CIVIL AND COMMON LAW IMPEDIMENTS TO AN EFFECTIVE

APPLICATION OF ARTICLE 7(1) OF THE CONVENTION FOR THE

INTERNATIONAL SALE OF GOODS (CISG)

Submitted by Anita Kearney

A dissertation submitted to the University of Bristol in accordance with the

requirements of the degree of Master of Law by advanced study in LLM Law and

Globalisation in the Faculty of Social Sciences and Law.

Law School

Submitted on 23 September 2020

Abstract

The United Nations Convention on Contracts for International Sales of Goods

(‘CISG’) has been ratified by ninety-three states across five continents with different
legal systems. Article 7(1) CISG aims to ensure that courts and tribunals across these
different jurisdictions interpret the CISG in a uniform manner. The goal is to achieve
certainty and predictability by eliminating inconsistencies created by the application
of national laws and associated rules of interpretation to cross-border commercial
transactions.

To achieve this goal Article 7(1) prescribes three general principles of interpretation
to which courts and tribunals must have regard: namely the CISG’s inherent
“international character”; the need to “promote uniformity” and “the observance
of good faith in international trade”. However, the CISG provides no guidance on
how courts should put these interpretation principles into effect. Furthermore, there is
no international commercial court with oversight of the CISG capable of determining
questions of interpretation.

This essay examines how courts, from both civil and common law systems approach
interpretation domestically, identify differences and consider further how these may
have impacted on their respective application and interpretation of Article 7(1) and
the achievement of the desired uniformity. Impediments will be identified and
possible solutions will be offered to enable civil and common law courts’ to achieve
greater consistency and interpret the principles under Article 7(1) uniformly.
Contents

1. INTRODUCTION .......................................................................................................... 1

2. INTERNATIONAL CHARACTER – METHODS OF STATUTORY INTERPRETATION ............... 6

2.1 Characteristics of the Civil Law System ....................................................... 8

2.1.1 Legislation in Civil Law ................................................................. 8
2.1.2 Interpretation Methodology used in Civil Law by reference to
German Courts. .............................................................................. 9

2.2 Characteristic of the Common Law System ................................................ 13

2.2.1 Legislation in Common Law......................................................... 14
2.2.2 Interpretation Methodology used in Common Law by
reference to Australian and English Courts.................................... 15

2.3 International Law, General Rules of Interpretation...................................... 17

2.4 Interpretation Methodology used to interpret the CISG ............................... 20

2.5 Impediments and Possible Solutions to a Uniform Interpretation

Methodology ............................................................................................. 22

3. PROMOTION OF UNIFORMITY .................................................................................... 27

3.1 Characteristics of Civil Law use of Court Decisions and Scholarly

Material ..................................................................................................... 28

3.2 Characteristics of Common Law use of Court Decisions and Scholarly

Material ..................................................................................................... 30

3.3 Foreign Decisions used in International Law. ............................................. 32

3.4 Foreign Decisions and Scholarly Material in the CISG ............................... 33

3.5 Homeward Trends ..................................................................................... 39

3.6 Impediments and Possible Solutions to the Promotion of Uniformity in

the CISG ................................................................................................... 43

4. OBSERVANCE OF GOOD FAITH IN INTERNATIONAL TRADE ......................................... 46

4.1 Characteristics of the Civil Law Principle of Good Faith ............................ 47

4.2 Characteristics of the Common Law Principle of Good Faith ...................... 48

4.3 Impediments and Possible Solutions to a Uniform application of Good

Faith in the CISG. ...................................................................................... 53

5. CONCLUSION ........................................................................................................... 56
1. INTRODUCTION

The United Nations Convention on Contracts for the International Sale of Goods

(‘CISG’)1 is intended to deliver a uniform substantive law that can be interpreted and

applied by courts and tribunals2 across a range of civil and common law jurisdictions

including those with different economic, social and legal systems. 3 Unless expressly

excluded by the parties, 4 the CISG applies to international business contracts for the

sale of goods between parties, whose places of business are in different contracting

states.5 Upon ratification, the CISG becomes part of the states’ national law, and its

interpretation will be effected through the national courts.

However, while interpretation is effective by national courts, the CISG should not be

interpreted through the lenses of national law. 6 This is because, each nation laws

differ in conception and approach and are drafted against a backdrop of diverging

political, social and economic objectives. 7 In contrast, the CISG is designed to bring

legal convergence as a result of shared interest in economic globalisation. 8

1
United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (‘CISG').
2
Reference to a court shall include a tribunal; Reference to a judge shall include an arbitrator.
3
CISG, Preamble.
4
CISG, Article 6, parties may exclude (by contract) the application of CISG.
5
CISG, Article 1(1) (a); or according to Article 1(1) (b) where private international law leads to the
application of the law of contracting state.
6
John Felemegas, ‘The United Nations Convention on Contracts for the International Sale of Goods:
Article 7 and Uniform Interpretation’, Pace Review of the Convention on Contracts for the
International Sale of Goods (CISG), (Kluwer Law International, 2000-2001) 115-265.
7
Joseph Dainow, ‘The Civil Law and the Common Law Some Points of Comparison’ (1967) 15 AM J
Comp L 419.
8
Mariana Pargendler, ‘The Rise and Decline of Legal Families’ (2012) 60 AM J Comp L 1043, 1062.
1
To interpret the CISG in light of domestic law would inhibit the aim to achieve a

uniform sales law that can be interpreted and applied consistently. 9 Those drafting the

CISG were aware of the risk of diverging interpretations, thus they inserted an

interpretation provision into Article 7(1) CISG.10 Article 7(1), explicitly requires

national courts to have regard to the CISG’s:

“… [international character] and the [need to promote uniformity] in its

application and [the observance of good faith] in international trade.” 11

The role of Article 7(1) is to ensure that (with its correct application) obstacles to

trade, such as differences between national legal systems are overcome. 12 Its goal is to

achieve certainty and predictability by eliminating inconsistencies otherwise created

by the application of national law to cross-border commercial transactions. 13

The CISG is a collaborative instrument, ratified by states following compromises in

search for common ground.14 Scholars generally agree that the CISG is a fusion of

influences from both civil and common law legal systems.15 Civil law principles, such

9
Benjamin Hayward, Bruno Zeller and Camilla Andersen, ‘The CISG and the United Kingdom –
Exploring Coherency and Private International Law’ (2018) 67 International and Comparative Law
Quarterly 607; Camilla Andersen, ‘CISG in national courts’, in Larry DiMatteo (ed), International
Sales Law: A Global Challenge (Cambridge University Press 2014) 63; Franco Ferrari, ‘Uniform
Interpretation of the 1980 Uniform Sales Law’ (1994) 24 GA J Int’l & Comp 183.
10
Franco Ferrari, ‘Have the Dragons of Uniform Sales Law Been Tamed?
Ruminations on the CISGs Autonomous Interpretation by Courts’, in Camilla B. Andersen and Ulrich
G. Schroeter (eds) Sharing International Commercial Law across National Boundaries (Wildy,
Simmonds & Hill Publishing 2008) 134-167.
11
Emphasis added.
12
Franco Ferrari, ‘PIL and CISG: Friends or Foes’ (2012-2013) 31 JL & Com 45, 46.
13
Ibid.
14
Andre Janssen and Navin Ahuja., ‘Bridging the Gap: The CISG as a Successful Legal Hybrid
between Common Law and Civil Law?’ in Elizalde, Francisco (ed), Uniform Rules for European
Contract Law? A Critical Assessment (Oxford Hart Publishing, 2018) 137.
15
Sieg Eiselen, ‘The CISG as Bridge between Common and Civil Law’, in L. DiMatteo (Ed.),
International Sales Law: A Global Challenge (Cambridge University Press 2014) 612; Natalie
2
as Nachfrist rules (a procedure whereby additional time is afforded to the defaulting,

party to perform their contractual obligations) is included. 16 Other civil law concepts

adopted, include specific performance, which requires a defaulting party to perform

their contractual obligations and anticipatory breach, providing immediate remedies to

an aggrieved party in anticipation of the other parting breaching their contractual

obligations (while present in civil law systems, anticipatory breach, originated as a

common law concept).17

The terminology adopted in the CISG intentionally avoided using concepts from

national legal rules, in favour of more neutral wording.18 Words adopted include

'avoidance' rather than 'termination'; 'impediment' instead of 'frustration' or 'force

majeure'; all purposely used to avoid the danger of domestic meanings being given by

national courts.19 Similarly, fundamental contract rules from common law

jurisdictions, such as consideration (a requirement for a valid contract in addition to

offer and acceptance) have been omitted, and Kaufm ä nnisches Best ä

tigungsschreiben, a civil law concept, (which prescribes the requirements for

accepting a variation to an oral agreement) is also excluded.20

Hofmann, '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 Pace Int’l Rev 145; Flemegas (n 6).
16
CISG, Articles 47(1) and 63(1); Ulrich Magnus, ‘Tracing Methodology in the CISG Dogmatic
Foundation’, in Janssen, Andre, and Olaf Meyer, Cisg Methodology, Munich, Sellier (European Law
Pub 2009) 33, 40.
17
CISG, Articles 46 and 62; Janssen & Ahuja (n 14) 146; See also Hochster v De La Tour [1853]
EWHC QB J72.
18
Felemegas (n 6) chapter 3.3; Bruno Zeller, ‘Four-Corners - The Methodology for Interpretation and
Application of the U.N. Convention on Contracts for the International Sale of Goods' (May 2003)
available at: www.cisg.law.pace.edu/cisg/biblio/4corners.html, chapter 2, para 8 (a).
19
Janssen and Ahuja (n 14).
20
Ibid., 154.
3
At present, the CISG has been ratified by ninety-three states21 comprising legal

systems based on common law, civil law and mixed jurisdictions.22 While the aim of

Article 7(1) is to achieve harmonisation it must be acknowledged that the “law on the

books does not necessarily match the law in action”. 23 Harmonisation can be

challenging when the thinking of those called upon to interpret the CISG, such as the

judiciary, “is shaped by their cultural environment and by their training, by their role

models, be it at law school or court. They are influenced by legal culture, and at the

same time, they are among the players who create it. How lawyers and particularly

judges think and act is a core component of any legal culture”.24

This essay will examine if civil and common law courts can apply the interpretation

principles of Article 7(1) CISG, namely “international character”, “the need to

promote uniformity” and “the observance of good faith in international trade” in

a uniform manner. It will consider differences between the common law and civil law

courts’ approach to interpretation and assess the degree to which these impede courts’

ability to achieve the uniformity and consistency sought by the CISG through the

application of Article 7(1).

It must be recognised however, that no conclusive overarching distinction can be

drawn between civil and common law. 25 Furthermore, variations exist within both

21
United Nations Commission on International Trade Law (‘UNCITRAL’) available at:
https://uncitral.un.org/en/cisg40.
22
Louisiana (U.S. state) and Quebec (Canadian state) are mixed jurisdictions; See also William Tetley,
‘Mixed jurisdictions: common law vs civil law (codified and uncodified)’ (e-journal) available at:
https://www.cisg.law.pace.edu/cisg/biblio/tetley.html.
23
Paul Berman, ‘The inevitable legal pluralism within universal harmonisation regimes: the case of the
CIS’ (2016) 21 Unif. L. Rev., 23, 25, at para 4.
24
Irmgard Griss, ‘How Judges Think: Judicial Reasoning in Tort Cases from a Comparative
Perspective’ (2014) 4 Journal of European Tort Law 247, 258.
25
Pargendler (n 8).
4
civil and common law systems, including mixed jurisdictions. 26 Notwithstanding the

differences, both civil law and common law sources comprise either statute, case law

or both. This essay will focus on courts’ interpretation and application of both.

Chapter two will examine the approach adopted by courts in both civil and common

law systems to statutory interpretation, and consider if there are significant differences

which might impede these courts' ability to have regard to the “international

character” of the CISG and use statutory methods uniformly. Chapter three will

identify how courts from different legal systems interpret and apply case law and

scholarly material (both domestic and foreign) and consider if these methods are

applied successfully to “promote uniformity”. Chapter three will also examine

whether courts from a particular legal system are more prone to reverting to domestic

law principles. Chapter four will evaluate the requirement under Article 7(1) for

courts to have regard to the "observance of good faith in international trade" and

examine the extent to which courts from different legal systems have be able to

interpret the requirement of good faith uniformly and consistently.

The concluding chapter will identify that differences do exist in the way civil and

common law courts interpret statue and case law and these can impede some courts'

ability to interpret the CISG uniformly. While some courts across legal systems are

able to apply the interpretation principles of 7(1) uniformly other courts’ still find it

difficult to detach themselves from domestic legal principles. Impediments and

26
Ibid (n 8); Tetley (n 22); Stefan Vogenauer, ‘Statutory Interpretation’, Elgar Encyclopaedia of
Comparative Law (2nd Ed., 2014) chapter 66, 826.
5
solutions to enable civil and common law courts’ to achieve greater uniformity and

interpret Article 7(1) consistently will bring this essay to a close.

2. INTERNATIONAL CHARACTER – METHODS OF STATUTORY INTERPRETATION

When states enact the CISG into national law, it signifies a common will among them

for the CISG to prevail over parties' international transactions for the sale of goods. 27

However, implementation alone does not necessarily result in courts interpreting the

CISG in a uniform manner.28 This is due, in part, to the diverging social and economic

objectives of contracting states, which impacts on countries legal agenda,

domestically and internationally. 29 Furthermore, contracting states operate under

different legal systems and these differences can influence how courts interpret and

apply the CISG.30 Many judges may be drawn to interpreting the CISG based upon

their own countries economic, political and legal system. 31

Because the CISG is a fusion of principles from differing legal systems, and a

supranational convention, the expectation is that judges should resist reverting to

domestic methods of interpretation. 32 They should also refrain from automatically

attaching the same meaning to legal principles and terminology used within the ambit

27
Zeller, ‘Four-Corners’ (n 18) chapter 5.
28
Andersen, ‘CISG in national courts’ (n 9).
29
For example, countries will take a different view on the death penalty which will influence domestic
law, in addition, a state’s participation in international law agenda such as being a signatory to the
Human Rights Act 1998.
30
Dainow (n 7).
31
Shani Salama, ‘Pragmatic Responses to Interpretive Impediments: Article 7 of the CISG, an Inter-
American Application,’ (2006) 38 U Miami Inter-Am L Rev 225; Dainow (n 7).
32
See, for example Oberlandesgericht Karlsruhe, available at CLOUT case No. 230; Richteramt
Laufen des Kantons Berne, Switzerland, 7 May 1993, available at CLOUT case No. 201.
6
of their national legal system. 33 Such application could lead to different outcomes

contrary to the purpose of the states’ ratification of the CISG, namely the unification

of international sales law. 34 Accordingly, in an effort to achieve uniformity, the CISG

requires national courts to have regard to its "international character". 35 With this in

mind autonomous interpretation is implied.36 However, the CISG is silent on how

national courts should reach such autonomous interpretation or which statutory

interpretation methodology should be adopted to achieve it.37 The lack of guidance

from the CISG can lead to different methods of statutory interpretations being applied

in practice.

This chapter will examine how civil and common law courts’ interpret national and

international legislation; identify key differences and consider if these have an impact

on courts ability to use statutory interpretation methods uniformly. For comparison,

and due to restricted wording, statutory interpretation methods used by the civil law

courts of Germany alongside the common law courts of England and Australia will be

examined. Other jurisdictions will also be mentioned. Consideration will also be

given to the desirability of establishing a ‘supranational methodology’, that is a fusion

of the various national methods used, which could be applied consistently across all

jurisdictions. Suggestions on how courts can be encouraged to apply statutory

interpretation methods uniformly will also be offered.

