LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

OPENING OF THE CONFERENCE (item 1 of the provisional agenda)

1. The TEMPORARY PRESIDENT declared open the United Nations Conference on Contracts for the International Sale of Goods. He stressed the importance of the Conference which, in troubled times, showed that all countries had common interests which transcended their differences.

2. Briefly outlining the background of the Conference, he recalled that, 12 years previously, the United Nations Commission on International Trade Law had embarked on the work of harmonizing and unifying international trade law; in that area it had earned a reputation for competence which had fully justified the hopes of its founders. The task of the present Conference was to reach agreement on a convention on the particularly complex subject of the international sale of goods, which touched immediately on the domestic law of States and the myriad day-to-day commercial transactions of the world. The Conference had before it, as the basis for its work, a draft convention which was the culmination of long years of work by UNCITRAL and which bore the stamp of that organization's objectivity and profound knowledge of trade practices.

If the Conference attained its objective -- and there was no reason why it should not do so -- another important step would have been taken towards the elimination of legal obstacles to the development of international trade, which should be promoted to the benefit of developing and developed countries alike. For the former countries, in particular, the expansion of international trade on equitable conditions clearly defined at the legal level was extremely important if their efforts to enhance the well-being of their peoples were to be successful.

3. The preliminary comments made by States and organizations on the UNCITRAL draft convention already showed that the approach adopted in that draft and its underlying principles were deserving of praise, that the balance established between the rights and duties of the seller and buyer was, in general, acceptable, and that the provisions of the draft were suited, on the whole, to the needs of international trade. Moreover, when the proposed rules were being drafted care had been taken toavoid using expressions which were too technical, so as to permit their application in all legal systems.

4. The draft convention owed a good deal to the work done before and after the Second World War by the International Institute for the Unification of Private Law (UNIDROIT) which had led, in 1964, to the adoption of the Hague Convention relating to a Uniform Law on the International Sale of Goods [ULIS] and the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods [ULF]. Nevertheless, in the view of UNCITRAL, those texts had reflected too exclusively the practices and concerns of Europe. For example, they had not contained any adequate provisions on the transport of goods by sea or on the particular questions and problems connected with that mode of transport, nor had they taken sufficient account of legal systems other than those deriving from Roman Law. Compared with the 1964 Hague Conventions, the draft before the Conference contained innovations which enabled its provisions to be extended to a greater number of legal and economic systems. UNCITRAL had also managed to simplify the text of the Hague Conventions considerably, the number of articles having been reduced from 114 to 82. Particularly noteworthy was the simplification of the systems of remedies for breach of contract and of procedures for determining the risk of loss.

5. In short, the UNCITRAL draft constituted an excellent basis for the work of the Conference. Nevertheless, its consideration called for a special effort from participants: the work of the Conference would be successful only if countries were prepared to look beyond the confines of their domestic laws and search for a consensus on rules that were just, workable and generally acceptable. The Office of Legal Affairs for its part, would do its utmost to ensure the success of the Conference.

6. In conclusion, he thanked the Austrian Government for acting as host to the Conference at Vienna and for having placed the historic premises of the Hofburg at its disposal.

7. Mr. PAHR (Minister for Foreign Affairs of the Federal Republic of Austria), speaking on behalf of his Government, welcomed the participants to the Conference. The occasion was a particularly important one,for two reasons: firstly, because the Conference represented a milestone in the development of the codification of international trade law, and secondly, because it was the first big conference to be held at the new headquarters of UNCITRAL, which his Government had been proud to welcome to Austria. He wished to take that opportunity to thank the members of the International Trade Law Branch for their indefatigable efforts to provide the Commission with the necessary secretariat services, thanks to which the task of the Conference would also be made easier.

8. In view of the importance of contracts for the international sale of goods, a convention on the subject should have been concluded long before. The fact that, at long last, it was about to see the light of day, at a time of growing commercial interdependence among the nations, must be regarded as a major event in the process of codifying international law. That convention would undoubtedly be followed by other codification instruments, in the preparation of which UNCITRAL would play a major role.

