LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

The meeting was called to order at 10.10 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) (A/CONF.97/C.1/L.10, L.23)

1. Mr. ENDERLEIN (Secretary of the Committee) recalled that at its third meeting [see A/CONF.97/C.2/SR.3, paras. 69 - 86], the Committee had examined the proposal of the ad hoc working group for article C [became CISG article 94 ] (A/CONF.97/C.2/L.10). The working group's draft for paragraphs 1 and 2 had met with no major objections, but paragraph 3 continued to present difficulties. Consideration of that paragraph had been deferred pending further consultations.

2. Mr. FOKKEMA (Netherlands), introducing document A/CONF.97/C.2/L.23 said that the new proposal for paragraph 3 which it contained reflected an attempt to accommodate the view expressed by many members of the Committee that it would be undesirable for the text to imply that, when a non-Contracting State which was the object of a declaration made under paragraph 2 of article C [became CISG article 94 ] became a Contracting State, its silence with regard to that declaration signified assent to its continued application. Thus, where the text of paragraph 3 in document A/CONF.97/C.2/L.10 would oblige that State to declare formally that it could no longer accept a unilateral declaration made in its respect by a Contracting State at a time when it was not itself a party to the Convention, the new text proposed by the Netherlands would take account of the changed situation by making the declaration itself subject to the provisions of paragraph 1. In other words, what had originally been a unilateral declaration by a Contracting State with regard to a non-Contracting State, in accordance with paragraph 2, would become a declaration in accordance with paragraph 1, and thus invite a joint or reciprocal unilateral declaration by the other (new) Contracting State.

3. Mr. LOW (Canada) said that the text before the Committee appeared to resolve on outstanding problem, on which much time had been spent already, in a substantially adequate and relatively clear manner. In a spirit of compromise, and with the aim of expediting the Committee's work, he could accept the provisions contained therein.

4. Mr. PLANTARD (France) also found the proposal acceptable. The text, which was certainly an improvement on that contained in document A/CONF.97/C.2/L.10, might perhaps be made even more explicit by the insertion of the word "unilateral" between "object of a" and "declaration" in the first phrase, but that could be a matter for the Drafting Committee to decide.

5. Notwithstanding that expression of approval, he wished to suggest that the new drafting of paragraph 3 underlined a deficiency in paragraph 1. Nothing was said in the latter concerning the consequences, for the Contracting States concerned, of a unilateral declaration made by one of them which was not reciprocated by the other. He believed that it should be made clear in the text that such a declaration would be without effect.

6. Mr. PFUND (United States of America) said that both the Netherlands proposal and the text of paragraph 3 as drafted by the working group appeared to assume that a unilateral declaration by a Contracting State in respect of a non-Contracting State would continue to have effect when the latter became a party to the Convention. Since, however, there was a wider operative assumption that States becoming parties to the Convention would be bound by that action in respect of those which had become Participating States at an earlier date, it might be advisable to provide for affirmative action -- at least by the new Contracting State, if not by both -- as far as the exception set out in paragraph 1 was concerned.

7. Mr. ENDERLEIN (Secretary of the Committee) suggested that the situation might be clarified by the addition, at the end of the Netherlands version of paragraph 3, of the phrase "provided that the new Contracting State joins in such a declaration or makes a reciprocal unilateral declaration".

8. Mr. FOKKEMA (Netherlands) agreed in the light of the discussion that his proposal might usefully be made more explicit. In response to the observation by the representative of France concerning paragraph 1, he expressed the opinion that the expression "Two or more Contracting States . . . may at any time declare . . .", together with the subsequent details concerning the manner of that declaration, implied that a unilateral nonreciprocal declaration would be without effect as far as the provisions of the paragraph were concerned. More accurately, and by analogy with private law, the effect of such a declaration would depend on the response to an offer, pending which -- as a legal act with some significance -- it would remain incomplete.

9. If it were deemed necessary to clarify the situation, he would be able to agree to the addition, at the end of paragraph 3, of a phrase similar to that suggested by the Secretary. His own preference would be for the words: "and will be open to completion by a reciprocal declaration by the new Contracting State".