33
Franco Ferrari, ‘Applying the CISG in a Truly Uniform Manner: Tribunale di Vigevano (Italy), 12
July 2000’, (2001) 6 Unif L Rev ns 203.
34
Ibid., 205.
35
CISG, Article 7(1).
36
Handelsgericht des Kantons Aargau, Switzerland, 11 June 1999, available at CLOUT case No. 333;
Handelsgericht des Kantons Aargau, Switzerland, 26 September 1997, available at CLOUT case No.
217.
37
Andre Janssen and Larry DiMatteo, 'Interpretive Methodologies in the Interpretation of the CISG' in
Larry A DiMatteo (ed), International Sales Law: A Global Challenge (Cambridge University Press
2014) 79, 81.
7
 2.1 Characteristics of the Civil Law System

Notwithstanding the divergences that may be found between countries operating

under the same type of legal system and recognising the diversity which exists

“among civilian systems may be as great as, and sometimes greater than the

differences between French and English, or German and English Law”, 38 some degree

of generalisation as to the characteristics of the civil law system can be identified. 39

2.1.1 Legislation in Civil Law

Civil law developed from ancient Rome, advanced in continental Europe and is now

adopted by numerous countries outside the region such as Russia, Brazil and Japan

(all are CISG contracting states).40 Generally, a civil law systems main source of

legislation is contained in codes, for example the German Bürgerliches Gesetzbuch

(‘BGB’),41 French Code Civil,42 Dutch Burgerlijk Wetboek43 and the Italian Codice

Civile.44 Codes are passed by the legislator and contain a list of general principles

divided into sections.45 The principles are broad and regulate the relationship between

people. They are divided into topics such as “natural persons, consumers and

38
Larry DiMatteo, ‘Case Law Precedent and Legal Writing’, in in Janssen, André, and Olaf Meyer,
Cisg Methodology, Sellier (European Law Publishers 2009) (e-book) 129, quoting Zimmermann,
Comparative Law and the Europeanization of Private Law, in: Reimann/Zimmermann (eds.), The
Oxford Handbook to Comparative Law, Oxford 2006, 559.
39
Ibid., 129.
40
Janssen and Ahuja (n 14) 142.
41
Translation available at https://www.gesetze-im-internet.de/englisch_bgb/
42
Translation available at: https://www.trans-lex.org/601101/_/french-civil-code-2016/
43
Translation available at: https://www.trans-lex.org/600900/highlight_Dutch_civil_Code/new-
netherlands-civil-code-/#head_71
44
Translation available at: https://www.trans-lex.org/601300/_/italian-codice-civile/
45
Dainow (n 7) 424.
8
entrepreneurs”, “things and animals” and “legal transactions”. 46 The codes are not

rules which govern a particular situation; instead, they are a collection of

comprehensive principles designed to capture all eventualities and answer questions

that may arise in a given subject.47

Some codes include interpretative provisions, for instance, section 133 of BGB

requires a declaration of intent to be interpreted by “ascertaining the true meaning not

the ‘literal’ meaning”. 48 Interpretative provisions pursuant to contract law require

contracts to be “interpreted in good faith”. 49 The interpretation methods used and the

weight afforded to the material used to aid interpretation will vary between countries

from civil law systems. Thus no one decisive interpretation method is adopted.50

The legal education and training of civil law judges influences how they interpret and

apply legislation.51 Judges from civil law systems are often seen as career judges,

trained academically and appointed to the judiciary, without having practised in the

legal profession.52 Legal education is centred on the codes (and scholarly literature).

Judges are trained first and foremost to look at the text of the code to ascertain a

meaning and the underlying principle.53

2.1.2 Interpretation Methodology used in Civil Law by reference to German

Courts

46
BGB (n 41).
47
Janssen and Ahuja (n 14); Tetley (n 22).
48
BGB (n 41).
49
BGB (n 41) section 157.
50
Vogenauer (n 26).
51
Ibid.
52
Eiselen, ‘The CISG as Bridge between Common and Civil Law’ (n 15) 617; Dainow (n 7).
53
Vogenauer (n 26); Eiselen, ‘The CISG as Bridge between Common and Civil Law’ (n 15).
9
Germany ratified the CISG on 1st January 1991 and is regarded as a leading

contributor to the formulation of the CISG.54 German influences (such as the

“Nachfrist” rules) are included in the German founder, Ernst Rabel’s first draft of the

CISG in 1935.55 Germany has the greatest number of reported cases, on the database

established by the Pace University Institute of International Commercial Law’s

(‘PACE’) currently held at 534 at the time of writing. 56

When required to interpret statutes German courts will look to give effect to the

legislator’s intent. The Eindeutigkeitsregel (‘literal’) method whereby the text of the

statute is read as it is written is one method used by German courts.57 Nowadays, this

may the entail a close examination of the wording of the legislation, including the

grammatical structure of a sentence (‘grammatical’ method) to ascertain the clear

meaning of any ambiguous words.58 The ‘literal’ method is also adopted in other civil

law systems such as France referred to as the sens clair, where prima facie preference

is given to the wording of the statute.59

Where a clear meaning cannot be ascertained using the ‘literal’ or ‘grammatical’

method, courts in Germany may go on to use the 'systematic' approach.60 This will

entail a court considering the provision to be interpreted within its ‘context’ or

location within the legislation. It may also involve interpretation by analogy to other

54
Ulrich Magus, ‘The Vienna Sales Convention (CISG) between Civil And Common Law -
Best of All Worlds' (2010) 3 J Civ L Stud 67, 84.
55
Ibid.
56
See PACE database available at: http://www.cisg.law.pace.edu/cisg/text/casecit.html#germany
57
Vogenauer (n 26) 834; Janssen and DiMatteo (n 38).
58
Janssen and DiMatteo (n 37); Hofmann (n 15); Vogenauer (n 26) 835.
59
Vogenauer (n 26) 834.
60
Janssen and DiMatteo (n 37) 82.
10
provision within the same code, ordinary statue or customary law. For example, if

required to interpret the word ‘reasonable’ or ‘writing’, a court may look to another

statute where those words have previously been interpreted.61

Another method used in Germany is the teleo-logische Auslegung so-called

‘teleological’ method. This entails courts moving away from the strict wording of the

legislation in an attempt to ascertain the purpose (‘teleo’) of the legislation.62 A judge

using this method will examine the legislation and consider the underlying reason for

the statute being enacted.63 The legislatively history (‘travaux préparatoire’) will

often be used to aid interpretation. This method is used extensively in Germany. It

entails an examination of preparatory work and drafter comments, and used to enable

a court to ascertain the purpose and give effect to the legislator intent.64 German

courts will regularly cite parliamentary materials and routinely consult scholarly text

to aid interpretation. 65

Courts in Germany also look to other court decisions to assist in them with

interpretation. However, it is usually done with the intention of ascertaining the

“points of interpretation of the written text”.66 For instance, if a court has previously

interpreted the word ‘reasonable’ a court in search of a meaning for the same word

may look to that previous decision. Where the law is silent on an issue in civil law and

61
Ibid., (n 37) 86.
62
Hofmann (n 15) 155; Sieg Eiselen, ‘Literal Interpretation: The Meaning of the Words’, in Janssen,
André, and Olaf Meyer, Cisg Methodology, Sellier (European Law Publishers 2009) (e-book) 61-89;
Janssen and DiMatteo (n 37) 82.
63
Hofmann (n 15) 156.
64
Ibid.
65
Ibid., (n 15) 156, in Germany parliamentary materials are published as "Bundestagsdrucksachen"
(‘BT-Drs’).
66
Dainow (n 7) 426 at para. D.
11
a meaning cannot be ascertained using any of the usual methods available within the

courts' legal system, the codes will often dictate how the courts should proceed. For

example, the “the Swiss Civil code authorises the judge to render the decision which

he would make if he were legislator.”67 In Germany a judge may resort to customary

law where the written law is silent on an issue. 68 Any interpretation adopted or

determined will be non-binding on other courts.69

In summary, it can be said that courts operating under the civil law system do not

have a single interpretation methodology. Instead they use a mixture of

methodologies, with the aim foremost to give preference to the legislators’ intent.70

However, courts do tend to use ‘preferred’ methodologies which are based on the

understanding that the leading legal principle must be found in the design and

structure of the statutory text. By way of example, a German court will usually adopt

the ‘literal’ or ‘grammatical’ method thereafter the ‘systematic’ method. Additionally,

courts will routinely use historical papers and academic commentary to aid

interpretation with the premise of ascertaining the purpose of the legislation and

thereby giving effect to the legislator.71

67
Dainow (n 7) 433 at para. E.
68
Ibid.
69
Ibid.
70
Ibid; Vogenauer (n 26)
71
Janssen and DiMatteo (n 37).
12
2.2 Characteristic of the Common Law System

The common law developed through English law and cascaded throughout the

commonwealth. 72 It is now associated with many CISG contracting states, including

Australia, New Zealand, Singapore, Canada (with the exception of Quebec, a

Canadian state with a civil law system) and the U.S. (with the exception of Louisiana

a U.S. state with a civil law system). The United Kingdom, despite participating in the

drafting negotiations, is not a contracting state.

Historically, judges in England were called upon to settle disputes which would take

place regionally. However, when the King’s court was established, 73 judges were

required to travel ('circuit') the country to settle disputes. The aim of judges moving

around the country was to enable general norms and uniform rules to be established.

The circuit judge enabled consistency in the application of the law, not just regionally

but common throughout the country, thus the common law. 74 Judges appointed to the

courts of England and Wales still travel the country today. 75 A vast body of law

developed through judge-made law, including tort and contract law. The common

lawmakers, i.e. judiciary (under the authority of the King) were seen as protectors of

the people.76

72
Pargendler (n 8).
73
Dainow (n 7); Pargendler (n 8); See also for example, Open University online courses available at:
https://www.open.edu/openlearn/society-politics-law/judges-and-the-law/content-section-2.1, in the
year 1154, Henry II of England, institutionalised the common law by creating a unified court system
'common' to the country.
74
Magnus, ‘The Vienna Sales Convention (CISG) between Civil And Common Law -
Best of All Worlds' (n 54); Pargendler (n 8); Dainow (n 7).
75
England and Wales are split into six circuits or distinct geographical regions for the practice of law.
They are the areas around which the High Court judges travel. The six circuits are: South Eastern,
North Eastern, Midland, Northern, Wales and Western.
76
Magnus, ‘The Vienna Sales Convention (CISG) between Civil And Common Law -
13
 2.2.1 Legislation in Common Law

While the common law was developing via judge-made law, Parliament was

established with the aim of ensuring the King did not exert too much power.77

Parliament thus enacted statutes and judges were expected to carry out the intent of

Parliament. An increase in legislation resulted in the common law being subjected to

statute based law.

Contract law in England and Wales, while still primarily the object of common law,

now has sales law contained in, amongst others, the Sales of Goods Act 1979. With

the exception of Louisiana (a civil law state), forty-nine of the remaining common law

states of the U.S. have their sales law codified in Article 2 Uniform Commercial Code

('UCC'). 78 Common law statutes, unlike the civil codes, are generally a set of rules

aimed at addressing a particular legal issue or gap in the common law. 79 For instance,

whilst contract law in England and Wales is primarily the product of common law,

legislation such as the Unfair Contract Terms Act 1977 (‘UCTA’) is designed to

regulate contracting parties’ actions to ensure fairness. 80

Historically, the judiciary regarded Acts of Parliament as an encroachment on their

authority and obligation to act as protectors of the people. Thus when called upon to

Best of All Worlds' (n 54); Pargendler (n 8); Dainow (n 7).

77
See, for example, Open University online course (n 73), in 1215 with the creation and signing of the
Magna Carta.
78
Eiselen, ‘The CISG as Bridge between Common and Civil Law’ (n 15) 616.
79
Dainow (n 7); Tetley (n 22); Vogenauer (n 26).
80
“An Act to impose further limits on the extent to which under the law of England and Wales and
Northern Ireland civil liability for breach of contract, of for negligence or other breach of duty, can be
avoided by means of contract terms”, UCTA, chapter 50 available at:
https://www.legislation.gov.uk/ukpga/1977/50
14
interpret the text of a statute, narrow interpretations were given. If ambiguity existed

or where there were perceived holes in the law, judges would see no problem with

filling the gap.81 Generally, in common law systems, if a conflict exists between the

statute and the judicial interpretation, parliamentary sovereignty dictates statue must

take precedence. Notwithstanding this, it is the courts only that have the authority to

interpret the legislation.82 Judges interpretation of statues will often become binding

precedent ('case law').

2.2.2 Interpretation Methodology used in Common Law by reference to

Australian and English Courts

Australia, like many other commonwealth states, derives its ‘traditional’ statutory

methods of interpretation from English common law.83 Unlike the United Kingdom

who has yet to ratify the CISG, Australia (like Germany) was an early signatory to the

CISG.84 Australian and English courts are bound by Acts of Parliament and rules on

statutory interpretation.85 However, like the civil law systems, there is no one method

of statutory interpretation that can be defined as indicative to the common law. 86

Traditional English common law methods include: the ‘literal’ rule which entails the

wording of a statute being given its ‘ordinary’ meaning; the ‘golden’ rule requires the

81
Dainow (n 7).
82
Dainow (n 7); Pargendler (n 8)
83
Until 1986 the Judicial Committee of the Privy Council, operated to ensure uniform interpretation of
the common law between commonwealth states.
84
The Australian Parliament ratified the CISG in 1989 as the Sale of Goods (Vienna Convention) Act,
which became part of the domestic law.
85
See, for example, the Australian states where statutory interpretation is set out in the Interpretation of
Legislation Act 1984 (Vic) s. 35; Acts Interpretation Act 1901 (Cth) ss. 15AA-15AB, Legislation Act
2001 (ACT) ss. 139, 141–142; Interpretation Act 1987 (NSW) ss. 33-34; Interpretation Act (NT) ss.
62A-62B; Acts Interpretation Act 1954 (Qld) ss. 14A-14B; Acts Interpretation Act 1931 (Tas) ss. 8A-
8B; Interpretation Act 1984 (WA) ss. 18-19; See also English Interpretation Act 1978.
86
Benjamin Hayward, ‘CISG in Australia – The Jigsaw Puzzle Missing a Piece’, (2010) 2 VJ Int’l LJ
193.