9. The convention had not yet been adopted, of course; considerable efforts had still to be made before that stage was reached. Nevertheless, he was convinced that the goodwill and spirit of conciliation of the participants would triumph over all difficulties and that the Conference would adopt a legal instrument satisfactory to all nations. The great competence of the international law experts currently assembled gave every reason for optimism. Moreover, the Conference's task would be facilitated by the in-depth work carried out by UNCITRAL over the past 10 years and in which Austria was proud to have played its part.

10. Lastly, he wished participants in the Conference every success in their work and hoped that they would have a pleasant stay in Vienna.

The meeting was suspended at 11.45 a.m. and resumed at 11.55 a.m.

ELECTION OF THE PRESIDENT(item 2 of the provisional agenda)

11. Mr. FARNSWORTH (United States of America) nominated Mr. Eorsi (Hungary) for the office of President of the Conference.

12. Mr. MICHIDA (Japan), Mr. MEDVEDEV (Union of Soviet Socialist Republics), Mr. MANTILLA-MOLINA (Mexico) and Mr. LOEWE (Austria) supported the nomination.

13. Mr. Eörsi (Hungary) was elected President by acclamation.

14. Mr. Eörsi (Hungary) took the Chair.

15. The PRESIDENT thanked the delegations which had nominated him and the members of the Conference in general for having done him the honour of electing him President. He was aware that the honour was accompanied by heavy responsibilities, and he undertookto do his best, with the co-operation of all delegations, to ensure the success of the Conference.

16. The Conference was a very important event in the history of the unification of the law on the international sale of goods. That law had evolved considerably over the past 50 years. The great increase in trade, the intensification of economic interdependence and the growing complexity of economic processes had led countries to undertake efforts towards unifying the legal rules which governed international trade and those efforts were beginning to bear fruit. At the current stage, the adoption of a type of international sales code which supplied viable practical solutions would considerably facilitate world trade. Such as code could not, of course, provide answers to all problems but it could serve as a foundation for legal policy and supply a framework for a set of general rules. The preparation of such a code was an undertaking requiring a great deal of technical competence in a very specific field where there were numerous points of divergence between common law countries and civil law countries and where it was necessary to find compromise solutions which would be acceptable to both legal systems. The draft convention drawn up by UNCITRAL, which was before the Conference, was an attempt to do so.

ADOPTION OF THE AGENDA(item 3 of the provisional agenda) (A/CONF.97/2)

17. The provisional agenda was adopted.

ADOPTION OF THE RULES OF PROCEDURE(agenda item 4) (A/CONF.97/3)

18. The provisional rules of procedure were adopted.

ORGANIZATION OF WORK(agenda item 8) (A/CONF.97/4)

19. Mr. VIS (Executive Secretary of the Conference) drew the attention of delegations to the tentative schedule of meetings for the Conference, contained in the annex to document A/CONF.97/4. That schedule had been drawn up on the assumption that the Conference would last for five weeks. It could be prolonged for a further week if necessary but, with the consent of the participants and the President, the Secretariat would like to arrange meetings in such a way that work could be completed in five weeks.

20. Mr. SHAFIK (Egypt) asked whether instead of beginning immediately its consideration of the articles of the draft convention, it would not be better for the Conference to devote one or two plenary meetings to a general debate which would make it possible to sketch out the main lines of the draft convention.

21. Mr. LOEWE (Austria) said he agreed that it would be useful to provide for a general debate on the draft Convention as a whole but such a debate might perhaps take place in Committee I, as it would probably relate tothe corpus of the future Convention rather than to the final clauses.

22. As for the tentative schedule, it was of course understood that it was not binding and that the Committees -- and particularly Committee I -- might not be able to follow it exactly. A certain flexibility should therefore be retained while at the same time every effort should be made to advance the work as speedily as possible and to bear in mind the tentative schedule.

