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)

101	Article K [became CISG article 101 ] (A/CONF.97/C.2/L.6, L.15, L.16)

1. Mr. ENDERLEIN (Secretary of the Committee) said that, of the three amendments, one proposed by the United Kingdom (A/CONF.97/C.2/L.6) had already been accepted. An amendment to paragraph 2 proposed by the United Kingdom (A/CONF.97/C.2/L.15) and an amendment proposed by the German Democratic Republic for a new paragraph 3 (A/CONF.97/C.2/L.16) remained to be considered. There were no amendments to paragraph 1.

Paragraph 2

2. Miss O'FLYNN (United Kingdom), introducing her delegation's amendment (A/CONF.97/C.2/L.15), said that it was of a purely drafting nature whose purpose was to clarify paragraph 2.

3. The CHAIRMAN said he took it that, in the absence of any objection, the Committee wished to approve paragraph 1 of article K [became CISG article 101 ] as it stood and to amend paragraph 2 as proposed by the United Kingdom delegation.

4. It was so decided.

5. Mr. WAGNER (German Democratic Republic) said that his delegation felt there was a need in article K [became CISG article 101 ] for a formula paralleling that in article E [became CISG article 100 ] which spelt out the relation between entry into force and application. It therefore proposed that a new paragraph 3 be added to clarify the relation between denunciation and application. Such a paragraph would make it clear that the formation of a contract would fall within the scope of the Convention only if the State or States was or were a Contracting State or Contracting States.

6. He recognized that the wording of the amendment would have to be brought into line with that of the articles which had already been approved.

7. Mr. PLANTARD (France) said that his delegation did not see the usefulness of such a paragraph. Once a denunciation became effective, the State concerned was by definition no longer a Contracting State and it was quite unnecessary to say that the Convention did not apply. The parallel with the formula used where a State became a Contracting State was an illusory one.

8. The proposal by the German Democratic Republic (A/CONF.97/C.2/L.16) was rejected by 7 votes to 3.

98	Article Y [became CISG article 98 ] (A/CONF.97/C.2/L.4)

9. Mr. TARKO (Austria) said that his delegation felt that it was important not to allow reservations to be made to the Convention since they would weaken it and give rise to uncertainty. The reservations permitted by article (X) [became CISG article 96 ] were acceptable as a compromise, but the lack of any provision that no other reservations were permissible would enable a State to make a reservation to any article as it saw fit. He therefore proposed that article Y [became CISG article 98 ] be added, so that no reservations other than those already agreed upon could be made.

10. As it stood, his delegation's amendment (A/CONF.97/C.2/L.4) referred to the initial wording of article (X) [became CISG article 96 ], as it had been put forward at the beginning of the Conference. In view of subsequent events, however, the proposed text should be revised to read: "No reservation or declaration other than those made in accordance with articles B, C, (X) or G [became CISG article 93 , CISG article 94 , CISG article 96 and CISG article 92 ] shall be permitted." The wording was, mutatis mutandis, identical with that of article 39 of the Prescription Convention.

11. Mr. PLANTARD (France) said that his delegation supported the Austrian amendment. Although the rule was already implicit in the Convention and it was reasonably clear that no exceptions other than those specified were permitted, its explicit inclusion was justified, particularly for the purpose of avoiding problems in regard to States which had not participated in the Conference and which might later wish to enter reservations incompatible with the spirit of the text.

12. He suggested that the paragraph should read: "No reservation or declaration other than those expressly provided for in this Convention shall be permitted."

13. Mr. ROMAN (Assistant Secretary of the Committee) pointed out, in connection with the Austrian amendment, that the proposal as amended appeared to specify that declarations in general were not permitted. As the purpose of the amendment was to prevent reservations and declarations which contained reservations, it might be sufficient to refer to "reservations" only so as to avoid including general declarations not containing reservations, such as those often made by States at the time of accession.

14. Mr. SONO (Japan) asked whether the text to be put to the vote was that proposed by the Austrian delegation, which included the word "declaration", or the text suggested by the Secretariat.

15. Mr. TARKO (Austria) said that his delegation had proposed that the word "declaration" be included because the final clauses referred only to declarations and there might be some confusion between declarations proper and declarations containing reservations.

16. If the sense was clear with the use of the word "reservation" alone, his delegation would agree to the omission of the word "declaration" but wished to keep the rest of the sentence as orally amended, i.e. including the reference to articles B, C, (X) and G [became CISG article 93 , CISG article 94 , CISG article 96 and CISG article 92 ].

17. Mr. SONO (Japan) said that his delegation would prefer to delete the reference to article B [became CISG article 93 ] as the meaning of the word reservation was rendered ambiguous thereby. He would welcome the Secretariat's views on that point.

