Growth of International Commercial Trade

The legal nature of the United Nations Convention on Contracts for the International Sale of Goods (CISG-1980), with disclosure on the interpretation principles of the Convention in accordance with article seven.

Significant increases in international commercial trade has given way to a desire to create uniformity and harmonization of international trade law.[1] The United Nations Convention on Contracts for the International Sale of Goods (CISG) 1980 aims to promote harmonization of the law relating to the international sale of goods.[2] CISG was a response to an increasing need for certainty and predictability in the law applicable to the international sale of goods, an important issue for the successful facilitation of international trade.

Uniformity however, does not exist in a vacuum.  Further consideration must be paid to interpretation of uniform laws and the risks that gaps can exist in any attempt at harmonization.  The fact is, uniformity requires that interpretation departs from usual national concepts.[3]  In this regard the efforts made by CISG are important for understanding, not only the necessity and urgency of uniform rules in the international sale of goods, but also for understanding the challenges that uniformity faces in achieving the goals of uniformity.  Of particular concern are the difficulties that might arise in respect of interpretation of those rules and instances where the rules themselves do not address one of the diverse scenarios that might arise in a particular international sale of goods contractual dispute.[4]

 It is hardly surprising that CISG’s text encapsulates the various concessions necessitated by achieving consensus between numerous states with different cultures, languages, legal and political systems and economic development.[5]  This approach compromises CISG’s goal of achieving uniformity in the international law of the sale of goods.  The inevitable result of attempting to circumvent discrepancies in the different meanings assigned by different states is that CISG incorporates terms that are either vague, broad or inconsistent.[6]  This presents an obvious challenge for those adjudicating over CISG matters who must take a position on interpreting CISG terms.

Moreover, other challenges arise because CISG rules are required to be wide enough so as to permit its application to a variety of sales activities and at the same time keep pace with current commercial policies and customs as wells as advances in technology[7].   The reality is, practices and policies in commercial transactions and advances in technology will create gaps if CISG rules are not calculated to take these matters into account.[8]  Local adjudicators will inevitably take the initiative to fill in the gaps leading to more diversity and compromising CISG’s goal of harmonization[9].

CISG’s Article 7 attempts to meet the challenges with respect to interpretation and unanticipated gaps in its text.[10] Article 7(1) addresses the issue of interpretation by mandating that in interpreting CISG rules the emphasis should be on its “international character” and the “need to promote uniformity in its application,” as well as promoting

“good faith in international trade.”[11] Article 7(2) draws attention to “gap-filling” in instances where CISG rules do not provide for an issue arising under a CISG contract.[12]  Article 7(2) provides that in circumstances where CISG does not cover a specific issue, the issue should be resolved by reference to CISG’s “general principles” and where no general principles exist, the issue should b settled by reference to “private international law.”[13]

            The purpose of this research is to explore the general interpretative and gap-filling difficulties that compromise efforts at harmonization of international trade.  This is will be accomplished by examining the legal nature of CISG, its principles of interpretation, gap-filling and good faith as delineated under Article 7.  Ultimately, it will be argued that international law, with the proper tools for interpretation, guided by principles of harmonization among diverse legal systems can be achieved, although there will always be room for error.

II. Characteristics of the Legal Nature of CISG

            The general legal characteristics of the legal nature of CISG is found in its preamble.  The CISG’s preamble states that its goal is the facilitation of the trade and exchange of goods on an international level.[14]  CISG takes the position that uniform rules promotes the facilitation of international trade and that those uniform rules ought to take into consideration the diverse legal, economic and social systems that would “contribute to the removal of legal barriers” in global commercial trade and “promote the development of international trade.”[15]

In order to accomplish these goals CISG is divided into four parts. Part I provides for the application of the rules and its interpretation. Part II provides rules for the formal requirements of a contract for the international sale of goods.[16]  Part III relates to the remedies, rights and duties of the parties to an international contract for the sale of goods.[17] Part IV provides guidance for the relationship between CISG to international treaties and conventions and provides for the measures to be taken in adopting CISG.[18]

