CISG Translation Network

Over the last decade, the Institute of International Commercial Law has formed partnerships with academic institutions and individual scholars around the world to provide the legal community with high quality professional translations into English of foreign case law (including arbitral awards) relating to the CISG and UNIDROIT Principles (“The CISG Translation Network”). This organized effort has generated over 1,800 translations of CISG decisions and arbitral awards. The Network is overseen by Vikki Rogers, Director, Institute of International Commercial Law, Pace Law School (US), Dr Loukas Mistelis, Clive M Schmitthoff Professor of Transnational Commercial Law and Arbitration, Centre for Commercial Law Studies, Queen Mary, University of London (UK), and Leandro Tripodi, Editor-in-chief of the CISG Brazil Website, International Law Officer, Moot Alumni Association (MAA) and member of the Brazilian Arbitration Committee (CBAr) and Doctoral candidate in International and Comparative Law in the University of São Paulo (Brazil).

To obtain permission to reproduce full translations for commercial or non-commercial use, please contact the IICL at vrogers@law.pace.edu.

Institutional partners in the network include:

  • Centre for Commercial Law Studies at Queen Mary, University of London (“Queen Mary Case Translation Programme”, the nominal description used for a transatlantic joint venture between the Institute of International Commercial Law at the Pace University School of Law)
  • International Law Project ('ILP') (a partnership between the Willem C. Vis International Commercial Arbitration Moot's Moot Alumni Association ('MAA'), the Institute of International Law at Pace Law School and UNCITRAL). Further details in relation to the ILP can be obtained from the Moot Alumni Association's webpage at www.maa.net. Additionally, the MAA's International Law Officers, Luíza Kömel and Leandro Tripodi (based at São Paulo (Largo de São Francisco Faculty of Law)), can be contacted at ilp@maa.net.
  • New York University School of Law
  • University of Belgrade

  • University of Heidelberg

  • Professor Tang Houzhi Case Translation Program

  • We are also grateful to the members of our Autonomous CISG Network who regularly provide cases, recommend translators and edit case translations on our behalf.

Hundreds of individuals have also contributed their skill and time to make the translation program a success. The individuals are identified and given due credit on the case translation(s) that they completed on behalf of the Institute of International Commercial Law.

Should you wish to obtain further information or to join the pool of lawyers willing to translate cases occasionally or to share transcripts of interesting cases please do not hesitate to contact Vikki Rogers at <vrogers@law.pace.edu>, Loukas Mistelis at <L.Mistelis@qmul.ac.uk> or Leandro Tripodi <leandrocisg@gmail.com>.


Taming the Dragons of Uniform Law Case Law:

Sharing the reasoning of courts and arbitral tribunals

Commentary by Albert Kritzer

 

["Taming the Dragons of Uniform Law" (title purloined from a scholar who coined it in another context) is a report on sharings of judicial reasoning in over 1,885 English texts and English translations of court and arbitral awards on the UN Convention on Contracts for International Sale of Goods (CISG). "Dragon taming" is also an overture. We invite colleagues to serve our profession and the world trade community with us by collaborating on additional case translations.]

Calling attention to the need to consider foreign case law to "promote ... the uniform application of the CISG", Ferrari identifies uniform-law dragons. He states:

"[R]equiring interpreters to consider foreign decisions can create practical difficulties. On the one hand, foreign case law is not readily available, i.e., it cannot easily be retrieved. On the other hand, foreign case law is often written in a language unknown to the interpreter.

Franco Ferrari, "Applying the CISG in a Truly Uniform Manner, Uniform Law Review (2001-1) 206 [citations omitted].

To comply with the mandate recited in article 7(1) CISG, courts must have due regard to the "international character" of the CISG "and to the need to promote uniformity in its application," and scholars must be equipped to assist judges struggling to comprehend the ramifications and applications of this uniform international sales law. Schlechtriem reminds us of a corollary responsibility of scholars. He states:

A major help scholars can provide is by analyzing the cases of their countries and of other countries "as thoroughly as possible to present the full picture of interpretations and applications to our jurists."

Peter Schlechtriem, "Uniform Sales Law - The Experience with Uniform Sales Law in the Federal Republic of Germany", 3 Juridisk Tidskrift 1 (1991-92) 16 (emphasis added).

