LEGISLATIVE HISTORY
1980 Vienna Diplomatic Conference

The meeting was called to order at 3.05 p.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.2) (continued)

78, 84

Article 73 bis [became CISG article 78 ] (continued), Title of chapter V, section II bis, Title of chapter V, section II, article 69 [became CISG article 84 ](continued)

1. Mr. VIS (Executive-Secretary of the Conference)said that the working group set up at the previous meeting had agreed to submit the following proposals to the Conference:

2. Mr. SHAFIK (Egypt) said that he had not participated in the working group.

3. Mr. KHOO (Singapore), speaking as the Chairman of the working group set up at the previous meeting, said that it had initially tried to work on the basis of the text of article 73 bis [became CISG article 78 ], as it appeared in document A/CONF.97/11/Add.2, but had finally come to the conclusion that fundamental differences in the approach of different national legal systems to the question of interest rendered that task too difficult. A further difficulty arose from the attempt to treat damages and interest under the same heading. The working group had decided to recommend a provision based, as it were, on the highest common factor, so that the Convention might at least contain a clear statement on the question of interest. The text of article 73 bis [became CISG article 78 ] just read out by the Secretary represented such a solution. The first part of the article established that a party which failed to pay the price or any other sum in due time was under obligation to pay interest on that sum to the other party. The second part of the article, intended to accommodate legal regulations under which interest was considered to be part of the damages recoverable in default situations, referred to the right of the second party to claim damages under article 70 [became CISG article 74 ].

4. Article 73 bis [became CISG article 78 ] as proposed by the working group was adopted by 30 votes to 2, with 12 abstentions.

5. The title of chapter V, section II bis, proposed by the working group, "Section II bis: Interest", was adopted by 35 votes to 1, with 3 abstentions.

6. Mr. BLAGOJEVIC (Yugoslavia) said that he had voted against article 73 bis [became CISG article 78 ] and against the title of the new section II bis because there was no point in having an article on interest which failed to indicate the appropriate interest rate.

7. The PRESIDENT invited the Conference to vote on the title of chapter V, section II, as amended by the working group ("Section II: Damages").

8. Mr. PLANTARD (France) said that the French version of the title of section II should remain unchanged.

9. The title of chapter V, section II, as amended, was adopted by 42 votes to none.

84	Article 69 [became CISG article 84 ]

10. The PRESIDENT said that he understood that the United Kingdom proposals (A/CONF.97/L.16, L.17) had been withdrawn. He invited the Conference to vote on the text of article 69(1) [became CISG article 84(1) ] proposed by the working group.

11. The text was adopted by 38 votes to 9, with 6 abstentions.

12. Mr. KRISPIS (Greece) said that he had voted in favour of articles 73 bis and 69(1) [became CISG article 78 and CISG article 84(1) ] on the understandingthat the interest to be paid under those articles was not an interest found to be fair and just by any general criterion but the interest fixed by the law of the country concerned.

13. Article 69 [became CISG article 84 ], as amended, was adopted by 40 votes to none, with 4 abstentions.

61, 78

Article 57 [became CISG article 61 ]

14. Mr. ZIEGEL (Canada), noting that article 73 bis [became CISG article 78 ] had just been placed under a separate section heading, so that the question of interest was no longer bracketed with that of damages, wondered whether a separate reference to interest should not be included in article 57(1)(c) [became CISG article 61(1)(c) ].

15. The PRESIDENT said that, in his view, article 57 [became CISG article 61 ] need not be thus amended. The Conference could, if it so desired, draw up an exhaustive list of possible remedies, but it would be sufficient to list only the most important ones.

16. Mr. ZIEGEL (Canada) said that he was satisfied to leave article 57 [became CISG article 61 ] as it stood, provided that the Conference went on record as having no intention of making an exhaustive enumeration of remedies in the event of the buyer's failing to perform his obligations.

17. Mr. MASKOW (German Democratic Republic) said that a reference to interest in article 57 [became CISG article 61 ] would not make the list of remedies exhaustive. Interest was, however, one of the seller's most important remedies. He suggested that a subparagraph (c) should be added to article 57(1) [became CISG article 61(1) ], to read: "claim interest as provided in article 73 bis [became CISG article 78 ]".

18. Mr. LOEWE (Austria) said he was inclined to think that it would be more logical to refer to interest in both article 41 [became CISG article 45 ] and article 57 [became CISG article 61 ] than in only one of those articles.