15
wording to be considered in its ‘context’ (where the ‘literal rule’ method would result

in absurdity or ambiguity); and the ‘mischief’ rule which allows a judges to consider

the ‘purpose’ of the statute where the ‘literal’ or ‘golden’ rule would achieve an unjust

result.87

Nowadays, when called upon to interpret legislation English courts will look to give

effect to Parliament’s intention by using a variety of methods. They may look at the

wording of a statute to ascertain the ‘ordinary’ meaning. Where such a clear meaning

cannot be ascertained using the ‘ordinary’ method, courts may use the ‘purposive’

method.88 Unlike civil law courts, some common law courts such as those in England

will openly express their intent to reach, ‘fairness, equity and justice’, whilst

interpreting legislation.89 Australian Acts, also require judges to consider “the purpose

or object underlying the Act” in an effort to give effect to Parliament’s intention.90

Recourse to the travaux préparatoire is used often in Australia, where interpretation

rules allow “any matter or document that is relevant” to be consulted in the

interpretative process, including, among other things, Explanatory Memoranda and

Parliamentary reports”.91 Since the 1993 House of Lords decision in Pepper v Hart,

courts of England and Wales also use legislative history to aid interpretation. 92

87
Gerrard Carney, ‘Comparative Approaches to Statutory Interpretation’ (2015) SLR, 46, 55; Hofmann
(n 15) 155;
88
Janssen and DiMatteo (n 37)
89
Griss (n 24) 254.
90
Interpretation of Legislation Act 1984 (Vic), s. 35(a); Carney (n 87) 57.
91
Carney (n 87) 157; Hayward (n 86).
92
Pepper v Hart [1993] A.C. 593.
16
Academic materials are also used in common law courts, albeit not as extensively as

in civil law countries.93

In summary, it can be said that common law judges, use a variety of methods

‘ordinary’ and ‘purposive’ including an intention to achieve ‘justice and fairness’,

and their preferences for each may change with time, influenced by the domestic

social and economic agenda. For example, the ‘purposive’ once preferred by U.S.

courts, has been superseded by a preference for the “new textual” method, while akin

to the ‘systematic’ method focusing on the wording in its context, it ignores recourse

to the legislative history.94 Unlike the civil law courts, common law judges will

openly state their intention to find ‘justice and fairness’ when called to interpret

legislation, which in a common law jurisdiction can also have the effect of creating

binding precedent.

2.3 International Law, General Rules of Interpretation

When courts from both civil and common law systems interpret international

agreements governed by international law, in general they should have regard to the

Vienna Convention on the Law of Treaties 1969 (‘VCLT’) where this has been

adopted by the state.95 Article 31 of the VCLT prescribes general rules for the

interpretation of international agreements, which include courts being required to use

93
Janssen and DiMatteo (n 37)
94
Janssen and DiMatteo (n 37) 83.
95
VCLT, Article 2(1)(a), “treaty” means an international agreement concluded between States in
written form and governed by international law, whether embodied in a single instrument or in two or
more related instruments and whatever its particular designation; Magnus, ‘Tracing Methodology in the
CISG Dogmatic Foundation’ (n 16) 45.
17
the “ordinary”, “contextual” and “purposive” methods. Article 32 prescribes the

supplementary material that can be used to aid interpretation, which includes the

“preparatory work of the treaty”.96

The VCLT is binding on courts from signatory states and arguably binding on courts

of non-signatories states. Whilst these states will not have enacted the principles of

interpretation into domestic law they, may nonetheless be regarded as rules of

customary international law, and may well have become part of domestic law, and

used by domestic judges. 97 However, notwithstanding the fact that most domestic

judges may be in a position to apply these customary principles to international law

cases, there is doubt among academics as to whether the general rules can be used to

interpret the CISG.98

Arguments against is use are based on the premise that the VCLT applies to regulate

the relationships of its signatories only namely states. Therefore, they dispute the

application of the general principle to the CISG, because the CISG’s substantive

provision are primarily designed to regulate the relationship between private parties. 99

Notwithstanding this argument, some academics contend that CISG must fall under its

scope and therefore recourse to the general rules of interpretation is permitted for

VCLT signatories and non-signatories (either through enacted legislation or

96
VCLT, Article 32.
97
Magnus, ‘Tracing Methodology in the CISG Dogmatic Foundation’ (n 16) 48; See also for example,
Statute of the International Court of Justice, Article 38 which characterises “international custom” as
“evidence of a general practice accepted as law.”
98
Magnus, ‘Tracing Methodology in the CISG Dogmatic Foundation’ (n 16); Zeller, ‘Four-Corners’
(n 18); John Honnold, Uniform Law for International Sales under the United Nations Convention (3 rd
ed., Kluwer 1999) at 103.
99
Magnus, ‘Tracing Methodology in the CISG Dogmatic Foundation’ (n 16) 46.
18
customary international law).100 Furthermore, by applying the VCLT general

interpretation rules this must lend strength an argument that courts are interpreting the

CISG uniformly with regard to the “international character” of the CISG.

Nonetheless, disagreement among academic still remains as to the applicability of the

general international rules of interpretation to the CISG.

Even when national courts are called upon to interpret international law and these

international interpretation rules are at their disposal, different methods are still often

used by each court, and court decisions not always followed consistently between or

within legal system. By way of an example in a common law system, Lord Scarman

in Fothergill101 took the ‘purposive’ approach to interpret The Warsaw Convention

(1929) (‘Warsaw Convention’), when he stated:

“…our judges should be able to have recourse to the same aids to

interpretation as their brother judges in the other contracting States…To deny
them this assistance would be a damaging blow to the unification of the rules
which was the object of signing and then enacting the Convention. Moreover,
the ability of our judges to fulfil the [purpose] of the enactment would be
restricted, and the persuasive authority of their judgments in the jurisdictions
of other contracting states would be diminished”.102

The full judgement summaries the common law position of courts of England and

Wales whereby “no recourse should be taken to principles and methods of

interpretation, which have been developed within domestic law. …if the meaning of

the words as found in the Convention are unclear, recourse can be taken to aids of

100
Ibid.
101
Fothergill v Monarch Airlines [1977] 3 All ER 616.
102
Ibid., at par. 136.
19
interpretation such as travaux préparatoires, scholarly writings and foreign case

law…the plain meaning or literal approach…. rejected in favour of looking at the

words within the context or purpose of the Convention”. 103

By comparison, a U.S. Justice, Antonin Scalia chose not to follow Fothergill and

instead used the ‘new textualism’ method then interpreting the Warsaw Convention in

the case of Chan v Korean Airlines Ltd, where he stated:

“We are to find out the intention of the parties by just rules of interpretation
applied to the subject matter; and having found that, our duty is to follow it as
far as it goes, and to stop where it stops - whatever may be the imperfections
or difficulties which it leaves behind.”104

2.4 Interpretation Methodology used to interpret the CISG

While many countries do have statutory interpretation acts and rules, the interpretive

principles of Article 7(1) would nonetheless seem to exclude the use of purely

domestic interpretation acts and rules, despite the CISG being transposed into national

law.105 Although courts across legal systems have available a combination of

methodologies to aid interpretation of the CISG, an examination of some CISG cases

suggests when interpreting the CISG, some courts prefer to use methods and aids,

indicative of their legal system.

By way of example, when civil law courts use the ‘systematic’ method they tend to

ascertain a meaning by comparing the provision in the context of other articles and

103
Zeller, ‘Four-Corners’ (n 18) chapter 3.3 para. (a).
104
Chan v. Korean Air Lines Ltd; 490 U.S. 122, 135 (1989) at para 135 quoting The Amiable Isabella,
19 U.S. 1, 32, 6 Wheat. 1,17 (1821).
105
Hayward (n 86).
20
provisions within the CISG.106 This is indicative of the civil law approach where

courts will look to ascertain the leading principle from the design and structure of the

text. However, common law courts such as the U.S. and Australia tend to interpret the

CISG by analogy to domestic legislation. For example, where the language of the

CISG was said to be like domestic law, a U.S. court interpreted the CISG provision by

analogy to U.S. domestic law.107 Australian courts are also prone to interpreting the

CISG analogy to domestic legislation.108

Additionally, courts in the civil law system tend to use the travaux préparatoires more

than common law courts.109 For instance, a German court when required to interpret

the meaning of conforming goods pursuant to Article 35 CISG noted the rejection (in

the travaux préparatoires) of the Canadian proposal for "satisfactory quality" to be a

term included in Article 35. Following an examination of the travaux préparatoires,

the court rejected the suggestion that conforming goods must be of "satisfactory

quality". 110 Italian, Austrian and Netherland courts are among the civil law courts to

use the travaux préparatoires method to interpret the CISG.111 The use of this

106
See, for example, German case Oberlandesgericht München, available at UNILEX:
http://unilex.info/cisg/case/1496; Austrian cases Rechtbank van Koophandel, Ieper, A.R.
318/00,Lavameat v. SA Cointa, 18.02.02, available at CISG-online (Pace) No. 771; Oberster
Gerichtshof, 10 Ob 22/05s, 26.04.2005, available at: CISG-online (Pace) No. 1051; Netherland cases
Feinbäckerei Otten GmbH & Co. Kg v HDI-Gerling Industrie Versicherung, [2014] Court of Appeal
the Hague, available at CISG-online (Pace) No 1900; Cheese & Butter BV Rechtbank Midden-
Nederland, C/16/412611 / HA ZA 16-252, available at CISG-online (Pace) No. 2127.
107
Delchi Carrier S.p.A v Rotorex Corp. Federal Court of Appeals for the Second Circuit, United
States, 6 December 1995, available at CLOUT case No. 138; Schmitz-Werke GmbH & Co. v. Rockland
Industries, Inc.; Rockland International FSC, Inc. Federal Court of Appeals (4th Circuit), 21 June
2002, U.S. App. LEXIS 12336, available at CLOUT Case No. 580.
108
Hayward (n 86).
109
Hofmann (n 15); Janssen and DiMatteo (n 37) 83.
110
See, Hofmann (n 15) 155 at footnote 59 referring to Oberlandesgericht Frankfurt am Main,
Germany, 20 April 1994, available at CLOUT case No. 84.
111
Bourjois S.a.s. v. Gommatex Poliuretani S.p.A 03-01-2007 abstract available at:
http://unilex.info/cisg/case/1164; Oberster Gerichtshof, 3Ob193/04k, 23.05.05, abstract available at:
http://unilex.info/cisg/case/1040; Netherlands Arbitration Institute, 2319, 15.10.02 abstract available at:
http://unilex.info/cisg/case/836
21
approach to aid interpretation of the CISG is less prevalent in common law courts

however; although one U.S. court discussed the legislative history at length when

considering the applicability of the CISG. 112

2.5 Impediments and Possible Solutions to a Uniform Interpretation Methodology

The existence of different methodologies (within and between civil and common law

systems), does not have to prevent an autonomous interpretation of the CISG as

sought by Article 7(1). The substance of the various methodologies used by courts is

present in some form across most legal systems.113 Although there are differences in

wording, methods such as the German Eindeutigkeitsregel is akin to the French sens

clair or the common law 'literal' approach; the common law 'purposive' approach is

akin to German ‘teleological’ method. Furthermore, the travaux préparatoires method

is used by courts across legal systems, including academic material and court

decisions (albeit with different weight afforded).

If the substance of particular methods used across legal systems, are the same it could

be argued that they are not purely domestic therefore courts should be permitted to

have recourse to those methods. Furthermore, the CISG does not explicitly exclude

particular methods thus in the absence of any guidance from the CISG judges do

have some discretion to choose which methods to adopt while in search of an

112
Impuls I.D. International, S.L., Impuls I.D. Systems Inc., and PSIAR S.A. v. Psion Teklogix Inc, U.S.
District Court, Southern District of Florida (01- 7541), available at: CISG-online (Pace) No. 835
113
Janssen and DiMatteo (n 37) 84; See, also Report of Mr. Justice John L. Murray, President of the
Supreme Court and Chief Justice of Ireland Methods of Interpretation – Comparative Law Method
available at: https://curia.europa.eu/common/dpi/col_murray.pdf
22
autonomous interpretation. An examination of the cases shows courts have a used of a

variety of those methods to enable them to reach a decision.

Impediments

Nonetheless, ‘preferences’ do exist not only between but also within legal systems

including when interpreting international law, as seen in the English law ‘purposive’

approach in Fothergill by contrast to the U.S. ‘new textual’ approach in Chan v

Korean Airlines Ltd. The ‘literal’ approach has also been used by one U.S. courts

when interpreting the CISG.114

Preferences can potentially impede courts ability to use uniform methods of statutory

interpretation. Furthermore, some ‘preferred’ methods may be more appropriate than

others. Some academics suggest that the ‘literal’ approach should be used. Others say,

due to the collaborative nature of the CISG, including the differing views of

legislators which resulted in compromises, the ‘literal’ interpretation is inappropriate,

this was the view expressed in Fothergill.115 It is also the general opinion among

English judges, illustrated by Lord Scarman during a lecture in Australia when he

said:

“…In London no-one would now dare chose the literal rather than purposive
construction.”116

114
MCC Marble Ceramic Center v. Ceramica Nuova D’AgostinoUnited States, 29 June 1998, Federal
Appellate Court, 11th Circuit, available at CLOUT case No. 222.
115
Eiselen, ‘Literal Interpretation: The Meaning of the Words’, (n 62) 75; Zeller, ‘Four-Corners’ (n 18)
chapter 3.5.
116
Lord Scarman, Rt Hon., 'Ninth Wilfred Fullagar Memorial Lecture: The Common Law Judge and
the Twentieth Century - Happy Marriage or Irretrievable Breakdown' (1980) 7 Monash U L Rev 1, 6 at
6 para. 1.
23
Using the ‘systematic' method by analogy to domestic legislation or the ‘teleological’

or ‘purposive’ method subjectively without recourse to the legislative history could

potentially lead to judicial interpretations being applied without consideration of the

intention of the international lawmakers. Paradoxically using historical documents,

whilst affording courts insight into the intention of lawmakers, could be criticised for

looking backwards for assistance from those without foresight rather than outwards.

This was echoed by the court in Fothergill where the decision expressed that caution

should be given to the travaux préparatoire.117 This is also true of the record of

Parliament debates such as Hansard, which whilst reflecting the reasoning of the

legislator at the time of the debate, may not necessarily reflect the outcome as

expressed in the enacted legislation.118

Recourse to ‘preferred’ methodologies by a national court may be a natural and

logical starting point for those tasked with interpreting the CISG, however this can,

potentially impede uniformity. Progression towards a consistent use of statutory

interpretation methods across legal systems must (to honour Article 7(1) CISG) be the

aim of the courts when considering which methodology to use.

Possible Solutions

The debate can be had on the use of the VCLT to interpret the substantive provisions

of the CISG (either via enactment or customary international law) however, that

debate aside it is evident that Article 7(1) does not explicitly prohibit national courts

from utilising the general international rules. Or even those domestic methods where
117
Zeller, ‘Four-Corners’ (n 18).
118
Zeller, ‘Four-Corners’ (n 18) chapter 3, para (c); Hansard is a collection of official UK
parliamentary debates available at: https://hansard.parliament.uk/
24
the substance is the same universally between legal systems, such as the ‘literal’ or

‘purposive’ method.

Replacing national methods with a blended ‘supranational methodology’ universally

adopted by national courts across all jurisdictions would assist to achieve uniformity.

However, reaching consensus on the detail of a ‘supranational methodology’, the

process of drafting, and thereafter enacting legislation could take many years.

Furthermore because the substance of methodologies is available, across legal

systems, a ‘supranational methodology’ could potentially exclude ‘suitable’

methodologies currently available and so be counterproductive. That said, in the

absence of a ‘supranational methodology’ courts should be encouraged to use those

‘suitable’ methods currently available in a prescribed manner, this would assist to

achieve consistency and enable court to take an uniform approach.

Academics such as John Honnold have suggested the first logical point or ‘suitable’

methods of interpretation would be the use of the ‘grammatical’ method, failing this,

the ‘systematic’ method.119 Indeed courts across legal systems generally do in the first

instance resort to the wording of the text when interpreting legislation. However,

thereafter some divergence and ‘preferences’ seem to appear. Whilst civil law judges

tend to use the ‘systematic’ method in the context of the text of the CISG, common

law countries use this method and compare provisions to domestic law. Furthermore,

whereas, courts from civil law systems will look to the travaux préparatoire or

119
John Honnold, Uniform Law for International Sales under the 1980 United Nations Convention (2nd
ed., Kluwer 1991) 3.
25
academic material to aid interpretation, common law judges are more likely to resort

to case law. 120

Courts should be encouraged to forego their ‘preferred’ methodologies such as the

‘literal’ method which may be counterproductive to an autonomous interpretation and

instead utilise a mixture of ‘suitable’ methods in a 'logical' prescribed manner, for

example grammatical; systematic (without recourse to domestic law); purposive;

academic material and travaux préparatoire. The general international interpretation

rules in the VCLT are not listed in a ‘logical’ manner however the methods prescribed

are limited in numbers, which can reduce the possibility of divergences. Thus, in

absence of consensus on the use of the VCLT to the CISG or a ‘supranational

methodology’ courts across legal systems should be encouraged to use a limited

number of suitable methods in a prescribed logical manner which could assist to

achieve uniformity.