In collaboration with centers of learning of many countries, we make CISG case law of all countries freely and readily available on this Database. We provide:

  • English texts of rulings of rulings on the CISG by courts of Australia, Canada, and the United States and texts of arbitral awards on our uniform law handed down in English by ICC and Stockholm Chamber of Commerce arbitral tribunals, and by arbitral tribunals of Switzerland;
  • English translations of rulings on the CISG by courts of Argentina, Austria, Belarus, Belgium, Brazil, Bulgaria, Chile, China, Colombia, Czech Republic, Denmark, Egypt, Estonia, Finland, France, Germany, Hungary, Iran, Israel, Italy, Mexico, Montenegro, Netherlands, New Zealand, Poland, Romania, Russia, Serbia, Singapore, Slovak Republic, Slovenia, Spain, Stockholm, Switzerland, Ukraine, United Kingdom and Vietnam, including rulings of the Supreme Courts of Argentina, Austria, Colombia, France, Germany, Hungary, Israel, Netherlands, Spain and Switzerland, and of arbitral interpretations of the CISG handed down by ICC tribunals and tribunals of Egypt, Germany, Hungary, Italy, Mexico, Russia, Sweden, Switzerland and Yugoslavia.

In ruling on an international convention, Lord Denning stated: "We are told that there have been no decisions so far in other countries on this article of the convention ... So where we lead, others may follow. But I would like to assure them that if it had come first before them, we would be only too glad to follow them."

James Buchanan & Co Ltd v Babco Forwarding and Shipping (U.K.) Ltd [1977] 1 All ER 518 (CA) at 522, 524, [1977] 2 WRL 107 (CA) at 113, 113-14; reinforced by Fothergill v Monarch Airlines [1981] AC 252 (HL), [1980] All ER 696 (HL).

We also report compatible views of representatives of Latin American (Argentina), Scandinavian (Finland), United States, and German legal cultures, and of another English jurist. Representatives of many legal cultures favor consideration of decisions of courts of sister signatories. High courts, for example, the U.S. Supreme Court, urge us to give them "considerable weight".

  • Antonio Boggiano and Lord Scarman state: "Uniform law requires ... a new common law" in which "[f]oreign precedents would not be precedents of a foreign law, but of uniform law"[*]; "[c]ourts ... have to develop their jurisprudence in company with the courts of other countries ..." Lief Sevón states that a judge ought to be "obliged to search for and take into consideration foreign judgments ... at least the judgments from other Contracting States, when he is faced with a problem of interpretation of an international convention."[**]
  • The U.S. Supreme Court, Boggiano, and Jürgen Schwarze state that "the opinions of our sister signatories [to an international convention] are to be entitled to considerable weight"; they are to be taken into account "in a comparative and critical manner"; with the "integrative force of a judgment ... based on the persuasive reasoning which the decisions of the Court bring to bear on the problem at hand."[***]

CISG article 7(1) is the law of every country that has adopted the UN Sales Convention; the comity -- comity is the keyword -- that article 7(1) calls for is to the same effect.

* Antonio Boggiano [Argentina], "The Experience of Latin American States, in: International Uniform Law in Practice / Le droit uniform international dans la pratique, Oceana: New York (1988) 47.

** Lord Scarman [England], [1980] 2 All E.R 696, 715; Lief Sevón [Finland], "Observations", in: International Uniform Law in Practice, op. cit. at 135.

*** El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999), quoting Air France v. Saks, 470 U.S. 392, 404 [1985] (defining the term "accident" as used in the Warsaw Convention); Boggiano, op. cit. at 47; Jürgen Schwarze [Germany], "The Role of the European Court of Justice (ECJ) in the Interpretation of Uniform Law among the Member States of the European Communities", in: International Law and Practice, op. cit. at 221.