10. Mr. BENNETT (Australia) said he endorsed the views expressed by the representative of the United States, and concurred with the Secretary's suggestion. His basic concerns were, firstly, that article C [became CISG article 94 ] should provide for the Convention to be rendered inapplicable, by means of joint or reciprocal declarations, where two Contracting States were involved; and, secondly, that provision should be made for unilateral action only where one of the States was a non-Contracting State.

11. During the Committee's earlier discussions, he had expressed and explained his reservations with regard to a solution whereby the former non-Contracting State would be required to declare that it could no longer accept a declaration of which it had been the object under paragraph 2. On condition that the text finally adopted by the Committee provided for positive action on the part of both of the Contracting States in question to indicate that they wished the declaration of inapplicability to remain in effect, he would not be overconcerned as to the manner in which it was drafted.

12. Miss O'FLYNN (United Kingdom) said that, although the Committee's earlier discussion of article C [became CISG article 94 ] had shown that there was no ideal solution to the problem posed by the later accession to the Convention of a non-Contracting State, which was the object of a declaration under article C [became CISG article 94 ], an effort had nevertheless to be made to provide one that was acceptable. On the whole, her delegation preferred the approach suggested by the United States representative and endorsed by the representative of Australia. It differed slightly from that of the Netherlands proposal (A/CONF.97/C.2/L.23), but she believed that the aim of the latter, with the modifications put forward by the Secretariat, was essentially the same, namely to make it clear that a non-Contracting State was bound by the declaration only when it had given a clear indication of its desire to be so. She would therefore support the Netherlands proposal as amended by the Secretariat.

13. Mr. PFUND (United States of America), replying to a question by Mr. SONO (Japan), said that he thought that the wording proposed by the Secretary of the Committee provided adequately for the concerns his delegation had expressed.

14. The addition, at the end, of the further words "of its own" would make the position completely clear.

15. Mr. SONO (Japan) thought that the suggested modifications completely reversed the purport of the Netherlands proposal.

16. Mr. WAITITU (Kenya) thought that the proviso suggested by the Secretariat was superfluous, if the declaration referred to in the third line of the Netherlands proposal was a declaration made by the new Contracting State.

17. Mr. SAM (Ghana) said he had the impression that the United States view and the wording suggested by the Secretariat were very close. To be quite sure, he asked the Secretary to read out the whole text of paragraph 3 as proposed by the representative of the Netherlands and amended by the Secretariat and the representative of the United States.

18. Mr. ENDERLEIN (Secretary of the Committee) said that the text of paragraph 3, as proposed by the ad hoc working group in document A/CONF.97/C.2/L.10, had contained a provision that a declaration under paragraph 2 would remain in effect. Majority opinion in the Committee had clearly been opposed to that solution; accordingly, the Netherlands proposal reversed the effect, and provided that a unilateral declaration under paragraph 2, though it would continue to exist, would be an offer merely and would have no effect unless responded to by the new Contracting State. With the addition proposed by the Secretariat, the position became quite clear. The full text of paragraph 3 would then run:

19. The CHAIRMAN proposed that, in view of the pressure of time, the debate on paragraph 3 should be closed.

20. Mr. SONO (Japan) opposed the proposal, on the grounds that other important matters remained to be discussed.

21. Mr. FOKKEMA (Netherlands) said that he encountered no problem of substance in the wording proposed by the Secretariat. He felt, however, that the article should go to the Drafting Committee to be put into its final form.

22. The CHAIRMAN said that majority opinion seemed to favour closure of the debate and asked the Japanese representative whether he maintained his opposition.

23. Mr. SONO (Japan) said that he would withdraw his objection but would be obliged to abstain from voting on the proposed text.

24. The CHAIRMAN said that, as he heard no objection, he would declare the debate on article C (3) [became CISG article 94(3) ] closed.