Notwithstanding the possible solutions, a significant bar to achieving uniformity via

the suggested solution is the absence of an international commercial court or tribunal

with oversight of the CISG (despite this being advocated by some signatories).121

Therefore, monitoring and thus requiring courts to adopt a ‘logical’ approach would

be impossible to enforce. Recommendations from organisations such as UNCITRAL

or opinions from the CISG Advisory Council (‘CISG-AC’) (a private initiative set up

taken by academics who issue legal opinions relating to the interpretation and

120
Janssen and DiMatteo (n 37).
121
Ferrari, ‘Have the Dragons of Uniform Sales Law Been Tamed?
Ruminations on the CISGs Autonomous Interpretation by Courts’ (n 10) 90.
26
application of the CISG either on request or on its own initiative) could be used, albeit

in a persuasive capacity only.

3. PROMOTION OF UNIFORMITY

Whilst ratification of the CISG does not necessarily result in courts uniformly

interpreting the CISG; equally applying interpretation methods uniformly will not

automatically create similar results. 122 Even if courts take an international approach,

forego their ‘preferred’ national methods of interpretation and all adopt a 'logical'

approach, this alone will not guarantee similar results. 123 “Where, for instance, there

are three equally plausible autonomous interpretations and two [courts]…construe the

same provision [autonomously], the chance that there will be a uniform result

amounts only to 33%, or, in other words, the probability of diverging interpretations is

67%”.124

Consequently, the objective of Article 7(1) is not only to eliminate inconsistent

methods of interpretation but also to achieve uniform results.125 Thus, building on the

requirement for courts to take into account the "international character" of the CISG,

Article 7(1) also requires that national courts should have regard of the need to

“promote uniformity” when using methods of interpretation. Uniformity can only be

achieved if courts, across different jurisdictions, make a conscious effort to create

122
Andersen, ‘CISG in national courts’ (n 9) 19.
123
Ibid (n 9); Ferrari ‘Have the Dragons of Uniform Sales Law Been Tamed? Ruminations on the
CISGs Autonomous Interpretation by Courts’ (n 10); Zeller, ‘Four-Corners’ (n 18).
124
Felemegas (n 6) chapter 4, para 6 at footnote 486 quoting Lord Justice Kennedy, The Unification of
Law, 10 J. Soc'y of Comp. Legis. 21, 214-15 (1909) at 204.
125
Andersen, ‘CISG in national courts’ (n 9).
27
shared legal rules which if applied consistently, can produce similar results.126 To

achieve this, where facts dictate, national courts should look at foreign decisions and

scholarly literature to assist them in interpreting and applying the CISG. 127

Courts should refrain from interpreting the CISG in light of domestic sales law, so-

called ‘homeward trends’.128 Furthermore, when interpreting the CISG, judges should

also refrain from attaching the national law meanings to provisions within the CISG

even when domestic law is similar, or even identical, to the text of the CISG.129

This chapter will examine how civil and common law systems use court decisions and

scholarly material to aid interpretation and determine if there are differences which

might hinder uniformity when interpreting the CISG. Consideration will also be given

to which, if any, legal system is more conducive towards “promoting uniformity” and

avoiding ‘homeward trends’. The various materials and sources which courts have at

their disposal will be considered. Impediments will be identified and possible

solutions offered, which may assist courts to achieve uniformity.

3.1 Characteristics of Civil Law use of Court Decisions and Scholarly Material

The use of academic material exerts a strong influence on courts operating under a

civil law system. Although civil law courts, for instance Germany, do cite case law

126
Ibid., 66.
127
Larry DiMatteo, ‘Future Challenges of International Sales Law’, in Larry A DiMatteo (ed),
International Sales Law: A Global Challenge (Cambridge University Press 2014) 725.
128
Andersen, ‘CISG in national courts’ (n 9).
129
Ferrari, ‘Uniform Interpretation of the 1980 Uniform Sales Law’ (n 9); Hayward (n 86).
28
extensively, its reference is often embedded in the academic commentary and

scholarly writings.130 When court decisions are considered, they are done to ascertain

the legal principle underlying the text and not the legal rule or reasoning. 131 Thus,

whenever a civil law court makes a decision, it will be non-binding. Civil law systems

do not employ a formal notion of stare decisis, namely the principle that a lower court

is bound to follow the decisions of a higher court.132 This notion is not only absent in

continental Europe but also in civil law countries outside Europe, such as Mexico,

where decisions are non-binding on the lower courts.133

Nonetheless, whilst a formal notion of stare decisis may be absent in civil law

countries, in some such as Germany, the lower courts will generally follow the

decisions made by the highest civil court, the Bundesgerichtshof.134 The same

principle is adopted in Mexico, where the lower courts will give weight to decisions

of the Supreme Court.135

Indicative of the civil law system is the lack of detailed facts provided in reported

decisions. 136 Although courts across legal systems have to give reasons to support

their decision, which they will usually have to commit in writing, civil law decisions

are generally less detailed than those from common law courts.137 For instance, while

German judges regularly provide a comprehensive discussion on the law, the facts are
130
Eiselen, ‘The CISG as Bridge between Common and Civil Law’ (n 15) 619.
131
Dainow (n 7) 426.
132
Garry Bell, ‘Uniformity through Persuasive International Authorities – Does Stare Decisis really
Hinder the Uniform Interpretation of the CISG?’ in Camilla B. Andersen and Ulrich G. Schroeter (eds)
Sharing International Commercial Law across National Boundaries (Wildy, Simmonds & Hill
Publishing 2008) 35.
133
Salama (n 31) 238.
134
Eiselen, ‘The CISG as Bridge between Common and Civil Law’ (n 15) 619.
135
Salama (n 31) 238.
136
Eiselen, ‘The CISG as Bridge between Common and Civil Law’ (n 15) 615.
137
Griss (n 24).
29
often briefly summarised.138 Similarly, Austrian judgements refer only to the legal

principles and to ascertain the reasoning behind the decision recourse must be had to

the underlying judgement which is not always done. 139

Again, decisions rendered by the highest French court, the Cour de Cassation will

often lack detailed reasoning, 140 and furthermore, reasons will not be attached to the

reported decision, instead contained in separate reports or documents, for example in

the Attorney General reports.141 The tradition of French contract law dictates it is the

lower courts, who will interpret the contract.142 For example, when the French Cour

de Cassation rendered a decision pursuant to a dispute regarding notice of non-

conformity under Article 39(1) CISG, it failed to interpret “reasonable time”, a

material issue. Instead the higher court left the issue to the discretion of the lower

court judge. 143

3.2 Characteristics of Common Law use of Court Decisions and Scholarly

Material

English common law is derived from judge-made law. Historically common law

lawyers had little academic training and instead were trained, by other lawyers who

would think in terms of writs or actions rather than legal principles and rights.144 This

shaped the case based law system and the need for codification of general legal
138
Eiselen, ‘The CISG as Bridge between Common and Civil Law’ (n 15) 619.
139
Griss (n 24).
140
Janssen and DiMatteo (n 37); Griss (n 24) 251.
141
Griss (n 24) 251.
142
Janssen and Dimatto (n 37) 94; Griss (n 6).
143
Janssen and Dimatto (n 37) 94.
144
Eiselen, ‘The CISG as Bridge between Common and Civil Law’ (n 15) 614.
30
principles into common law avoided. 145 Judges were appointed to the judiciary from

those lawyers who were experts in their practice. 146 Nowadays, lawyers receive

extensive academic training, whilst judges are still primarily appointed from the

practising profession. Unlike many civil law judges, common law judges will usually

rely on counsels’ research and base their reasoning on the submissions made by

counsel. 147

Despite the development of legislation into the common law, the historical methods of

legal reasoning remain as evidenced in the precedent-based system (stare decisis),

which emphasises the importance of judge-made law. Judges recognise the hierarchy

of the court system, whereby the decisions of the higher courts bind the lower courts.

This is reflected in the increased level of detail included in decisions from common

law judges compared to those from civil law courts. 148

The weight afforded to court decisions incorporated in the submission by counsel will

usually depend on the facts and circumstances of the case. 149 However, common law

judges are more inclined to look towards well-reasoned decisions with detailed fact

analysis to assist in their deliberations to either, follow, distinguish or overrule an

earlier case.150 Furthermore, common law judges, particularly in the U.S. and the

145
Michael Bridge, ‘Good Faith, the Common Law and the CISG’, (2007) 22 Uniform Law Review 98.
146
Eiselen, ‘The CISG as Bridge between Common and Civil Law’ (n 15).
147
Griss (n 24).
148
Eiselen, ‘The CISG as Bridge between Common and Civil Law’ (n 15) 615.
149
Griss (n 24); See also E. McKendrick, Contract Law (12th ed., Palgrave Macmillan, 2017).
150
Andersen, ‘CISG in national courts’ (n 9); Griss (n 24)
31
United Kingdom, will often prefer decisions rendered by courts with good standing

and reputation. 151

3.3 Foreign Decisions used in International Law

There has been an increase in courts across legal systems considering foreign

decisions pursuant to international law.152 For instance, when the Supreme Court of

the United Kingdom, considered appeals under the Convention relating to the Status

of Refugees, 1951 (‘the Refugee Convention’), 153 it considered decisions from foreign

jurisdictions, and the Supreme Court's decision was itself subsequently cited in the

courts of Australia, Cyprus and relied on by the Supreme Court of Canada.154

Courts will also consider foreign decisions when interpreting law incorporated into

domestic legislation through regional agreements. In the European Union, civil law

courts and English courts regularly consider foreign decisions.155 For example, the

European Union Public Contracts Directive (2014/24/EU) is transposed into the law

of England and Wales through the Public Contract Regulations 2015 ('PCR 15'). 156

The legislation aims to regulate and harmonise cross-border public procurement

151
Bell (n 132); See also Lord Diplock in Fothergill v, Monarch Airlines, [1980] 2 All E.R 966 HL at
96; See also Hofmann (n 15) 159.
152
Report of Mr. Justice John L. Murray (n 113) 41.
153
Al-Sirri v Secretary of State for the Home Department, D.D. (Afghanistan) v Secretary of State for
the Home Department [2012] UKSC 54.
154
See, ‘Public International Law in the Supreme Court of the United Kingdom
A selection of cases from the Court’s first ten years’ (2019) 2, available at:
https://www.supremecourt.uk/docs/public-international-law-in-the-supreme-court-of-the-United-
kingdom.pdf; FTZK v Minister for Immigration [2013] High Court of Australia; Emam v Director of
Central Staff and others Supreme Court of Cyprus; Febles v Canada Supreme Court of Canada (2014
SCC 68 )
155
Bell (n 132) 44.
156
The Public Contracts Regulations 2015 (SI 2015 No. 102).
32
among members of the European Union. Foreign decisions are routinely considered

by common law and civil law signatories to the European Union. 157

However, a common feature among national courts that use foreign decisions is the

presence of an international court or tribunal with relevant jurisdiction. For instance,

the Court of Justice of the European Union (‘ECJ’) has a primary role which is to

ensure consistent application of community law throughout the European Union. 158

3.4 Foreign Decisions and Scholarly Material in the CISG

A potential bar to achieving a consistent application of foreign case law in the

interpretation of the CISG is the absence of an international commercial court with

jurisdiction. The absence of a court (outside of a domestic setting) to which cases

under the CISG can be referred and decisions rendered, signifies a lack of formal

stare decisis in operation. 159 Consequently, when citing foreign decisions (to aid

interpretation of the CISG) courts across both civil and common law systems have

acknowledged that foreign decisions are persuasive only. 160

157
See, for example Faraday Development Ltd v West Berkshire Council [2018] EWCA Civ 2532 at
para 32 where reference was made to Case C-51/15 Remondis GmbH v Region Hannover
ECLI:EU:C:2016:985.
158
See Report of Mr. Justice John L. Murray (n 113) 40.
159
Franco Ferrari, ‘Have the Dragons of Uniform Sales Law Been Tamed?
Ruminations on the CISGs Autonomous Interpretation by Courts’ (n 10) 158; DiMatteo, ‘Future
Challenges of International Sales Law’ (n 127).
160
See for example Rheinland Versicherungen v. S.r.l. Atlarex and Allianz Subalpina S.p. Tribunale di
Vigevano (Italy), 12 July 2000; Chicago Prime Packers, Inc. v. Northam Food Trading Co., et al. U.S.
District Court, Northern District of Illinois, Eastern Division 2 J May 2004, 2004 WL 116 6628
(N.D.Ill), Usinor Industeel v. Leeco Steel Products U.S. District Court for the Northern District of
Illinois, Eastern Division, 28 March 2002, 209 F.Supp. 2d 880; TeeVee Tunes, Inc. et al v. Gerhard
Schubert GmbH U.S. District Court, Southern District of New York, 23 August 2006 .
33
While it is generally accepted that achieving uniformity requires national courts to

consider foreign decisions and academic literature Article 7(1) does not explicitly

require national courts to adopt foreign cases. Thus, failure by national courts to

follow a foreign decision is unlikely to give rise to appeal in a national court.

Nonetheless, if conflict did exist between a domestic binding precedent and several

foreign decisions, the matter would have to be settled under an appeal court in a

domestic setting.161 An aggrieved party has no recourse to appeal in an international

setting because there is no court or tribunal tasked with oversight of the CISG.

Ninety-three countries have ratified the CISG, and while academics disagree on its

success, one consequence is a growing body of court decisions reported in foreign

languages. However, despite the CISG being drafted in 6 official languages, the

ability to translate the text of the CISG, including reported decisions, is not easy. This

impediment is not insignificant.162 Many words are simply not-translatable or cannot

be translated easily. For example, when considering whether a reference to

“execution” in a contract under CISG meant execution in performance rather than

“execution” in signature (as advocated by counsel) an Australian court noted the

ambiguity of the translated clause.163 If the text cannot be translated correctly,

different meaning can lead to divergent results. 164 If an international court were

available, it could provide clarifications on points of law, and enable courts across

legal systems to achieve uniformity.

161
Bell (n 132) 44-45.
162
Magnus, ‘Tracing Methodology in the CISG Dogmatic Foundation’ (n 16).
163
Vetreria Etrusca Srl v. Kingston Estate Wines Pty Ltd [2008] Supreme Court of South Australia,
available at CLOUT Case No. 1137 at para 17-23.
164
Andersen, ‘CISG in national courts’ (n 9).
34
Notwithstanding the lack of an international court to ensure consistent application of

CISG decisions and deal with problems associated with the language barrier, there is

an increasing amount of material (academic commentary, legal opinions and court

decisions) available which national courts across jurisdictions can use to aid their

application of foreign decisions and scholarly material. This material enables courts to

reduce the risk of divergent interpretations, thereby helping in the promotion of

uniformity.