19. Mr. PLANTARD (France) and Mr. BONELL (Italy) supported the suggestion by the representative of the German Democratic Republic.

20. Mr. KUCHIBHOTLA (India), Mr. OSAH (Nigeria) and Mr. MICHIDA (Japan) opposed the suggestion. .

21. Mr. MEHDI (Pakistan) said that he was in favour of leaving both article 41 and article 57 [became CISG article 45 and CISG article 61 ] unchanged, on the understanding that the remedies mentioned in them were merely illustrative.

22. Mr. MASKOW (German Democratic Republic) withdrew his suggestion.

23. Article 57 [became CISG article 61 ] was adopted by 43 votes to none.

77	Article 73 [became CISG article 77 ] (continued)

24. Article 73 [became CISG article 77 ] was adopted by 48 votes to none.

Title of section III

25. The title of section III was adopted by 44 votes to none.

79	Article 65 [became CISG article 79 ]

26. Article 65 [became CISG article 79 ] was adopted by 42 votes to none, with 5 abstentions.

27. Mr. MEHDl (Pakistan) said, in explanation of his vote on article 65 [became CISG article 79 ], that he considered exemptions from liability for failure to perform, such as were envisaged in paragraph 2 of the article, to be available to a party in the event of failure by a subcontractor only if the subcontracting was expressly or implicity provided for in the original contract.

80	Article 65 bis [became CISG article 80 ] (A/CONF.97/L.2 and L.10)

28. Mr. SEVÓN (Finland) said he withdrew his delegation's amendment (A/CONF.97/L.2) in favour of the Norwegian amendment (A/CONF.97/L.10). The latter amendment was essentially a drafting one, designed to make the meaning of the provision clearer.

29. Mr. WAGNER (German Democratic Republic) supported the Norwegian proposal.

30. The Norwegian proposal (A/CONF.97/L.10) was adopted by 39 votes to none, with 7 abstentions.

31. Article 65 bis, as amended [became CISG article 80 ], was adopted.

81	Article 66 [became CISG article 81 ]

32. Article 66 [became CISG article 81 ] was adopted by 46 votes to none.

82	Article 67 [became CISG article 82 ]

33. Article 67 [became CISG article 82 ] was adopted by 45 votes to none, with 1 abstention.

83	Article 68 [became CISG article 83 ]

34. Article 68 [became CISG article 83 ] was adopted by 47 votes to none.

Title of section V (Preservation of the goods)

35. The title was adopted by 46 votes to none.

85	Article 74 [became CISG article 85 ]

36. Article 74 [became CISG article 85 ] was adopted by 47 votes to 1, with no abstentions.

86	Article 75 [became CISG article 86 ]

37. Article 75 [became CISG article 86 ] was adopted by 48 votes to none.

87	Article 76 [became CISG article 87 ]

38. Article 76 [became CISG article 87 ] was adopted by 45 votes to none.

88	Article 77 [became CISG article 88 ] (A/CONF.97/L.22)

39. Mr. KHOO (Singapore), introducing his delegation's amendment (A/CONF.97/L.22), said that it might be thought that the normal interpretation of article 77(2) [became CISG article 88(2) ] would be that it referred to goods subject to physical loss or rapid deterioration. However, it seemed that that construction was not shared by everyone; some believedthat the word "loss" could also cover a situation where goods were subject to depreciation in price.

40. His amendment was intended to make it clear that what was at issue was the physical state of the goods and not any economic fluctuations to which they might be subject, an interpretation which, he thought, would place an undue burden on the party preserving the goods by exposing him to the risk of making a wrong commercial judgement.

41. Mr. VINDING KRUSE (Denmark) said he was unable to support the proposal. As he saw it, it would be unjust to the other party to have no provision which would also cover cases which involved a deterioration in price; grave losses could result from price fluctuations, for example in the case of fashion clothing, which lost all value if it was not sold within a short time.

42. Mr. HONNOLD (United States of America) said that his delegation could support the second alternative in the proposal by the representative of Singapore. It would seem unfair to make an innocent party liable if he failed to guess correctly whether a market which had gone down would continue to go down. However, his delegation would have difficulty in supporting the first alternative, which might be taken as implying that the mere fact that goods were perishable led to a requirement to sell where there was no threat of deterioration.

43. Mr. LEBEDEV (Union of Soviet Socialist Republics) said he too supported the proposal. As it stood, article 77(2) [became CISG article 88(2) ] seemed to place an unreasonable burden on the buyer.

