1. The CHAIRMAN invited the Rapporteur of the First Committee to report on that body's deliberations concerning article (X) [became CISG article 96 ] and the amendments proposed thereto.
2. Mr. MICHIDA (Japan), Rapporteur of the First Committee, said that article (X) [became CISG article 96 ] had been considered at the eighth meeting of that Committee [See A/CONF.97/C.1./SR.8]. An amendment proposed by the Netherlands (A/CONF.97/C.1/L.76) had been rejected, and an amendment proposed by the Union of Soviet Socialist Republics (A/CONF.97/C.1/L.35) had been withdrawn.
3. The First Committee had also considered an amendment proposed orally by the Federal Republic of Germany -- and subsequently issued in document A/CONF.97/C.1/L.96 -- for the insertion, after the words "at the time of signature, ratification or accession", of the words "or at any time thereafter". There had been no objection to that proposal and it had been transmitted together with two other proposals for amendment submitted by the United Kingdom in document A/CONF.97/C.1/L.88 to the Second Committee for consideration during its resumed debate on article (X) [became CISG article 96 ].
4. Mr. HERBER (Federal Republic of Germany) said that his delegation's proposal was designed to relieve Contracting States whose legislation did not, at the time of signature, ratification or accession require contracts of sale to be concluded in or evidenced by writing but which might -- at some future date -- impose such a requirement, of the necessity to provide for such a contingency by making a declaration at the time specified in the article as drafted. The amendment would also relieve States which had not made declarations at the originally stipulated times of the obligation to denounce the Convention if their legislations subsequently required contracts of sale to be concluded in or evidenced by writing.
5. The withdrawal of declarations by Contracting States if appropriate changes occurred in national legislation appeared to be provided for in article H(6) [became CISG article 97(6) ]; article H(2) [became CISG article 97(2) ] would presumably ensure that declarations and communications relating thereto would be formally notified to the depositary, whose functions would include informing the Contracting States.
6. The proposal by the Federal Republic of Germany (A/CONF.97/C.1/L.96) was adopted.
7. Miss O'FLYNN (United Kingdom) introduced the first of the two amendments contained in document A/CONF.97/C.1/L.88, which was virtually self explanatory. Her delegation believed that Contracting States should else be able to make the declaration referred to in article (X) [became CISG article 96 ] at the time of acceptance or approval of the Convention.
8. The proposal was adopted.
9. Mr. LI Chih-min (China) suggested that the amendment just adopted might be incorporated at other points in the draft Convention where reference was made only to action "at the time of signature, ratification or accession".
10. Mr. SONO (Japan) said he wondered whether it might not be advisable, in the light of the amendment by the Federal Republic of Germany, to indicate that declarations made in accordance with article (X) [became CISG article 96 ] could not be applied retroactively, i.e. in respect of contracts established prior to those declarations.
11. Mr. FOKKEMA (Netherlands) agreed with the previous speaker that such declarations should not be applied retroactively, but observed that article H(5) [became CISG article 97(5) ] provided for a six-months delay before they came into effect. That provision was sufficient, he believed, to underline -- if necessary -- what he considered to be self evident.
12. In the light of the decisions by the Committee concerning the previous two proposals, he wondered whether it might not be possible to delete from the amended article the phrase "at the time of signature, ratification, acceptance, approval or accession, or at anytime thereafter", and modify the text to read, quite simply, "A Contracting State . . . may at any time make a declaration. . . .".
13. Mr. HERBER (Federal Republic of Germany) considered that the Netherlands suggestion could be examined by the Drafting Committee, but pointed out that explicit formulation of the type used in the article was established practice in international conventions.
14. Mrs. BELEVA (Bulgaria) said she could not agree with the Netherlands suggestion, because she -- like the representative of Japan -- was concerned lest the impression be given, albeit inadvertently -- that provisions of the Convention could take effect retroactively.
15. Mr. PLANTARD (France) said, without prejudice to the final outcome of its deliberations, that the working group set up to examine article C [became CISG article 94 ] had retained the formula "at any time" in connection with the declarations covered by that article. In the interests of simplicity, he favoured the Netherlands suggestion.
16. Mr. SAM (Ghana) said that he preferred the wording of the amendment by the Federal Republic of Germany. However, the matter could, perhaps, be left to the Drafting Committee to resolve.
