. The falling of the
burden of proof within the burden of proof of the CISG scope of application and assumed from
the general principles in which the CISG based on in the concept of Article 7(2) is the
prevailing and correct view of the issue. The reasoning of dominant case law is we summarized
by the Tribunal de Vigevano which held 10:
“To support the argument that the burden of proof issue is not excluded from the reach of the
Convention, so that issue of the burden of is not beyond the scope of the regime of the regime
of international sales law introduced by the Convention, these authorities refer (correctly, in the
view of this Tribunal) to Article 79(1) of the Convention, which expressly refers to the burden
of proof concerning the exemptions from damages for breach. According to this provision, “A
party is not liable for failure to perform any of his obligations if he proves that the failure was
due to an impediment beyond his control and that he could not reasonably be expected to have
taken the impediment into account at the time of the conclusion of the contract or to have
avoided or overcome it or its consequences.” Thus, the issue of the burden of proof cannot be
deemed beyond the ambit of the Convention, in contrast to e.g., the issue of set-off….”
Moving to another point related to the burden of proof, is that the burden falls on the one who
has to prove the facts of the issue in which it lies outside the CISG’s scope of application.
Baum (1994) added that Article 16 tries to settle the different rules of variation of rules
regarding the burden of proof (revocation of offer). However, it contains deceptions for the
incautious common law attorney. Bell said that when it comes to the burden of proof on one
party’s back is that in article 1(2), there is undisclosed principle issue. Also there might be some
words such as “appear” may be present in the article with no objective meaning is meant to be.

10
Anita F. Hill, A Comparative Study of the United Nations Convention on the Limitation Period in the
International Sale of Goods and Section 2725 of the Uniform Commercial Code, 25 TEXAS INT'L L.J. 3 (1990).
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He also said “Assume that a foreign-accented buyer, listed in the Yellow Pages under “Export
Agent,” arrives at seller’s place of business and specifies packing requirements which suggest
long travel, and requests delivery f.a.s or f.o.b. a port. Is the seller put on notice that the sale
might be subject to the Convention?” concluding that the better idea is that no duty should be
considered to be an enquiry, but parties can show that the other seller was aware of the
international sale in which it will apply to the enquiry 11. In addition to that the burden of proof
was put upon the party who is seeking to apply the Convention (1996).

11
CISG at preamble
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 4. VALIDITY AND FORMATION REGARDING VIENNA
CONVENTION
Saf (1999) came with the clarification that in accordance with Article 4 `formation´ of
international sales contracts falls within the scope of the Convention also as regards to validity
it is so far true and effective as long as it falls within the convention. The convention is mainly
concerned about the way or the mechanism of consent and not with how the defense of the
enforcement of the agreement applies. Such as mistake, fraud, threat or abuse of unequal
bargaining power, and nor with the validity of its substantive contents, such as invalidation of a
sales contract where specified products are being sold.
Nevertheless she has pointed out that a really good distinction made between formation and
validity in Article 4, the two concepts are overlapping. The presence of prime facia contract will
not exist unless rules governing formation of contract are met. Since rules governing the
formation are expressly provided in the Convention, this particular part of validity is within the
scope of the Convention. Yet, it is important to remember that this particular part of validity
does not link to the concept of validity of consent (1999). Nir Bar& Mss Natanella Har-
Sinay both came out with the statement that the exception of validity was included to protect
the different interest that supported by the different domestic laws. In addition to that they said
that the formation of Article 4 was for the purpose of creating a loophole in which it will extend
to apt the needs of different domestic laws. Further complications have come out although it
was mainly created to provide flexibility of rules for merchants and traders. They both clarified
that the vagueness of some provisions in the Convention including validity has made judges and
arbitrators to refer to each disputes domestic law instead of having a general concept for all. An
important point was said too that sometimes “when carrying out a simple conflict of laws
analysis to determine which state’s validity rules apply evades the ambiguity created by Article
4(a); a problem arises when the causes of invalidity proscribed by domestic law deal with
circumstances that also give rise to remedies under the CISG 12.”(2008)
In conclusion the CISG convention has been an effective source for commercial contracts yet
the gaps that are present in this convention need to be filled with the proper approaches. The
reason that the vagueness of the provisions need to overcome is that because each buyer and
seller must have a fair relation and proper standards to move along and apply. By providing
such clear image of the CISG provisions the world will have an easier trade transaction between
each other where everyone will know on what position they stand on.