44. Mr. BOGGIANO (Argentina) also supported the proposal, since he thought it excessive to make the party concerned responsible for the vicissitudes of the market and other factors unconnected with the physical state of the goods.

45. Mr. ZIEGEL (Canada) supported the second alternative of the proposal by the delegation of Singapore. Had article 77 [became CISG article 88 ] contained a provision entitling the party in breach to make a reasonable request to the innocent party to sell the goods on his behalf, then it would have met the concerns of both parties. Unfortunately, it contained no such provision. It seemed harsh to require the innocent party to sell the goods without even waiting for a request from the guilty party.

46. Mr. MATHANJUKI (Kenya) supported the first alternative in the Singaporean proposal. He agreed it was important to make clear that what was involved was the physical state of the goods and not what might or might not be their market value.

47. Mr. GARRIGUES (Spain) said that, in essence, he was able to support the proposal by the delegation of Singapore. However, the second variant did not seem to him to make it clear enough that loss as well as deterioration was involved.

48. Mr. KHOO (Singapore), replying to a question by the President, said that his own preference was for the first alternative but he realized that it might give rise todifficulties such as that which had been raised by the United States representative. He suggested that a better wording might be "if the goods are liable to perish or subject to rapid deterioration".

49. The CHAIRMAN noted that there was little support for the amended version of the first alternative of the proposal by Singapore. He invited the Conference to vote on the second alternative.

50. The second alternative was adopted by 36 votes to 4, with 4 abstentions.

51. Mr. ZIEGEL (Canada) inquired why, in the second sentence of paragraph 2, the phrase "to the extent possible" had been used rather than the simpler "if possible".

52. Mr. NICHOLAS (United Kingdom) said it had been felt that the phrase "to the extent possible" would more effectively suggest the idea that the notice given should be as long as possible..

53. Article 77 [became CISG article 88 ], as amended, was adopted by 46 votes to none, with 2 abstentions.

Proposed new article on dispute settlement(A/CONF.97/L.19)

54. Mr. LASTRES BERNINSON (Peru), introducing the joint proposal (A/CONF.97/L.19) on behalf of the three sponsors, said that his delegation considered it essential to introduce into the text of the Convention a provision recognizing the principle of arbitration for the settlement of disputes resulting from commercial operations which would be governed by the Convention.

55. The proposed new article set forth the universally accepted rule that disputes between the parties should be settled either through the ordinary judicial channels or by arbitration. With regard to the latter, there was also a further choice between permanent arbitral tribunals and arrangements for arbitration made by the parties themselves. Each of those types of arbitration could, in its turn, take the form either of arbitration in law or of an award ex aequo et bono. The proposed provision thus covered the whole range of possibilities generally accepted for the purpose of settling disputes between the parties.

56. The sponsors wished to stress that the new article they proposed was intended only for the purpose of acknowledging the foregoing principles, without entering into questions of jurisdiction, of exequatur or of rules of procedure -- all of which pertained to branches of the law other than the one which was the subject of the Convention.

57. The sponsors also wished to stress that the proposed new article came within the scope of private international law.

58. The proposed new article, by recognizing the principle of arbitration, would have the added advantage of counteracting certain dangerous trends, which were becoming apparent, to attract disputes to the exclusive forum of one of the contracting parties.

59. Lastly, the proposed new article would have a wholesome effect on the understanding of the text of the whole Convention. Thus, an ambiguity was apparent in the texts of articles 26, 41(3) and 57(3) [became CISG article 28 , CISG article 45(3) and CISG article 61(3) ] regarding the language used to designate the competent judge for the settlement of disputes.

60. Article 26 [became CISG article 28 ] mentioned for the first time that competent judge, describing him as "the tribunal". Articles 41(3) and 57(3) [became CISG article 45(3) and CISG article 61(3) ], for their part, referred to the "judge and arbitral tribunal".

61. With that wording, the articles in question lent themselves to conflicting constructions: if a restrictive approach were adopted, article 26 [became CISG article 28 ] could be interpreted as meaning that any disputes arising from its provisions must be settled by a decision of an unspecified tribunal; articles 41(3) and 57(3) [became CISG article 45(3) and CISG article 61(3) ], on the other hand, would offer a choice between courts of law and arbitral tribunals for the settlement of disputes arising from their provisions.

62. The proposed new article would, if adopted, thus serve to dispel completely the effect of all those inconsistencies of language while at the same time enshrining in the Convention the principle of arbitration for disputes arising from commercial operations.