There have been fine judicial implementations of the jurisconsultorium that CISG article 7(1) contemplates:

  • Courts of Italy and Switzerland have taken the lead; seeTribunale di Cuneo 31 January 1996 Obergericht Luzern 8 January 1997. United States, Spanish, German and French courts have followed suit; see Medical Marketing v. International Medico Scientifica, 17 May 1999; MCC-Marble v. Ceramica Nuova, 29 June 1998 (reference to the Internet by a U.S. Circuit Court of Appeals to ensure thorough research of case law from other jurisdictions); and Usinor Industeel v. Leeco Steel Products 28 March 2002 (citation of Australian case by U.S. Federal District Court); see also Audiencia Provincial de Valencia 7 June 2003, a Spanish ruling that cites Dutch, German and Swiss case law; Bundesgerichtshof 24 March 1999, a German Supreme Court ruling that cites CISG authorities from England, France, Switzerland and the United States, and Cour d'appel Grenoble 23 October 1996, a French case that quotes a German court decision.
  • Referring to Medical Marketing, Schlechtriem states: "The U.S. federal court regards a foreign court decision as precedent, or at least as 'authority' and thus treats uniform international law similar to American law with the -- for American courts self-understood -- consideration given to decisions of neighboring states under the (American) common law. In other words, it treated the CISG as a kind of international common law, the application and development of which is in the hands of all nations party to the Convention, which courts must therefore also give consideration to decisions in other countries." Peter Schlechtriem [translated text of commentary], Praxis des International Privat- und Verfahrensrechts (1999) 791. The U.S. court's comity is reciprocated by the Landgericht [District Court] of Trier in an 8 January 2004 German court decision that cites Chateau des Charmes Wines v. Sabate USA, a 5 May 2003 U.S. Circuit Court of Appeals decision.
  • An Italian court in Rheinland Versicherungen v. Atlarex S.r.l 12 July 2000 expands the comity that CISG article 7(1) contemplates. This is a ruling of the Tribunale di Vigevano in which the judge evaluates American, Austrian, Dutch, French, German, Italian and Swiss court rulings as well as arbitral awards in reasoning through the CISG issues he addresses, drawing on national reporters, texts and Internet websites for his case data. This court has, "more than any other court before it, taken into account the need to have regard to foreign case law in order to promote uniformity."[****] For more recent cases from Italy that follow this lead, see the 26 November 2002 ruling of the Tribunale di Rimini, the 25 February 2004 ruling of the Tribunali di Padova, the 31 March 2004 ruling of the Tribunali di Padova, the 11 January 2005 ruling of the Tribunale di Padova and the 16 February ruling of the Tribunale di Forli. See also Chicago Prime Packers v. Norham, a U.S. Federal District Court case handed down on 24 May 2004 that cites German, Italian and Dutch jurisprudence as well as U.S. case law on the CISG; Bundesgerichtshof 30 June 2004, a ruling of the German Supreme Court that cites court decisions of Canada and The Netherlands and arbitral rulings of the ICC and Stockholm Chamber of Commerce, as well as German case law on the CISG; and Hannaford v Australian Farmlink Pty Ltd, an Australian opinion handed down on 24 October 2008 that cites case law from France and Germany as well as scholarly commentaries. More recently, we have an Israeli Supreme Court opinion handed down on 17 March 2009 that cites case law from Australia, Belgium, Canada, Germany, Stockholm Chamber of Commerce, Switzerland and the United States as well as scholarly commentaries from many countries.

**** Franco Ferrari, "Applying the CISG in a Truly Uniform Manner", Uniform Law Review (2001-1) 208.

This is encouraging. [*****] To stimulate more such comity -- similar to the comity U.S. state courts traditionally accord UCC rulings by courts of sister U.S. states -- jurists of all countries should consider decisions handed down in sister jurisdictions.

