LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

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

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)

94	Article C [became CISG article 94 ] (continued)

1. The CHAIRMAN said that as the ad hoc working group appointed to consider article C [became CISG article 94 ] was still deliberating further discussion of the article by the Committee should be postponed.

2. It was so agreed.

91	Article F [became CISG article 91 ] (continued)

3. Mr. ROMAN (Assistant Secretary of the Committee) said that an amendment had been proposed to article F [became CISG article 91 ], already approved by the Committee, whereby the words "by all States" would be inserted after the words "shall remain open for signature" in the third line of paragraph 1. The Secretariat was in favour of the addition.

4. The CHAIRMAN said that, as he heard no objection, he took it that the addition to article F [became CISG article 91 ], paragraph 1, was approved.

5. It was so decided.

100	Article E [became CISG article 100 ] (continued) (A/CONF.97/C.2/L.11)

6. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that his delegation wished to propose a rather tardy amendment to article E [became CISG article 100 ]. The document was still in the course of preparation and he wondered whether the Committee would prefer to postpone consideration of the matter until it had been circulated or whether it would allow him to make an oral presentation.

7. Mr. SAM (Ghana) said he thought that the representative of the USSR should be permitted to present his amendment orally and the Committee should then decide whether or not it would be necessary to postpone the discussion.

8. Mr. PIRC (Czechoslovakia) thought that it would be preferable not to consider the amendment until it was available in writing.

9. Mr. FRANCHINI-NETTO (Brazil) wished to know whether there was a specific article on reservations to the Convention. He would revert to the matter after consideration of the Soviet proposal.

10. Mr. HERBER (Federal Republic of Germany) said he thought that the Soviet representative should be allowed to present his delegation's amendment orally, so as to save the time of the Committee.

11. The CHAIRMAN said that the feeling in the Committee seemed to be that the representative of the Soviet Union should be permitted to present his delegation's amendment orally.

12. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that the draft of article E [became CISG article 100 ] as prepared by the Secretariat (A/CONF.97/6) and the proposal by the ad hoc working group (A/CONF.97/C.2/L.11) might give the impression that the Convention would enter into force for countries that had not acceded to it. Such a provision would not be in accordance with the international law applying to agreements between States, particularly article 34 of the Vienna Convention on the Law of Treaties which stated that a treaty did not create either obligations or rights for a third State without its consent, and an amendment therefore seemed to be necessary.

13. It was accordingly proposed in his delegation's draft amendment [subsequently circulated as document A/CONF.97/C.2/L.20] that in paragraph a, the words "or after" should be deleted, and the words "the States in which the parties have their places of business" replaced by "that State or later" and that in paragraph b, the words "or after" should be deleted and the words "the States in which the parties have their places of business" replaced by the words "that State or later".

14. Such a formulation would reflect the terms of the corresponding article in the Prescription Convention without interfering in any way with the application of article 1 of the draft Convention.

15. The CHAIRMAN enquired whether the Committee considered the proposal too complex to discuss before its submission in a written form.

16. Mr. PLANTARD (France), supported by Mr.LOW (Canada), thought that the discussion should be postponed until the amendment was available in writing.

17. Mr. HERBER (Federal Republic of Germany) noted that the members of the ad hoc working group had not yet introduced their proposal (A/CONF.97/C.2/L.11). The authors of that proposal had certainly not intended to make the provisions of the Convention binding on non-Contracting States. The matter was clearly, therefore, a question of drafting.

18. The impression received by the Soviet delegation might perhaps have arisen from the fact that the second line of article E (1) [became CISG article 100(1) ], as proposed by the working group, used the term "Contracting State or States", which had been interpreted as meaning a Contracting State or non-Contracting States. If that were so, the misunderstanding could be removed by inserting a second "Contracting" before the word "States".

19. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that his delegation could accept any wording that would exclude the possibility of an interpretation to the effect that the Convention would come into force for non-Contracting States.

20. Mr. PLANTARD (France) said that there was no such ambiguity in the French text of document A/CONF.97/C.2/L.11. It had been quite clear in the ad hoc working group that article E [became CISG article 100 ] was intended to refer only to Contracting States. If that meaning could be clarified in the other languages, the Soviet amendment might not perhaps be necessary.

21. Miss O'FLYNN (United Kingdom) said that any possible ambiguity should be removed. That could be done either by referring to subparagraphs (a) and (b) of article 1 [became CISG article 1 ] instead of simply to article 1, or, as the representative of the Federal Republic of Germany had suggested, by inserting the word "Contracting" before the word "States" in paragraph 1 and in the penultimate line of paragraph 2.