17. Miss O'FLYNN (United Kingdom) said she noted that the wording of articles H(1) [became CISG article 97(1) ] and J(1) [became CISG article 99(1) ] appeared to establish a precedent of enumeration. On the other hand, the effect of the amendment by the Federal Republic of Germany was to generalize the provisions of article (X) [became CISG article 96 ], so that the simplification suggested by the representative of the Netherlands might be acceptable.
18. As regards the concern expressed by the representatives of Japan and Bulgaria, she considered that other provisions in the draft Convention would ensure that declarations could not be applied retroactively.
19. Mr. SONO (Japan) observed that the provisions of article C [became CISG article 94 ], to which the representative of France had alluded, were placed in a specific temporal context by a direct reference to that article in article H(5) [became CISG article 97(5) ]. If the Netherlands suggestion were adopted, the same safeguard might be provided through a similar specific reference in article H(5) [became CISG article 97(5) ].
20. The CHAIRMAN said that the Committee seemed to agree that the language of article (X) [became CISG article 96 ] might be simplified, and that it should be harmonized with the language employed in other parts of the draft Convention. If there were no objections he would take it that the Drafting Committee was to be entrusted with that task.
21. It was so decided.
22. Miss O'FLYNN (United Kingdom) reminded the Committee that document A/CONF.97/C.1/L.88 contained a second proposal by her delegation. Replacement of the words "a Contracting State" in the last line of article (X) [became CISG article 96 ] by the words "the Contracting State" might at first sight appear to be already a matter of drafting, but there was a slightly substantive aspect to the question. As originally drafted, the scope of the article could be interpreted more widely; the United Kingdom amendment would -- she believed -- serve its intended purpose by removing the element of ambiguity.
23. The proposal was adopted.
24. Mr. LOW (Canada) introduced the proposal of the ad hoc working group composed of Australia, Canada and Norway, concerning article B [became CISG article 93 ] (A/CONF.97/C.2/L.13). He said that the proposal had been drafted on the assumption that members of the Committee were inclined to favour alternative II in document A/CONF.97/6.
25. The essential purpose of the working group's proposal for a new paragraph was to rectify an omission in the 1974 Prescription Convention by providing a gloss for the term "Contracting State" in relation to the federal State clause. As the note appended to the proposal pointed out, in the absence of a provision such as that contained in the proposed new paragraph, article 1(1)(a) [became CISG article 1(1)(a) ], could cause the Convention to apply to a contract between a party in a unitary Contracting State and a party in a territorial unit of a federal Contracting State, even though the Convention did not extend to that unit. The proposed paragraph would avoid that result. It would also ensure that the Convention would not apply to contracts between parties in two different territorial units of the same State, unless provision to that effect were made in the domestic legislation of those units.
26. The proposal by the working group would -- he believed -- also dispel any implication that territorial units of a federal Contracting State could be deemed as having any international personality, in other words that they could be regarded as "Contracting States" for the purposes of the Convention.
27. Pointing out that the matter was of concern to unitary, as well as to federal States, and that numerous international conventions provided interpretations in connection with the latter, he expressed the hope that the draft prepared by the working group would minimize, if not entirely remove, the confusion that had existed in the past.
28. Mr. BENNETT (Australia) endorsed the introduction by the previous speaker. His own delegation, which had set out the main issues covered by the working group's proposal when it had expressed its preference for alternative I, now accepted that the proposal could be incorporated in and considered for adoption as part of alternative II.
29. Mr. PELICHET (Observer for the Hague Conference on Private International Law) agreed that the proposal met a need that was felt by all States but wondered whether its drafting was entirely satisfactory. There was, indeed, a proviso that the place of business of a party to a contract should, for the purposes of the Convention, "be deemed not to be in the Contracting State, unless the place of business is in a territorial unit to which the Convention has been extended" but major commercial enterprises could have places of business in more than one territorial unit of a non-unitary State. In such a case, the fact that one of those places of business was in a territorial unit covered by the Convention could be considered as compliance with the proviso, even if the contractual relationship itself had been established in a territorial unit to which the Convention had not been extended. The consequent difficulties could be avoided by the addition, at the end of the final sentence, of the phrase "and unless it is in a territorial unit from which the commercial transactions have been carried out".