12
Timothy N. Tuggey, The 1980 United Nations Convention on Contracts for the International Sale of Goods: Will
a Homeward Trend Emerge?, 21 TEXAS INT'L L.J. 541 (1985-6).
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 3. THE SPHERE OF THE APPLICATION OF THE CISG

The 1980 Vienna Sales Convention retreats significantly from the universalist posture taken in
the 1964 Hague Conventions, adopting instead an accomodationist stance.13 The CISG
explicitly incorporates private international law rules into the text of the Convention itself, thus,
in many jurisdictions, the CISG is self-executing, obviating any need, after ratification, for
separate municipal enabling legislation. Articles 1-6, 10, and 95 are the most important
provisions for determining the Convention's sphere of application. Articles 1, 10, and 95, read
together, define the manner in which international sales fall within the Convention's scope;
articles 2-5 list transactions which remain without; and article 6 affirms the drafter's fidelity to
the principle of party autonomy.

Articles 1, 10, and 95

Article 1 is a conflict of laws rule that separates international sales of goods from domestic
ones14. It contains the basic jurisdictional statement of the Convention, laying down a single
criterion of internationality: the seller and buyer must have their places of business in different
States. This rule greatly simplifies the analysis of what constitutes the national diversity
sufficient to trigger application of the Convention. No inquiry need be made as to domicile,
place of incorporation, nor seat of power. American lawyers should note that this is not parallel
to the concept of "doing business" which determines whether minimum contacts exist to render
a corporation amenable to suit in a particular jurisdiction. Note also that article 1(3) excludes as
irrelevant the nationality of the parties. Neither the location of the goods themselves, nor the
location of the negotiations between the parties, is necessarily dispositive.
While the Convention does not define place of business, the drafting history seems to "construe
it as requiring a permanent and regular place for the transaction of general business, not
including a temporary place of sojourn during ad hoc negotiations."Neither a warehouse, the
office of the seller's agent, nor a booth at a trade show would seem to qualify as a place of
business.
However if, as is frequently the case, one or both of the parties to the contract have multiple
places of business, article 10(a) provides that the relevant place of business will be the one with
the "closest relationship to the contract and its performance." Ambiguity may arise if one office
is more closely connected with the formation of the contract and a second office is more closely

13
Peter Winship, Private International Law and the U.N. Sales Convention, 21 CORNELL IN'L L.J. 532 (1988).
14
Helen Elizabeth Hartnell, Rousing the Sleeping Dogs: The Validity Exception to the Convention on Contracts
for the International Sale of Goods, 18 YALE J. INT'L L. 11 (1993).
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associated with a party's performance of his contractural obligations.15 The drafter of the
contract should address this problem by identifying each party's relevant place of business in
the text of the contract. A simple way to do this is by introducing the contract with a preamble
tailored to the Convention.6 5 Note, however, that a bare contractural recital may not provide a
safe haven if the totality of the facts point to a different place of business. 66
The problem is compounded by the mobility of business people in modern commerce. Since
business deals are facilitated by face-to-face meetings, a wide variety of forms of intermediaries
has arisen to connect sellers and buyers in different countries. The negotiation or conclusion of
contracts through subsidiaries, branch offices, franchises, or consultants may "mask the
localization" of each parties' place of business, effectively excluding the Convention, hence,
national diversity is destroyed. Increasingly, for economic reasons, or to avoid rules of origin,
quantity restrictions, or unfavorable tariffs, firms are disbursing their produciton facilities so
that the last stage of production may occur in the State where the product is to be sold. This,
too, may result in reducing the number of transactions which would otherwise be subject to the
Convention.
Nevertheless, a number of States were uneasy with the reach and uncertainty of sub.(1)(b).To
meet these objections, the Conference added article 95, which permits Contracting States to
reject sub(1)(b). This compromise ensured that the CISG would not go the way of the Hague
Conventions. In effect, a party in a State making an article declaration will, in most
circumstances, not find himself within the scope of the CISG unless he is dealing with a party
in another Contracting State. The article reservation narrows the applicability of the Convention
and enlarges the applicability of the domestic law.A Contracting State whose domestic law is
ill-suited to international transactions should not declare. On the other hand, "a State whose
domestic law is modern and well-suited to international transactions may well conclude that the
Convention's greatest value in within the area defined by sub. (1)(a), transactions between two
Contracting States." Article 1(1)(b) is not the law of any ratifying country which, pursuant to
article 95, has declared a reservation to sub.(1)(b).This was the course chosen by the United
States. As Professor Farnsworth states: Congress cited two reasons for opting-out of article
1(1)(b): First, it found that international choice of law rules are uncertain and could lead to
disharmony between Contracting States. Second, Congress felt that article 1(1)(b) would
displace U.S. domestic law more frequently than foreign law. For example, where the U.S.
contracts with a non-Contracting State, if private international law points to application of the
non-Contracting State's law, its domestic law applies. On the other hand, if private international

