LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

The meeting was called to order at 10.05 a.m.

ELECTION OF A VICE-CHAIRMAN AND A RAPPORTEUR (RULE 46 OF THE RULES OF PROCEDURE) (agenda item 2) (continued)

1. Mr. INAAMULLAH (Pakistan) said that the members of the Group of 77 had unanimously decided to nominate Mr. Kuchibhotla (India) for the post of Rapporteur.

2. Mr. WAITITU (Kenya) seconded the nomination.

3. Mr. Kuchibhotla (India) was elected Rapporteur by acclamation.

CONSIDERATION OF THE DRAFT PROVISIONS PREPARED BY THE SECRETARY-GENERAL CONCERNING IMPLEMENTATION, DECLARATIONS, RESERVATIONS AND OTHER FINAL CLAUSES AND OF THE DRAFT PROTOCOL TO THE CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS PREPARED BY THE SECRETARY-GENERAL (agenda item 3) (A/CONF.97/6) (continued)

6	Article C bis [not adopted] (continued) (A/CONF.97/C.2/L.3, L.7)

4. Mr. SAM (Ghana) said that his delegation appreciated the intention of the delegation of Australia in putting forward the new article C bis [not adopted] (A/CONF.97/C.2/L.3) but regretted that it was unable to support it. By contrast with the "opting-out" provision in article 5 [became CISG article 6 ], the new article was an "opting-in" provision. A similar proposal had been put forward at the eleventh session of UNCITRAL, and the Committee had decided after a lengthy debate that it was unable to accept a formulation of that kind. If the Committee was persuaded to accept the proposed new article, the three years of effort put into the preparation of the draft Convention would have been in vain.

5. Mr. OPALSKI (Poland) said that the proposed new article C bis [not adopted] was contrary to the spirit of the agreement reached in the First Committee on article 5 [became CISG article 6 ]. It would transform what had been designed as an international legal instrument into a general statement of conditions, the application of which would depend solely on the will of the parties to a given transaction. Moreover, it would create a situation in which there was no difference between the position of a Contracting State and that of a State that was not bound by the Convention. His delegation was strongly opposed to the inclusion of a provision of that kind.

6. The Australian proposal (A/CONF.97/C.2/L.3) was rejected by 17 votes to 4.

7. The CHAIRMAN invited the Committee to consider the Czechoslovak proposals on article C [became CISG article 94 ] and a new article C bis [not adopted] (A/CONF.97/C.2/L.7).

8. Mr. PIRC (Czechoslovakia) said that the new article C bis [not adopted] proposed by his delegation bore no relation to the article C bis proposed by Australia and just rejected by the Committee. It had to do with usages in international trade. The principle under which there were certain usages that prevailed over existing international conventions was an obstacle to the unification of conventions and was largely responsible for previous failures to achieve it. It would be a grave defect in the Convention if such a principle was adopted, and his Government would probably be unable to ratify it. The discussion in the First Committee had shown that other States shared that difficulty.

9. It was desirable, therefore, in order to enable the largest possible number of States to ratify the Convention, to provide for reservations to article 8(2) [became CISG article 9(2) ], and thus to avoid the consequences which that provision would have in respect of usages that States were unwilling to apply between themselves because they were not in accordance with the Convention.

10. Mr. WAGNER (German Democratic Republic) felt that the amendment to article C [not adopted] in fact dealt with a different subject from that of article C [became CISG article 94 ] as it stood in document A/CONF.97/6. It was a problem of particular importance to countries that had special laws for international economic contracts, and he hoped that countries in a different situation would show an appreciation of their difficulties.

11. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) thought that the Czechoslovak proposals would help to secure the largest possible number of ratifications. As much leeway as possible should be left, so that States would be able to apply parts of the Convention separately. The proposed reservation would represent a very small departure from the Convention compared with the acceptance by States of Part II or Part III only.

12. Mr. HERBER (Federal Republic of Germany) expressed serious misgivings about the Czechoslovak amendment to article C, particularly in the light of the experience of the 1964 Convention, which had provided for a similar reservation. His delegation agreed with the view that the scope of application of article 1(1)(b) of the present Convention [became CISG article 1(1)(b) ] was too wide and had argued against it in the First Committee. It would have preferred to restrict the scope of the draft Convention to relations between Contracting States. That did not mean, however, that reservations should be allowed. Similar reservations to the 1964 Convention had left it very unclear when the Convention applied and when it did not. His delegation did not consider that article 1(1)(b) [became CISG article 1(1)(b) ] justified a reservation of the kind proposed. If the problem was truly an impediment to ratification, it would be preferable for provision to be made in the plenary to restrict the scope of the Convention's application.