18. Mr. ROMAN (Assistant Secretary of the Committee) said that the provisions of article B [became CISG article 93 ] did not, strictly speaking, constitute a reservation. He suggested the more general formula: "No reservations shall be permitted except those expressly authorized in this Convention. "

19. Mr. TARKO (Austria) said that his delegation was able to accept the Secretariat's suggestion.

20. Mr. SONO (Japan) said that, while his delegation could agree to the original Austrian proposal, it thought that the formula proposed by the Secretariat was more satisfactory, as it was not yet known whether the First Committee would adopt further provisions to which reservations might be permitted.

21. The CHAIRMAN invited the Committee to vote on new article Y [became CISG article 98 ], as orally revised.

22. New article Y [became CISG article 98 ] was adopted.

23. Mrs. BELEVA (Bulgaria) said that it seemed to her delegation that the wording in the last sentence of the clause, "being duly authorized by their respective Governments, . . ." did not necessarily correspond to national procedures. It might be preferable to delete the words "by their respective Governments".

24. Mr. ROMAN (Assistant Secretary of the Committee) said that the formula in question followed standard and well-established practice. In that connection, the word "Government" was used to cover the totality of powers represented by the State.

25. The CHAIRMAN, noting that the representative of Bulgaria accepted the Secretariat's explanation, invited the Committee to vote on the text as it stood.

26. The authentic text and witness clause was adopted unanimously.

Draft Protocol to the Convention on the Limitation Period in the International Sale of Goods (A/CONF.97/7; A/CONF.97/C.2/L.14, L.18, L.l9, L.21, L.22)

27. Mr. ENDERLEIN (Secretary of the Committee) explained that document A/CONF.97/C.2/L.18 contained a revised version of the text of the draft Protocol annexed to A/CONF.97/7. In view of the discussions in the First and Second Committees and of the texts of articles l-9 as adopted by the First Committee and of the articles in document A/CONF.97/6 as adopted by the Second Committee, the Secretariat intended to submit a new document covering the preamble and articles I-III, as a basis for discussion on the substance of that text. He suggested that, in the meantime, the Committee might wish to go on to discuss the desirability of the draft Protocol in general and articles IV-IX in particular.

28. Mr. SAM (Ghana) said he wondered whether, since the Secretariat was to produce a further document, it might not be prudent to postpone the discussion until all the documents were available.

The meeting was suspended at 10.50 a.m. and resumed at 11.35 a.m.

29. Miss O'FLYNN (United Kingdom) said that the Committee should first pronounce itself formally on the desirability of establishing a Protocol to the Convention on the Limitation Period in the International Sale of Goods.

30. Mr. WAGNER (German Democratic Republic) said it was important to ensure that, where States had ratified both the Prescription Convention and the new Convention, contracts between parties residing in those States would be governed by the two instruments, and not merely by the second. The establishment of a Protocol to the Prescription Convention was thus desirable. Such a step might, indeed, encourage States to ratify that instrument.

31. Mr. LANDFERMANN (Federal Republic of Germany) said he agreed with the previous speaker.

32. In the absence of dissenting views, the CHAIRMAN said he took it that the Committee wished to place on record its endorsement of the proposal that a Protocol to the Prescriptions Conventions be established.

33. It was so decided.

34. The CHAIRMAN invited the Committee to begin its detailed examination of the draft Protocol submitted by the Secretariat (A/CONF.97/C.2/L.18). The Preamble and the Final Provisions would be considered first.

Preamble

36. The Preamble was adopted, subject to final review by the Drafting Committee.

Final Provisions

Article IV

37. Article IV was adopted.

Article V

38. In reply to a question by Miss O'FLYNN (United Kingdom), Mr. ROMAN (Assistant Secretary of the Committee) drew attention to the first foot-note of the text prepared by the Secretariat, which explained why the language had been simplified.

39. He confirmed her understanding that the word "accession", as employed in the article, should be interpreted as a generic term covering actions such as acceptance or approval.

40. Article V was adopted.

Article VI

41. Mr. ENDERLEIN (Secretary of the Committee) pointed to an error in the texts of paragraphs 1 and 2, and the second foot-note. Article 44 of the Prescription Convention provided for initial entry into force after the deposit of ten, not six, instruments. The draft before the Committee should be corrected accordingly.

42. The Committee was required, during its examination of the article, to determine how many instruments of accession should be deposited before the entry into force of the Protocol and when the entry into force should take effect. As far as the latter question was concerned, the Secretariat would suggest that, in both paragraphs of the article, the incomplete phrase "on the first day of the month" should be completed by insertion of the word "sixth".

43. It was so decided.

44. The CHAIRMAN invited comments on the number of instruments to be deposited before the Protocol entered into force.

45. Mr. PLANTARD (France) opted for the first of the alternatives suggested by the Secretariat, namely two instruments.

46. Miss O'FLYNN (United Kingdom) said she preferred the second alternative of ten instruments.

47. Mr. LANDFERMANN (Federal Republic of Germany) agreed with the representative of France that the deposit of two instruments should be sufficient. It was important to ensure that the States, however few in number they might be, which wished to bring the Prescription Convention into line with the new Contracts Convention should be able to do so as rapidly as possible.