In general, the legal nature of CISG is characterized as an attempt to substitute domestic law with a uniform law that is applicable to the diverse legal systems that are signatories to CISG.[19] The legal character of CISG is such that its success is largely dependent up a uniform approach to interpreting its various provisions and a uniform approach to filling in gaps.[20]

Distinctive Characteristics of CISG

Interpretation and gap-filling reflects a dual legal characteristic of CISG.  This dual priority is properly founded on the concept that in order for CISG to meet its uniformity and/or harmonization goals, its provisions will have to be properly interpreted.[21] Tied to the tenet of interpretation, is the further concept that should CISG fail to make specific provision for a matter or issue arising under a CISG contract, those issues should be resolved by reference to the general principles of CISG.[22]

i.                    CISG’s Interpretive Objectives

CISG is founded on the theory that in order for uniformity to be achieve optimum results, its integrity as both a Convention and a global “body of law” will rely almost entirely on how it is interpreted by adjudicators in each of the signatories’ jurisdictions.[23]  Article 7 of CISG therefore provides guiding principle for adjudicators with respect to the interpretation of the various provisions contained in CISG.  Article 7(1) provides as follows:

“In the Interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.”[24]

            Alstine argues that, entrenched within Article 7(1) are two distinct elements[25] worthy of consideration.  The first element involves interpreting  CISG law with the focus on its international objectives.  As a result of this element, Articl 7(1) functions as both a “separating and elevating” instrument.[26] In other words Article 7(1) requires an interpretive process which is autonomous in nature to the extent that it must be detached from national legal systems’ concepts, influences, terminology and nuances.  It is elevating because it requires adjudicators to regard CISG as possessed of a separate and “elevated international dimension.”[27]

            The second element embodied within Article 7(1) is the requirement that its interpretation take account of the promotion of CISG’s uniformity/harmonization purpose.  This elements diverts the focus away from the substantive issues and focuses instead on the adjudicators interpretive roles.[28]  This necessarily requires that adjudicators take into consideration previous judgments on interpretation rendered in other signatories’ courts.  Implicitly, the interpretive guidance under the auspices of Article 7(1) promotes a measure of cooperation among the signatories’ national courts.[29]

            These two elements are intricately tied in that the second element fortifies the integrity and legality of the first element.  The second element promotes the international goals of CISG by insisting upon cooperation between the national courts of the signatories’ various jurisdictions “on an international level.”[30]  Even so, this reliance on international characterization encourages harmonization by forbidding references to entirely domestic nuances in the course of interpreting the various provisions under CISG.[31]

            Although Article 7(1) may not be sufficient for the purpose of achieving uniformity, it is entirely necessary.  This is so because all legislative provisions invariably lead to interpretive difficulties with respect to its exact meaning.[32]  This is particularly so when the legislative provision is applicable on an international level.[33] In domestic settings, national courts are at liberty to draw on established interpretation methods and principles.  However, international legislative provisions such as those found in CISG are based on international consensus and apply to a variety of domestic legal systems. This makes interpretation far more challenging since there is no single legal system for extracting established interpretive methods from.[34]

            Without Article 7(1)’s guidance on interpretation adjudicators could conceivably draw on the interpretive methods employed by the venue or the applicable law.[35] In either case however, uniformity would be entirely compromised because such an approach would give way to inconsistent interpretive methods and inconsistent adoption of the same law by the signatories to CISG.[36]  Moreover, such a practice could also increase the risk of “forum shopping.[37]  Ultimately, permitting such a practice would defeat CISG’s intent to provide for uniformity.[38]

            By insisting on an autonomous approach which dictates taking account of the international character of CISG and its uniformity purpose, the convention divorces itself from domestic interpretive methods.  As an independent law, CISG replaces each of the national systems of its signatories.  By doing so, interpretation must also follow in this vein.  Otherwise, diverse approaches to interpretation would invariably create diverse laws, thereby creating inconsistent laws and the end result is a lack of uniformity.