[*****] We have also seen other cases, e.g., from the United States: Filanto v. Chilewich, 789 F. Supp. 1229, 1237 (S.D.N.Y. 14 April 1992) ("there is as yet virtually no U.S. case law interpreting the Sale of Goods Convention"); Beijing Metals v. American Business Center, 993 F.2d 1178 (5th Cir. 15 June 1993) (citing Filanto "there is as yet virtually no U.S. case law interpreting the Sale of Goods Convention"); Delchi v. Rotorex, 71 F.3d 1024, 1028 (2nd Cir 1995) ("there is virtually no case law under the Convention"); Helen Kaminski v. Marketing Australian Products, 1997 U.S. Dist. Lexis 10630 (S.D.N.Y. 23 July 1997) ("there is little to no case law on the CISG . . ."); Calzaturificio Claudia v. Olivieri Footwear, 1998 U.S. Dist. Lexis 4586 (S.D.N.Y/ 6 April 1998) ("The case law interpreting and applying the CISG is sparse", citing and quoting Kaminski "there is 'little to no case law on the CISG . . .' " and Filanto "there is virtually no United States case law interpreting the CISG"); Mitchell Aircraft Spares v. European Aircraft Service, 25 F. Supp. 2d 916 (N.D. Ill. 27 October 1998)) (" 'there is virtually no case law under the Convention' ", quoting Delchi); Supermicro Computer v. Digitechnic, 2001 U.S. Dist. Lexis 7620 (N.D. Cal. 30 January 2001) ("the case law interpreting and applying the CISG is sparse", citing Delchi); Schmitz-Werke v. Rockland, 2002 U.S. App. Lexis 12336 (4th Cir. 21 June 2002) ("case law interpreting the CISG is rather sparse", citing Calzaturificio Claudia); Macromex Srl. v. Globex International Inc., 2008 WL 1752530 (S.D.N.Y. 16 April 2008) "there is virtually no case law under the Convention", quoting Delchi); and most recently Miami Valley Paper, LLC v. Lebbing Engineering & Consulting GmbH, 2009 WL 818618 (S.D.Ohio 26 March 2009) "caselaw interpreting and applying the CISG is sparse", quoting Calzaturificio Claudia.

Contrast the case research by these courts with Flechtner's assessment of the case research that CISG article 7(1) requires. He states that article 7(1) of the CISG "[p]roperly understood ... requires a process or methodology involving awareness of ... interpretations of the CISG from outside one's own legal culture -- an approach not unlike the treatment U.S. courts accord decisions of other [U.S.] jurisdictions when applying [the U.S.] Uniform Commercial Code." Harry M. Flechtner, "Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and Other Challenges to the Uniformity Principle in Article 7(1)", 17 Journal of Law & Commerce (1998) 187 <http://www.cisg.law.pace.edu/cisg/biblio/flecht1.html>. Hackney elaborates. He states that "when interpreting the Convention, a court should look to other court's interpretations of the Convention, including the interpretations of courts from other countries" and that "[t]he use in the U.S. of case law to interpret the Uniform Commercial Code (UCC) can serve as a model for courts using case law to interpret the Convention. No state within the U.S. is bound by an interpretation of the UCC from another state, but the interpretations of the UCC from other jurisdictions are extremely persuasive. While this method does not achieve exact uniformity, the U.S. has achieved a level of uniformity of sales law that is useful to companies transacting business in many states." Philip T. Hackney, "Is the United Nations Convention on the International Sale of Goods Achieving Uniformity?, 61 Louisiana Law Review (2001) 479.

The Supreme Court of Alaska put it as follows:

"Although precedent from other jurisdictions is, of course, not binding upon us, we nonetheless are mindful of the fact that a basic objective of the Uniform Commercial Code is to promote national uniformity in the commercial area and that this objective would be undermined should we decline to follow the stated intent of the Code's drafters and the reasoned decisions of a number of other jurisdictions." Escrow Closing and Consulting ABM, Inc. v. Matanuska Maid, Inc.,659 P.2d 1170, 1172 (Alaska 1983).

Can there be such a concept as ipso facto stare decisis? Henschel has coined this concept. He cites the 5 March 1998 "New Zealand mussels" ruling of the Federal Supreme Court of Germany in that context, calling attention to acceptance of its ratio decidendi in Austria and the United States. He cites the Medical Marketing ruling of the U.S. District Court, E.D. of Lousiana, 17 May 1999 and a 13 April 2000 ruling of the Federal Supreme Court of Austria, and points also to an earlier French ruling that is in accord, Cour d'appel de Grenoble of 13 September 1995.[******]

****** René Henschel, Conformity of Goods in International Sales Governed by the CISG, Nordic Journal of Commercial Law, issue 2004 #1, article 2 at 9.