48. Mr. SAM (Ghana) endorsed the views of the previous speaker.

49. Mrs. KAMARUL (Australia) said she agreed with the representatives of France and Federal Republic of Germany. Paragraph 1 of the article, proviso (b), would ensure that the Protocol could not enter into force until the Contracts Convention came into force. The number of ratifications required for entry into force of both the latter and the Prescription Convention was already significant and once the Contracts Convention was in force, the Protocol should be given effect where adopted, as soon as possible. She consequently favoured the first of the alternatives suggested by the Secretariat.

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

51. There were 20 votes favour of the suggestion that two instruments of accession should be deposited for the Protocol to enter into force.

52. The suggestion was adopted.

53. Mr. FARNSWORTH (United States of America), Mr. PLANTARD (France) and Mr. LANDFERMANN (Federal Republic of Germany) queried the significance of the final sentence of paragraph 1 and -- more particularly -- of the words "If applicable" as employed in both paragraphs 1 and 2. The relationship between the various provisos was not altogether clear.

54. The CHAIRMAN suggested that, in view of the prevailing uncertainty on that point which appeared to derive from a matter of drafting rather than of substance, article VI, as completed by the Committee's two decisions, should be referred to the Drafting Committee.

55. It was so decided.

Article VII

56. Mr. KULSDOM (Netherlands) said that, under the existing text of article VII, any subsequent ratification of the 1974 Convention would be regarded as an accession to the Protocol provided that the State concerned notified the depositary accordingly. It was not entirely clear, however, at what moment such a notification was to be made. The article should indicate that it was to be made simultaneously with ratification or accession.

57. Mr. KAI (Japan) said he had a more fundamental question in regard to the article. He did not think that the implied reference to the rights and obligations of States as Contracting States to the 1974 Convention was legally appropriate in a Protocol the parties to which might be quite different from the parties to the Convention.

58. Mr. PLANTARD (France) said he too had doubts regarding article VII. The aim of the article seemed to be to encourage States subsequently ratifying the 1974 Convention to make a declaration to the effect that they acceded to the Protocol, in the absence of which they would be regarded as having acceded to the 1974 Convention but not to the Protocol. The 1974 Convention thus remained open for signature separately from the Protocol, and States could adhere to the Convention alone or to the Convention and the Protocol by means of separate act of ratification accompanied by a declaration.

59. The French text at any rate was unsatisfactory particularly the phrase "notifie le dépositaire" which was an anglicism. The correct construction was "notifier à".

60. Mr. ROMAN (Assistant-Secretary of the Committee) said that the French representative's objection was, of course, well-founded, although the verb "notifier" was increasingly used without the preposition, even in official texts.

61. The machinery proposed in article VII was intended to work in the following way: when a State deposited an instrument of accession it could, by making a notification, declare that the accession was equally valid for the Protocol.

62. The article was based on article 40, paragraph 5, of the 1969 Vienna Convention on the Law of Treaties, which had to do with the amendment of multilateral treaties. That paragraph read:

63. Article VII improved on that text by providing for a positive notification so that there would be no room for doubt regarding the intent of the State concerned to accede to the Protocol.

64. Mr. FARNSWORTH (United States of America) said that, as it stood, article VII was difficult to follow and he therefore suggested that it be referred to the Drafting Committee. His particular objection was that the article first stated a general rule and then added a proviso which detracted from that rule. It might be better to reverse the order of the phrase.

65. Mr. LANDFERMANN (Federal Republic of Cermany) thought that, if the article were redrafted along the lines proposed by the representative of the United States, it would become intelligible and no difficulty should arise. Such a change might also meet the concern of the representative of Japan.

66. He endorsed the proposal by the representative of the Netherlands that it should be clearly stated in the article that the notification had to be made at the moment of accession, so as to avoid any possible problem with respect to retroactivity.

67. Mr. PLANTARD (France) said that the Assistant Secretary of the Committee had interpreted article VII as being in conformity with the Vienna Convention on the Law of Treaties and as meaning, inter alia, that a State becoming a party to the amended Convention would also apply the unamended Convention to States which were parties to the Convention only and not to the Protocol amending it.

68. That was of course the general rule, but he wondered if it was really suitable for the Convention in question, whose sphere of application took into account the status of Contracting States vis-à-vis the places of business of the parties to a contract. The wording of the Protocol was such that, in order to determine whether the Convention was applicable -- and that was true of both the Prescription Convention and the Sales Convention -- it would be necessary to determine whether the parties had their places of business in Contracting States, understood in the broad sense of States Parties to the 1974 Convention and also to the Protocol.