             Theoretically at least, Article 7 provides a sound and workable guidance for promoting uniformity by offering an interpretive method.  In practice however, uniformity may be compromised by “nationalization.”[39]  It has been argued that the greatest difficulty for the interpretive approach to CISG is that adjudicators are naturally inclined to interpret international laws by reference to national laws.[40]  This is accounted for by a belief that judges are inclined to look at uniform codes by reference to the law of the lex fori and to interpret these laws by relying on familiar principles.[41]

            The tendency to ignore the independent and autonomous nature of CISG’s Article 7(1) speaks to its weakness as an instructive provision.  In principle it provides guidance, if followed, would promote CISG’s goal of uniformity.  The absence of a centralized international court for adjudication of CISG contracts appears to be the difficulty.  If national courts seized of a CISG matter do not have to account to a higher authority for failing to adhere to Article 7(1)’s mandate, this practice of applying national interpretive standards will only persist.

ii.                  CISG’s Gap-Filling Objectives

It is impossible for any legislative provision to anticipate each and every issue that can arise in every legal context.[42]  The natural result is that there will be gaps.  In other words, situations and issues will arise that the relevant legislative provision does not make a specific provision for.  In this regard, issues may arise in the course of an international sales contract that are not covered under CISG.  To this end, Article 7(2) provides that in such a case the issue should be resolved:

“in conformity with the general principles on which [the Convention] is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.”[43]

            Article 7(2) therefore requires a two-tiered approach to gap-filling.  First, it must be determined that the question or issue is related to “matters governed by” CISG and have not been “expressly settle in it.”[44] Article 4 provides specific guidance as to what issues may concern matters relating to CISG.  Article 4 states that the scope and range of CISG embodies:

“the formation of the contract of sale and the rights and obligations of the seller and the buyer arising from such contract.”[45]

Article 4 also goes on to exclude from the scope of CISG, the validity of such a contract and its consequences for the goods sold under the contract.[46] Also outside the scope of CISG are matters relating to time limits, party capacity and third-party rights.[47] It therefore follows that since CISG does not include these matters within its scope and range, they can not be the subject of a gap-filling exercise.  In other words, if CISG makes provision for the relevant case, a gap-filling measure is not applicable.  If CISG is silent as to a provision and the relevant case is covered by CISG’s scope and range, gap-filling mechanisms can be invoked.[48]

Gap-filling mechanisms can be employed in three different ways.  One method of utilizing gap-filling methods is by applying analogous provisions that are specifically included in CISG.[49]  A second method is by the application of CISG’s general principles.[50] The third method is by the application of private international law.[51]

The emphasis is on the analogous  approach to gap-filling methods.  This method starts out by first referencing provisions applicable to cases of a similar nature.[52]  A similar approach is required in cases where the text of the relevant CISG provision is ambiguous or obscure.[53] Ideally, resolution should first come from within CISG by virtue of applying analogous provisions.

A good example of this approach is found in the decision of the Commercial Court of the Canton of Zurich (Switzerland).  In this case, an Italian furniture merchant sued a Swiss purchaser for funds due on the purchase.  The purchaser argued that the goods had been defective and had ignored the vendor’s request to cure the defects.  The Swiss Commercial Court held that it was an implied provision under CISG that a purchaser not only prove the defect existed, but must provide the vendor with notice of the defect “within a reasonable time.”[54]  In applying the analogous approach, the Swiss court ruled that the purchaser had not meet the required burden of proof and had therefore lost the right to argue non-conforming goods.[55]

The second approach of applying CISG’s general principles for  filling-gaps is far broader than the analogous approach since the latter requires a close nexus between the relevant case and CISG .[56]  In any case, the application of general principles is a common practice in civil law states.[57]  For example, Croatia, Switzerland, Austria, Italy, Spain and Egypt have specific statutory provisions for taking such an approach for gap-filling purposes.[58]

            In any case, in situations where the principle of law is clear and of universal acceptance there will be no problem applying it under CISG.  One such principle is the doctrine of party autonomy.[59]  Principles relating to reasonableness and good faith may not be so universal in practice.  In any event, the typical approach is to look to CISG first and if that fails then look to comparative principles.[60]