To consider decisions of sister jurisdictions, courts must be able to read them. The Institute of International Commercial Law of the Pace University School of Law, in collaboration with the Centre for Commercial Law Studies of Queen Mary College of the University of London, inaugurated an English text program and case translation programme.

The MCC-Marble court advises that the CISG Database is "a promising source" for "persuasive authority from courts of other states party to the CISG" (op. cit. at n.14). For a current example of reliance on the global jurisconsultorium by counsel, see Treibacher Industrie, A.G. v. TDY, and the appellate pleading reported with the presentation.

This website reports over 3,000 cases. They are cases from 51 jurisdictions. Each case can be relevant to the interpretation of the CISG in any jurisdiction.

  • We have invited participation in the case translation programme by interested members of the Willem C. Vis International Commercial Arbitration Moot Alumni Association (MAA) and others. We invite participation by all interested persons with language fluencies who believe in the concept of uniform law and would like to help us tame the dragons of case law. Join us. Help us serve our profession and the world trade community this way. Contacts are: Loukas A. Mistelis <L.Mistelis@qmw.ac.uk> or Vikki Rogers <vrogers@law.pace.edu>.

The object of the programme is to share lessons learned by sharing the reasoning of jurists of all countries. The English texts and translated texts we now provide chart as follows [update as of December 2015.  Please consult case search page to search additional translations that have been added to the Database].


Chart of 1,885 "tamed and assigned dragons"


Jurisdiction Lower Court    Appellate Court    Supreme Court    Arbitral Tribunal    Totals
American Arb. Assoc.
 
 
 
2
2
Argentina
5
6
 
 
11
Australia
7
5
 
 
12
Austria
3
20
54
3
80
Belarus
1
 
1
1
3
Belgium
25
24
1
 
50
Brazil
 
3
3
 
6
Bulgaria
 
 
 
12
12
Canada
11
1
1
 
13
Chile
 
 
1
 
1
China
27
23
6
335
391
Colombia
 
 
1
 
1
Czech Republic
 
 
2
 
2
Denmark
2
2
1
 
5
Egypt
 
 
 
3
3
Estonia
 
1
 
 
1
Finland
2
6
 
 
8
France
6
41
25
1
73
Germany
136
143
26
6
311
Hungary
3
3
3
4
13
ICC
 
 
 
45
45
Iran Tribunal
 
 
 
1
1
Israel
 
 
3
 
3
Italy
23
4
10
2
39
Mexico
6
4
 
3
13
Montenegro
 
1
 
 
1
Netherlands
30
16
2
3
51
New Zealand
2
4
 
 
6
Poland
 
 
5
1
6
Romania
 
 
1
 
1
Russia
1
20
9
212
242
Serbia
 
9
 
35
44
Singapore
 
 
1
 
1
Slovak Republic
56
8
11
 
75
Slovenia
 
3
1
 
4
Spain
8
47
5
 
60
Stockholm
Chamber of Commerce
 
 
 
3
3
Switzerland
53
49
24
1
127
Ukraine
1
1
1
21
24
United Kingdom
 
2
1
 
3
United States
119
18
 
 
137
Vietnam
 
1
 
 
1
Totals
527
465
199
694
1,88

We list three categories of cases: [QM] cases processed pursuant to the Queen Mary Case Translation Programme, [CTN] cases processed pursuant to the CISG Case Translation Network, and other cases.

  • Two or three levels of scholars review each case translation prior to its publication as an integrated part of the case presentation.
  • Researchers can link to these case translations, and we offer links to presentations that contain additional data on each case. As a general rule, the contents of each case presentation also include an abstract of the case (usually an UNCITRAL abstract) and a link to the original text of the case, a case text generally entered on the Internet by the center for international studies of a collaborating university, a member of the Autonomous Network of CISG Websites.
  • The listings in the report below identify final texts of case translations and case translations that are still "second-iteration" texts, i.e., draft translations. These are underlined listings preceded by asterisks. Researchers may jump to these draft translations too. All such translations are, of course, accompanied by the caveat associated with any draft. Even so, we regard it as helpful to share our drafts with researchers anxious to access the most current information we have because, due to the caliber of scholars the programs have attracted, it has been our experience that further edits to second-iterations translations such as these have generally proved to be modest.