3rd edition (1999)
Why should you (or I) bother with a third edition? One reason is the hope that a decade for reflection, stimulated by the astonishing amount of literature on the Convention, has broadened (and chastened) this writer’s views. A second, and compelling, reason is the need to engage the large and growing body of decisions interpreting the Convention.
The second edition went to press shortly after the Convention’s entry into force among the first eleven States; judicial and arbitral decisions applying the Convention had not yet appeared. Now, only a decade later, more than fifty States, embracing a vast majority of the world’s population and commerce, have adhered to the Convention. Hundreds of decisions applying the Convention have been reported; delays intrinsic to international reporting suggest that the total number is much greater.
Do these decisions deserve our attention? Most international transactions are completed without difficulty; however, disagreements do arise involving the parties’ obligations and the consequences of breach. When this occurs, counsellors need to examine both the text of the Convention and decisions applying the law. In an important transaction it may be necessary for a party in one State to consider interpretations in other States, including those where litigation may be brought—information that can be decisive in resolving the problem.
Tribunals (judicial and arbitral) have special concerns: How should they interpret and apply the Convention? Should they be concerned with decisions in other adhering States? The answer becomes clear in the light of the Convention’s central objective: the promotion of international uniformity—to avoid disputes between parties in different States and to facilitate the settlement of disputes. The Convention drives this point home in Article 7(1): interpretation of the Convention shall have regard for its "international character" and "the need to promote uniformity in its application"—language that calls for tribunals to consider interpretations in other States. One goal of this book is to help tribunals respond to this mandate.
Do tribunals respond to such a mandate? The fifty states of this writer’s country have separately adopted a uniform sales law—UCC Article 2. Judicial interpretations in these fifty States (as in countries that have acceded to the Convention) are not subject to central review. And yet, recognition of the importance of uniformity has led the courts of these fifty States to consider, and give weight, to the interpretations in other States.
The volume of decisions applying the Convention, at first blush, is daunting. Under the leadership of Professor Joachim Bonell, a superb collection of decisions (UNILEX), in their original languages and usually with the complete text, already extends to over 600 pages. (This and other sources will be described later.) How can this edition provide access to this mass of case-law? A second query: How much space can be given to the astonishing outpouring of writing on the Convention? (Professor Michael Will lists two thousand "or so" items.) With this embarrassment of riches, can this edition be kept within bounds?
The reader will meet these compromises: (1) The pruning of ageing material in prior editions: e.g., discussion of domestic law and historical connections with the 1964 Hague Convention. (2) Terse statement of decisions. (Paths to full opinions and future decisions, and the wealth of literature are provided immediately following the Table of Contents under these headings: "A. Case-law: Discovery Tools"; "Analyses of CISG Case-law" and "Books and Reports". In addition to these broader compilations, throughout the book writings are noted that address specific issues. Other objectives of this work are discussed in the Preface to the Second Edition, which follows.
I hope that readers will share my enthusiasm for the Convention’s success in contributing to commercial relationships and international understanding.
John O. Honnold
Kennett Square, Pennsylvania
1998
Uniform law for the international sale of goods at long last is now in force in each continent and is well on the way to world-wide acceptance.
Initiatives taken a half-century ago in Europe and a decade of intensive work by the United Nations Commission on International Trade Law produced unanimous agreement on a draft Convention that in 1980 was finalized and unanimously approved by a diplomatic conference of 62 States.
Then came another decade while domestic legal, commercial and governmental bodies examined the proposed uniform law, comparing it with their domestic laws and weighing the uncertainties and dangers of change against the problems of coping in international trade with a wide variety of foreign legal systems. Further delay resulted from the difficulty of getting attention and action from domestic law-making bodies that were trying to cope with current international problems that seemed more urgent, and certainly were more exciting, than a uniform law for the international sale of goods.
Surprisingly, in various parts of the world the necessary steps for adherence were gradually completed and the Convention went into force for eleven States on January 1, 1988. This decisive step stimulated action elsewhere. By March 1991 thirty States have adhered and further adoptions were nearing completion; contrary to all reasonable expectations we can now envisage the general establishment of uniform international law for the most basic transaction of international commerce.
The first edition of this book, hammered out at white heat during the year that followed the 1980 Vienna Conference, responded to pressing questions about the law’s preparation and scope and provided commentary on each article of the uniform law. Work on the first edition was aided by decades of research and writing on uniform law for international sales and by intense hands-on participation in the preparation and adoption of the Convention. However, the intensity of treatment was then subject to practical limits, including the limited patience of readers who had reason to doubt that the Convention would ever go into force.
The Convention’s world-wide success calls for a more intensive treatment. The writer has devoted most of the past decade to studying, lecturing and teaching about the Convention in various national settings and, like all who work in this field, has been instructed and stimulated by an amazing outpouring of legal literature and by inquiries about the Convention’s response to current commercial situations.
Perhaps the most important task of this book is to present the Convention as an organic whole. One who faces a problem in international trade probably can find an applicable article of the Convention; it is much more difficult to bring all of the relevant provisions of the law to bear on the problem.
In commercial life one faces situations, not individual articles. For example, less than half of the articles of the uniform law state the parties’ duties; many of the remaining articles, in various parts of the Convention, are devoted to remedies—requiring performance, avoiding the contract, measuring damages, preserving rejected goods. Rules on rights and remedies (like scissor-blades) need to work together—a point that was driven home by working with the many concrete "examples" that are used to illustrate and test the Convention’s response to problems that arise in international trade. Working with these problems also revealed important resources for resolving ambiguities and for filling "gaps" by the application of policies that underlie analogous provisions....
When adoption of the Convention was under consideration a natural response was to fear the worst: What were the most inept solutions that the words of the text could bear? Now, as after the birth of a child, we need to emphasize ways to nurture the new life. When the decisions embodied in the law’s words permit a choice we ask this question: Which choice is more consistent with other provisions of the Convention and with its objectives? Others will develop different answers; a continuing dialogue, spanning legal and economic backgrounds, can play a vital role in the development of this epoch-making uniform international law.
John O. Honnold
Philadelphia
March 1991
Pace Law School Institute of International Commercial Law
- Last updated September 7, 1999