15
https://uncitral.un.org/en/texts/salegoods
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law points to application of U.S. law, article 1(1)(b) would dictate application of the
Convention.
However, it is not clear that States making an article 95 reservation will avoid the complexity of
a world of non-uniform rules of private international law, or avoid application of the
Convention in cases where both parties are not from Contracting States 16.

16
Supra note 15
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 4. ARTICLES 2-5: EXCLUSION FROM THE CONVENTION

It is in the realm of general principles that certainty and universality are needed. Any attempt at
defining special terms is to disregard the differences which exist in the practice of the many
different types of trade. The Convention's scope is limited. It applies only to international
transactions; it governs only commercial sales of goods; and it does not apply to specific types
of questions.17 The common thread running through these exclusions is the concern of the
drafters to avoid the impairment of mandatory national law (commonly referred to as
imperative law, public policy, jus cogens, etc.). These laws include State economic regulations,
as well as legislation intended to protect the rights of economically weaker parties such as
consumers and employees. As Professor Honnold stated it, "it would have been folly to try to
overturn domestic rules prohibiting and invalidating varioius types of transactions and contract
provisions-the Convention does not intrude in this sensitive domain." Some matters simply
have to be left to local law.Note that article 6 enables parties to opt-out of virtually any CISG
provision, subject to the above mentioned prohibitions. More difficult for the drafters was the
question of whether parties to a transaction excluded by articles 2-5 might, nevertheless, agree
to have the CISG govern the transaction. Several delegations feared that this technique might
allow parties to avoid domestic consumer protection legislation. Respect for party autonomy
made it difficult to formulate a workable limitation, and in the end it was agreed that parties
should not be foreclosed from agreeing to have the Convention apply to a transaction otherwise
excluded as long as the policy behind the specific exclusion is not contravened. Article 2 The
CISG gives no clear definition of either "goods" or "contract for sale."One writer wryly
suggests that this is due to broad agreement as to these terms. Hoever, as conflicting definitions
abound, the opposite is closer to the truth. Article 2 expressly excludes six categories of
transactions from the Convention. "Three are based upon the nature of the transaction, and three
are based upon the nature of the goods." The categories excluded are goods bought for personal,
family or household use (consumer goods), unless the seller does not know that the use of the
goods was so intended. The exclusion of consumer sales serves the purpose of avoiding
problems of conflict between the Convention and the mandatory rules of domestic law designed
to protect the consumer.18 It would have been disastrous for the drafters to attempt to unify
these disparate rules within the Convention.

17
The Vienna Convention: History and Scope, 18 INT'L LAW. 19 (1984).Farnsworth,
18
https://uncitral.un.org/en/texts/salegoods
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 5. THE SCOPE OF THE CISG