            A German case provides a good example of the application of CISG’s general principles as a means of invoking gap-filling resolutions.  In this case, a German purchased a knife cutting machine from an Indiana (USA) manufacturer and sued for damages as a result of personal injuries sustained as a result of the machine and damages for the costs of reparations. The German court had to determine the locus for the damages.  Looking to CISG the court determined that Article 57(1)(a) of CISG provided that purchase price was required to be paid at the seller’s place of business.  This provision was found by the court to encapsulate a general principle that claims in respect of funds which included damages under Articles 45 and 74 of CISG were payable at the claimant’s place of business who in the present case was German.[61]

In another case, an Austrian vendor initiated arbitration against a German purchaser for the purchase price and damages with respect to goods sold to a third party and refused by the German purchaser.  Looking to CISG, the arbitrator applied Articles 53 and 61, holding that the vendor was entitle to the purchase price.  As for the sale to a third party which was refused by the purchaser, the arbitrator ruled that Article 77 conferred upon the vendor the right to mitigate his or her damages.  The arbitrator held further that since interest was not specifically covered by CISG although governed by CISG, it would be resolved by virtue of CISG’s general principles.  Those general principles promoted full compensatory damages.[62]

Ultimately, the adjudicator resorts to analogous and general principles approaches for gap-filling by finding a solution within CISG itself.  However, gap-filling by virtue of applying the law and rules of private international law ventures outside of CISG and as such is a last resort method.[63]   In other words, an adjudicator is required to look within CISG for a resolution and only where there are no specific or analogous provisions and no general principles on the matter should the adjudicator look to the “choice-of-law rules”.[64]

Both gap-filling and interpretation under Article 7 of CISG have a single goal.  The goal is to ensure the uniform application of the Convention.  Article 7 therefore recognizes that unless the general principles of CISG and universally accepted methods and principles of interpretation and gap-filling, uniformity is compromised.  Ultimately, the power and purpose of CISG depends on its applicability to a particular case.  This raises the question of whether or not CISG is binding by virtue of its treaty structure in a contractual sense or by virtue of it being a law-making instrument.

            iii. Is CISG Close to Treaty Contracts or Law-Making Contracts?

The approach to interpretation of CISG and filling in gaps left by its provisions is significant for the fulfillment of the Convention’s goal of uniformity.  To this end, CISG becomes a treaty-contract since it relies on the premise that its signatories indorse the concept that the application of national laws creates diversity and compromises the facilitation of international trade.[65]

In this regard, there are three requirements for the satisfactory application of CISG and fulfilling its general principles and purposes.[66]  The first requirement is that the CISG must be indorsed and accepted.  Once it is indorsed it becomes a matter of public law.  The second requirement for fulfilling its purpose is the “awareness” of its existence and its implementation into the law of international trade.[67]  To this end, businesses and their attorneys incorporate CISG into specific commercial activities.  The third requirement is that CISG is applied by adjudicators seized of a dispute incorporating CISG.[68]

When looked at in this way, CISG is both a treaty contract and a law-making treaty.  In the first instance, signatories, by indorsing CISG have agreed to its application and implementation.  It therefore is a treaty contract.  When businesses and lawyers subscribe to CISG and are bound by it before courts, CISG becomes a law-making treaty since its law will apply to determination of the rights, obligations and mechanisms of the contract under dispute.[69]

Although CISG is close to both law-making treaties and treaty contracts, it is closer to a treaty contract than a law-making treaty.  The residual strength of CISG lays in large part on its ratification.  By September 2005 at least 63 countries ratified CISG and this number included many of world powers such as the USA, most of the European Community, China, Russia, Australia and Canada.[70] By ratifying CISG, these countries have bound themselves to the regulatory basis of CISG with respect to international contracts for the sale of goods.  In this regard, the legal effect of CISG is a contract treaty binding on those who have adopted it by ratification.