23. The PRESIDENT agreed that it might be useful to have a general debate in Committee I but thought that too much time should not be spent on it as the comments made during any general consideration of a draft were frequently taken up again when specific matters were considered. If the Conference devoted too much time to a general debate at the beginning of its work, there was the risk that it would not be able to give sufficient attention to the examination of the last few articles of the draft.

24. It was true that the tentative schedule did not necessarily have to be strictly followed, but it nevertheless provided a very useful point of reference to measure the rate at which the work of the Conference was progressing.

25. Mr. VIS (Executive Secretary of the Conference)informed the delegations that, as a general rule, amendments should be submitted 24 hours prior to the consideration of the relevant article.

26. States which had sent written comments which contained proposed amendments were requested to inform the Secretariat which amendments they wished to be considered, since it was not always easy for the Secretariat to determine whether or not a comment constituted a proposed amendment.

27. Concerning credentials, Mr. Vis said that, in accordance with rule 3 of the rules of procedure, the credentials of representatives and the names of alternate representatives and advisers should be submitted to the secretariat of the Conference if possible not later than 24 hours after the opening of the Conference. The Credentials Committee had to meet during the second or third week of the Conference and the secretariat was therefore prepared to accept credentials submitted during the current week or at the beginning of the following week. In accordance with rule 3 of the rules of procedure, credentials should be issued either by the Head of State or Government or by the Minister for Foreign Affairs.

ELECTION OF VICE-PRESIDENTS OF THE CONFERENCE AND OF A CHAIRMAN OF EACH OF THE MAIN COMMITTEES (item 5 of the agenda)

Election of the Chairman of the First Committee

The PRESIDENT called for nominations for the office of Chairman of the First Committee, which would be called upon to consider Parts I to III and article X of the draft Convention, i.e. all the substantive articles of the draft before the Conference.

Mr. MEDVEDEV (Union of Soviet Socialist Republics) nominated Mr. Loewe (Austria) for the office of Chairman of the First Committee.

Mr. PONTOPPIDAN (Denmark) seconded the nomination.

Mr. SZÁSZ (Hungary), Mr. KHOO (Singapore), Mr. HERBER (Federal Republic of Germany), Mr. PLANTARD (France), Mr. MANTILLA-MOLINA (Mexico), Mr. SHAFIK (Egypt), Mr. PREVEDOURAKIS (Greece), Mr. DE SA DA BANDEIRA (Portugal), Mr. BOGGIANO (Argentina) and Mr. SHAMIR (Israel) supported the nomination.

Mr. Loewe (Austria) was elected Chairman of the First Committee by acclamation.

The meeting was called to order at 11.55 a.m.

ELECTION OF VICE-PRESIDENTS OF THE CONFERENCE AND OF A CHAIRMAN OF EACH OF THE MAIN COMMITTEES (agenda item 5) (A/CONF.97/3) (continued)

1. The PRESIDENT, noting that the representatives of the African, Latin American and Asian States were not yet in a position to submit their candidates for the posts of Vice-President, proposed that the election of vice-presidents should be postponed to a later meeting.

2. Mr. SILVA (Peru) nominated Mr. Mantilla-Molina (Mexico) for the office of Chairman of the Second Committee.

3. Mr. HERBER (Federal Republic of Germany), Mr. KHOO (Singapore), Mr. STALEV (Bulgaria), Mr. MICHIDA (Japan) and Mr. FRANCHINI-NETTO (Brazil) supported the nomination.