63. The PRESIDENT drew attention to rule 30 of the rules of procedure which stated that any motion calling for a decision on the competence of the Convention to discuss any matter should be put to the vote before the matter itself was discussed. The decision on competence would be taken by simple majority.

64. Mr. BONELL (Italy) said that the joint proposal for a new article on arbitration should be rejected as outside the competence of the Conference.

65. Mr. SHORE (Canada) seconded that motion.

66. The PRESIDENT put to the vote the motion that the proposal in question was outside the competence of the Conference.

67. The motion was carried by 24 votes to 9, with 18 abstentions.

68. Mr. LASTRES BERNINSON (Peru) said that he had misgivings regarding the procedure which had been followed and which had resulted in an important matter being eliminated from the Convention.

The meeting was adjourned at 4.30 p.m. and resumed at 5 p.m.

REPORT OF THE DRAFTING COMMITTEE ON THE ARTICLES OF THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS REFERRED TO IT BY THE SECOND COMMITTEE (A/CONF.97/13/Rev.1); (A/CONF.97/L.4)

69. The PRESIDENT invited the Conference to consider the report of the Drafting Committee containing the final provisions of the Convention (A/CONF.97/13/Rev.1) and the Czechoslovak amendment purporting to insert an additional article C bis [became CISG article 95 ] therein (A/CONF.97/L.4).

70. He suggested that the Conference should vote on the final provisions, article by article, in the order in which they appeared in document A/CONF.97/13/Rev.1.

Part IV (title)

71. The title of part IV was adopted by 32 votes to none, with no abstentions.

89	Article A [became CISG article 89 ]

72. Article A [became CISG article 89 ] was adopted by 38 votes to none, with noabstentions.

90	Article D [became CISG article 90 ]

73. Article D [became CISG article 90 ] was adopted by 38 votes to none, with no abstentions.

91	Article F [became CISG article 91 ]

74. Article F [became CISG article 91 ] was adopted by 41 votes to none, with no abstentions.

92	Article G [became CISG article 92 ]

75. Article G [became CISG article 92 ] was adopted by 41 votes to none, with 1 abstention.

93	Article B [became CISG article 93 ]

76. Article B [became CISG article 93 ] was adopted by 39 votes to none, with no abstentions.

94	Article C [became CISG article 94 ]

77. Article C [became CISG article 94 ] was adopted by 41 votes to none, with 1 abstention.

95	Proposed new article C bis [became CISG article 95 ] (A/CONF.97/L.4)

78. The PRESIDENT invited the Czechoslovak representative to introduce his proposal for a new article C bis [became CISG article 95 ] (A/CONF.97/L.4).

79. Mr. KOPAC (Czechoslovakia), introducing his delegation's proposal for a new article C bis [became CISG article 95 ] (A/CONF.97/L.4), recalled that, under paragraph 1(b) of its article 1 [became CISG article 1 ], the Convention applied to contracts for the sale of goods between parties having their places of business in different countries when rules of private international law "lead to the application of the law of a Contracting State". That provision would not give rise to any problem for countries where the ordinary rules of law merchant applied to international transactions.

80. An entirely different situation arose, however, in countries like his own or the German Democratic Republic where special legislation had been enacted to govern transactions pertaining to international trade. Similar legislation was under preparation in Poland and Romania. For countries with such a system, the rule in paragraph 1(b) would mean the exclusion of whole areas of the special legislation enacted to govern international trade transactions.

81. The net result was that countries like Czechoslovakia would be unable to ratify the Convention because of the effect which article 1(1)(b) [became CISG article 1(1)(b) ] would have on the application of their special legislation on international trade.

82. The only solution for those countries was to limit the application of the Convention to contracts concluded between parties having their places of business in different Contracting States. In that manner, the rules of the special code on international trade would continue to apply to trade transactions involving parties of which one at least did not have its place of business in a Contracting State.

83. It was thus not out of any lack of spirit of compromise that his delegation had decided to submit its amendment (A/CONF.97/L.4) to deal with that question. The amendment took the form of a proposed article C bis [became CISG article 95 ], the wording of which took into account certain criticisms which had been levelled at a similar provision in the 1964 ULIS.

84. Two alternatives were offered for the proposed new article. Alternative I consisted of two paragraphs. If that alternative were adopted, the provisions of its paragraph 2 would mean that the exclusion of the application of the Convention would be the same in all Contracting States. Alternative II consisted of only one paragraph, namely the first paragraph of article C bis [became CISG article 95 ] as it appeared in document (A/CON.97/L.4).