22. Mr. LOW (Canada) said that the textual ambiguity could be avoided by replacing the word "the" before the words "Contracting State" by the word "any".

23. Miss O'FLYNN (United Kingdom) did not think that the solution suggested by the representative of Canada was adequate; the Convention could then be understood to apply if it was in force for any one of the Contracting States referred to in article 1 [became CISG article 1 ]. In her view, the text proposed by the ad hoc working group would be clearer if, in addition to inserting the word "Contracting" before the word "States", as the representative of the Federal Republic of Germany had suggested, the positions of the words "Contracting States" and "Contracting State" were reversed; in other words, if the plural preceded the singular. That would follow the order adopted in article 1(a) and (b) of the Convention [became CISG article 1(a) and (b) ].

24. Mr. AL-TAWEEL (Iraq) said that it was difficult to assess a legal text on the basis of an oral presentation. Unless the Soviet delegation wished to withdraw its amendment in the light of the comments made by some speakers, it should submit the amendment in writing.

2S. Mr. PLANTARD (France) said that the French text of the working group's proposal was perfectly clear and required no amendment. He hoped that the Soviet delegation would not insist on its amendment if the text in the other languages were brought into line with the French text, possibly by adopting the suggestion made by the representative of the Federal Republic of Germany with regard to the English text.

26. Mr. FOKKEMA (Netherlands) said he endorsed those comments.

27. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that the insertion of the word "Contracting" before the word "States" in both paragraphs of the English and Russian versions of the text of article E [became CISG article 100 ], as proposed by the ad hoc working group, would meet the point he had raised.

28. Mr. LI Chih-min (China) said that, like the French version, the Chinese text was satisfactory as it stood and required no amendment.

29. Mr. BENNETT (Australia) said that the English text of the working group's proposal was not wholly satisfactory. He had been attracted by the Canadian representative's suggestion that the word "any" should be substituted for the word "the", but had been convinced by the United Kingdom representative that the definite article served a purpose, the precise nature of which, however, still eluded him. The difficulty was that the text was too elliptical, and he wondered whether the Drafting Committee should not be requested to re-examine and, possibly, to recast the clause in question.

30. Mr. SAM (Ghana) suggested that, before the Committee proceeded any further with the discussion on article E [became CISG article 100 ) ], the proposal by the ad hoc working group should be formally introduced.

31. Mr. PLANTARD (France) and Mr. BECK-FRIIS (Sweden) supported that suggestion.

32. Mr. FOKKEMA (Netherlands), speaking as a member of the ad hoc working group, introduced the proposal. He said that the working group had been faced with two problems: first, the fact, pointed out by the representative of Japan, that the Secretariat draft did not adequately cover cases where the Convention applied as a result of paragraph 1(b) of article 1 [became CISG article 1 ]; and, secondly, the possibility that one of the Contracting States concerned might have acceded to the Convention at a date subsequent to the Convention's entry into force for the other Contracting State concerned. In trying to deal with those two problems, the working group had possibly erred on the side of excessive brevity, and the proposed text could perhaps be expanded; he believed, however, that the working group's intention was sufficiently clear.

33. The CHAIRMAN said that the proposal had been formally introduced and was before the Committee for discussion.

34. Mr. WAGNER (German Democratic Republic) said that he supported the working group's proposal with the incorporation of the drafting amendments that had been suggested.

35. Mr. LI Chih-min (China) said that, while he appreciated the working group's efforts and the explanations given by the Netherlands representative, he felt that the proposal, which differed substantially from the original draft, required further clarification. In particular, the Secretariat draft spoke of contracts proposed or concluded on or after the date of entry into force of the Convention, while the working group's proposal referred to contracts proposed or concluded before the Convention's entry into force. It was his delegation's view that, before its entry into force, the Convention did not exist.

36. Mrs. BELEVA (Bulgaria) said that she accepted the text of the proposal in its French version and also agreed with the proposal to amend the English text by inserting the word "Contracting" before the word "States". She drew attention to the fact that paragraph 2 of the proposal spoke of the "formation of contracts" whereas paragraph 1 referred only to "contracts", and suggested that the order of the paragraphs might be reversed.