69. The rule of the Vienna Convention might lead to practical difficulties in respect of application, especially in connection with paragraph (1)(b) of article 1, according to which the Convention would apply when the rules of private international law led to the application of the law of a Contracting State. There was a risk that the applicable law might be that of a State which was a party to the unamended Convention but not a party to the Protocol. The point was a very fine one, but he wondered whether the rule of the Vienna Convention was properly suited to the Convention under discussion.

70. Mr. LANDFERMANN (Federal Republic of Germany) said that, while the question posed by the representative of France was very interesting and very difficult to answer, he did not think that it was particularly relevant to article VII. Discussion of the matter could therefore be postponed until it was essential to resolve the question.

71. Mr. ROMAN (Assistant-Secretary of the Committee) said that the aim of the article was to avoid administrative difficulties. It sometimes happened that the Secretary-General as depositary received instruments of ratification or accession which, through administrative error, did not cover all the agreements in question. Article VII would make it possible to find out whether the State concerned wished to accede to the Protocol or, in other words, to the Convention as amended by the Protocol, and to remind it if necessary that an appropriate notification was required. The article was to some extent the counterpart of a proposal made by the Canadian representative.

72. Mr. SAM (Ghana) thought that the point made by the representative of the Netherlands would be met by the change proposed by the representative of the United States. If the United States proposal could be put into an exact form and adopted, the representative of the Netherlands might be able to withdraw his suggestion. The article as amended could then be sent to the Drafting Committee for a final version.

73. Mr. FARNSWORTH (United States of America) said that the same thought had occurred to him. The article with the change he suggested might not be quite as clear as it would be if amended along the lines proposed by the representative of the Netherlands, but it would, he felt, be sufficiently clear in the context.

74. He proposed therefore that article VII should read: "If the State concerned notifies the depositary accordingly, the ratification or accession effected in respect of the Convention of 12 June 1974 after the entry into force of this Protocol shall be considered to constitute an accession in respect of this Protocol." Such a wording would suggest that the notification should be at the same time as the accession or would at any rate make it harder to assume the contrary.

75. Mr. KULSDOM (Netherlands) said that the proposal by the representative of the United States met the point he had sought to make.

76. The CHAIRMAN said that, if there were no objection, he would take it that the Committee wished to approve article VII, as reworded by the representative of the United States and to forward it to the Drafting Committee to be put in final form.

77. It was so decided.

78. The CHAIRMAN invited the representative of Austria to introduce his delegation's proposal for the addition of a new article to the Protocol (A/CONF.97/C.2/L.22). The document referred to a new article 5 bis, but he was informed by the Secretariat that it would be more appropriate to include it as article VII bis.

79. Mr. TARKO (Austria) said that the discussion of article VII had shown that there could be parties to the unamended 1974 Convention and to the Convention as amended by the Protocol, but it was hard to imagine a State acceding to the Protocol if it were not a party to the 1974 Convention. To be on the safe side, however, it should be clearly stated that the accession to the Protocol of any State which was not a Contracting Party to the 1974 Convention would have the effect of an accession to the Convention as amended by the Protocol.

80. After hearing the Assistant-Secretary's explanation with regard to article V, he wished to revise his delegation's proposal to read: "Accession to this Protocol by any State which is not a Contracting Party to the Convention shall have the effect of accession to the Convention as amended by this Protocol."

81. Mrs. BELEVA (Bulgaria) supported the Austrian proposal as being in accordance with consistent international practice in regard to treaties.

82. Mr. LANDFERMANN (Federal Republic of Germany) said he did not know about the consistent international practice but thought that the question of which States were Parties to the Prescription Convention, and the manner in which it was to be ratified, had to be exclusively regulated by the Prescription Convention itself. It was not permissible to include in the Protocol rules governing accession to the Prescription Convention itself. There might be States which ratified the Prescription Convention and not the Protocol, and those States must be sure that accession to the Convention was possible only according to the rules laid down in the Convention.

83. Since the final clauses of the 1974 Convention contained no provision of the kind proposed by the representative of Austria, his delegation was unable to support the proposal. A similar difficulty existed with regard to article VIII.

84. Mr. ROMAN (Assistant-Secretary to the Committee) said that, although the proposal by the Austrian delegation was relatively new in the depositary practice of the Secreatry-General, it would seem to be quite desirable. The result would be a simplification of administrative procedures, in that the depositary would be able, on the basis of the provision, to accept a single instrument of accession (in respect of the amending Protocol) as applying also to the unamended Convention, since the intention of the acceding State to become a party to the Convention would then be clearly established.

85. The depositary would, of course, treat the instrument of accession in the same way as if there had been two instruments -- one for the unamended Convention and one for the Protocol. The Austrian proposal would thus seem to present no legal difficulty from the point of view of the Secretariat.