85. In conclusion, he urged all delegations to show understanding for the position of his delegation and a number of others, to which the issue at stake was of great importance.

86. Mr. WAGNER (German Democratic Republic) strongly supported the proposed new article C bis [became CISG article 95 ] and recalled that his delegation had made a vain attempt in the First Committee to confine the effects of the Convention to contracts between parties having their places of business in different Contracting States.

87. Mr. MONACO (International Institute for the Unification of Private Law [UNIDROIT]) said that the representative of Czechoslovakia had explained very well why certain countries needed the possibility of a reservation such as that set forth in document A/CONF.97/L.4. Fortunately, he had offered the Conference a choice between two alternative texts. For his own part, he preferred alternative II since paragraph (2) was vague and somewhat repetitive.

88. Mr. SEVÓN (Finland) said that his delegation, which wished to make an effort to meet the needs of the countries interested in that proposal, was able to support the proposed new article C bis [became CISG article 95 ] in its alternative II.

89. Mr. POPESCU (Romania) also supported the proposed new article in its variant II on the reasoning eadem ratio eadem solutio.

90. Mr. HJERNER (Sweden) said that he could accept both paragraphs of the proposed new article C bis [became CISG article 95 ],although he found paragraph (2) somewhat difficult to grasp.

91. In reply to a question by the PRESIDENT, Mr. KOPAC (Czechoslovakia) said that, in view of the preference shown by delegations for that formula, he would confine his proposal to alternative II.

92. The PRESIDENT thereupon put to the vote the proposed new article C bis [became CISG article 95 ] in its alternative II, i.e. consisting of paragraph 1 only.

93. The proposed new article C bis [became CISG article 95 ] was adopted by 24 votes to 7, with 16 abstentions.

94. Mr. MINAMI (Japan) proposed, as a drafting amendment, that the words "instrument of ratification or accession" should be expanded to read "instrument of ratification, acceptance, approval or accession".

95. Mr. DE LA CAMARA HERMOSO (Spain) said that his delegation had voted against the proposed new article C bis [became CISG article 95 ] because it considered that the provisions of paragraph (1)(b) of article 1 [became CISG article 1 ] could affect adversely only States which had not ratified the Convention.

96. Mr. KOPAC (Czechoslovakia) suggested another useful drafting change, which would bring the wording of article C bis [became CISG article 95 ] into line with that of article G [became CISG article 92 ], namely to replace the words "it will not apply" by the words "it will not be bound by".

97. The PRESIDENT put to the vote the two proposals for alterations in the wording of article C bis [became CISG article 95 ] which had been proposed by the representatives of Japan and Czechoslovakia.

98. The two amendments were adopted by 31 votes to none, with 8 abstentions.

96	Article (X) [became CISG article 96 ]

99. Article (X) [became CISG article 96 ] was adopted by 45 votes to none.

100. Mr. MINAMI (Japan) said that his delegation had voted in favour of the article on the understanding that the derogation had no retroactive effect.

97	Article H [became CISG article 97 ]

101. Article H [became CISG article 97 ] was adopted by 45 votes to none.

98	Article Y [became CISG article 98 ]

102. Article Y [became CISG article 98 ] was adopted by 42 votes to none, with 1 abstention.

99	Article J [became CISG article 99 ]

103. Article J [became CISG article 99 ] was adopted by 45 votes to none, with 1 abstention.

100	Article E [became CISG article 100 ]

104. Article E [became CISG article 100 ] was adopted by 45 votes to none.

101	Article K [became CISG article 101 ]

105. Article K [became CISG article 101 ] was adopted by 48 votes to none.

Testimonium: Authentic texts

Testimonium

106. The testimonium, with the addition of the date: 11th day of April 1980, was adopted by 46 votes to none.

ADOPTION OF A CONVENTION AND OTHER INSTRUMENTS DEEMED APPROPRIATE, AND OF THE FINAL ACT OF THE CONFERENCE (agenda item 11)

ADOPTION OF THE CONVENTION

107. Mr. MONACO (International Institute for the Unification of Private Law [UNIDROITl) said he welcomed the adoption of the Convention and was pleased to feel that UNIDROIT's work had made some contribution to that achievement.

108. The PRESIDENT, having paid a tribute to the work of UNIDROIT, invited the Conference to vote on the Convention as a whole.