37. Mr. LOW (Canada) said he agreed with the representatives of Australia and China that the working group's text was somewhat lacking in clarity. In particular, he was not entirely satisfied with the use of the phrase "in respect of " in the English text or " à l'égard du ou des" in the French text. The idea behind the proposal was clear, but he was not convinced that the text as it stood fully achieved its purpose.

The meeting was suspended at 11.30 a.m. and resumed at 11.50 a.m.

38. Mr. BECK-FRIIS (Sweden), referring to the proposal by the ad hoc working group (A/CONF.97/C.2/L.11), said that his delegation could support the proposal as amended to bring the English version into line with the French one, although it would not object if other delegations thought that further work was required to clarify the text.

39. Mr. SAM (Ghana) said that the proposal constituted a distinct improvement in the text of article E. A clear distinction needed to be made between article 1 [became CISG article 1 ] of the Convention, which concerned the sphere of application of the whole Convention, and article E [became CISG article 100 ] which concerned only the date of its application by a Contracting State. He pointed out that the existing text of article E [became CISG article 100 ] referred to Contracting States applying the provisions of the Convention, while the text of the proposed amendment contained the negative expression "does not apply". His delegation saw no ambiguity in the phrase "Contracting State or States" and agreed with the representative of France that the text was clear if read not in isolation but in conjunction with article 1 [became CISG article 1 ]. He therefore supported the proposal subject to any amendments which might be made by other delegations.

40. Miss O'FLYNN (United Kingdom) said that her delegation, which also supported the substance of the proposal, was of the opinion that the amendments discussed were of a drafting nature. It supported the Bulgarian proposal that the two paragraphs should be transposed so that reference would be made to formation of contracts and then to contracts.

41. Mr. LI Chih-min (China) said that his delegation was concerned about two points; the wording used in respect of the date of application of the Convention to contracts, and the negative wording employed in the article. It was not able to take up a definite position until the article had been further clarified.

42. Mr. FOKKEMA (Netherlands), commenting on the observations by several delegations that the formula used in the proposed amendment was a negative one, explained that a question of intertemporal law was involved. The Convention would normally apply as soon as there was a contract between parties who both had their places of business in Contracting States or between parties one of whom had his place of business in a Contracting State the legislation of which was applicable under the rules of private international law. In exceptional cases only, there might be an instance of a contract that had not yet been concluded or was not yet in formation on the relevant date to which the Convention would not apply.

43. In response to the comment by the representative of Canada, he pointed out that the text of the amendment read: "contracts concluded before its entry into force in respect of the Contracting State" and not "Contracts concluded . . . in respect of" with a parenthetical phrase: "before its entry into force". There were two important moments in time as far as the application of the Convention was concerned: the first, which was referred to elsewhere in the Convention, was when the Convention entered into force with regard to a State and the second, which article E [became CISG article 100 ] attempted to define, was when the contract was concluded or at a decisive point of time in its formation.

44. Mr. PLANTARD (France) proposed that article E [became CISG article 100 ] should be placed after article J [became CISG article 99 ], the article from which it derogated, since that order would clarify both articles.

45. Mr. FOKKEMA (Netherlands) said that his delegation was able to support the French proposal.

46. Mr. SONO (Japan), who also supported the French proposal, said he was convinced that without article E [became CISG article 100 ] traders might find themselves in a difficult position. The change in the positions of articles E [became CISG article 100 ] and J [became CISG article 99 ] might also allay the misgivings of the representatives of Canada and China.

47. Mr. SAM (Ghana) said that his delegation supported the Bulgarian proposal to invert the paragraphs, as that would bring the proposal into line with the existing text of article E [became CISG article 100 ].

48. Mr. LOW (Canada) said that inversion of the paragraphs would mean that the article would be more in keeping with article 1 [became CISG article 1 ] of the Convention and with the normal process of concluding a contract. It might also perhaps assist in interpretation, since the literal ambiguity to be found in paragraph 1 was absent from paragraph 2.

49. Mr. HERBER (Federal Republic of Germany) said that he had been reluctant to agree to the inversion. The reason why the working group had opted for the order of paragraphs to be found in its proposal was that the first paragraph, dealing with the application of the Convention to contracts and corresponding to Part III of the Convention, was much more important than the second one. However, if the text read as well when inverted, he would not object to the proposal.

50. Mr. FOKKEMA (Netherlands) said that his delegation was able to support the Bulgarian proposal but that a slight change would be required in the French version of paragraph 2, which, as it stood, obviously needed a paragraph to precede it. It would have to begin, as in the English, "This Convention does not apply. . . ."