Available are a variety of online resources, including the PACE database which

provides easy access to over 3000 CISG cases, including bibliographies. 165 UNILEX

is an online resource produced by the International Institute for the Unification of

Private Law (‘UNIDROIT’). It consists of a collection of reported decisions and

international bibliographies on the CISG.166 UNCITRAL provides abstracts of

decisions rendered by courts across the contracting states through an online portal

CLOUT. UNCITRAL also publishes a “Digest” of case law periodically, which

contains a synopsis of case law rendered across contracting states.167

National courts have utilised all this material in an effort to overcome language

barriers and the lack of an international commercial court. Courts across legal systems

have recognised the benefits of these materials and sources. The Netherlands court of

appeal in the Hague168 and courts from the U.S. have had regard to CISG-A.C.'s

165
Available at: http://cisgw3.law.pace.edu
166
Available at: http://unilex.info/instrument/cisg
167
Available at https://www.uncitral.org/pdf/english/clout/CISG_Digest_2016.pdf
168
Cheese & Butter BV, Rechtbank Midden-Nederland, C/16/412611 / HA ZA 16-252,
Frieslandcampina 16.11.2016, available at CISG-online (Pace) No. 2127.
35
Opinions. 169 Courts in Austria170 and the U.S.171 have referred to the UNILEX

database, the latter noting it relied on abstracts provided by UNILEX, an “intelligent

data base”.172 Judges have also cited the UNCITRAL case Digest,173 and the PACE

website which has been described by one U.S. court judge as "a promising source for

[foreign] decisions".174

Case law shows courts’ willingness to use these various materials and sources to

assist them overcome impediments and promote uniformity through application of

foreign case law and scholarly material. Italy is seen as a leader in the application of

foreign case law. One noted decision the, Tribunale di Vigevano (Italy), 12 July 2000,

referenced 40 foreign cases from both civil and common law systems. 175 However

Italy is not alone and courts from other civil law system have also made efforts to

promote uniformity through the application of foreign case law despite case law not

necessarily being a ‘preferred’ (i.e. first or second choice) national method for

interpretation. German courts have referred to a variety of court decisions from

countries including Switzerland,176 U.S., 177 Canada178 and Russia.179 Belgian courts

have referenced decisions from German, 180 Swiss and Austrian courts.181

169
TeeVee Tunes, Inc. et al v. Gerhard Schunbert GmbH (n 160).
170
Oberster Gerichtshof, 10 Ob 22/05s, 26.04.2005, available at CISG-online (Pace) No. 1051.
171
Chicago Prime Packers (n 160).
172
Ibid at para 2, footnote.
173
Multi-Juice, S.A. v. Snapple Beverage Corp. U .S. District Court, Southern District of New York, 1
June 2006.
174
MCC v Marble Ceramics (n 113).
175
Rheinland Versicherungen v. S.r.l. Atlarex and Allianz Subalpina S. (n 159).
176
Oberlandesgericht Karlsruhe (Germany), 8 February 2006, available at CISG-online (Pace) No.
1328.
177
Landgericht Neubrandenburg (Germany), 3 August 2005, available at: CISG-online (Pace) No.
1190; see also Oberlandesgericht Kn (Germany), 14 October 2002, available at CISG-online (Pace) No.
709.
178
Bundesgerichtshof (Germany), 30 June 2004, available at: CISG-online (Pace) No. 487
179
Oberlandesgericht Karlsruhe (Germany), 20 July 2004, available at CISG-online (Pace) No. 858
180
Rechtbank van Koophandel Hasselt (Belgium), 6 March 2002.
36
Common law judges (accustomed to operating within a precedent-based legal system)

who intuitively look towards well-reasoned, factual decisions have also referred to

foreign decisions, including those from civil law countries (whose decisions are, as

explained earlier, generally less detailed). U.S. courts have cited decisions from

Swiss,182 German183 and Australian courts.184 One U.S. court cited 7 cases included

those from Dutch, German and Italian courts.185 Australian courts have cited U.S.

courts decisions186 and a Canadian court has also cited German foreign decision. 187

However, whilst common law courts have cited foreign decisions they do so less

frequently than civil law courts. Furthermore, it is also unclear if some courts choose

to be selective and use only those foreign decisions that enable them to reach a

predetermined outcome, which they can support in writing, without recourse (that is,

their decisions cannot be subjected to appeal) if they choose to reject the same. 188

Unsurprisingly civil law courts routinely refer to academic material when interpreting

the CISG.189 However common law courts, whilst not as extensively, also do the

181
See Rechtbank van Koophandel Hasselt (Belgium), 5 May 1999, available at
http://www.unilex.info/cisg/case/807; Rechtbank van Koophandel Hasselt (Belgium), 2 December
1998 available at http://www.unilex.info/cisg/case/809.
182
Barbara Berry, S.A. de C.V. v. Ken At: Spooner Farms, Inc. U.S. District Court, Western District
Washington at Tacoma, 13 April 2006 2006 WL 1009299 (W.D. Wash.).
183
Amco Ukrservice & Prompriladamco v. American Meter Company U.S District Court, Eastern
District of Pennsylvania, 29 March 2004 2004 WL 692233 (E.D.Pa.).
184
Usinor Industeel v. Leeco Steel Products (n 160)
185
Chicago Prime Packers (n 160).
186
Downs Investments v. Perwaja Steel [2000] Supreme Court of Queensland.
187
Diversitel v. Glacier Supreme Court of Justice, Ontario (Canada) 6 October 2003.
188
Griss (n 24) 258.
189
Oberlandesgericht Oldenburg, 12 U 40/0,05.12.2000, CISG-online (Pace) No. 500; DiMatteo, ‘Case
Law Precedent and Legal Writing’ (n 38); Felemagas (n 6).
37
same.190 When considering if the Chinese government had extended the application of

the CISG to Hong Kong, a U.S. court referred to an article published in a Hong Kong

law journal which had been authorised by the Dean of Wuhan. 191 Another U.S. court

referred to the academic material of several scholars including John O. Honnold, Peter

Schlechtriem, Ingeborg Schwenzer and Albert H. Kritzer, in one case. 192

Clearly, courts across all legal systems make use of foreign case law and academic

material to interpret the CISG albeit to varying degrees and in different ways.

However, generally, civil law courts have been more amenable to relying on foreign

decisions and scholarly material when interpreting the CISG.193 This could be a

reflection of the characteristics of the civil law system, whereby courts generally rely

more heavily on scholarly material and a significant amount of academic commentary

is available on sources such as the PACE database. Furthermore, civil law courts are

more accustomed to using non-binding decisions to aid interpretation.

However, despite the growing body of foreign decisions being cited, it is also evident

that some courts have still failed to distance themselves from the preconceptions of

domestic interpretation and have reverted to homeward trends. 194 The High Court of

New Zealand when referring to domestic courts’ tendencies to resort to homeward

trends referred to the words of academic Peter Schlechtriem “In reading and

understanding the provisions, concepts and words of the Convention, recourse to the

190
DiMatteo, ‘Future Challenges of International Sales Law’ (n 127).
191
America's Collectibles Network, Inc., d/b/a Jewelry Television, and BBJ Bangkok, Ltd. v. Timlly
(HK), Timlly BBK Co., Ltd., et al, U.S. District Court, Eastern District of Tennessee, 20.10.2010, 3:10-
CV-86, CISG-online (Pace) No. 1563
192
Forestal Guarani S.A., v. Daros International, Inc., United States Court of Appeals, Third Circuit
No. 08-4488, 16 April 2010, para, CISG-online (Pace) No. 1537.
193
Andersen, ‘CISG in national courts’ (n 9).
194
Andersen, ‘CISG in national courts’ (n 9).
38
understanding of these words and the like in domestic systems, in particular, the

domestic legal system of the reader, must be avoided. This seems to be self-evident,

but experience shows that practitioners and scholars tend to understand words and

concepts of the Convention according to their familiar domestic law”. 195

3.5 Homeward Trends

The nature of an international sales transaction is different from domestic sales. For

instance, costs associated with international shipping, tariffs, customs and currency

are not incurred with domestic sales transactions. Unification of the CISG aims to

enable parties to reduce transaction costs and overcome some of the hurdles

associated with international trade.196 Provisions within the CISG, such as Article

49(1) (a) CISG and Article 64, establish the prerequisite for avoidance of a contract

(i.e. fundamental breach), and recognise the inconvenience and costs which can be

associated with shipping and after that returning non-conforming goods.197 In

comparison (and because the costs of returning non-conforming goods domestically

are not as great) it is often much easier to terminate a sales contract under domestic

law. 198

195
R.J. & AM Smallmon v. Transport Sales Limited and Grant Alan Miller [2010] High Court of New
Zealand CIV-2009-409-000363, quoting P Schlechtriem, Requirements of Application and Sphere of
Applicability of the CISG (2005) 36 VUWLR 781 at 789-790, available at CISG-online (Pace) No.
1595 : http://unilex.info/cisg/case/1595
196
Magnus, ‘Tracing Methodology in the CISG Dogmatic Foundation’ (n 16) 35.
197
CISG, Article 49(1)(a), the buyer may declare the contract avoided if the failure by the seller to
perform any of his obligations under the contract or this Convention amounts to a fundamental breach
of contract; CISG, Article 25, establishes the requirements for a fundamental breach.
198
Bridge (145); See for example the English Sales of Goods Act 1979 which requires goods to be of
"satisfactory quality".
39
Armed with the text of the CISG, national courts are (as detailed above) expected to

interpret the CISG independently from their domestic law principles. However some

courts have nonetheless, adopted incorrect interpretations leading them to misapply

CISG provisions.199 For example, some U.S. courts, when ostensibly interpreting the

CISG have nonetheless been prone to revert to domestic principles, including the

common law principle of damages established in Headley v Baxendale.200

Furthermore, some judges have disregarded the CISG in instances where it should

have been applied.201 Others have explicitly acknowledged the applicability of the

CISG but nonetheless proceeded to apply domestic case law to its interpretation, such

as a U.S. court whilst accepting the applicability of CISG proceeded to apply Illinois

state law. 202 These situations have arisen even where foreign case law on the specific

issue has been available or where international statutes could have been used by

analogy to help interpret the CISG.203

In Australia, courts have also shown “a tendency to refer back instinctively to

domestic preconceptions when interpreting the CISG”.204 For example, a Queensland

199
Italian Imported Foods Pty Ltd. v. Pucci SRL [2006] Supreme Court of New South Wales, CISG-
online (Pace) No. 1494; ; Downs Investment Pty Ltd. v. Perwaja Steel (n 186); See also Anderson,
‘CISG in national courts’ (n 9) 69.
200
Larry DiMatteo, ‘The CISG across National Legal Systems’, in L. DiMatteo (Ed.), International
Sales Law: A Global Challenge (Cambridge University Press 2014) 588; Hadley v Baxendale (1854) 9
Ex 34.1
201
Anderson, ‘CISG in national courts’ (n 9) 69; See also Raw Materials Inc. v. Manfred Forberich
GmbH, U.S. Northern District of Illinois, Eastern Division, 6 July 2004. WL 1535839 (N.D. Ill. 2004);
See also See also Delchi Carrier S.p.A. v. Roterex Corp (Rotorex) (n 107)
202
Mitchell Aircraft Spares, Inc. v. European Aircraft Service AB, U.S. [Federal] District Court for the
Northern District of Illinois; Hilaturas Miel, S.L. v. Republic of Iraq U.S. District Court, New York
(Southern District) 06 Civ 12, 20-08-2008; Genpharm Inc. v. Pliva-Lachema a.s. & Pliva d.d. U.S.
[Federal] District Court for the Eastern District of New York.
203
Janssen and DiMatteo (n 37); Ferrari, ‘Have the Dragons of Uniform Sales Law been Tamed?
Raminfiactions on on the CISGs Autonomous Interpretation by Courts’ (n 10); See also for example,
Travelers Property Casualty Company of America et al. v. Saint-Gobain Technical Fabrics Canada
Limited .S. District Court, Minnesota, 31 January 2007; Genpharm Inc. v. Pliva-Lachema a.s. & Pliva
d.d. (n 202); Raw Materials Inc. v Mansfred Forberich (n 201)
204
Hayward (n 86) 212 at para 3.
40
court, when considering the measure of damages to be awarded according to Article

74 CISG, also interpreted the principles in light of the common law notion under

Hadley v Baxendale.205 In another Australian case, the Victorian Supreme Court,

when considering a dispute under Article 35 CISG, adopted counsel’s submissions,

despite these is being based on domestic law.206

Common law jurisdictions, particularly the U.S., seem predispose to reverting to

homeward trends; however, some courts in civil law jurisdictions have done the same.

For instance, a French court held that pleading a case under French law amounted to a

tacit exclusion of the CISG regardless of whether the parties had intended for the

CISG to apply. 207 Italy whilst ordinarily renowned for promoting uniformity with the

application of foreign case law has, on occasion, also reverted to domestic trends.208

That said it should be recognised that some provisions in the CISG deliberately afford

courts a degree of flexibility. For instance, Article 39(1), places an obligation on the

buyer to give notice of non-conforming goods within a “reasonable period” of its

discovery or risk losing the right to rely on the non-conformity and avoid the

contract.209 Here "reasonable period" is dependent on the facts and open to

interpretation by national courts. Nonetheless, courts are still (under Article 7(1))

required to interpret Article 39(1) without recourse to national notions. 210

205
Downs Investments Pty Ltd (in liq) v Perwaja Steel SDN BHD [2002] 2 Qd R 462.
206
Hayward (n 86), referring to Playcorp Pty Ltd v Taiyo Kogyo Ltd [2003] VSC 108 (Unreported,
Hansen J, 24 April 2003).
207
Cour de Cassation, 26 June 2001, abstract available online at CISG-online (Pace) No. 598.
208
Rheinland Versicherungen v. S.r.l. Atlarex and Allianz Subalpina S.p.A. Tribunale di Vigevano,
Italy, 12 July 2000, where 40 foreign decisions were cited; Ingeborg Schwenzer, ‘Divergent
Interpretations: Reasons and Solutions’ in Larry DiMatteo (ed), International Sales Law: A Global
Challenge, Cambridge University Press (2014) 104; Anderson, ‘CISG in national courts’ (n 9) 63-76.
209
CISG, Article 39(1).
210
CISG, Article 7(1).
41
Notwithstanding this, the notice requirements under Article 39(1) are either ignored

by the parties, advocates and judges in common law countries,211 or if not ignored the

period has been interpreted generously, despite foreign decisions to the contrary. 212

While civil law courts such as Germany have been criticised for interpreting

“reasonable period” narrowly (in line with domestic law) recently they do appear to

have moved away from this practice.213

Less obvious homeward trends have also emerged. For instance the imposition of

concurrent remedies (such as misrepresentation) which despite being a remedy

available under the CISG is often litigated and imposed as a domestic remedy. 214

Domestic interpretations (instead of autonomous interpretation) are applied to

procedural matters such as the burden of proof and recovery of legal costs which,

whilst outside the scope of the CISG also fuel homeward tendencies. 215 Interpretive

provisions within the text of the CISG also divide civil and common law contract law.