109. The vote was taken by roll call.

110. Switzerland, having been drawn by lot by the President, was called upon to vote first.

In favour: Argentina, Australia, Austria, Belgium, Brazil, Bulgaria, Byelorussian Soviet Socialist Republic, Canada, Chile, Czechoslovakia, Denmark, Ecuador, Egypt, Finland, France, German Democratic Republic, Germany, Federal Republic of, Ghana, Greece, Hungary, India, Ireland, Italy, Japan, Netherlands, Nigeria, Norway, Pakistan, Philippines, Poland, Portugal,Republic of Korea, Romania, Singapore, Spain, Sweden, Switzerland, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, United States of America, Yugoslavia.

Against: None.

Abstaining: Burma, China, Colombia, Iraq, Kenya, Panama, Peru, Thailand, Turkey.

111. The Convention was adopted by 42 votes to none, with 9 abstentions.

112. Mr. TSHITAMBWE (Zaire) said that, had he been present at the time, he would have abstained from voting on the Convention as a whole.

CONSIDERATION OF THE QUESTION OF A PROTOCOL TO THE CONVENTION ON THE LIMITATION PERIOD IN THE INTERNATIONAL SALE OF GOODS; ADOPTED AT NEW YORK ON 12 JUNE 1974, TO HARMONIZE THE PROVISIONS OF THAT CONVENTION WITH THOSE OF THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS AS IT MAY BE ADOPTED BY THE CONFERENCE IN ACCORDANCE WITH GENERAL ASSEMBLY RESOLUTION 33/93 OF 16 DECEMBER 1978 (agenda item 10)

REPORT OF THE DRAFTING COMMITTEE (A/CONF.97/14)

113. Mr. KOPAC (Czechoslovakia), Rapporteur of the Drafting Committee, introducing its report on the Protocol, explained that the contents of the articles had been discussed by the Second Committee and that the Drafting Committee had dealt only with drafting problems and with bringing the provisions in the Protocol into line with those in the Limitation Convention to which they referred. Some new articles had also been introduced.

Title

114. The title of the Protocol was adopted by 44 votes to none.

Preamble

115. Mr. KHOO (Singapore) asked if the word "preamble" was necessary, since it did not appear in the Limitation Convention itself and was unusual in international instruments. He proposed that it be deleted.

116. Mr. MEDVEDEV (Union of Soviet Socialist Republics) seconded the proposal. The word "preamble" was not used in contract or treaty practice in his country.

117. The PRESIDENT invited the Conference to vote on the deletion of the word "preamble".

118. The proposal was adopted by 30 votes to none, with 11 abstentions.

119. The text of the preamble was adopted by 41 votes to none.

120. Mr. SEVÖN (Finland) reminded the Conference that, at the Prescription Conference, the scope of application of the Convention had been one of the most strongly debated and carefully elaborated parts of that instrument. Article 1 was a complete reversal of the decision reached at the Prescription Conference. His delegation would therefore be obliged to vote against it.

121. Mr. STENERSEN (Norway) said that his delegation supported the wording of article 1(b) because it harmonized the scope of the Limitation Convention and the Convention that had just been adopted and made it easier for the parties involved, who might have difficulty in ascertaining the rules of another country on that point.

122. Mr. KRISPIS (Greece) said that he would abstain from voting on article 1 for the reasons stated by the representative of Finland.

123. Mr. HJERNER (Sweden) said that the sphere of application of the Limitation Convention had been the subject of extensive discussion at the United Nations Conference on Prescription (Limitation) in the International Sale of Goods. The participants had also been aware at the time of the probable form that the corresponding article in the Sales Convention would take. The change made by the Protocol would extend the law of Contracting States to non-Contracting States, conceivably causing them very great difficulties. The proposed Protocol had been discussed only briefly at the present Conference, and the change had been adopted by a vote of only 10 in favour to 7 against, with 3 abstentions. In the circumstances, his delegation would vote against article 1.

124. Mr. HARTKAMP (Netherlands) said he thought that the problem might perhaps be solved by allowing States acceding to the Protocol to enter a reservation on the lines proposed by Czechoslovakia for the Sales Convention itself. States which objected to paragraph 1(b) would then be able to make a reservation that would apply only to it.

125. Mr. LOEWE (Austria) said that his delegation deeply regretted the change made in the Sales Convention itself which, it felt, removed most of its applicability. However, since it had been decided to permit reservations to the Sales Convention, the same would have to be done for the Limitation Convention. Paragraph 1(a) should therefore be left as it stood, and those States which had reservations regarding the Sales Convention should be enabled to make similar reservations in regard to the Prescription Convention. Otherwise, there was no point in seeking to harmonize the two. Moreover, he could not agree that the participants in the Prescription Conference had known what the sphere of application of the Sales Convention was to be.