51. The CHAIRMAN noted that there appeared to be no objection to the external modifications proposed, i.e. the inversion of paragraphs 1 and 2, with the relevant drafting changes in the new initial paragraph of the French text, and the placing of article E [became CISG article 100 ] after article J [became CISG article 99 ]. He took it that the Committee wished to approve the proposal by the working group (A/CONF.97/C.2/L.11), as thus amended.

52. It was so decided.

53. Recalling the earlier discussion on the subject, Miss O'FLYNN (United Kingdom) formally proposed that, in each of the two paragraphs of article E [became CISG article 100 ] as drafted by the working group, the phrase "in respect of the Contracting State or States . . ." be replaced by the phrase "in respect of the Contracting States or the Contracting State . . ." That addition would -- she believed -- clarify the text and relate it more effectively to article 1 [became CISG article 1 ].

54. Mr. LOW (Canada) said that he did not consider that the insertion of the word "Contracting" -- as proposed by the United Kingdom delegation -- was necessary in both paragraphs.

55. Mr. SAM (Ghana) said that the proposal should be transmitted to the Drafting Committee for examination.

56. After a discussion, in which Mr. AL-TAWEEL (Iraq), Mr. SAM (Ghana), Mr. WAITITU (Kenya) and Mr. FOKKEMA (Netherlands) took part, on the problem of ensuring the conformity of all the language versions, the CHAIRMAN observed that the proposed amendment had met with no formal opposition. He therefore concluded that the Committee was able to accept the amendment, but that it would wish the Drafting Committee to ensure that there were no discrepancies between the different language versions of the amended text.

57. It was so decided.

58. Article E [became CISG article 100 ], as amended, was adopted, subject to examination by the Drafting Committee.

99	Article J [became CISG article 99 ] (A/CONF.97/C.2/L.8, L.12, L.12/Corr. 1 (French only), L.17)

59. Mr. ROMAN (Assistant Secretary of the Committee) said that document A/CONF.97/C.2/L.17 contained a revised version of article J [became CISG article 99 ], replacing that contained in document A/CONF.97/6, which had been prepared by the Office of Legal Affairs subsequent to the issuance of the latter document.

60. Members of the Committee would note, inter alia, that account had been taken in the revised draft of the suggestion by the United Kingdom, in document A/CONF.97/C.2/L.12 (with a corrigendum affecting the French text only), that the question of the date on which denunciations of the 1964 Conventions should become effective could not be determined in the provisions of the new Convention, since that was a matter governed by the texts of the 1964 Conventions themselves. The Secretariat concurred with that view, and the original draft of paragraphs 3, 4 and 5 of article J [became CISG article 99 ] had been modified accordingly.

61. In connection with the above consideration, moreover, a new text had been prepared for paragraph 6, which was a procedural measure designed to ensure coordination between the entry into force of the new Convention and the cessation of effect of the 1964 Conventions. The Secretariat believed that the co-ordination would be such as to permit the 13-month period after the date of deposit of the [tenth] instrument, as initially proposed, to be reduced to 12 months, and had revised the draft text of article J (1) [became CISG article 99(1) ] accordingly.

62. The Secretariat further approved, as more appropriate, the United Kingdom proposal in document A/CONF.97/C.2/L.8 that the words "(including an instrument which contains a declaration pursuant to article G [became CISG article 92 ])" be substituted for the words in round brackets in the original draft of paragraph 1.

63. The CHAIRMAN noted that the relevant documentation had not yet been distributed in all the working languages, and suggested that consideration of article be deferred.

64. It was so agreed.

96	Article (X) [became CISG article 96 ] (continued) (A/CONF.97/DC/L.3)

65. Mr. SONO (Japan) observed that document A/CONF.97/DC/L.3, containing the text of draft articles as adopted by the Second Committee for consideration by the Drafting Committee, neglected to point out that the Drafting Committee had also been entrusted with the task of harmonizing the language of article (X) [became CISG article 96 ] with that employed in other parts of the draft Convention [A/CONF.97/C.2/SR.3, paragraphs 20 and 21 ]. He reiterated his own concern that it should be made perfectly clear that the declarations referred to in that article could not be applied retroactively.

66. Mr. ENDERLEIN (Secretary of the committee) agreed that such a decision had been taken. The Drafting Committee would also be asked, inter alia, to ensure that the text of article (X) [became CISG article 96 ] was compatible with that adopted by the First Committee for article 11 [became CISG article 12 ].