Article 8(3) CISG requires pre-negotiations to be taken into account when interpreting

a contract. However, the parol rule (adopted in common law jurisdictions) requires a

court to exclude pre-negotiations when interpreting a contract.216

Homeward trends are clearly counterproductive to the promotion of uniformity. They

create uncertainty, unpredictability and inconsistencies, which is not conducive in

commercial business transactions. They can encourage parties to be selective,

211
Schwenzer (n 208) 109.
212
Shuttle Packaging Systems, L. L.C. v. Jacob Tsonakis, INA S. A. and INA Plastics Corporation 2001
U.S. Dist. LEXIS 21630 (W. D. MI 2001), available at CISG-online (Pace) No. 773 stating that “it will
not be practicable to require notification in a matter of a few weeks”.
213
Hofmann (n 15); Mazotta (n 237).
214
Schwenzer (n 208) 113.
215
Schwenzer (n 208) 114.
216
Zeller, ‘Four-Corners’ (n 18) chapter 7; Janssen and DiMatteo (n 37).
42
whereby they choose to have their disputes arbitrated in a forum where the law is

predictable or more favourable to them (i.e. forum shopping), which undermines the

purpose of the CISG as a uniform law.217 It also encourages parties to out-opt of the

CISG pursuant to their right under Article 6 CISG. Although nine of the ten largest

export and import nations are contracting states of the CISG (the U.K. being the

exception), evidence suggests that businesses (advocated by lawyers) often exercise

their right via their contracts to opt-out of the CISG in favour of a national law which

may afford more certainty. 218 As a result opting out is widespread in commodities

transactions, where parties often prefer the certainty of being able to terminate a

contract easily, in a volatile market, according to a particular national law.219

3.6 Impediments and Possible Solutions to the Promotion of Uniformity in the

CISG

Homeward trends can arise for several reasons; lack of awareness and knowledge of

the CISG; judges and lawyers reluctant to apply or advocate other legal concepts or

forego established domestic legal doctrines; reluctance to follow decisions which are

less detailed and uncertainty as to the authority of foreign judgements.220 Whatever

the cause, if courts continue to resort to homeward trends regularly, the future of the

CISG could be jeopardised and whether or not it is successful may be determined not

by the number of contracting states which ratify the CISG, but instead by the number

217
Andersen, ‘CISG in national courts’ (n 9).
218
Zeller, ‘Four-Corners’ (n 18) chapter 3 Part I.; Janssen & Ahuja (n 14) 156.
219
Bridge (n 145).
220
Schwenzer (n 208) 114-118.
43
of parties who choose to adopt out. To achieve greater uniformity therefore and

discourage parties from opting out solutions, are needed.

Courts across jurisdictions should be encouraged to remember that their decisions are

‘shared’ among lawyers across the legal spectrum. 221 Whenever they render a

decision, they create CISG jurisprudence which foreign lawyers and the judiciary may

be called upon to interpret and apply. 222 Their reasoning should not be based on

underlying domestic notions, which can in any event be subject to domestic change

and overruling. Training and education of lawyers could also encourage counsel to

base their submissions on the CISG, rather than domestic law. This may encourage

judges to rely on the CISG when they render their decision.

An international court with jurisdiction over the CISG would assist in promoting

uniformity and enable a consistent application of foreign decision as well as

overcoming language barriers. That said international court decisions can be

ambiguous which is due in part to decisions being rendered by judges from each

member state, often from different legal systems. Becoming accustomed to the style

of those decisions can also be challenging for some courts, particularly common law

courts such as English judges, who have been critical of reported decisions from

international courts such as the ECJ.223

Nonetheless, in the absence of an international court with jurisdictional oversight an

informal type of process akin to stare decisis could be established. UNCITRAL or the

221
Andersen, ‘CISG in national courts’ (n 9).
222
Ibid.
223
Griss (n 24).
44
CISG- AC could be tasked with reviewing and labelling well-reasoned decisions as

‘CISG persuasive authority’. We have seen already courts willingness to utilise and

cite the sources from these organisations. If cases were to have ‘CISG persuasive

authority’ standing, it may encourage common law courts such as those in the U.S.

and Australia to rely on the well-reasoned decisions instead of reverting to domestic

law which in turn will result in them creating well-reasoned decisions by avoiding

homeward trends .224

Greater improvement in the quality, detail and reasoning of court decisions would

also enable greater scrutiny of bad decisions. It may also provide an incentive for

courts to take leadership in the development of the CISG jurisprudence. 225 However, a

considerable amount of resources (time and money) would need to be injected into

any organisation tasked with the job of reviewing and so labelling court decisions.

Furthermore, it must also be acknowledged that this would require a change, which

may be too great, for some courts from civil law countries whose decisions

traditionally lack detail. 226 It must also be recognised that a large amount of court

cases go unreported and many international trade transactions are subjected to

international arbitration (also unreported), with limited resource to appeal. Therefore

the scale of misapplication and homeward trends may go undetected.

Chapter four will examine the interpretative principle under Article 7(1) CISG,

namely for courts to have regard to the “observance of good faith in international

trade”. Consideration will be given to the intention behind the inclusion of good faith

224
Andersen, ‘CISG in national courts’ (n 9).
225
Ibid.
226
Griss (n 24).
45
into Article 7(1), examine how courts from different legal systems interpret the

principle of good faith and consider if courts are able to apply the principle

uniformly.

4. OBSERVANCE OF GOOD FAITH IN INTERNATIONAL TRADE

When national courts interpret the CISG, Article 7(1) prescribes that they must have

regard to the “observance of good faith in international trade”. Although good faith is

implied in several articles of the CISG,227 the expressed imposition of good faith into

Article 7(1) raised controversy, was debated and opposed by common law states such

as the United Kingdom. 228 The inclusion of good faith in Article 7(1) was the result of

a compromise between civil and common law states the latter envisaged it as a

method of interpretation only. 229 However, beyond the text of Article 7(1) itself, there

is no guidance on the concept of good faith or how it should be applied. 230

This chapter will examine how civil and common law courts operate the principle of

good faith domestically and consider if there are differences which may have a

negative impact on their ability to interpret good faith uniformly in the context of

Article 7(1). The examination will focus on how courts apply the principle of good

faith and not on the meanings that may be afforded to good faith.

227
CISG, Articles 16(2) (b), 21(2), 29(2), 37, 40, 46, 47(2), 64(2), 82, 85 and 88.
228
Benedict Sheehy, ‘Good Faith in the Cisg: The Interpretation Problems of Article 7’, Review of the
Convention on Contracts for the International Sale of Goods (CISG) ed. by Pace International Law
Review (2007) 153-196, available at SSRN: https://ssrn.com/abstract=777105 or
http://dx.doi.org/10.2139/ssrn.777105
229
Ibid.
230
Clayton Gillette, ‘An Advanced Introduction to International Sales Law’ (Edward Elgar 2016) 43-
47.
46
4.1 Characteristics of the Civil Law Principle of Good Faith

The concept of good faith has been adopted, in varying degrees, by various civil law

systems. 231 In Germany, the principle of good faith (“Treu und glauben”) is

contained in section 242 of the BGB and can be described as a legal obligation “to

respect the trusting relationship between the parties”. 232 Good faith is used not only

to interpret statutes but also to correct unjust results in the law or contract clause. 233

Peter Schlechtriem, comments that good faith “has become a legal principle of such

pervasive influence that it is sometimes claimed the codified provisions could be

dispensed with; the whole system of private law… might be taken as a mere

embodiment of the principle and could in theory, be administered by reference to

“Treu und Glauben”. 234 Nonetheless, with the underlying notion of giving effect to the

legislatures’ intent in mind, judges in German courts must not use good faith to

override the consequences of the legislation simply to enable them to reach an

equitable, just or fair result. 235

231
Bruno Zeller and Camilla Andersen, ‘Good Faith - The Gordian Knot of International Commerce’
(2018) 28 Pace Int’l LR 1-28; Bruno Zeller, ‘The Observance of Good Faith in International Trade’, in
Janssen, Andre and Meyer, Olaf CISG Methodology (European Law Publishers, 2009) 133.
232
Sheeny (n 228) at 23, referring to Paul Powers, “Defining the Undefinable: Good Faith and the
United Nations Convention on Contracts for the International Sale of goods,” (1999) 18 J. of Law and
Commerce, 333, 336.
233
Hofmann (n 15) 161.
234
Peter Schlechtriem., ‘Good Faith in German Law and in International Uniform Laws’, Centro di
studi e ricerché di diritto comparato e straniero, Saggi, Conferenze e seminari. (Feb 1997) 24, para. 1
available at: https://www.cisg.law.pace.edu/cisg/biblio/schlechtriem16.html
235
Hofmann (n 15) 161.
47
Good faith is also well established in French and Italian legal systems.236 Its use in the

Italian civil code is broad and serves to protect peoples’ relationships 237and like the

German system, the concept of good faith also exists in the parties’ pre-contractual

relationship. 238 Generally, “the civil law tradition looks at Good Faith as a broad,

comprehensive principle which includes many concepts considered in the common

law tradition to be discrete matters.” 239

4.2 Characteristics of the Common Law Principle of Good Faith

Much like the United Kingdom’s general resistance to good faith being included in

the CISG at all English courts have also resisted the doctrine of good faith

domestically. 240 Nonetheless good faith has been implied into certain types of

contracts for example, insurance contracts or contracts which involve a fiduciary

relationship (that is, where one party puts their trust or confidence in another).241

Accordingly, in such contracts parties are advised to expressly exclude the reference

to good faith if it is not required. 242 That said English courts have generally been

reluctant to imply good faith in general commercial contracts.243

236
Zeller, ‘The Observance of Good Faith in International Trade’ (n 231).
237
Sheeny (n 228) 23; Francesco Mazzotta, ‘Good Faith Principle: Vexata Quaestio’, in Larry
DiMatteo (ed), International Sales Law: A Global Challenge, (Cambridge University Press 2014) 120.
238
Hofmann (n 15) 160; Mazzotta (n 237).
239
Sheeny (n 228) 23.
240
Bridge (n 145).
241
Ibid; see also Bristol Groundschool Ltd v Intelligent Data Capture Limited [2014] EWHC 2145.
242
Bates v Post Office Ltd (no 3) [2019] EWHC 606 (QB.)
243
Bridge (n 145); Zeller, ‘The Observance of Good Faith in International Trade’ (n 231).
48
This view is adopted as in most commercial business transactions, such as sales of

goods contracts, the parties are usually of equal bargaining power.244 Additionally, the

majority of international commercial contracts are concluded on standard forms of

terms and conditions, such as the use of the Grain and Feed Trade Association

(‘GAFTA’) 100 contract.245 Businesses, whether they are selling or purchasing, will

often use the same standard terms and conditions, interchangeably. 246 Parties thereby

become familiar with standard terms (which will have been developed, updated and

published periodically). Furthermore, standard terms and conditions will often be

referred to in a separate document or email, with little (if any) amendment or

negotiation taking place. 247 The predictability of these standard terms and conditions

is therefore significant for both buyer and seller and therefore removes the need for

good faith provisions.248

Nonetheless, parties are at liberty to incorporate good faith provisions into their

contracts and are increasingly choosing to do so.249 English national courts,

traditionally known to prefer the “predictability of legal outcome of case…

[over]…absolute justice”,250 are reluctant to imply good faith into commercial

contracts, particularly where parties use standard terms and conditions. 251 To do so,

would create uncertainty and unpredictability, which English law courts are reluctant

244
Arnold v Britton [2015] UKSC 36, [2015] AC 1619; Mid Essex Hospital Services NHS Trust v
Compass Group U.K. and Ireland Ltd [2013] EWCA Civ 200.
245
Bridge (n 145).
246
Ibid.
247
Ibid., 6.
248
Ibid (n 145)
249
Petromec Inc v Petroleo Brasileiro SA Petrobas (No 3) [2005] EWCA Civ 891, 1Lloyd’s Rep 121.
250
Goode, R., ‘The Concept of “Good Faith” in English Law’, Centro di studi e ricerché di diritto
comparato e straniero, Saggi, Conferenze e Seminari 2, March 1992, available at:
https://www.cisg.law.pace.edu/cisg/biblio/goode1.html 2 at para. 22.
251
Bridge (n 145) 6-7.
49
to do.252 Furthermore, English courts see the necessity of preserving the parties

'freedom of contract’ and unlike civil law, systems will not impose a duty to negotiate

pre-contractually in good faith. 253 However, whilst reluctant to imply obligations of

good faith into commercial parties, there is recognition by some common law courts

that the U.K. approach is “swimming against the tide”. 254

The concept of good faith has developed in other common law jurisdictions. The U.S.

has “good faith and fair dealing” in the UCC.255 The same is also included in the

American Restatement (Second) of Contracts.256 Whilst the latter is neither a statute

or common law but a compilation of the leading principles and rules, differences still

appear in its interpretation. 257 Furthermore, in the U.S., good faith may be implied

into contracts (or otherwise become applicable) via the method of excluding ‘bad

faith’. 258 Australia is another common law country that recognises a general

obligation of good faith where it is implied on contracting parties unless expressly

excluded. However, good faith has not been defined in Australia and whilst implied

on contracting parties, its application by the court will depend on the circumstance in

each case. 259

Accordingly it can be seen that the concept of good faith operates in civil and

common law legal systems (albeit in differing ways), and whilst many domestic

252
Bridge (n 145).
253
Bridge (n 145.)
254
Yam Seng Pty. Ltd. v. Int' l Trade Ltd. [2013] EWHC 111 (Q.B.) at para. 124.
255
Ss. 1-203
256
Section 205.
257
Mazzotta (n 237) 123.
258
Sheeny (n 228) 22.
259
Bruno Zeller and Camilla Andersen, ‘Good Faith - The Gordian Knot of International Commerce’
(n 231).
50
courts have struggled to define good faith, its application is still routinely implied

onto contractual parties. 260 In some jurisdictions (such as England) the application of

good faith will be dependent on the nature of the contractual relationship, for instance,

a fiduciary relationship.261

Differing opinions exist among scholars regarding how the principle of good faith in

Article 7(1) should be interpreted.262 Some suggest that because it has been expressly

included in Article 7(1), the interpretive provision, this clearly indicates that good

faith should be used as an interpretive tool only. 263 Furthermore, the examination of

the travaux preparatoires suggests that the compromise reached among states around

its inclusion at all was to the effect that good faith should be applied only to the

interpretation of the CISG and not be implied on contracting parties. 264 Other

scholars disagree and suggest that, because the VCLT already establishes general

principles of good faith (applicable to those who interpret the CISG), reference to

good faith in Article 7(1) CISG must therefore have been intended to go beyond the

general interpretive principles, instead intended to be implied on contracting

parties. 265

Notwithstanding this debate, consistent with the compromise envisaged by common

law states namely that good faith should be used as an interpretation tool only and not

260
Zeller, ‘The Observance of Good Faith in International Trade’ (n 231).
261
Sheehy (n 228) 14.
262
Zeller, ‘The Observance of Good Faith in International Trade’ (n 231).
263
Steven Walt, ‘The Modest Role of Good Faith in Uniform Sales Law’, (2015) 33, BU Int’l LJ 37,
41; Zeller ‘The Observance of Good Faith in International Trade’ (n 231) 135; Sheehy (n 228); Bridge
(n 145); Disa Sim., 'The Scope and Application of Good Faith in the VCLT on Contracts for the
International Sale of Goods, Sept. 2001, available at http://cisgw3.law.pace.edu/cisg/biblio/sim1.html
264
Walt (n 263).
265
Sheeny (n 228).
51
applicable to govern the contractual relationship, early CISG decisions saw good faith

being used as an interpretive tool. 266 This was the initial approach taken by courts

from both civil and common law systems. 267 However more recent case law shows a

trend away from this, good faith is now being implied onto contracting parties. Some

academics suggest the application of good faith is now being applied widely and

inconsistent with the original intention.268

By way of example, in an Italian case an obligation of good faith (to make additional

inquires before a claim for payment) was implied where no requirement existed in the

text 269 and despite alternative options being available (for instance, a cost order for a

meritless claim).270 In another example, a German court held a declaration of

avoidance unnecessary when applying the “observance of good faith in international

trade”, notwithstanding Article 49(1) CISG explicitly requiring a party to provide a

declaration of avoidance. 271 Lack of notice and absence of consent (where standard

terms were implied into a contract) 272 have also been interpreted as a lack of good

faith despite the absence of reference to good faith in the text.273

Notwithstanding the belief among some common law states that good faith would be

used as a tool for interpretation only (reflecting the compromised made), many courts