Article 4 Article 4 limits the Convention's scope to the formation of the contract and the rights and
obligations of the seller and buyer arising from such contract. The CISG is not concerned with the
validity of the agreement (unless otherwise expressly provided in the Convention) or of any of its
provisions, leaving such issues as; error, mistake, fraud, duress, unconscionability, and illegality to be
determined solely by the application of municipal law. Essentially, read together, "articles 4 and 6 create
a tripartite hierarchy, with domestic mandatory law on top, the agreement of the parties in the middle,
and the CISG at the bottom. This was the price paid by the Convention's sponsors for its acceptance by
the adopting nations."It is beyond the scope of this note to examine each issue which may rise to a
validity claim, 19 but a review of article 4 is in order. The drafters of the CISG "viewed domestic laws on
contract validity as the vehicle for a society's political, social, and economic philosophies." Contract
validity was seen as an issue that seldom arose among international merchants and which was most
likely to appear in the context of domestic law. ' The obvious intent behind the clause was "to ensure that
the Convention neither disturbed deeply ingrained notions of public policy, nor tried to legislate what
that policy should be for all nations. Neither would have succeeded, and the CISG would simply not
have been adopted."" 2 The result, however, is that article 4 is likely to create more problems and
litigation than any other provision of the Convention. Since there is no uniformity among jurisdictions
on the grounds for declaring a contract invalid, article 4 may well prove to be a "methodological
quagmire," blocking the development of a "jurisprudence of validity," and hindering the evolution of an
effective international sales law. In the near term, parties, especially in civil law countries, 1 5 may seek
to escape liability by attacking the validity of a contract or contract provision. However, a way out of
this potential black hole is offered by Professor Honnold. He argues that the drafters of the CISG did not
intend to equate validity with all mandatory domestic law, since the Convention could never achieve its
goal of unification if domestic law governed an issue which the Convention addresses. Municipal law
should animate, not displace, the CISG, in the same way that the "ocean of the common law" has
undergirded development of the UCC. Thus, it is the CISG which displaces domestic law when a factual
situation triggers a provision of both. Consequently, it is 'insignificant whether domestic law labels a
particular issue one of validity. The crucial question is whether the domestic rule is triggered by the
same operative facts which invoke a rule of the Convention. This is elegant, and the future, one hopes,
belongs to Honnold. We live in the present, however, and it seems unalterable that the validity question
will linger as one of the most vexing and troublesome provision of the CISG. Article 4(b) avoids the
issue of the passing of title in goods. The CISG was careful here not to intrude into the sensitive realm of
creditor's rights and insolvency proceedings. It is difficult to imagine awarding, through application of
the supremacy clause, superior priority rights to foreign claimants.""

19
https://www.cisgac.com/
17 | P a g e
 6. ARTICLE – 6
Article 6 The Convention applies to contracts for the sale of goods within its application,
unless, the parties exclude its application in whole or in part. A party's freedom to contract is a
uniformly recognized principle of contract law, and aritlce 6 "embodies a vigorous affirmation
of this principle. "At the outset, it is worthwhile to consider the effect of silence on the
governing law of the contract. Prior to the Convention, a party in a difficult negotiation might
have been willing to forego having a choice of law clause in the contract, hoping to prevail later
should a dispute arise. After ratification of the CISG, however, the effect of this omission is to
choose the Convention as the law of the contract if the requirements of article 1 are satisfied.
The drafters of the CISG deleted a reference in the 1964 Hague Rules specifying that exclusions
from the treaty could be express or implied, reviving a long-standing debate over the means by
which parties may exclude the Convention.20 Some writers have taken this to mean that only
express exclusions are enforceable under the CISG, 124 while others claim the same result is in
accordance with the Convention's overarching principle of uniformity. 125 However, the
commentary points out that the deletion occured because "special reference to implied
exclusions might have encouraged courts to conclude, on insufficient grounds, that the
Convention had been excluded."1 26 Most commentators incline toward the view that, while
implied exclusions, given their inherent ambiguity, are to be discouraged, nowhere are they
prohibited. Article 6 does not require that parties use any particular language to opt-out, nor
does it even require writing. More likely, however, the decision to opt-out would be explicit or
implicit in a choice of law clause in a written contract. The ambiguity created by the continued
use of pre-printed, pre CISG "form contracts will, it is safe to say, provide fertile ground for
controversy in the application of article 6."127 Consider the effect of the following clause:
THIS CONTRACT IS TO BE GOVERNED BY CALIFORNIA LAW. Had the United States
not ratified the Vienna Convention, this provision would be deemed an effective exclusion (if
one were necessary), since it expressly selects the law of a non-Contracting State. However, the
CISG entered into force in the U.S. on January 1, 1988, thus, the clause is ambiguous. Most
writers would agree that it is not an effective exclusion. "When the parties agree to refer to the
law of a Contracting State one cannot speak of an implied exclusion of the Convention." 128
This is a tautology, since the CISG is the law of California for international sales.