It is only by virtue of this voluntary contractual arrangement that these countries are legally bound to CISG as a law-making treaty.  However, the capacity of CISG to make law and enforce it is limited when one considers the lack of a hierarchal structure in the court system.  The function of case law under CISG explains how CISG as a law-making treaty is inherently weak.  Although judges in most jurisdictions adhere to the rulings of higher courts, this presents a difficulty for case law under CISG.[71]  The difficulty resides with the fact that there is no higher court in the CISG context that can resolve conflicting decisions rendered by the various jurisdictions under CISG.

The United Nations Commission on International Trade Law (UNCITRAL) attempts to remove the risk of inconsistent decision-making under a decentralized court system by preparing a Case Law on UNCITRAL Texts (CLOUT) and the UNCITRAL Digest on Case Law on the United Nations Convention on Contracts for the International Sale of Goods (CISG Digest).[72]  In very broad terms, the purpose of CLOUT and the Digest is to provide a means by which the UN Commission can report on cases decided under the various UN treaties and conventions.[73]  To date the majority of the cases reported fall under CISG and UNCITRAL Model Law on International Commercial Arbitration.[74]

            The binding nature of these reports however are no more capable of law-making than the CISG treaty itself.  Just as CISG relies in large part on the cooperation and voluntary concession of its signatories, reports on cases will depend on cooperation and voluntary concession on the part of the various adjudicators among the various jurisdictions of the signatories.

Perhaps, recognizing the need for something more substantial in the way of creating a law-making treaty, the Commission considered maintaining a tighter control over the obligation to follow previous decisions.  The Commission considered that it might respond to questions about the correct interpretation and application of CISG provisions from adjudicators and parties.[75] The Commission however, abandoned the idea on the grounds that to do so would require the Commission to take on a semi-judicial role, something that was outside of its authority.[76]

The Commission also considered creating a board of editors what would make intermitting comparisons of CISG cases and would then report to the Commission on the status of CISG’s application.[77]  The editorial board, made up of representatives from the various signatories would eventually be charged with the task of submitting “authoritative opinions” on interpreting CISG at the request of parties or adjudicators.[78]

Obviously, such a step would go a long way toward strengthening CISG as a law-making treaty.  However, the contractual nature of CISG as a treaty trumps the practicality of the Commission taking such an approach to creating an authoritative system of case law.  The Commission itself acknowledged that creating an editorial board with the authority to render authoritative opinions would be entirely impractical because it would require taken account of all the signatories to CISG and their desire to participate on such a board.[79] Moreover, Commission came to the conclusion that it would be entirely impossible to expect that court or arbitral decisions or an opinion by the editorial board would be regarded with the same value as a State’s national law.[80]

            Ultimately, the authority and effectiveness of CISG relies almost entirely on the nature of the contract it creates between the signatories.  Much depends on the signatory and its various administrative and private factions to adhere to the treaty obligations.  In other words, CISG creates a contractual treaty and although once it is invoked it can be considered a law-making treaty, the latter is entirely dependent on the voluntary nature of contractual obligations.

iv.                CISG as a Non-Self-Executing Treaty or a Self-Executing Treaty

A self-executing treaty is a treaty that is implemented by the mere act of becoming a member of the treaty.  A non-self-executing treaty typically requires implementation of domestic legislation that effectively changes local law so that the state can fulfill its obligations under the treaty.  The preamble to CISG binds each of its signatories to the provisions contained therein.[81]  As a prelude to the provisions of CISG, the text immediately preceding the various articles states that each of the signatories decree “as follows.”[82] The suggestion is therefore that CISG is a self-executing treaty and the mere signing of CISG implements its terms and condition.