126. The PRESIDENT invited delegations to vote on the proposal that the Final Provisions of the Protocol should include a new article providing for reservations on the lines of the new article C bis [became CISG article 95 ] that had just been adopted.

127. The proposal was adopted by 28 votes to 2, with 10 abstentions.

128. Mr. HJERNER (Sweden), explaining his vote against the proposal, said that an opportunity to enter a reservation would not in any way solve the difficulties to which he had referred.

129. Article I was adopted by 30 votes to 5, with 7 abstentions.

Article II

130. Article II was adopted by 42 votes to none.

131. Article III was adopted by 41 votes to none.

Article IV

132. Article IV was adopted by 40 votes to none.

Article V

133. Article V was adopted by 41 votes to none.

Article VI

134. Mr. STENERSEN (Norway) withdrew his delegation's proposed amendment to article VI (A/CONF.97/L.21).

135. Article VI was adopted by 39 votes to none.

136. The title was adopted by 34 votes to 1.

137. Mr. KHOO (Singapore) said that he had voted against the title because he did not think one was necessary in so short an instrument.

Article VII

138. Article VII was adopted by 40 votes to none.

Article VIII

139. Article VIII was adopted by 41 votes to none, with 1 abstention.

Article IX

140. Article IX was adopted by 40 votes to none.

Article X

141. Article X was adopted by 42 votes to none.

Article XI

142. Article XI was adopted by 37 votes to none, with 2 abstentions.

Proposed new article XI bis

143. The PRESIDENT invited delegations to consider the possibility of inserting a new article, article XI bis, on the lines of article C bis of the Sales Convention [became CISG article 95 ].

144. Mr. VIS (Executive Secretary of the Conference) suggested that the new article should read: "Any State may declare at the time of the deposit of its instrument of ratification or accession that it will not be bound by article I."

145. Mr. HARTKAMP (Netherlands) said he had understood that the reservation would apply only to subparagraph (b) of the proposed paragraph 1 of article 3 of the Limitation Convention, and wondered why the new article should refer to article I of the Protocol.

146. Mr. MINAMI (Japan) pointed out that, under article VIII(1) of the Protocol, the instrument would be open only for accession.

147. Mr. VIS (Executive Secretary of the Conference) agreed that that was the position. The reservation should thus refer only to the deposit of an instrument of accession.

148. Mr. LOEWE (Austria) said he wondered whether it might not be necessary to say that States were declaring themselves not to be bound by article 3, paragraph 1(b) of the Limitation Convention.

149. Mr. VIS (Executive Secretary of the Conference) said that, in that case, it would be necessary to reinsert paragraph 2 of the original article 3.

150. Mr. ENDERLEIN (Secretary of the Second Committee) said that it would not be appropriate to make the reservation apply only to paragraph 1(b) of the provision that was to replace paragraph 1 of article 3 of the Limitation Convention because, if a State wished to declare that it would not apply the law of a Contracting State under the rules of private international law, it might also wish to retain the provision in paragraph 2 of article 3 of the Limitation Convention. In that case, the reservation would have to apply to the whole of article I of the Protocol, since otherwise paragraph 2 of article 3 would be deleted.

151. Mr. KRISPIS (Greece) said he felt that the Austrian representative was correct, and that there should be a reference in the reservation to article 3 of the Limitation Convention.

152. Mr. KOPAC (Czechoslovakia) said that the purpose of article I of the Protocol was to change the principle of reciprocity of the Limitation Convention, while the aim of the proposed reservation was to maintain that reciprocity. It would therefore be more logical to use the formula suggested by the Secretariat, which would exclude the whole of article I and leave the Limitation Convention to apply as originally worded.

153. The PRESIDENT said he would invite the Conference to vote first on the Japanese proposal for an article XIl bis to read: "Any State may declare at the time of the deposit of its instrument of accession that it will not be bound by article I", and secondly on the Netherlands proposal to restrict the reference in article XI bis to article I, paragraph 1(b).

154. Mr. HARTKAMP (Netherlands) said that, in the light of the Secretariat's comments, his delegation withdrew its proposal.

155. Mr. LOEWE (Austria) said that the proposal for a new article had already been voted on and adopted in principle. It was therefore solely a matter of drafting and a further vote was not required. While his delegation did not share the views of the Secretariat with regard to the drafting proposed, it felt it was merely an academic question to insist on the matter at that stage.