25. It was so decided.

26. The CHAIRMAN said that, as there seemed to be a clear majority in favour of the text read by the Secretary, he would, in the absence of any objection, take it that the Committee wished to approve the text proposed by the delegation of the Netherlands, as supplemented by the Secretariat and the representative of the United States, on the understanding that it would be sent to the Drafting Committee to be put into its final form.

27. It was so decided.

28. Mr. SAM (Ghana), speaking in explanation of vote, said that he had agreed to the proposal only because the text was to be submitted to the Drafting Committee.

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

Paragraph 1

29. Mr. ENDERLEIN (Secretary of the Committee) said that, as the Assistant Secretary had informed the Committee during its earlier discussion of article J [became CISG article 99 ], the revised text of the article (A/CONF.97/C.2/L.17) took account of the points raised by the delegation of the United Kingdom in document A/CONF.97/C.2/L.12. Consequently, only the proposal by the same delegation in document A/CONF.97/C.2/L.8 remained to be dealt with. He suggested that the Committee should discuss the article paragraph by paragraph.

30. Two main topics were covered in paragraph 1, the number of instruments of ratification required for the Convention to enter into force, and the time that must elapse between the deposit of the last ratification and actual entry into force.

31. Miss O'FLYNN (United Kingdom), introducing her delegation's amendment to paragraph 1 (A/CONF.97/C.2/L.8), said that the longer formulation within brackets in the Secretariat text was not acceptable because it was not in an instrument of ratification, acceptance, approval or accession that a State declared itself not to be bound by the provisions of Part II or Part III of the Convention. Such a declaration was made at the time of the deposit of an instrument of ratification etc. The formulation in the original paragraph 6 of article J [became CISG article 99 ] (A/CONF.97/6) was thus more accurate, as well as being briefer and simpler.

32. Mr. SAM (Ghana) supported the United Kingdom proposal.

33. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) asked whether the text proposed by the United Kingdom was intended to replace paragraph 1 or only to amend it.

34. Miss O'FLYNN (United Kingdom) said that the text was intended only as a substitute for the part in brackets in the Secretariat's revised version of paragraph 1.

35. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that under article G(1) [became CISG article 92(1) ], a State might declare at the time of signature, ratification, acceptance or accession that it would not be bound by the provisions of Part II or Part III. The United Kingdom amendment to article J [became CISG article 99 ] seemed to refer only to an instrument of ratification, and was thus not in keeping with the terms of article G [became CISG article 92 ].

36. Mr. LOW (Canada) said that the word "instrument" in the text proposed by the United Kingdom should be understood as being inclusive, that is, as covering instruments of ratification, acceptance, approval or accession. He saw no difference in substance between the formulation proposed by the United Kingdom and the text of paragraph 1 of article J [became CISG article 99 ] as it appeared in document A/CONF.97/C.2/L.17; the United Kingdom text was, however, simpler and he supported it for that reason.

37. Miss O'FLYNN (United Kingdom) agreed with the interpretation offered by the representative of Canada.

38. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that he was prepared to accept the United Kingdom proposal, on the understanding that the Russian text would be appropriately modified in the Drafting Committee.

39. Mr. PLANTARD (France) said that, if he had to choose between the two passages appearing in brackets, he would choose the United Kingdom text as being both simpler and clearer. His first preference, however, was for a text ending with the word "accession", the passage in brackets being deleted as superfluous.

40. Mr. LOW (Canada) said that the suggestion just made by the French representative had a substantive policy element. If the passage in brackets were deleted, the question would arise whether the Convention would enter into force if some of the States parties were bound by it only in part.

41. Mrs. BELEVA (Bulgaria) said that, far from being superfluous, the passage in brackets was both useful and important. She supported the United Kingdom proposal.

42. Mr. WAITITU (Kenya) agreed with the preceding speaker.

43. The CHAIRMAN invited the Committee to vote on the French proposal to delete the passage in brackets starting in the fourth line of paragraph 1 of article J [became CISG article 99 ].