30. Mr. LOW (Canada) said that it was necessary to proceed on the assumption that the rule laid down in article 9(a) [became CISG article 10(a) ] applied throughout the Convention.
31. He drew attention to the fact that the English text of new paragraph 4 used the definite article "the" in the fifth line in referring to "Contracting State", for which the translation in the French text was "dudit". That was tantamount to stating that if a contract was entered into by a party with a place of business in a territorial unit which had not implemented the Convention, that unit would be deemed not to be in the Contracting State. The working group had tried to establish a rule of construction to bring the contract into a place to which the Convention was relevant. The connecting factor of the place of business did not involve the artificial presumption that the place of business would be deemed not to be in the Contracting State. It seemed to him that the difficulty of location could be resolved without making an unnecessarily artificial presumption if the indefinite article "a" were used before "Contracting State".
32. Mr. BENNETT (Australia) said that on the whole he would prefer the definite article to be left in the fifth line. The purpose of the paragraph was to deal with problems that might arise in a federal State which had made a declaration, and the present wording would best serve that purpose.
33. Mr. GONZALES ARQUATI (Argentina) said his delegation supported the proposal made by the working group, which would resolve any ambiguous situations that might arise, and also found the wording of the Spanish version to be satisfactory.
34. Mr. PLANTARD (France) said that it was clearly preferable to replace the word "dudit" in the French version, which involved an artificial presumption, by "d'un".
35. Mr. FOKKEMA (Netherlands) agreed with the French representative. Unless the indefinite article was used, a party with a place of business in, say, a province of Canada might be deemed not to have its place of business in Canada, as national law would not apply to it.
36. Miss O'FLYNN (United Kingdom) said her delegation supported the working group's proposal as filling the gap in alternative II. It also agreed that the definite article in the fifth line should be replaced by the indefinite article, although it did not think that the use of the former raised the presumption referred to, but merely meant that for certain limited purposes the place of business should be treated as not being in the Contracting State.
37. She agreed with the Canadian representative that the point raised by the Observer for the Hague Conference was covered by the definition of place of business given in article 9(a) [became CISG article 10(a) ].
38. Mrs. BELEVA (Bulgaria) pointed out that in the last three lines of the Russian version of the new paragraph 4, it was stated that the place of business "was" the territorial unit to which the Convention had been extended instead of that it was "in" the territorial unit in question.
39. Mr. SAM (Ghana) said that alternative II would be greatly improved by the addition of the paragraph proposed by the working group and agreed that the point made by the Observer for the Hague Conference was covered by article 9 [became CISG article 10 ]. He was in favour of using the indefinite article in the fifth line of the English text, in order to align it with the third line and thus avoid confusion in future.
40. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that in the Russian text the word "no" in the third line should be changed to "a".
41. With regard to the discussion on the use of the definite or indefinite article, he would prefer the present wording in the fifth line to be kept in order to make it clear that the reference was to a specific Contracting State and its territorial units. The absence of articles in the Russian language would make it difficult to convey the sense imparted by the indefinite article in other languages.
42. Mrs. BELEVA (Bulgaria) considered that the sense of the indefinite article in the English, French and Spanish versions was reflected in the Russian version as it stood.
43. The CHAIRMAN said he would take it that, if there were no objections, the proposal by the working group (A/CONF.97/C.2/L.13) was adopted with the drafting changes indicated, which would be introduced in the different language versions.
44. It was so agreed.
45. The CHAIRMAN invited the Committee to consider the rest of article B [became CISG article 93 ], alternative II.
46. Mr. MINAMI (Japan) proposed that the words "acceptance, approval", which appeared in paragraph 3, should also be added after the word "ratification" in the third line of paragraph 1.
47. It was so agreed.
48. Mr. HERBER (Federal Republic of Germany) said that it had to be made quite clear that if a State did not make a declaration the Convention would be applicable to all its territorial units. That possibility was covered by paragraph 3 but not with sufficient clarity. It would be simpler if paragraph 1 referred only to cases in which an exceptional declaration was needed. Paragraph 1 should accordingly be amended to read in the fourth and fifth lines: ". . . declare that this Convention shall extend to one or more of its territorial units but not to all of them, and may amend its declaration. . . ." That would bring it into line with paragraph 4 and eliminate the need for paragraph 3.
