Contracts for the International Sale of Goods

Applicability and Applications of the 1980 United Nations Sales Convention

Author: Franco Ferrari
Contracts for the International Sale of Goods provides an examination of the United Nations Convention on Contracts for the International Sale of Goods (CISG). Extensively referenced, this volume focuses on three fundamental issues, which, due to added attention from courts and arbitral tribunals, are considered “typical” of CISG related disputes. These include the exact determination of the CISG’s sphere of application; issues relating to the non-conformity of delivered goods; and the determination of the rate of interest on sums in arrears. This analysis will also help readers understand the broader context in which these issues are embedded, and ultimately illustrates how the CISG is interpreted and applied in different jurisdictions.

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Franco Ferrari is a professor of law at New York University School of Law, where he also directs the Center for Transnational Litigation and Commercial Law. After serving as a member of the Italian Delegation to various sessions of the United Nations Commission on International Trade Law (UNICITRAL), he served as Legal Officer to the International Trade Law Branch of the United Nations Office of Legal Affairs. He has published more than 200 law review articles in various languages and 12 books in the areas of international commercial law, conflict of laws, comparative law and international commercial arbitration. Prof. Ferrari also serves as an international arbitrator.
I. Introduction
1. Historical Remarks
2. The Need for a Uniform Application of the CISG as Justification for this Paper
3. The Scope of the Present Paper

II. The Internationality of Sales Contracts under CISG
1. Comparing the CISG and the Hague Conventions
2. The Internationality of Sales Contracts under the Hague Conventions
3. The Internationality of Contracts under the CISG
4. The “Place of Business” under CISG
5. Multiple Places of Business
6. Location of the Place of Business and the Knowledge of It

III. The CISG’s Criteria of Applicability (1(1)(a) and 1(1)(b))
1. The CISG’s “Direct” Application pursuant to Article 1(1)(a)
2. The CISG’s “Indirect” Application by Virtue of the Rules of Private International Law - Article 1(1)(b)
3. The Impact of the Article 95 Reservation on the CISG’s Applicability
4. The Application of the CISG by Arbitral Tribunals

IV. The Convention’s Substantive Sphere of Application
1. The Sales Contract
2. Other Contracts Governed by the CISG
3. Contracts for the Sale of Made-to-Order Goods and Services
4. Contracts for the Sale of Labor and Services
5. The International Sale of “Goods”

V. Exclusions from the CISG’s Sphere of Application pursuant to Article 2
1. General Remarks
2. Exclusions of Consumer Contracts: The Definition of Consumer Contracts
3. The Recognizable Purpose of the Purchase of Goods and the Burden of Proof
4. Exclusions of Sales based upon the Nature of the Goods Sold: Negotiable Instruments and Money
5. The Exclusions of Ships, Vessels, Hovercraft, Aircraft and Electricity (Article 2(e) and (f))

VI. Sphere of Application and Party Autonomy
1. General Remarks
2. Implied Exclusion of the CISG and Choice of the Applicable Law
3. Exclusion of the CISG by virtue of Standard Contract Forms and Choice of Forum
4. Implicit Exclusion of the CISG and Pleadings on the Sole Basis of Domestic Law
5. Express Exclusion of the CISG
6. Applicability of the CISG and Opting In

VII. The Examination and Notification in Case of Non-Conformity of the Goods
1. Introduction
2. The “Lack of Conformity”: Article 35(1) CISG
3. The “Lack of Conformity”: Article 35(2) and (3) CISG
4. The Discovery of the Defect (Article 38 CISG)
5. The Time Requirements of a Proper Notice under Article 39 CISG
6. Substantive and Form Requirements of a Proper Notice under Article 39(1) CISG and the Cut-off Period under Article 39(2) CISG
7. The Mitigation of the Consequences of an Improper Notice (Articles 40 and 44 CISG)

VIII. The Issue of the Rate of Interest on Sums in Arrears
1. The Issue of Interest Rates in General
2. Interest Rates and Gap-Filling
3. The Rate of Interest in Scholarly Writing
4. The Issue of the Rates of Interest in Case Law
5. The Determination of the Rate of Interest on the Basis of Domestic Law

IX. Conclusion