44. The proposal was rejected.

45. The United Kingdom proposal, contained in document A/CONF.97/C.2/L.8, was adopted unanimously.

46. The CHAIRMAN invited the members of the Committee to give their views on the word "tenth" appearing in square brackets in the third line of paragraph 1.

47. Mr. TARKO (Austria) suggested that, in the interests of bringing the Convention into force as soon as possible, the word "tenth" should be replaced by the word "sixth".

48. Mr. PLANTARD (France) said that, in his view, ten instruments represented a minimum. If the Convention was to have a genuine unifying effect and replace the 1964 Hague Conventions, the number of States parties should be at least as great as, and if possible greater than, the number of parties to each of those Conventions.

49. The CHAIRMAN invited the Committee to vote on the Austrian proposal to replace the word "tenth" by the word "sixth".

50. The proposal was rejected.

51. It was decided that the square brackets around the word "tenth" should be deleted.

52. Paragraph 1, as amended, was adopted.

Paragraph 2

53. Mr. SAM (Ghana) suggested, for the sake of simplicity, that the words "the [tenth] instrument . . . has been deposited" in the second and third lines of the paragraph should be replaced by the words "it has entered into force". The beginning of the paragraph would then read as follows:

54. Mr. ENDERLEIN (Secretary of the Committee) explained that the fact that the tenth instrument of ratification, acceptance, approval or accession had been deposited did not mean that the Convention had entered into force; a further 12 months had to elapse before that was the case. A State might ratify, accept, approve or accede to the Convention less than 12 months after the tenth instrument had been deposited.

55. Mr. SAM (Ghana) said that, in view of the explanation given by the Secretary of the Committee, he withdrew his suggestion.

56. The CHAIRMAN suggested that the square brackets around the word "tenth" in the second line of the paragraph should be deleted.

57. It was so decided.

58. Miss O'FLYNN (United Kingdom) reminded the Committee that her delegation had submitted certain drafting amendments to paragraphs 1 and 2 of article J [became CISG article 99 ] (A/CONF.97/C.2/L.6).

59. The CHAIRMAN said that the amendments in question had been referred to the Drafting Committee.

60. Paragraph 2, as amended, was adopted.

61. Mr. AL-TAWEEL (Iraq) said that he felt that paragraphs 4 and 5 of the existing text might be replaced by an addition to paragraph 3 in order to make the article shorter. Paragraph 4 referred to States which denounced the 1964 Hague Sales Convention and paragraph 5 to States which denounced the 1964 Hague Formation Convention, while paragraph 3 referred to both Conventions. He therefore proposed that the words "as shall any State which declares that it will not be bound by the provisions of Part II, Part III or Parts II and III of this Convention" should be added to paragraph 3.

62. The CHAIRMAN said that, in his view, the Iraqi proposal did not prevent a decision being taken on paragraph 3. He assumed therefore that, in the absence of any further comment and with the reservation that the Iraq proposal would be studied when paragraphs 4 and 5 were considered, the Committee wished to approve paragraph 3.

63. It was so decided.

64. Mr. ENDERLEIN (Secretary of the Committee) said that the Secretariat felt that the Iraqi proposal was an interesting one and that paragraphs 4 and 5 might be replaced by the simple addition to the first line of paragraph 3 of the words "in whole or in part" so that paragraph 3 would begin "A State which in whole or in part ratifies . . . ".

65. Mr. AL-TAWEEL (Iraq), replying to a question from the Chairman, said that his delegation accepted the Secretariat's suggestion, which would make the text of the article both clearer and shorter.

66. Mr. PLANTARD (France) said that, while the Secretariat's proposal as it stood was satisfactory from a logical point of view, it might not be equally satisfactory from the point of view of international law and might require drafting changes. With that reservation, his delegation was able to support the proposal.

67. Mr. ROMAN (Assistant Secretary of the Committee) said that, while the Secretariat quite understood the reticence on the part of the French delegation, the expression "partially or wholly" had been used on a number of occasions and had always been applied to a ratification accompanied by a reservation in respect of a part or parts of a convention. In the Secretariat's view, the text as proposed would not produce major difficulties in view of existing practice.