266
ICC International Court of Arbitration Award 8611/1997; Mazzotta (n 237) 127.
267
Mazzotta (n 237).
268
Bridge (n 145) 13.
269
Tribunale di Padova, 25 February 2004, available at CISG-Online (Pace) No. 819; Mazzotta (n 237)
129.
270
Bridge (n 145); Walt (n 263).
271
Oberlandesgericht München, Germany, 15 September 2004, abstract available at CLOUT case No.
595.
272
Oberlandesgericht Celle, 24 July 2009, available at CISG-online (Pace) No. 1906; Landgericht
Neubrandenburg, 3 August 2005, available at CISG- Online (Pace) No. 1190; Bundesgerichtshof,
October 2001, available at CISG-online (Pace) No. 617.
273
Bridge (n 145) 10-13.
52
have used the principle of good faith as a substantive provision and implied it into

contractual agreements.274

4.3 Impediments and Possible Solutions to a Uniform application of Good Faith in

the CISG

It is evident that the application of good faith in the context of Article 7(1) CISG has

expanded and is now being subjected to national interpretation. Countries that imply

obligations of good faith onto contracting parties according to domestic law generally

appear more willing to adopt the same approach when interpreting the CISG.275 This

is so for both civil and common law systems. However, civil law courts appear to take

a more flexible approach and apply good faith more liberally. In contrast, common

law systems are more restrained in its application. 276

Some academics suggest this has resulted in civil law courts applying good faith de

facto to the conduct of the parties, often in circumstances where it ought not to be

imposed.277 The varying interpretations of good faith, not only between but also

within jurisdictions (which themselves are always evolving and often inconsistent),278

including complexities regarding its meaning and concerns around judicial

subjectivity also fuelled uncertainty and unpredictability. 279 Judges who imply good

274
Sheehy (n 228) 17; Walt (n 263) 42.
275
Mazzotta (n 237) 120-134.
276
Ewan McKendrick., ‘Good Faith in the Performance of a Contract in English Law’, in Larry A
DiMatteo and Martin Hogg, Comparative Contract Law: British and American Perspectives (Oxford
Scholarship online, January 2016) (e-book)196.
277
Sim (n 263); Bridge ( n 145).
278
Mazzotta (n 237) 121; see also UCC, ss. 1-304.
279
Bridge (n 145) 1- 4.
53
faith into contracts governed by the CISG in circumstances where the parties had not

intended for it to apply, can lead contracting parties to forum shopping or simply opt

out CISG altogether, preferring party autonomy, and so avoid good faith being

implied.

The lack of guidance within the CISG, coupled with the absence of an international

commercial court with jurisdictional oversight, has led to the emergence of differing

applications of good faith, including homeward trends, leading to courts failure to

apply good faith uniformly. Scholars are also divided over the extent to which good

faith should be applied to the CISG.280 Those with a common law background, such

as Michael Bridge, have suggested that the application of good faith in circumstances

where it should not, thus implying the application of good faith is too wide. 281 Others

have suggested the common law should move to embrace good faith. 282

However, whilst some common law countries, such as England, do recognise that

they are “swimming against the tide” when it comes to goods faith, 283 the divide

between how civil and common law courts interpret and apply good faith in the CISG

may have been a compromise too wide to curtail in its application, and therefore

potentially an impediment to achieving uniformity. Notwithstanding this divide

academics generally agree that at present, good faith application in the CISG, has

arisen in relatively small numbers. Thus whilst the divergent application of good faith

280
Andersen, ‘CISG in national courts’ (n 9) 71; Sheeny (n 228) 80.
281
Bridge (n 145).
282
Eiselen, ‘The CISG as Bridge between Common and Civil Law’ (n 15).
283
Yam Seng Pty (n 254).
54
has potential to significantly impede unification the impact on cases so far has been

relatively small. 284

The solutions suggested in the foregoing chapters to more general problems to

achieving uniformity, (such as the CISG -AC’s opinions) may not be as persuasive or

effective in an application to achieve uniformity in good faith. This is especially so if

the CISG-AC’s opinions are seen to be tainted by the particular academics civil or

common law perspective on good faith.

However, one possible solution would be to establish an international commercial

court with oversight of the CISG. Such a court could provide clarification on how

national courts should interpret good faith in Article 7(1) CISG. An international

commercial court could examine the legislative history and decide (in line with the

compromise envisaged) that good faith should not be implied on contracting parties.

Alternatively it may choose to look forward with foresight and imply a general

obligation of good faith onto CISG contracting parties. Either way a decisive decision

from an international court or tribunal would enable a uniform approach and offer a

possible solution to this potential impediment. In the absence of such a court, it must

be acknowledged that complete unification in the way civil and common law systems

interpret good faith in Article 7(1), is unlikely to be attainable. Fortunately, the

adverse impact appears to be negligible, for now.

284
Zeller, ‘The Observance of Good Faith in International Trade’ (n 231); Bridge (n 145) 16.
55
5. CONCLUSION

This essay has examined how courts, from both civil and common law systems, have

approached interpretation domestically, identified differences in approach and how

these may have impacted on their respective application and interpretation of Article

7(1) CISG and the achievement of the desired uniformity.

Chapter two explained the different methods of statutory interpretation and how they

are applied in civil and common law courts although suggesting that these differences

are more in preference rather than substance. Nonetheless these preferences can

impede uniformity, unless courts can be encouraged to use their preferences in a

‘logical’ prescribed manner.

That said, as we have seen, uniform interpretation alone does not necessarily lead to

uniform results. Accordingly to achieve uniform results courts are also required to

“promote uniformity” through the application of foreign case law and academic

material. Both civil and common law courts have shown a willingness to do this, and

use the material available from sources such as PACE to access foreign case law and

academic material to assist them when interpreting the CISG. Nonetheless, it is

evident that some judges, particularly those from common law systems, are still prone

to revert to domestic law principles. This may be indicative of the approach of

common law judges generally whereby they are more willing than civil law judges to

interpret legislation in light of case law, distinguish a case and fill in gaps where they

feel it necessary.

56
The position is reversed when the application of good faith is considered. Here civil

law courts appear to take a more liberal approach when interpreting and applying

good faith, which is perhaps indicative of how they interpret good faith under national

legislation where it is regarded as a broad, comprehensive principle applied liberally,

and so appear to do the same when operating the principle under Article 7(1) CISG.

Whilst the CISG has been hailed as a success by some scholars, 285 it must be borne in

mind that many international commercial cases go unreported and those that are

published appear to be from a relatively small number of the contracting states. As a

consequence, the number of international contracts that end up being published may

not reflect those which are subject to dispute. Therefore, the real impact of the, albeit

limited differences between civil and common law systems, including the true extent

of divergent interpretations, is unknown. 286

Further solutions to homeward trends might include education and professional

training on the CISG. This may encourage lawyers (present and future) to make

submissions on the basis of the principles in the CISG, rather than using domestic

law, and therefore encourage judges to cite the same. 287 Establishing an international

organisation tasked with overseeing international commercial law, whilst unlikely to

be without its flaws, would also enable the CISG to have an international focal point

where questions of law, such as the extent of good faith in Article 7(1) can be

resolved. However, it must be accepted that due to the different legal systems

285
DiMatteo, ‘Future Challenges of International Sales Law’ (n 127) 726.
286
Ibid; Bridge (145) 5.
287
Zeller, ‘Four-Corners’ (n 18) chapter 2 Part I.
57
cultures, legal training and levels of discretion afforded to the judiciary by the general

nature of Article 7(1) a degree of diversity in courts’ interpretation of the CISG is

inevitable. 288

288
Berman (n 23) 23-40; Vogenauer (n 26).
58
BIBLIOGRAPHY

Table Legislation

Treaties and Conventions

United Nations Convention on Contracts for the International Sale of Goods (Vienna,
1980)

Vienna Convention on the Law of Treaties (1969)

Warsaw Convention (1929)

Convention relating to the Status of Refugees (1951)

European Union Public Contracts Directive (2014/24/EU)

Domestic Legislation

Australia

Interpretation of Legislation Act 1984 (Vic)

Interpretation Act 1901 (Cth)

Legislation Act 2001 (ACT)

Interpretation Act 1987 (NSW)

Interpretation Act (NT)

Interpretation Act 1954 (Qld)

Interpretation Act 1931 (Tas)

Interpretation Act 1984 (WA)

United Kingdom

Sales of Goods Act 1979

Unfair Contract Terms Act 1977

Interpretation Act 1978

The Public Contracts Regulations 2015 (SI 2015 No. 102)

59
United States of America

Uniform Commercial Code

Civil Codes

Dutch Burgerlijk Wetboek

French Code Civil

German Bürgerliches Gesetzbuch (‘BGB’)

Italian Codice Civile

Table of Cases

Australia

Downs Investments v. Perwaja Steel [2000] Supreme Court of Queensland.

FTZK v Minister for Immigration [2013] High Court of Australia.

Italian Imported Foods Pty Ltd. v. Pucci SRL [2006] Supreme Court of New South
Wales.

Playcorp Pty Ltd v Taiyo Kogyo Ltd [2003] VSC 108 (Unreported, Hansen J, 24 April
2003).

Vetreria Etrusca Srl v. Kingston Estate Wines Pty Ltd [2008] Supreme Court of South
Australia.

Austria

Rechtbank van Koophandel, Ieper, A.R. 318/00,Lavameat v. SA Cointa, 18.02.02,

CISG-online (Pace) No. 771.

Oberster Gerichtshof, 3Ob193/04k, 23.05.05, CISG -online (Pace) No. 1040

Oberster Gerichtshof, 10 Ob 22/05s, 26.04.2005, CISG-online (Pace) No. 1051

Belgium

Rechtbank van Koophandel Hasselt (Belgium), 2 December 1998, available at:

http://www.unilex.info/cisg/case/809

Rechtbank van Koophandel Hasselt (Belgium), 5 May 1999, available at

60
http://www.unilex.info/cisg/case/807

Rechtbank van Koophandel Hasselt (Belgium), 6 March 2002, available at

http://www.unilex.info/cisg/case/779

Canada

Diversitel v. Glacier Supreme Court of Justice Ontario (6 October 2003)

Febles v Canada, Supreme Court of Canada (2014 SCC 68)

Cyprus

Emam v Director of Central Staff and others, Supreme Court Cyprus

European Union

Case C-51/15 Remondis GmbH v Region Hannover ECLI:EU:C:2016:985.

France

Cour de Cassation, June 26, 2001, CISG-online (Pace) No. 598.

Germany

Oberlandesgericht Frankfurt am Main, 20 April 1994, CLOUT case No. 84.

Oberlandesgericht Karlsruhe, Germany, 25 June 1997, CLOUT case No. 230.

Oberlandesgericht Oldenburg, 05 December 2000, CISG-online (Pace) No. 500.

Bundesgerichtshof October 2001, CISG-Online (Pace) No. 617.

Oberlandesgericht Kn (Germany), 14 October 2002, CISG-online (Pace) No. 709.

Bundesgerichtshof (Germany), 30 June 2004, CISG-online (Pace) No. 487.

Oberlandesgericht Karlsruhe (Germany), 20 July 2004, CISG-online (Pace) No. 858.

Oberlandesgericht München, Germany, 15 September 2004, CLOUT case No. 595.

Landgericht Neubrandenburg (Germany), 3 August 2005, CISG-online (Pace) No

1190.

Oberlandesgericht Karlsruhe (Germany), 8 February 2006, CISG-online (Pace) No.

1328

Oberlandesgericht München, 20 U 3863/08, 14 January 2009, CISG-online (Pace) No.

61
1496

Oberlandesgericht Celle, 24 July 2009, CISG-online (Pace) No. 1906.

Italy

Bourjois S.a.s. v. Gommatex Poliuretani S.p.A (2007), available at

http://unilex.info/cisg/case/1164

Rheinland Versicherungen v. S.r.l. Atlarex and Allianz Subalpina S.p.A. Tribunale di

Vigevano (Italy), 12 July 2000, available at
http://cisgw3.law.pace.edu/cases/000712i3.html;

Netherlands

Netherlands Arbitration Institute, 2319, 15. December 2002, CISG-online (Pace) No.
836

Feinbäckerei Otten GmbH & Co. Kg v HDI-Gerling Industrie Versicherung, [2014]

Court of Appeal the Hague, CISG- online (Pace) No. 1900

Frieslandcampina Cheese & Butter BV, 16 November 2016, Rechtbank Midden-

Nederland, C/16/412611 / HA ZA 16-252, CISG- online (Pace) No. 2127.

New Zealand

RJ & AM Smallmon v. Transport Sales Limited and Grant Alan Miller [2010] High
Court of New Zealand, CISG-online (Pace) No. 1595

Switzerland

Richteramt Laufen des Kantons Berne, Switzerland, 7 May 1993, CLOUT case No.
201

Handelsgericht des Kantons Aargau, Switzerland, 26 September 1997, CLOUT case

No. 217

Handelsgericht des Kantons Aargau, Switzerland, 11 June 1999, CLOUT case No.
333

United Kingdom

Al-Sirri v Secretary of State for the Home Department, D.D. (Afghanistan) v

Secretary of State for the Home Department [2012] UKSC 54.

Arnold v Britton [2015] UKSC 36, [2015] AC 1619.

62
Bates v Post Office Ltd (no 3) [2019] EWHC 606 (QB)

Bristol Groundschool Ltd v Intelligent Data Capture Limited [2014] EWHC 2145

Fothergill v Monarch Airlines [1977] 3 All ER 616

Hadley v Baxendale [1854] 9 Ex 341

Hochster v De La Tour [1853] EWHC QB J72.

Mid Essex Hospital Services NHS Trust v Compass Group U.K. and Ireland Ltd
[2013] EWCA Civ 200

Pepper v Hart [1993] A.C. 593

Petromec Inc v Petroleo Brasileiro SA Petrobas (No 3) [2005] EWCA Civ 891, 1
Lloyd’s Rep 121.

Yam Seng Pty. Ltd. v. Int' l Trade Ltd [2013] EWHC 111 (Q.B.).
Faraday Development Ltd v West Berkshire Council [2018] EWCA Civ 2532

United States of America

America's Collectibles Network, Inc., d/b/a Jewelry Television, and BBJ Bangkok,
Ltd. v. Timlly (HK), Timlly BBK Co., Ltd., et al, U.S. District Court, Eastern District
of Tennessee, 3:10-CV-86.

Amco Ukrservice & Prompriladamco v. American Meter Company U.S District Court,
Eastern District of Pennsylvania, 29 March 2004 2004 WL 692233 (E.D.Pa.)

Barbara Berry, S.A. de C.V. v. Ken At: Spooner Farms, Inc. U.S. District Court,
Western District Washington at Tacoma, 13 April 2006, WL 1009299 (W.D. Wash.)

Chan v. Korean Air Lines Ltd; 490 U.S. 122,135 (1989)

Chicago Prime Packers, Inc. v. Northam Food Trading Co., et al. U.S. District Court,
Northern District of Illinois, Eastern Division 2 J May 2004, 2004 WL 116 6628
(N.D.Ill ).