20
WINSHIP, supra note 13
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 7. ANALYSIS OF THE APPLICATION
No doubt that the CISG had a purpose for not fulfilling all the gaps in its scope of application,
yet this has caused it to be somewhat weak. It is for sure that a lot of people tried to dig deep
and find out what was this purpose. In my analysis to this provision I will be discussing the
issue of the exclusions made in the CISG application and the vagueness of burden of proof.
Yes, it is for sure somewhat hard to find common provisions for a lot of countries together, but
that doesn’t mean it is impossible. Mainly the exclusions that were made in the CISG are
present in article 4 and 7. For instance, when it comes to the point where there is no deep
analysis that used for each case. Consequently, cases will not be looked at solely. Meaning that,
they take all cases together and apply superficial analysis on them leading to have no fairness in
the ruling. When I say no fairness in the ruling I mean that if the courts look at the provisions
deeply and just referred to the provision present in article 4. I think that is what best that
should’ve been done was that they analyze things individually and interpret their provisions and
add more helpful ones in order to reach into a better settlement in the disputes21.
If we take for example, the validity part in article 4 that doesn’t mean formation of contract and
rights of buyer and seller are just fine and has no gap. No, it is just in the validity section some
cases were referred to by the domestic law of the disputed country. How? Well, in Geneva
Pharmaceuticals Tech. v. Barr Lab the issue of consideration was governed by the applicable
national law. This is because the courts thought or we can say concluded that even the solo
interpretation of the provision in article 4 will not suffice to give the full proper ruling which
will consequently ring a bell that the CISG application is not uniform and hard to be uniformed.
Cases, issues and other matters will be governed by the national domestic laws not the CISG.
What has created all these confusions and gaps is that article 4 and article 7 provisions are so
similar. It is not proper or logical because by such, misleading will occur in the CISG affecting
the general coherency of the CISG application. This is one of the important reasons that the
CISG always refers to the national domestic laws of other countries not their own applications
and provision alone. This is mainly when it comes to article 4 and the provision of article 7(2)
because of their ambiguity. All these reasons and conclusions lead us to understand that if the
CISG22 had a proper and clear applications and articles, it would’ve not gone and excluded
some of the important matters that might affect a lot of the important things that reasoning
would need in many cases.
The last thing that I would like to mention in the exclusion in CISG application is that the third

21
https://www.trans-lex.org/500100/_/united-nations-convention-on-contracts-for-the-international-sale-of-goods-/
22
https://www.lawteacher.net/free-law-essays/international-law/cisg-scope-of-application-exclusions-and-effects-
international-law-essay.php
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party’s right is not considered in any of the articles. This is something that should be present
because of the international notion of rights and obligations that states that all parties’ rights
should be considered no matter what. A convention like that should be covering all these
important sensitive matters. This also might affect the world trade because when there is no
general, unified provisions, traders and merchants will not feel secure enough to through such
big deals. So, eventually their fear of not having a clear provision to follow when they are in
dispute if it happens makes them not take a stance on whether to go into business or not.
Moving to the next point, which is the vagueness of burden of proof. This is such a
controversial issue because in any case or dispute between the parties always the burden of
proof lies on the back of one of them. In the CISG burden of proof is not mentioned alone or
concentrated on. It is just falls between the lines of the convention. This is one of the weak
points that the CISG has in its application because if such detailed provision was present in it, it
wouldn’t make it hard for the party to look through and try figuring out the requirements of the
case’s condition.
Again the reason that the CISG wasn’t able to create anything that is common between all
different countries is that because of the conflicting laws. This is such a sensitive issue in the
CISG. (Bezirksgericht der Saane (District Court), Switzerland, 20 Feb. 1997) is a real life
example of the issue related to burden of proof. In this case, the burden of proof is under the
general provision or the lines of the convention scope of application, and unfortunately it is
assumed from the general principles that are in article 7(2) in the Swiss burden of proof and
some other articles too. In this case, they also tried to hide or support the issue that there is
burden of proof, and it is not excluded from the scope of the CISG application. The idea of
thinking about how to show that burden of proof does exist in the convention and trying to
bring up articles related to that proofs that it is a big gap that is hard to be filled in a blink of
eye. Going back to the case in giving out the ruling they used the view of Article79 (1) of the
convention. This article refers to breach exemption from damages. By reading all that, we all go
back and conclude that burden of proof is so ambiguous to the extent where some started to
relate things to different articles in order to proof that somewhere in the convention this
provision do exist in the convention.