68. Mr. LANDFERMANN (Federal Republic of Germany) said that his delegation was against the proposal, which it felt was an oversimplification. A State that had ratified only one of the 1964 Hague Conventions and subsequently ratified the new Convention in part only would not need to denounce the old Convention if it did not cover the same field as that covered by the later, partial ratification.

69. That position was explained in paragraphs 4 and 5, and he thought it would be difficult, if not impossible, to condense those paragraphs into a single sentence. The existing paragraphs 4 and 5 were satisfactory.

70. Mr. LOW (Canada) said that his delegation had some sympathy for the Iraqi proposal. However, while it might be thought that paragraphs 4 and 5 were too long, they were accurate and clear and, if there was no objection of a substantive nature, he proposed that they should be adopted as they stood in order to expedite the Committee's work.

71. Paragraphs 4 and 5 were adopted.

Paragraph 6

72. Mr. KULSDOM (Netherlands) said that the last sentence of paragraph 6 referred to consultation between the depositary of the Convention and the Government of the Netherlands as the depositary of the 1964 Conventions.

73. His Government was anxious to play its part in preventing any difficulties from occurring in connection with the ratification of the new Convention and the denunciation of the old Conventions. It took the view that it was the duty of a State which was, or had been, a party to the 1964 Conventions to ensure that the entry into force of the new Convention in its territory would take effect on the same date as the denunciation of the 1964 Conventions.

74. Mr. ROMAN (Assistant Secretary of the Committee) said that the necessary procedure was already in being, and that no difficulties were expected regarding consultation between the Secretary-General and the Netherlands Government on the subject of the Convention.

75. The CHAIRMAN said that, if there were no objection, he would take it that the Committee wished to adopt paragraph 6.

76. It was so decided.

97	Article H [became CISG article 97 ] (continued) (A/CONF.97/C.2/L.6)

77. Mr. ENDERLEIN (Secretary of the Committee) reminded the meeting that paragraphs 1, 2 and 6 of article H [became CISG article 97 ] had already been approved and that the discussion on paragraphs 3, 4, 5 and 7 had been postponed because the consideration of articles B and C [became CISG article 93 and CISG article 94 ], to which those paragraphs made reference, was not then complete.

78. Mr. LOW (Canada), supported by Mr. BENNETT (Australia), proposed that paragraphs 3 and 4 should be deleted.

79. The CHAIRMAN said that, if there was no objection to that proposal, he would take it that the Committee wished to delete paragraphs 3 and 4.

80. It was so decided.

81. Mr. PLANTARD (France) said he felt that the six month period imposed on States having made reciprocal or joint declarations was not justified. Where a declaration was made simultaneously with ratification, there was no difficulty but, in the case of a declaration made after that date, the period might be more of a disadvantage than an advantage, in view of the provisions of article C [became CISG article 94 ], and he proposed that it be reduced.

82. Mr. LOW (Canada) said that his delegation agreed with the French proposal, as declarations under article C [became CISG article 94 ] would seem to affect only the two or more States directly concerned.

83. Mr. BENNETT (Australia) said that his delegation endorsed the French proposal.

84. Mr. LANDFERMANN (Federal Republic of Germany) said that he hesitated to agree to the proposal since he felt that it was useful for some time to elapse between a declaration being made and the entry into effect, since that would enable all the parties concerned to become aware of the change in the law. It might be important for traders in some of the countries affected to know of the declaration before it took effect. He therefore preferred that the text remained unchanged.

85. Mr. SAM (Ghana) said that his delegation agreed with the previous speaker.

86. The French proposal to modify paragraph 5 was rejected.

Paragraph 7

87. Paragraph 7 was approved.

88. Mr. SONO (Japan), speaking on a point of procedure, asked whether complete votes could be taken in the future, with records of the numbers of delegations in favour, against and abstaining. The system used to date namely counting only those in favour, was not fully informative.

89. The CHAIRMAN said that he had taken note of the request by the representative of Japan and that the procedure he advocated would be adopted when convenient.