Moreover, Article 1 makes it clear that CISG applies by virtue of mere ratification by signatories.  Article 1 reads as follows:

“(1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States:

(a)    when the States are Contracting States: or

(b)   When the rules of private international law lead to the application of the law of a Contracting State..”[83]

In other words mere ratification of CISG creates a commitment from the ratifying state.  In describing the member states or signatories to CISG the terms used in the literature are ratification and contracting states.  For instance, one author maintains that as of 2004 65 nations had ratified CISG and the UK was considering ratification once again.[84]  The impact of that ratification would indorse CISG as the applicable domestic law in instances of international sales contracts.[85]

            Essentially, the first six articles of CISG indicate unequivocally, that mere ratification or accession to CISG binds the contracting state to it.[86] As previously noted, Article 1 will have binding effect on the parties whose place of business is in different states and the states are signatories to CISG.[87]  Articles 2 and 3 provides for cases that are difficult or borderline and Articles 4 and 5 makes provision for those matters that are not covered by CISG.[88]  Moreover, Article 6 permits the parties to whom CISG otherwise applies to derogate from its application.[89]  Each of these Articles clearly indicates that CISG is self-executing treaty in the sense that it draws the parameters for application. A non-self-executing treaty would not have to make those provisions since the implementation of its provisions by domestic law would codify the extent to which the treaty is applicable or non-applicable.

The Extent to Which CISG is Subject to the Interpretation Rules Founded in the Realm of Public International Law

CISG attempts to subject itself to interpretation rules based on the creation of a single and common legal standard applicable to the realm of public international law.[90]   In this regard Article 7 draws attention to its unique approach to interpretation in the realm of public international law.  It requires taking special account of the CISG’s uniformity purposes.[91] In adopting this approach, CISG expects that the text of the Convention be read “with regard for their ‘international character.”[92] It is anticipated that by taking this approach, a body of public international law will evolve by virtue of “international case law and scholarly writing.”[93]

            Even so, CISG builds on a body of public international law that precedes it.   The body of public international law created was the Hague Conventions of 1964 and CISG purports to benefit from the failures attached to the Hague Conventions.[94] These difficulties were primarily attributed to the problem of interpretation.[95]

The problem of interpretation of CISG is further exacerbated by the practice of national adjudicators to adhere to familiar methods of interpretation rather than resorting to the realm of public international law.  In this regard, Article 7 of CISG attempts to draw attention to the international character of uniform law as a guiding point for interpretation.

The Vienna Convention 1969 provides a general guidance for the interpretation of treaties within the realm of public international law.  Article 31 provides:

“A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.”[96]

The difficulty with this approach is immediately obvious.  While it is possible to deduce the purpose and objective of a treaty, it is impossible to deduce the ordinary meanings of terms in the treaty when diverse cultures and legal systems have diverse meanings.  In other words, what may be an ordinary meaning in one jurisdiction can be an entirely extra-ordinary meaning in another jurisdiction.

            The problem with interpreting CISG within the realm of public international law is succinctly explained by Mann.  To demonstrate this persistent problem with respect to public international law Mann uses English law as an example.  As for English statutes, the interpretive rules are firmly established.[97]  The first rule of thumb in English rules of interpretation is to look to the statute for guidance.[98]  If the provision is found to be ambiguous, the interpreter then looks to the legislator’s intention.[99] It therefore comes as no real surprise that rules such as these are employed by English courts when called upon to interpret public international law.[100]

            France presents a similar dilemma.  Although the general rule with respect to treaties and convention is to look to the intention of the ratifying countries, in practice however, judges typically look to national interpretive rules.[101] The United States likewise provides for a vastly similar approach to the interpretation of conventions and treaty, but again in practice, state judges have taken a rather liberal approach.[102]

            Drawing on these examples it would appear that CISG faces the challenge of obtaining cooperation among national courts in interpreting CISG within the realm of public international law.  Although national rules insist upon looking to the international treaty or convention for guidance as to the correct approach to interpretation, national interpreters have a tendency to adhere to national rules of interpretation.  Although CISG makes provision for a singular code regulating the international contract for the sale of goods and interpretation based on its international character, national legal systems, mired in years of tradition and policies may not be so inclined to adopt interpretive approaches found in the realm of public international law.  The problem is primarily rooted in the fact that interpretation or translation is not merely a language dilemma, it is also a creature of “legal concepts and legal cultures.”[103]