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 CONCLUSION
In conclusion the CISG convention has been an effective source for commercial contracts yet
the gaps that are present in this convention need to be filled with the proper approaches. The
reason that the vagueness of the provisions need to overcome is that because each buyer and
seller must have a fair relation and proper standards to move along and apply. By providing
such clear image of the CISG provisions the world will have an easier trade transaction between
each other where everyone will know on what position they stand on.
The unprecedented surge in international commerce during recent decades has created a need
for a uniform law on the international sale of goods. The CISG, through its clarity, practicality,
and predictability seems to have met that need. It's fairly safe to predict that the Convention will
be the predominant law in force around the globe in a very short time. Less than two per cent of
the gross national product of the United States in 1950 concerned international trade. Today that
figure is 25 per cent, and conservative estimates place it at 40 to 50 per cent by the end of the
decade. The resulting massive displacement of American domestic law (i.e., article 2 of the
UCC) will be a "once-in-a-lifetime event for most lawyers in this country." The CISG
represents a "relatively simple bridge between the U.S. system and the rest of the world." Not
only can American lawyers no longer safely ignore international law, it is now their
professional responsibility to master it. No doubt that the CISG had a purpose for not fulfilling
all the gaps in its scope of application, yet this has caused it to be somewhat weak. It is for sure
that a lot of people tried to dig deep and find out what was this purpose. In my analysis to this
provision I will be discussing the issue of the exclusions made in the CISG application and the
vagueness of burden of proof.
The decision to exclude claims based on death and injury to persons was taken with little debate
and no opposition.11 9 The reasons for exclusion include the rapid and uneven development of
national law regulating "product liability," and the possibility of specialized international
solutions to the problem. The only complexity with regard to this provision occurs when both
property losses and personal injuries arise out of the same incident, as is frequently the case.
The economic damage caused by a defect will be determined by the Convention's damage rules,
while the graver harm will be resolved through application of the residual municipal law.
What weakened the CISG was the presence of some limitations in its scope of application.
Those limitations were in concerns of the consumer’s transactions in which they were left to
each nation’s domestic law, mainly it was about agreements between buyers and sellers and
freedom of contract, abundantly permits buyers and sellers through their contract to expressly
exclude any or all of the CISG’s provisions and to permit acceptance .This has created some

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issues in which they will be discussed in a broader way.

BIBLIOGRAPHY

Primary sources:-
 Preamble of the CISG

Websites:-
 https://www.lawteacher.net/free-law-essays/international-law/cisg-scope-of-application
 https://uncitral.un.org/en/texts/salegoods
 https://www.cisgac.com/
 https://www.trans-lex.org/500100/_/united-nations-convention-on-contracts-for-the-
international-sale-of-goods-/

Secondary sources:-
 Jan heller gap filling by ananlogy : Art.7 of the UN Sales Convention in its historical
context, studied in international law.
 Vivian Crosswald Curran, the interpretive challenge to Uniformity, 15J.L. &
Com.175,176 (1995)
 Rosett, CISG Laid Bare: A Lucid Guide to a Muddy Code, 21 CORNELL INT'L L.J.
576 (1988).
 E. Allan Farnsworth, Review of Standard Forms or Terms Under the Vienna Convention, 21 CORNELL
INT'L L.J. 440 (1988).
 Anita F. Hill, A Comparative Study of the United Nations Convention on the Limitation
Period in the International Sale of Goods and Section 2725 of the Uniform Commercial
Code, 25 TEXAS INT'L L.J. 3 (1990).
 Peter Winship, Private International Law and the U.N. Sales Convention, 21 CORNELL
IN'L L.J. 532 (1988).
 Helen Elizabeth Hartnell, Rousing the Sleeping Dogs: The Validity Exception to the
Convention on Contracts for the International Sale of Goods, 18 YALE J. INT'L L. 11
(1993).
 The Vienna Convention: History and Scope, 18 INT'L LAW. 19 (1984).Farnsworth,

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