13. Mr. TARKO (Austria) agreed with the previous speaker. Article 1(1)(b) [became CISG article 1(1)(b) ] had already been adopted in the First Committee and should not now be subject to reservations. If the question was important to a number of States, it would be better for them to make a new proposal to the Plenary.

14. Miss O'FLYNN (United Kingdom) considered that article 1(1)(a) [became CISG article 1(1)(a) ] would normally apply and that only rare cases would come under 1(1)(b) [became CISG article 1(1)(b) ]. Since a declaration on the lines proposed by the delegation of Czechoslovakia would thus have a practical effect only in fairly rare cases, her delegation felt able to support it.

15. Mr. WAGNER (German Democratic Republic) regretted that his delegation was unable to support the Czechoslovak proposal for a new article C bis [not adopted]. Reservations should mainly relate to the scope of the Convention; those to its content should be strictly limited.

16. Mr. FOKKEMA (Netherlands) was also against the proposal, which would leave the parties an unacceptable degree of latitude in the choice of the conditions governing their contracts.

17. The Czechoslovak amendment to article C [became CISG article 94 ] (A/CONF.97/C.2/L. 7, first paragraph) was rejected by 18 votes to 5.

18. The Czechoslovak proposal for a new article C bis (A/CONF.97/C.2/L. 7, second paragraph) was rejected by 24 votes to 2.

96	Article (X) [became CISG article 96 ]

19. Mr. ENDERLEIN (Secretary of the Committee), noting that article (X) [became CISG article 96 ] was under discussion in the First Committee, said that it might be better for the Second Committee to postpone its consideration of that article until the First Committee had finished with it.

20. It was so decided.

90	Article D [became CISG article 90 ] (A/CONF.97/C.2/L.9)

21. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that his delegation's amendment (A/CONF.97/C.2/L.9) involved no more than a drafting change. International treaties were designated by a number of other terms besides "convention".

22. Mrs. BELEVA (Bulgaria) supported the Soviet amendment.

23. Mr. ROMAN (Assistant Secretary of the Committee) said that it was the practice of the Secretary General as the depositary of international agreements to use "agreement" as a generic term. The term "convention" should be used for the draft Convention itself.

24. Mr. AL-TAWEEL (Iraq) supported the Soviet amendment. The use of the word "international" would help to distinguish between bilateral and international agreements.

25. Mr. LOW (Canada) suggested that the words "any international agreement" should be used instead of "international agreements". In other respects he fully supported the Soviet amendment.

26. The CHAIRMAN took it that, as he heard no objection, the Committee agreed to adopt the Soviet amendment as orally subamended by Canada.

27. It was so decided.

28. Mr. OSAH (Nigeria) said that the provision in article D [became CISG article 90 ] was based on article 37 of the Prescription Convention and was valid in that context, since the Prescription Convention dealt only with the period of time in which parties could bring an action. However, as the present Convention dealt with the formation of contracts, and the obligations of buyers and sellers, there was no justification for including such a provision, and in any case articles 30 and 59 of the Vienna Convention on the Law of Treaties had already made sufficient provision on that point. He therefore proposed that article D [became CISG article 90 ] should be deleted altogether.

29. The CHAIRMAN said that, if there was no support for the proposal by the Nigerian representative, he would take it that it was rejected.

30. It was so decided.

31. Article D [became CISG article 90 ], as amended, was adopted.

32. Mr. PELICHET (Observer for the Hague Conference on Private International Law) said that under article IV of the Hague Sales Convention of 1964, any State that had already ratified or acceded to a Convention on conflict of laws in respect of the international sale of goods was entitled to declare that it would apply the Uniform Law in the cases governed by the Convention only if that Convention itself required the application of the Uniform Law. There was no provision of that kind in the present Convention, and certain delegations feared that its absence might be interpreted a contrario as obliging States parties to the Hague Convention of 1955 on the Law Applicable to International Sales of Goods (Corporeal Movables) to denounce it in order to accede to the new Convention.