49. Mr. LOW (Canada) said that the representative of the Federal Republic of Germany had raised a valid point, although it was arguable that there was ambiguity about the application of the Convention to a federal State under paragraph 1, as the question had been dealt with in article 29 of the Vienna Convention on the Law of Treaties.
50. If the Committee amended paragraph 1 to conform to paragraph 4, federal States that would otherwise have made a declaration that the Convention applied to all their territorial units would be deprived of the possibility of doing so; such a declaration was, however, sometimes regarded as desirable for the internal purposes of certain federal States. Paragraph 3 was not very felicitous, but any attempt to improve matters by amending paragraph 1 might depart from the precedents for that paragraph established in a number of conventions, and in so doing, create uncertainty as to its own meaning and that of its counterparts in those conventions as well. The point might be met by adding a new sentence on the following lines: "In the absence of such a declaration, the Convention shall have effect within all the territorial units of that State".
51. Mr. SAM (Ghana) said his delegation was opposed to the amendment by the Federal Republic of Germany to paragraph 1, which would deprive Contracting States of the possibility of declaring that the Convention extended to all their territorial units.
52. Miss O'FLYNN (United Kingdom) said that her delegation had no problem with the wording of paragraph 1 since it was clear that a federal State was not required to make a declaration if it intended the Convention to apply to all its territorial units. If it refrained from making a declaration, paragraph 3 would apply.
53. Mr. BENNETT (Australia) agreed that there were many precedents for paragraph 1, and that it would therefore be best to leave it in its present form. However, there was no need to refer in paragraph 3 to the time at which the declaration was to be made, which was abundantly clear from paragraph 1.
54. Mr. HERBER (Federal Republic of Germany) said that, in the light of the discussion, he would withdraw his suggestion in regard to paragraph 1 of article B [became CISG article 93 ].
55. The CHAIRMAN said that if he heard no further objection to paragraph 1 he would take it that it was adopted.
56. It was so decided.
57. The CHAIRMAN said that as there were no amendments to paragraph 2 he would tale it that it was adopted.
58. It was so decided.
59. The CHAIRMAN said, in regard to paragraph 3, that the Canadian delegation, supported by Australia, had proposed that the reference to the time of signature should be deleted. He suggested, therefore, that the words from "declaration" to "Convention" should be deleted.
60. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) said that it would be necessary to make it clear in the Russian text of paragraph 3 that the declaration referred to was made under paragraph 1.
61. Mr. ENDERLEIN (Secretary of the Committee) suggested that paragraph 3 should run: "If a Contracting State makes no declaration under paragraph 1 of this article, the Convention shall have effect within all territorial units of that State".
62. It was so decided
63. Mrs. BELEVA (Bulgaria) suggested that, as paragraph 4 was logically linked to paragraphs 1 and 2 it should come before paragraph 3.
64. Mr. LOW (Canada) had no objection to the paragraph or to the suggestion, but felt that the order of the paragraphs in the article came within the competence of the Drafting Committee.
65. The CHAIRMAN took it that, as he heard no objection, the Committee considered that the Bulgarian proposal should go to the Drafting Committee.
66. It was so decided.
67. The CHAIRMAN said that if there were no objections, he would take it that the Committee adopted article B [became CISG article 93 ], as amended, as a whole.
68. It was so decided.
69. The CHAIRMAN invited the members of the ad hoc working group to introduce their proposal for article C [became CISG article 94 ] (A/CONF.97/C.2/L.10).
70. Mr. LOW (Canada) said that there had been some concern when article C [became CISG article 94 ] was first considered regarding its effects on the rights and the capacity of Contracting States to contract out of the Convention, possibly to the prejudice of the rights of other Contracting States, and also its effects on relations between Contracting and non-Contracting States. The working group had endeavoured to improve upon the draft in the Secretariat paper (A/CONF.97/6) and on the wording in ULIS. The task had proved exceedingly difficult, and the resulting text was very complex.