Delchi Carrier S.p.A. v Rotorex Corp. U.S. Circuit Court of Appeals (2d. Cir) 6
December 1995.

Forestal Guarani S.A. v. Daros International, Inc. United States Court of Appeals,
Third Circuit 16 April 2010.

Genpharm Inc. v. Pliva-Lachema a.s. & Pliva d.d. U.S. [Federal] District Court for
the Eastern District of New York.

63
Hilaturas Miel, S.L. v. Republic of Iraq U.S. District Court, New York (Southern
District), Civ 12, 20-08-2008.

Impuls I.D. International, S.L., Impuls I.D. Systems Inc., and PSIAR S.A. v. Psion U.S.
District Court, Southern District of Florida (01- 7541).

MCC Marble Ceramic v Ceramica Nuova D´Agostino, S.p.A., Federal Court of

Appeals for the Eleventh Circuit, United States, 29 June 1998.

Mitchell Aircraft Spares, Inc. v. European Aircraft Service AB U.S. [Federal] District
Court for the Northern District of Illinois.

Multi-Juice, S.A. v. Snapple Beverage Corp. U.S. District Court, Southern District of
New York, 1 June 2006.

Raw Materials Inc. v. Manfred Forberich GmbH U.S. Northern District of Illinois, Eastern
Division, 6 July 2004, WL 1535839 (N.D. Ill. 2004).

Schmitz-Werke GmbH & Co. v. Rockland Industries, Inc.; Rockland International

FSC, Inc Federal Court of Appeals (4th Circuit), 21 June 2002.

Shuttle Packaging Systems, L. L.C. v. Jacob Tsonakis, INA S. A. and INA Plastics
Corporation U.S. Dist. LEXIS 21630 (W. D. MI 2001).

TeeVee Tunes, Inc. et al v. Gerhard Schubert GmbH U.S. District Court, Southern District of
New York, 23 August 2006.

Teklogix Inc, U.S. District Court, Southern District of Florida 22.11.02 (01- 7541).

Travelers Property Casualty Company of America et al. v. Saint-Gobain Technical

Fabrics Canada Limited U.S. District Court, Minnesota, 31 January 2007.;

Usinor Industeel v. Leeco Steel Products U.S. District Court for the Northern District
of Illinois, Eastern Division, 28 March 2002 209 F.Supp. 2d 880.

Books

1. Bridge M., International Sale of Goods (4th ed., OUP 2017).

2. DiMatteo L., International Sales Law: A Global Challenge (Cambridge

University Press 2014).

3. Elgar Encyclopaedia of Comparative Law (2nd Ed., 2014)

4. Gillette C. P., An Advanced Introduction to International Sales Law (Edward

Elgar 2016).

64
 5. Goode R., Goode on Commercial Law (Ewan McKendrick 5th ed., Penguin
2017).

6. Janssen, André, and Olaf Meyer. CISG Methodology, Sellier – (European Law
Publishers GmbH, 2009)

7. McKendrick E., Contract Law (12th ed., Palgrave Macmillan, 2017).

8. Honnold J.O, Uniform Law for International Sales under the 1980 United
Nations Convention (2nd ed., Kluwer 1991).

9. Honnold J.O, Uniform Law for International Sales under the United Nations
Convention (3rd ed., Kluwer 1999)

Journal Articles

1. Anderson, C.B., ‘CISG in national courts’, in Larry DiMatteo (ed), International

Sales Law: A Global Challenge, Cambridge University Press, 2014, pp. 63–76.

2. Anderson, C. B. and Hayward, B. and Zeller, B., ‘The CISG and the United
Kingdom – Exploring Coherency and Private International Law’, International
and Comparative Law Quarterly, vol. 67 (3), 2018, pp. 607-641.

3. Andersen, C. B. and Zeller, B., ‘Good Faith - The Gordian Knot of International
Commerce’, Pace International Law Review, vol. 28, no. 1, 2016, p. 1-28.

4. Bell, G.F., ‘Uniformity through Persuasive International Authorities – Does

Stare Decisis really Hinder the Uniform Interpretation of the CISG?’ in Camilla
B. Andersen and Ulrich G. Schroeter (eds) Sharing International Commercial
Law across National Boundaries (Wildy, Simmonds & Hill Publishing 2008) pp.
35–47.

5. Berman, P. S, ‘The inevitable legal pluralism within universal harmonisation

regimes: the case of the CIS’, Uniform Law Review, vol. 21, no. 1, March 2016,
pp. 23-40.

6. Bridge, M., ‘Good Faith, the Common Law and the CISG’, Uniform Law
Review, vol. 22, no. 1, 2017, pp. 98-115.

7. Carney, G., ‘Comparative Approaches to Statutory Interpretation’, Statue Law

Review, vol. 36, no. 1, 2015, 46-58.

8. Dainow, J, 'The Civil Law and the Common Law Some Points of Comparison'
American Journal of Comparative Law, vol. 15, no. 3 (1967), pp. 419-435

9. DiMatteo, L.A., ‘Case Law Precedent and Legal Writing’, Janssen, André, and
Olaf Meyer, Cisg Methodology, Sellier (European Law Publishers 2009) (e-

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 book) 113-132.

10. DiMatteo, L. A., ‘Future Challenges of International Sales Law’, in Larry A

DiMatteo (ed), International Sales Law: A Global Challenge, Cambridge
University Press, 2014, pp. 725-732.

11. DiMatteo, L. A. and Janssen, A., ‘Interpretive Methodologies in the

Interpretation of the CISG’ in Larry A DiMatteo (ed), International Sales Law:
A Global Challenge, Cambridge University Press, 2014, pp. 79–101.

12. DiMatteo, L.A., ‘The CISG across National Legal Systems’, in L. DiMatteo
(Ed.), International Sales Law: A Global Challenge (Cambridge University
Press 2014), pp 588-602.

13. Eiselen, S., ‘The CISG as Bridge between Common and Civil Law’ in L.
DiMatteo (Ed.), International Sales Law: A Global Challenge (Cambridge
University Press 2014), pp 612-629.

14. Eiselen S., ‘Literal Interpretation: The Meaning of the Words’, in Janssen,
André, and Olaf Meyer, Cisg Methodology, Sellier (European Law Publishers
2009) (e-book) 61-89.

15. Ferrari, F., ‘Applying the CISG in a Truly Uniform Manner: Tribunale di
Vigevano (Italy), 12 July 2000’, Uniform Law Review, vol. 6, no. 1, 2001, p.
203-215.

16. Ferrari, F., ‘Have the Dragons of Uniform Sales Law Been Tamed?
Ruminations on the CISGs Autonomous Interpretation by Courts’, in Camilla B.
Andersen and Ulrich G. Schroeter (eds) Sharing International Commercial Law
across National Boundaries (Wildy, Simmonds & Hill Publishing 2018) 134-167.

17. Ferrari, F., ‘Homeward Trend: What, Why and Why Not’, in Janssen André, and
Olaf Meyer, ‘CISG Methodology, Sellier (European Law Publishers 2009) (e-
book) 171-206.

18. Ferrari, F., ‘PIL and CISG: Friends or Foes?’ Journal of Law and Commerce,
vol. 31, 2012-2013, pp. 45-107.

19. Ferrari, F., ‘Uniform Interpretation of the 1980 Uniform Sales Law’, Georgia
Journal of International and Comparative Law, vol. 24, no. 2, 1994, pp. 183–
228.

20. Felemegas, J., ‘The United Nations Convention on Contracts for the
International Sale of Goods: Article 7 and Uniform Interpretation’, Pace Review
of the Convention on Contracts for the International Sale of Goods (CISG),
Kluwer Law International, 2000-2001, 115-265.

21. Flechtner, H M., 'The Several Texts of the CISG in a Decentralised System:
Observations on Translation, Reservations and Other Challenges to the
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 Uniformity Principle in Article 7(1)', Journal of Law and Commerce, vol. 17,
1998, pp 187-217.

22. Griss, I., ‘How Judges Think Judicial Reasoning in Tort Cases from a
Comparative Perspective' Journal of European Tort Law, vol. 4, 2014, pp. 247-
258.

23. Hayward, B., ‘CISG in Australia – The Jigsaw Puzzle Missing a Piece.

24. 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',
Pace International Law Review, vol. 22, no.1, 2010, pp. 145-182.

25. Janssen, A., and Navin, A., ‘Bridging the Gap: The CISG as a Successful Legal
Hybrid between Common Law and Civil Law?’, in Elizalde, Francisco (ed),
Uniform Rules for European Contract Law? A Critical Assessment, (Oxford,
Hart Publishing, 2018), chapter 10, pp. 137-162.

26. Klein, J., ‘Good faith in international transactions’, The Liverpool Law Review:
Journal of Contemporary Legal and Social Policy Issues, vol. 15, no. 2, 1993,
pp. 115-141.

27. Lord Scarman, Rt Hon., ‘Ninth Wilfred memorial Lecture: The Common Law
Judge and the Twentieth Century - Happy Marriage or Irretrievable
Breakdown?’, Monash University Law Review, vol. 7. 1980, 1.

28. Lord Justice Sales, ‘Modern Statutory Interpretation’, Statute Law Review, vol.
38, no. 2, 2017, 125-132.

29. Magnus, U., ‘Tracing Methodology in the CISG Dogmatic Foundation’, in

Janssen, Andre, and Olaf Meyer, Cisg Methodology, Munich, Sellier (European
Law Pub 2009) (e-book) 33-59.

30. Mangus, U., ‘the Vienna sales convention (CISG) between civil and common
law best of all worlds?’, Journal of Civil Law Studies, Vol 3, 2010, pp. 79-89.

31. Mazzotta, F. G., ‘Good Faith Principle: Vexata Quaestio’, in Larry DiMatteo
(ed), International Sales Law: A Global Challenge (Cambridge University Press,
2014) pp. 120–134.

32. McKendrick, E., ‘Good Faith in the Performance of a Contract in English Law’,
in Larry A DiMatteo and Martin Hogg, Comparative Contract Law: British and
American Perspectives (Oxford Scholarship online, January 2016) (e-book) pp.
196-209.

33. Middleton, J., 'Statutory Interpretation Mostly Common Sense', Melbourne Law
Review, vol. 40, 2016, pp. 626

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 34. Pargendler, M., 'The Rise and Decline of Legal Families' American Journal of
Comparative Law, vol. 60, no. 4, 2012, pp. 1043-1074.

35. Salama, S., 'Pragmatic Responses to Interpretive Impediments: Article 7 of the

CISG, an Inter-American Application', University of Miami Inter-American Law
Review, vol. 38, no. 1, 2006, pp. 225-250.

36. Schwenzer, I., ‘Divergent Interpretations: Reasons and Solutions’ in Larry

DiMatteo (ed), International Sales Law: A Global Challenge, Cambridge
University Press, 2014, pp. 102–109.

37. Vogenauer, S., ‘Statutory Interpretation’, Elgar Encyclopaedia of Comparative

Law (2nd Ed., 2014), chapter 66, pp. 826-837.

38. Walt, S.D., ‘The Modest Role of Good Faith in Uniform Sales Law’, Boston
University International Law Journal, vol. 33, 2015, pp. 37-73.

39. Zeller, B., ‘The Observance of Good faith in International Trade’ In: CISG
Methodology. Janssen, Andre and Meyer, Olaf, eds. Sellier (European Law
Publishers, Munich 2009) pp. 133-149.

Online Journals

1. Felemegas, J., ‘The United Nations Convention on Contracts for the

International Sale of Goods: Article 7 and Uniform Interpretation’,
Pace Review of the Convention on Contracts for the International Sale of
Goods (CISG), Kluwer Law International, 2000-2001, 115-265; available at
https://www.cisg.law.pace.edu/cisg/biblio/felemegas14.html

2. Goode, R., ‘ The Concept of “Good Faith” in English Law’, Centro di studi e
ricerché di diritto comparato e straniero, Saggi, Conferenze e Seminari, March
1992, 2 available at : https://www.cisg.law.pace.edu/cisg/biblio/goode1.html

3. Schlechtriem, P., ‘Good Faith in German Law and in International Uniform Laws’,
Centro di studi e ricerché di diritto comparato e straniero, Saggi, Conferenze e
seminari. Feb 1997, 24, available at:
https://www.cisg.law.pace.edu/cisg/biblio/schlechtriem16.html

4. Sheehy, B., ‘Good Faith in the Cisg: The Interpretation Problems of Article 7’
(October 5, 2004). Review of the Convention on Contracts for the International
Sale of Goods (CISG) ed. by Pace International Law Review, 2007, 153-196,
available at SSRN: https://ssrn.com/abstract=777105 or
http://dx.doi.org/10.2139/ssrn.777105

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 5. Sim, D., ‘The Scope and Application of Good Faith in the Vienna Convention
on Contracts for the International Sale of Goods’, September 2001, available
at: httravaux préparatoires://cisgw3.law.pace.edu/cisg/biblio/sim1.html.
6. Tetley, ‘Mixed jurisdictions: common law vs civil law (codified and
uncodified)’, available at: https://www.cisg.law.pace.edu/cisg/biblio/tetley.html

7. Zeller, B., ‘Four-Corners - The Methodology for Interpretation and

Application of the U.N. Convention on Contracts for the International Sale of
Goods', May 2003, available at:
www.cisg.law.pace.edu/cisg/biblio/4corners.html

Online Reports and Publications

Perspectives on Harmonizing Transnational Commercial Law Quentin Loh, ‘35 Years

of Uniform Sales Law’ report by UNCITAL available at: httravaux
préparatoires://www.uncitral.org/pdf/english/texts/sales/cisg/35_Years_of_Uniform_S
ales_Law-E.pdf

Report of Mr. Justice John L. Murray, President of the Supreme Court and Chief
Justice of Ireland Methods of Interpretation – Comparative Law Method available at:
https://curia.europa.eu/common/dpi/col_murray.pdf

Public International Law in the Supreme Court of the United Kingdom

A selection of cases from the Court’s first ten years (2019) available at:
https://www.supremecourt.uk/docs/public-international-law-in-the-supreme-court-of-
the-United-kingdom.pdf

Online Resources

Institute of International Commercial Law (‘IICL’), Pace Law School, Pace

University (Pace):
● CISG Data base: httravaux préparatoires://www.iicl.law.pace.edu/cisg/cisg
httravaux préparatoires://cisgw3.law.pace.edu/#cases.

● Article 7 case interpretation: httravaux

préparatoires://cisgw3.law.pace.edu/cisg/text/anno-art-07.html

● UNCITRAL 2012 Digest of Case law on Article 7: httravaux

préparatoiress://www.cisg.law.pace.edu/cisg/text/digest-2012-07.html

● Secretariat Commentary, Guide to Article 7: httravaux

préparatoires://www.cisg.law.pace.edu/cisg/text/secomm/secomm-07.html

● Full-texts of selected scholarly writings on the CISG and the UNIDROIT

Principles of International Commercial Contracts and the Principles of
European Contract Law: httravaux
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 préparatoires://www.cisg.law.pace.edu/cisg/biblio/bib2.html

United Nations Commission on International Trade Law

httravaux préparatoiress://uncitral.un.org/en/commission

Digest of Case Law on the United Nations Convention on Contracts for the
International Sale of Goods (2016), CLOUT case database
httravaux préparatoires://www.uncitral.org/uncitral/en/case_law/digests.html.

CISG Advisory Council Opinions, available at: httravaux préparatoires://cisgac.com/

UNILEX database, available at: http://unilex.info/

Open University, available at: https://www.open.edu/openlearn/society-politics-

law/judges-and-the-law/content-section-2.1

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