33. In his opinion, that interpretation would be wrong. The provisions of article IV of the 1964 Convention were indispensable because article 2 of the Uniform Law excluded the rules of private international law for purposes of its application. Consequently, without the reservation in article IV, the States Parties to the 1955 Convention on the Conflicts of Laws would have had to denounce it in order to accede to the 1964 Convention. However, the structure of the present Convention was completely different from that of the 1964 Convention in that its article 1 [became CISG article 1 ] left the question of conflict of laws open and referred expressly to the application of the rules of private international law. There was thus no contradiction between the present Convention and the 1955 Hague Convention, and it was therefore unnecessary for the former to include a provision on the lines of article IV of the 1964 Convention. The absence of a provision of that kind would not prevent a State Party to the 1955 Hague Convention from acceding to the new instrument.

34. The CHAIRMAN said that the statement made by the Observer for the Hague Conference would be recorded in the report.

100	Article E [became CISG article 100 ]

35. Mr. MINAMI (Japan) said that article E was perfectly consonant with article 1 [became CISG article 1 ], paragraph 1(a), because it referred to "the States" in which the parties had their places of business, but not with paragraph 1(b), under which neither party need have its place of business in a Contracting State. He would like to know what implications the application of paragraph 1(b) would have for article E [became CISG article 100 ], in which there was no mention of the rules of private international law.

36. Mr. ENDERLEIN (Secretary of the Convention) said that under article 1 [became CISG article 1 ], paragraph 1(a), both parties had to have their places of business in a Contracting State, but under paragraph 1(b) only one Contracting State was involved. In article E [became CISG article 100 ], paragraph (a), he understood the words "in respect of the States in which the parties have their places of business" to mean both States or one State only, as appropriate. The wording should perhaps be made clearer.

37. Mr. LOW (Canada) said that the term "States" in article E [became CISG article 100 ] did not cover the situation in which neither of the States in which the parties had their places of business was a Contracting State, whereas article 1 [became CISG article 1 ], paragraph 1(b), gave the parties a choice of law in such cases.

38. Mr. PLANTARD (France) said that there were two possible situations. In the first, the Convention would be applicable under article 1 [became CISG article 1 ], paragraph 1(a), because the two States were both Contracting States; to see whether that was so, it would be necessary to ascertain whether the two States were Contracting States and whether the Convention had entered into force in regard to them; the answer would be yes or no. Article E [became CISG article 100 ] was therefore unnecessary in that case. In the second case, the Convention would be applicable under article 1 [became CISG article 1 ], paragraph 1(b), because the rules of conflict led to the application of the law of a Contracting State; it would be a simple matter to discover whether a State was a party to the Convention and whether the Convention had entered into force by virtue of the period of time established in article J [became CISG article 99 ]. Again, article E [became CISG article 100 ] was unnecessary.

39. Mr. BENNETT (Australia) said that his delegation had reservations about the idea of deleting article E [became CISG article 100 ], since the article did more than merely establish the date of application. He was not aware of any other provision in the Convention which laid down the basic obligation of a Contracting State to apply the Convention, irrespective of its date of application. That obligation flowed from article E [became CISG article 100 ], and his delegation was therefore in favour of keeping it. The point made by the representative of Japan was a valid one, and the wording needed to be made quite clear.

40. Mr. PELICHET (Observer for the Hague Conference on Private International Law) agreed with the representative of France in many respects, but did not think that article E [became CISG article 100 ] should be deleted. While there would be no difficulty in determining whether ratification had taken place by both States, as under article 1 [became CISG article 1 ], paragraph 1(a), or by only one, as under paragraph 1(b), it was nevertheless necessary to keep article E [became CISG article 100 ] in order to determine what contracts were covered by the Convention. The difficulty might be solved by a simple form of words such as "This Convention shall be applicable only to contracts concluded after it has entered into force in the cases provided for in article 1 [became CISG article 1 ]".

41. Mr. HERBER (Federal Republic of Germany) said that the proposal made by the Observer for the Hague Conference was exactly what he had had in mind. Article E [became CISG article 100 ] was not very important, because it only dealt with contracts that were concluded on or after the date of entry into force of the Convention; those represented exceptional cases which it would usually be possible to settle without difficulty. But as a pattern had been laid down in article 33 of the Prescription Convention, cited in the foot-note to article E [became CISG article 100 ], and had also been established in the Hamburg Rules, it might be said that a precedent had been created. The wording of article E [became CISG article 100 ], paragraph (b), could be aligned with that of the Prescription Convention by putting a full stop after the word "Convention" in the second line and deleting the remainder of the paragraph. Paragraph (a) might be amended in the same way, a semi-colon being put after the word "Convention" in the penultimate line and the remaining words deleted.