71. Mr. BAN (Hungary) said that his delegation found the new draft acceptable.
72. Mr. ROUTAMO (Finland), speaking as a member of the working group, said that although the original text of paragraph 1 of article C [became CISG article 94 ] had provided an opportunity for Contracting States to make a declaration in regard to non-Contracting States, it had offered no explanation of what would happen if the latter subsequently ratified the Convention. Paragraph 3 of the new text therefore sought to explain what the position would be if the non-Contracting State later acceded to the Convention. He said that the word "of" after "approves" in the second line of the paragraph was an error.
73. Mr. NOVOSSILTSEV (Union of Soviet Socialist Republics) asked whether paragraph 3 meant that the State which subsequently ratified the Convention could declare that it could not accept a declaration made under paragraph 2 at any time, or only at the time of ratification.
74. Mr. LOW (Canada) said that paragraph 3 covered the situation in which a Contracting State had made a declaration that it had the same legal rules on matters governed by the Convention as a non-Contracting State. The paragraph contemplated the possibility that the non-Contracting State concerned might subsequently ratify the Convention and thus become bound by its terms and entitled to certain rights under it. The question was whether, once the position of the non-Contracting State had changed, the declaration that the two States' legal rules were similar would automatically continue and the State which had ratified the Convention first would go on not applying the Convention in regard to the second State, or whether there should be a mechanism preventing the earlier declaration from continuing to have effect. It was felt that rather than requiring the second State to take affirmative action to maintain the previous situation, it would be better to have the declaration remain in force unless that State made a declaration to the effect that it did not wish the earlier declaration to apply. The reason why the group had felt that the earlier declaration should be maintained even in the absence of a new declaration by the second State was that it had assumed that, since the two States had similar systems, the second State would be content not to have the Convention apply. If it did wish the Convention to apply, it was in its hands to make a declaration that it no longer accepted the declaration by the first State.
75. Mr. PLANTARD (France) said that he would try to explain the complex situation envisaged by the article from a different angle. The working group had considered that there were three situations that could arise as a result of the mechanism established by article C [became CISG article 94 ]: the declarations envisaged could be simultaneous; they could be successive; and, if successive, they could be unilateral or reciprocal. In the first case, State A would ratify the Convention and make a declaration, and State B would ratify the Convention and make a simultaneous declaration. Those would be joint declarations and would normally have effect for the application of article 1(1)(a) [became CISG article 1(1)(a) ], the situation in which both were Contracting States but had jointly agreed that the Convention should not apply to relations between them.
76. The situation in the second case was more complicated. In that event, the declarations were unilateral and reciprocal but not joint because one declaration would be made before the other. State A would make a unilateral declaration to the effect that its legislation was the same as that of State B, and State B would subsequently make a similar declaration. The situation would be the same as before but with a small gap in time.
77. Paragraph 2, however, envisaged a situation in which State A made a declaration that its legislation was the same as State B's, but State B was not and did not become a party to the Convention. The declaration would remain effective as far as the first State was concerned, and it would be assumed that the law of the first State, or of the second which was not a party to the Convention, would not incorporate the provisions of the Convention for the purposes of parties whose place of business were in those States. That situation would arise under article 1(1)(b) [became CISG article 1(1)(b) ] in particular.
78. The third situation envisaged the case in which both States became parties to the Convention. State A, the first, would ratify the Convention and make a declaration. Subsequently, the second State, State B, would ratify the Convention but not make a declaration. The situation would then be different from that in paragraph 1 because there would be no reciprocal declaration. That was the situation which paragraph 3 attempted to deal with. It was a situation that could arise in practice and it was therefore important to provide a solution. In the working group's proposal, it was assumed that the declaration by State A was in force as far as it was concerned, whereas for State B nothing was changed. In other words, State A would not apply the Convention in its relations with State B. However, State B, not having made a declaration, would apply the Convention even in its relations with State A. However, under paragraph 3, State B would have been given an opportunity to reject the application of the Convention as far as it was concerned.