III. Principles of Interpretation of the CISG Convention

A. The International Character of CISG

            The principles of interpretation of the CISG Convention are found in Article 7.  These principles can be described as founded on a need to promote uniformity and/or harmonization of the law regulating international contracts for the sale of goods and the international character of the Convention.[104] Article 7(2) provides further principles with respect to interpretation, directing that where the Convention is silent on a specific issue to which it applies regard must be had to the general principles of CISG.[105]

            Again attention is drawn back to CISG’s general principles.  CISG’s preamble states the general principles of the Convention as follows:

“…the adoption of uniform rules which govern contracts for the international sale of goods and take into account the different social, economic and legal systems would contribute to the removal of legal barriers in international trade and promote the development of international trade.”[106]

There is no mistaken the international character of the general principles of CISG.  Although the words contained in both the Preamble and Article 7 insists upon directing attention to the international character of CISG, it is doubtful that words alone will function to obtain uniformity.[107]

            Some aspects of the CISG Convention are entirely impossible to attribute to international characterization in accordance with CISG’s general internationalization principles.  For instance, Article 39(1) provides that notice of non-conforming goods must be provided within a reasonable time.[108]  What amounts to a reasonable time in one jurisdiction is not similarly disposed of in another, since reasonableness is not capable of universal application.  For example, Austrian courts deem one month as a reasonable time for providing notice of non-conforming goods, while German courts regard two weeks as reasonable notice.[109]

            Reasonable notice of non-conforming goods is a significant part of the substantive law contained in CISG.  No notice at all would deny the relevant party any remedy for defective goods under a CISG contract.[110]  Considering that what amounts to reasonable notice will make the difference as to whether or not damages can be awarded for defective goods some specificity should be accorded under CISG.  Interpretive guidance directs attention to the internationalization principles of the Convention.  This is unfortunate in this particular instance since what amounts to a reasonable time is not capable of international characterization.

            Perhaps a compilation of CISG international cases could resolve the issue by providing a judicial definition of what amounts to a reasonable time.  However, as it is, international cases under CISG are typically determined by national courts.  In such instances, decisions rendered by international courts are frequently ignored or given little weight while national decisions referencing CISG are favoured.[111]

            In keeping with the international character of CISG courts and attorneys are required to keep this underlying principle in mind.  To this end, it is necessary for both courts and attorneys to understand the principle of internationalization when applying the law.  In other words, it is necessary to take the position that the term international means detachment from domestic law and legal theories.[112]  Uniformity, another guiding principle contained in the CISG Convention, requires consistency in the application of the Convention on an international plain.[113]

            Domestic courts can and have respected the utility of uniformity and internationalization.  For instance in Fothergill v Monarch Airlines [1981] AC 251 the House of Lords was faced with the interpretation of the Warsaw Convention on the Liability of Air Carriers and stated in no uncertain terms that uniformity in international law is “unique” and as a result required unique treatment.[114]

In Air France v Saks 479 US 392 (1985) the US Supreme Court had for determination the definition to be assigned to the word “accident” within the meaning of the Warsaw Convention.  The US Supreme Court ruled that rulings from foreign jurisdictions that interpreted terms under a treaty would be accorded “considerable weight.”[115]

Even so, the private nature of the contractual relations between the parties to an international contract under CISG will inevitably be treated differently by adjudicators than Conventions such as the Warsaw Convention which is decidedly public in nature and of a larger scale.[116]  The fact is, the international factor in a private contract will not be a significant concern.  However, in order to achieve its internationalization principle, the international factor in a CISG case will be required to be a prevailing consideration for interpreters.[117]

It is clear from the wording of Article 7(1) of CISG that adjudicators are required to pay due regard to the international character of the transaction.  Moreover, references and influences from national legal systems, policies, customs and practices directly contradicts the international spirit and intent of CISG.[118] The idea is to rely as far as possible on the Convention itself and to steer away from national methods of interpretation.  In its commentary on the CISG draft of 1978, the UN Secretariat explained the necessity for such an approach to maintaining the international character of CISG.  The UN Secretariat explained that national rules relating to the sale of goods are bereft with many differences “in approach and concept.”[119] If adjudicators were permitted to rely on national concepts and approaches to interpreting CISG provisions, the emerging law would exist in a state of inconsistencies and uncertainties.