42. Mr. FOKKEMA (Netherlands) said that the problem raised by the Japanese representative could not be solved as easily as the representative of the Federal Republic of Germany seemed to think, because there might be a difference between the moment at which the Convention entered into force in general and the moment it entered into force with regard to a particular State. Use of the phrase "in respect of the State or States concerned" might cover the point, but it would be preferable to make the meaning absolutely clear.

43. Mr. LOW (Canada) said that the first thing to be certain of was the real objective of article E [became CISG article 100 ]. He regarded article E [became CISG article 100 ] as an additional provision to the normal rules of treaty law designed to establish the precise point in time when those rules would apply to a particular transaction involving certain States. The problem was to determine which States were covered by the Convention. As a rule had been established for that purpose in article 1 [became CISG article 1 ], it was probably unnecessary to make paragraph (b) of article E [became CISG article 100 ] more specific. Each State should apply the Convention in respect of the contracts to which it was applicable as from the date of its entry into force for the States that were connected with the transactions covered by the contracts.

44. He suggested that a working party should be set up to redraft article E [became CISG article 100 ] in such a way as to cover the gap which had been noticed by the representative of Japan.

45. The CHAIRMAN suggested that a small working party should be set up, composed of the representatives of Australia, the Federal Republic of Germany, France and Japan and the Observer for the Hague Conference, to draft a new text for article E [became CISG article 100 ].

46. It was so decided.

47. Mr. LOW (Canada) suggested that article 41 of the Prescription Convention might serve as a model for a more simple paragraph than that submitted to the Committee. In other words, would it not be sufficient to stipulate that the new Convention would be open for signature at the concluding meeting of the Conference and, until a date to be decided upon, at the United Nations office at Vienna?

48. Mr. ROMAN (Assistant Secretary of the Committee) pointed out that the functions of the Secretary General as the depositary for international agreements made it necessary -- for formal and juridical reasons -- to centralize all administrative procedures related to those agreements to the greatest extent possible at United Nations Headquarters in New York, although in certain cases Conventions might remain open for signature during a certain period at their place of adoption. The text before the Committee had been drafted with those considerations in mind.

49. Mr. PLANTARD (France) suggested 31 December 1980 as the closing date for signature of the Convention.

50. Mr. ROMAN (Assistant Secretary of the Committee) said that as far as agreements for which the Secretary-General was the depositary were concerned there was no established precedent regarding the period during which they were open for signature.

51. Miss O'FLYNN (United Kingdom), supported by Mr. PFUND (United States of America), believed that at least 12 -- and preferably 18 -- months should be allowed, in view of the length and complexity of the Convention. A period of a little more than 18 months had been allowed for signature of the Prescription Convention.

52. Mr. HERBER (Federal Republic of Germany) believed that the period should be short enough to encourage States to complete as rapidly as possible the examination of its provisions which must precede their signature of the Convention. He would suggest 31 March 1981 as the closing date.

53. Mr. LOW (Canada) agreed with the representatives of the United Kingdom and the United States. In his opinion, 18 months would not be an inordinately long period, in view of the consultations which national authorities would have to hold with their legal specialists in order to determine that the substantive provisions of the Convention could be ratified by the Governments concerned.

54. The CHAIRMAN invited members of the Committee to express their preference for one or other of the two suggestions.

55. There were 6 votes in favour of the suggestion that the closing date for signature should be 31 March 1981 and 18 votes in favour of 30 September 1981.

56. Article F (l) [became CISG article 91(1) ] was adopted, subject to insertion of the title of the Conference in the second line and to completion of the third line in accordance with the preference just expressed.

Paragraph (2)

57. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) and Mr. AL-TAWEEL (Iraq) pointed out linguistic inaccuracies in the Russian and Arabic texts respectively and presumed that they -- together with any other similar inaccuracies detected elsewhere in the text -- should be brought to the attention of the Drafting Committee.

58. The CHAIRMAN confirmed that understanding.

59. Article F (2) [became CISG article 91(2) ] was adopted.

Paragraph (3)

60. Mr. ROMAN (Assistant Secretary of the Committee) said that the Secretariat wished to propose the insertion of the words "at any time" between the words "open" and "for accession". That proposal was designed to avert certain difficulties encountered in the past by the Secretary-General with regard to the interpretation of clauses concerning accession (without prior signature) to international agreements for which he was the depositary. In the absence of such a provision, those clauses had sometimes been taken to mean that States which for various reasons wished to do so could not accede to the agreements before the end of the period during which they were open for signature. In consequence, the deposit of instruments of accession had been delayed, as well as the entry into force of the agreements themselves.