4. Mr. Mantilla-Molina (Mexico) was elected Chairman of the Second Committee by acclamation.

CREDENTIALS OF REPRESENTATIVES TO THECONFERENCE (agenda item 6) (A/CONF.97/3)

(a) Appointment of the Credentials Committee

5. The PRESIDENT said that it was customary for the composition of the Credentials Committee, made up of nine members, to be the same as that of the Credentials Committee of the most recent United Nations General Assembly. In the present case that would be the representatives of Belgium, China, the Congo, Ecuador, Pakistan, Panama, Senegal, the Union of Soviet Socialist Republics, and the United States of America. As the Congo, Panama and Senegal were not participating in the Conference, he proposed, in accordance with rule 4 of the rules of procedure (A/CONF.97/3), to nominate representatives of States from the same region to replace them, i.e. Kenya, Mexico and the Libyan Arab Jamahiriya respectively. The Credentials Committee would therefore be made up as follows: Belgium, China, Ecuador, Kenya, Libyan Arab Jamahiriya, Mexico, Pakistan, the Union of Soviet Socialist Republics and the United States of America.

6. It was so decided.

The meeting was called to order at 11.55 a.m.

ELECTION OF VICE-PRESIDENTS OF THE CONFERENCE AND OF A CHAIRMAN OF EACH OF THE MAIN COMMITTEES (agenda item 5) (A/CONF.97/3) (continued)

1. The PRESIDENT reminded the meeting that, under rule 6 of the rules of procedure (A/CONF.97/3), the Conference had to elect 22 Vice-Presidents. To ensure the representativity of the General Committee, as provided for in rule 10 of the rules of procedure, it was customary to apportion the offices of Vice-President on the basis of the membership of UNCITRAL; accordingly, the African countries would be entitled to 5 Vice-Presidents, the Asian countries to 4, the East Europeancountries to 3, the West European and other countries to 6 and the Latin American countries to 4. Since the African, Asian and Latin American countries were associated in the Group of 77, that Group would have to designate 13 candidates in all. Since consultations had been held in the regional groups, they were undoubtedly already in a position to indicate the names of the countries and candidates they proposed. He asked the Group of 77, first of all, to give the names of the candidates it had designated for the 13 offices of Vice-President to which it was entitled.

2. Mr. SILVA (Peru) said that, although he did not yet have all the names of the candidates, he was already in a position to announce the names of the countries proposed by the Croup of 77; namely, Argentina, Brazil,Colombia, Peru, China, Republic of Korea, Philippines, Pakistan, Kenya, Libyan Arab Jamahiriya, Egypt, Zaire and Romania.

3. Mr. SZÄSZ (Hungary) read out, at the invitation of the President, the list of representatives designated by the East European countries as candidates for the offices of Vice-President, namely, Mr. Medvedev (Union of Soviet Socialist Republics), Mr. Wagner (German Democratic Republic) and Mr. Stalev (Bulgaria).

4. Mr. PLANTARD (France) announced the names of the representatives appointed by West European and other countries as candidates for the offices of Vice-President, namely, Mr. Dabin (Belgium), Mr. Krispis (Greece), Mr. Garrigues (Spain), Mr. Herber (Federal Republic of Germany), Mr. Hjerner (Sweden) and Mr. Shore (Canada).

5. The PRESIDENT said that, if there were no objections, he would take it that the candidates proposed by the three groups had been elected Vice-Presidents of the Conference.

6. It was so decided.

The meeting was called to order at 3.10 p.m.

1. The PRESIDENT said that the General Committee has decided to propose to the plenary Conference the following States as members of the Drafting Committee: Brazil, Chile, Czechoslovakia, Ecuador, Egypt, Finland, France, Lybian Arab Jamahiriya, Republic ofKorea, Singapore, Union of Soviet Socialist Republics, United Kingdom, United States of America and Zaire.

2. If there was no objection, he would consider that the Conference agreed to appoint those 15 States as members of the Drafting Committee. 3. It was so agreed.

The meeting was called to order at 10.10 a.m.