156. Mr. KOO (Singapore) said that his delegation felt that there was a need to describe the manner in which the declaration should be made, since there was no general provision on that matter elsewhere in the Protocol. It proposed that a sentence be added on the following lines: "A declaration made under this article shall be in writing and be formally notified to the depositary".

157. Mr. MEDVEDEV (Union of Soviet Socialist Republics) said that his delegation would wish to draw attention to the fact that article X of the Protocol as adopted referred to accession and notification and that therefore an addition should accordingly be made to article XI bis.

158. The PRESIDENT asked if that point was not already covered by the addition proposed by the delegation of Singapore.

159. Mr. LEBEDEV (Union of Soviet Socialist Republics) said that his delegation proposed the text: "Any State may declare at the time of the deposit of its instrument of accession or its notification under article X that it will not . . .".

The meeting was suspended at 7 p.m. and resumed at 7.10 p.m.

160. Mr. VIS (Executive Secretary of the Conference) read out the complete text of article XI bis as proposed by the delegation of the Soviet Union:

161. The PRESIDENT put the proposal, as read out, to the vote.

162. Article XI bis, as amended, was adopted by 34 votes to none, with 1 abstention.

Article XII

163. Article XII was adopted by 34 votes to none.

Article XIII

164. Article XIII was adopted by 32 votes to none.

Testimonium

165. The Testimonium was adopted by 31 votes to none.

166. Mr. MINAMI (Japan) said that he wondered whether a provision for the withdrawal of a declaration was required.

167. Mr. WAGNER (German Democratic Republic) said that his delegation was of the opinion that such a provision was unnecessary in that such a situation was covered by a general rule of international law.

168. Mr. MINAMI (Japan) said that, if that was so, he withdrew his suggestion.

ADOPTION OF A CONVENTION AND OTHER INSTRUMENTS DEEMED APPROPRIATE, AND OF THE FINAL ACT OF THE CONFERENCE (agenda item 11) (continued)

ADOPTION OF THE PROTOCOL (A/CONF.97/14)

169. The PRESIDENT invited the Conference to vote on the Protocol as a whole.

170. The vote was taken by roll call.

171. Japan, having been drawn by lot by the President, was called upon to vote first.

In favour: Australia, Austria, Belgium, Brazil, Bulgaria, Byelorussian Soviet Socialist Republic, Canada, Czechoslovakia, Ecuador, Egypt, France, German Democratic Republic, Germany, Federal Republic of, Ghana, Hungary, Ireland, Italy, Japan, Netherlands, Norway, Pakistan, Philippines, Poland, Portugal, Republic of Korea, Romania, Singapore, Turkey, Ukrainian Soviet Socialist Republic, Union of Soviet Socialist Republics, United Kingdom of Great Britain and Northern Ireland, United States of America, Yugoslavia.

Against: None.

Abstaining: Burma, Colombia, Denmark, Finland, Greece, India, Kenya, Nigeria, Sweden, Thailand, Zaire.

172. The Protocol was adopted by 33 votes to none, with 11 abstentions.

173. Mr. LI Chih-min (China) said that his delegation had abstained from voting on the Protocol for reasons that it had already explained in the Second Committee, namely that his Government had not taken part in the formulation of the Limitation Convention, nor had it ratified that Convention or acceded to it.

CONSIDERATION OF THE REPORT OF THE DRAFTING COMMITTEE(A/CONF.97/17)

174. The PRESIDENT invited the Conference to take note of the Report of the Drafting Committee.

175. Mr. KOPAC (Czechoslovakia), Rapporteur, introduced the Report (A/CONF.97/17).

176. The Report of the Drafting Committee was approved.

ADOPTION OF A CONVENTION AND OTHERINSTRUMENTS DEEMED APPROPRIATE, ANDOF THE FINAL ACT OF THE CONFERENCE (agenda item 11) (continued)

CONSIDERATION OF THE DRAFT FINAL ACT (A/CONF.97/16)

177. Mr. KOPAC (Czechoslovakia), Rapporteur, introducing the draft Final Act, drew the attention of the Conference to some minor errors of omission and some typographical errors on page 3 of the document.

178. The PRESIDENT said that, in the absence of any comments and subject to rectification by the Secretariat of the minor details that had been pointed out, he invited the Conference to adopt the draft Final Act.

179. The Final Act of the Conference was adopted by acclamation.