61. The amendment proposed by the Assistant Secretary was adopted.

62. Article F(3) [became CISG article 91(3) ], as amended, was adopted.

Paragraph (4)

63. Mr. ROMAN (Assistant Secretary of the Committee) proposed that at the end of the sentence the words "designated in article A [became CISG article 89 ]" should be added.

64. Mr. LOW (Canada), referring to the corresponding text in the Prescription Convention, suggested that paragraph (4) might simply read: "Instruments . . . shall be deposited with the Secretary-General of the United Nations."

65. Mr. ROMAN (Assistant Secretary of the Committee) said that the suggestion would be acceptable to the Secretariat.

66. The oral amendment by the representative of Canada was adopted.

67. Article F(4) [became CISG article 91(4) ], as amended, was adopted.

68. Mr. TARKO (Austria) suggested that the article might contain a clause providing for the withdrawal of declarations pursuant to paragraph (1).

69. Mr. FOKKEMA (Netherlands) pointed out that provision was made for such a contingency in article H (6) [became CISG article 97(6) ].

70. Article G [became CISG article 92 ] was adopted.

97	Article H [became CISG article 97 ]

Paragraphs (1) and (2)

71. Paragraphs (1) and (2) were adopted.

Paragraphs (3) and (4)

72. Mr. LOW (Canada) reminded members of the Committee that the final drafting of paragraphs (3) and( 4) would be subject to the consultations which were still taking place on article B [became CISG article 93 ] and suggested that consideration of those paragraphs should be deferred.

73. It was so decided.

Paragraph (5)

74. Mr. AL-TAWEEL (Iraq) suggested that in accordance with the decision taken on article F(4) [became CISG article 91(4) ], the references to "the depositary" in paragraphs (5) and (6) be replaced by "the Secretary-General of the United Nations".

75. Mr. PLANTARD (France) observed that the final drafting of the second half of paragraph (5), and of paragraph (7), would depend on the outcome of the deliberations of the working group set up to consider article C [became CISG article 94 ]. Irrespective of that outcome, he would query the necessity of imposing a six-month delay on the entry into force of reciprocal or joint declarations made under the Convention.

76. Mr. LOW (Canada) considered that the paragraph as drafted contained a number of redundant words. In his opinion, article 40(1) of the Prescription Convention dealt more felicitously with matters very similar to those covered by the paragraph before the Committee; would it not be advisable, therefore, to replace the phrase "declarations of which the depositary receives formal notification after entry into force", in the first sentence of the latter, by the words "declarations made thereafter", as used in the first sentence of the former, especially since paragraph (2) of article H [became CISG article 97 ] and the remainder of paragraph (5) made the sense of the provision clear?

77. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) suggested that further discussion should be deferred in order to allow members time to consider possible improvements to the text.

78. It was so decided.

Paragraphs (6) and (7)

79. Miss O'FLYNN (United Kingdom) introduced her delegation's amendment (A/CONF.97/C.2/L.6). A similar proposal for the use of the jussive future tense in the provisions of other articles was appended as a note to that document. Those proposals, being of a linguistic and not a substantive nature, might not require the attention of the Drafting Committee.

80. Mr. WAITITU (Kenya) said he understood that UNCITRAL considered it more in keeping with the spirit of international conventions and agreements if their texts were free from any notion of compulsion. He was not sure whether the amendment proposed by the representative of the United Kingdom would not introduce such a notion.

81. Mr. ROMAN (Assistant Secretary of the Committee) said he believed that there was a tendency, in the English text of agreements deposited with the Secretary General, to use the jussive future rather than the present tense in provisions such as those to which the United Kingdom proposal was directed.

82. Mr. PFUND (United States of America) observed that the present tense was used in the English text of the Final Act of the United Nations Conference on the Carriage of Goods by Sea. In view of the uncertainty, therefore, it might be wise to refer the matter to the Drafting Committee.

83. The CHAIRMAN, replying to a question from Mr. MAKAREVITCH (Ukrainian Soviet Socialist Republic), said it was his understanding that the Drafting Committee would be responsible for checking the texts, in all the language versions, of amendments agreed upon by the Committee, rather than the full texts of all the articles adopted by it. It was also his understanding that the United Kingdom proposal involved purely linguistic improvements in the English draft alone. In the light of the discussion, however, it might be advisable to transmit that proposal to the Drafting Committee.

84. It was so decided.