CONSIDERATION OF THE QUESTION OF CONTRACTS FOR THE INTERNATIONAL SALE OFGOODS IN ACCORDANCE WITH GENERALASSEMBLY RESOLUTION 33/93 OF 16 DECEMBER 1978 (agenda item 9) (continued)

REPORT OF THE FIRST COMMITTEE TO THE PLENARY CONFERENCE (A/CONF.97/11/Add.1 and 2) (continued)

1. The PRESIDENT invited the members of the Conference to move on from the first phase of their proceedings, that of debate, to the second, the adoption of decisions. In the interests of the unification of international trade law, and in the belief that the participants in the Conference all wished to arrive at a better version of the Uniform Law on the International Sale of Goods (ULIS), he would urge delegations to exercise self-discipline and not argue again in plenary causes which had been lost in committee. The compromises that had been reached should not now be called in question. The best was often the enemy of the good, and an over-diligent quest for perfection could place the desired objective at risk.

2. The Conference would have to come to a decision on each of the articles adopted by the First Committee (A/CONF.97/11/Add.1 and 2). The decisions would require a two-thirds majority, with the understandingthat representatives who abstained would count as not voting, in accordance with rule 34 of the rules of procedure. Roll-call votes would only be taken at the specific request of a delegation. All proposals concerning matters of substance would be considered as amendments or sub-amendments within the meaning of rule 40 of the rules of procedure; they would have to be submitted in writing, unless the Conference specifically allowed an exception. He would adhere scrupulously to the rules of procedure, which were, however, sufficiently flexible to permit indicative votes or the establishment of working groups if the occasion demanded.

3. In order to expedite its work, for every effort should be made to finish by the deadline of 11 April, even at the cost of night meetings, the Conference should refrain from abstract debate. It went without saying that in accordance with rule 21 of the rules of procedure, any delegation could appeal against the President's ruling.

4. Mr. GARRIGUES (Spain) said he wished to state, even before the Conference began its consideration of the draft Convention submitted by the First Committee, that he considered the outcome of more than 40 years of effort to be quite admirable. Since its establishment in 1968, the United Nations Commission on International Trade Law (UNCITRAL) had undoubtedly done much to improve the uniform law established in 1964, to secure increased participation in its activities, to promote a stronger spirit of conciliation among its members and to strike a better balance between the different interests involved. Such positive results were praiseworthy. Doubtless the opposition which existed between the Roman-law tradition, which tended to be theoretical, and the more pragmatic tradition of common law, which was reluctant to spell out general principles, explained certain imperfections in the final product. His country, for its part, would have wished the draft Convention to go further in regulating issues where the interests of the parties could be considerably at variance, and for that reason would have wished to place greater restrictions on the freedom allowed the parties under article 5 [became CISG article 6 ]. It would also have preferred the draft Convention to take over the principles of Roman law as they applied to contracts of sale, and more specifically those concerning the identity and integrality of payment. His delegation would, moreover, have wished the draft Convention to be more general in nature and to give less attention to specific or individual cases. It also regretted that the draft Convention did not more systematically take the rational approach of laying down positive rather than negative rules; article 33 [became CISG article 35 ], for example, on the conformity of goods, in fact defined lack of conformity. Again, his delegation deplored the obscurity of certain articles; was not clarity the courtesy of lawyers? In that connection, he could not but express his delegation's regret at not having participated in the Drafting Committee. Another fault of the draft Convention was that it referred too often to its own provisions, which made it too cumbersome. In addition, the word "reasonable" was much abused: he could only hope that the courts would always be able to make a "reasonable" interpretation of that term. But despite all those shortcomings, his delegation found much to respect in provisions which were more representative of a legal system other than of the one with which Spain was familiar and believed that the draft Convention well deserved to be ratified to enter into force and to stay in force for a long time.

5. Mr. MICHIDA (Japan), Rapporteur of the First Committee, introduced the report of the Committee (A/CONF.97/11/Add.l and 2) containing the provisions which it had formulated on the basis of the articles drafted by UNCITRAL, after referring them whenever necessary to the Drafting Committee, together with the various amendments it had considered. The new provisions were now submitted for adoption by the Conference.

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