79. Mr. SONO (Japan) said that his question was on a matter of policy rather than interpretation. Paragraph 1 stated the basic principle: that the ideal was that there should be joint or reciprocal unilateral declarations. Paragraph 2 envisaged a less fortunate situation in which one State was not a Contracting State; the text therefore made room for the Contracting State to declare unilaterally that the Convention would not apply. Paragraph 3 dealt with a situation in which a non-Contracting State under paragraph 2 became a Contracting State. It appeared from what the French representative had said that a declaration under paragraph 2 would remain in effect unless the new Contracting State decided that it could not accept it. Until that point, only the first State could ignore the Convention whereas the second would have to apply it. A situation could be envisaged, however, in which the second State declared that it could accept the declaration of the first State. That would not be a specific declaration by itself that it had decided not to apply the Convention. In that case, only the first State would be free to exclude the application of the Convention, and not the second because it had not made a positive decision to do so. The meaning of "accept" was not altogether clear.
80. Paragraph 3 dealt with an exceptional situation and ignored the basic principle stated in paragraph 1, and he wondered whether it was wise or necessary to make a provision for such a position. There seemed to be a gap in policy between paragraph 3 and paragraph 1. Another approach could be envisaged, which his delegation would prefer, whereby paragraph 3 would require the second State to declare at the time of accession whether it would accept the declaration of the first State or not. The working group were nevertheless to be congratulated on having formulated paragraph 1 as the basic principle of the article.
81. Mr. PELICHET (Oberserver for the Hague Conference of Private International Law) said that he had both practical and political doubts about the solution proposed by the working group in paragraph 3. It was perhaps satisfactory from the legal point of view but it could cause a great deal of confusion from the point of view of merchants and traders. If the second State, State B, decided to ratify the Convention, an act would be published in that State and its merchants would gather that the Convention was to apply. How would they know in practice that it would not apply to State A by reason of a declaration made perhaps ten years earlier by that State? It would be better to recognize that once State B had ratified the Convention it had performed an international legislative act that changed the situation, and if it wanted nevertheless to retain privileged relations with State A, it must make a declaration to that effect.
82. It could be assumed, moreover, from the identity of their legislation that the two States concerned had close relations. Thus, from the political point of view, it would be very difficult for State B to declare that it was unable to accept a declaration made by State A.
83. Mr. BENNETT (Australia) congratulated the members of the working group on the effort reflected in document A/CONF.97/C.2/L.10. Nevertheless, his delegation had strong reservations regarding the nature of the action that State B must take under paragraph 3 if it did not want the declaration to continue in force. Paragraph 3 said that the declaration would remain in effect unless the approving State declared that it could not accept it. That type of declaration was politically undesirable, especially between the kind of States envisaged in article C [became CISG article 94 ]. It was generally accepted that they would be States having very close relations with each other, and it would therefore cause great difficulty if one Government had to declare that it could not accept the declaration of another friendly State. The form of the last few words of the paragraph should be altered.
84. He felt that, in the circumstances contemplated in paragraph 3, the declaration should automatically cease to have effect, so that either a further joint or reciprocal unilateral declaration as envisaged in article 1 would be necessary, or else State B on accession to the Convention would have to make a positive declaration that it could accept the declaration by State A, which would then continue to have effect. That declaration would need to be made when State B ratified or acceded to the Convention.
85. Mr. PLANTARD (France) said that the members of the working group were aware of the weaknesses in the text they had proposed, but had felt there was a need for some provision of that kind. He agreed that, as the representative of Japan had suggested, the ideal solution would to be require State B, on ratifying the Convention, to declare itself in respect of the declaration made by State A. It was not possible, however, to impose such a requirement on States. Therefore, three possibilities must be considered. In the first situation, the simplest, State B would accept the declaration. If it did so, or if it made a declaration itself, there would be no further problem. The position would refer back to paragraph 1 and the machinery provided for in that paragraph would come into play. Another possibility was that State B would make no declaration, being unaware of the declaration by the other State. The position would then be left artificially as it existed in paragraph 2. State B could not be considered either to have accepted the declaration or to have rejected it. Vis-à-vis State A, therefore, State B would not be a Contracting State. That left a third hypothesis, in which State B explicitly refused a declaration by State A to the effect that their systems of law were closely related. The working group had wanted to leave that possibility open to State B. Paragraph 3 could perhaps be deleted altogether, but it might prove useful from the point of view of making the application of the Convention as wide as possible.
86. The CHAIRMAN felt that it would be useful for delegations to have an opportunity to discuss the matter further. He suggested that the working group should take the matter up again and possibly submit a new proposal at the text meeting.