By mandating that adjudicators ignore national concepts and approaches to interpretation, Article 7 implicitly implores adjudicators to have regard to decisions rendered in other jurisdictions.[120]  However, when looking to other jurisdictions, the adjudicator must look at their approach to international interpretations and applications, not their domestic approaches and concepts.[121] Arguable the arbitrator in a CISG in ICC Arbitration No. 7331 of 1994 devised a majority rule approach to interpreting “the issue of novation”, an issue not provided for in CISG.  The arbitrator looked for the “common standard” in the domestic laws of three countries and applied it in the CISG case.[122]  Taking this approach defeats the international character of CISG.  It ignores the fact that CISG does not merely apply to the three countries chosen, but to all the signatories to the CISG.[123]

            The need for an internationalized approach to contracts for the sale of goods on an international level follows from the industrial revolution.[124] Industrialization resulted in mass production and economic relationships that crossed borders.[125]  These changes have only been exemplified by advances in technology, particularly information technology.   The creation of a law that transcends nationality is entirely necessary for facilitating the economic transactions that cross borders.[126] CISG is based on this premise and promotes the concept that interpretation of its substantive law necessarily requires ignoring nationality with respect to legal concepts and approaches.

            Whether or not adjudicators can realistically abandon national concepts is an entirely different matter.  The difficulty appears to be with uniform adherence to the internationalized approach to interpretation.  CISG’s Article 7, while appearing to eliminate the risk of nationalization, ironically creates the risk.  The risk is created by Article 7 permitting national adjudicators to interpret the provisions contained in CISG.[127] After a number of years in operation, CISG has not lived up to its internationalization agenda.  Commentators have observed that not only is CISG rarely used in “some jurisdictions”, in some instances where it is applied,  CISG is interpreted by reference to domestic law and still there is a general propensity in other jurisdictions to simply “ignore the Convention” when it should be applied.[128]

            While there is no certain way to ensure that adjudicators approach interpretation from a purely international way and ignore domestic approaches, a more practical approach is possible.  To start with, the propensity to refer to domestic laws as interpretive aids can provide a good measuring stick.  It has been suggested that reference to domestic laws as interpretive rules is primarily because those laws are more precise and more defined.[129]

It therefore follows that should CISG provide more specific laws and rather more specific definitions, domestic interpreters may be more inclined to adhere to the proviso that they ignore national legal systems and influences in interpreting the Convention.  Moreover, a centralized legal pyramid where an international court or tribunal can adjudicate appeals and set binding precedents will certainly strengthen the chances of the CISG achieving its goal of an internationalized approach to interpreting its provisions.

Achieving Uniformity In CISG’s Application
Principles of uniformity under CISG is predicated on two distinct but intricately tied elements, both of which are contained in Article 7.   The first of these elements is the internal principle which requires that adjudicators look to the letter of the law expressed in CISG itself.  For example, in the case of a gap CISG requires that the matter be resolved first and foremost by reference to CISG’s general principles.[130]  The second element of uniformity permits references to comparative principles and laws, but only after the matter cannot be resolved internally.[131]  This approach is referred to as the external principle.[132]

            It goes without saying that in order to achieve its stated goal of uniformity, the laws under CISG require uniform interpretation and application.  This is evidenced by CISG’s internal and external principles and the manner in which internal principles are prioritized under Article 7.  The problem again, reverts back to the domestic adjudicators that are invariably charged with interpreting uniform laws.  It has been observed  that in practice, adjudicators tend to treat the application of uniform laws in the same manner that they would treat national laws.[133]

            The problem is cited as relating to the lack of legal theory and practice common to all the adjudicators and attorneys impacted by CISG.[134]  There is no common legal and practical bound upon which these participants can rely.[135] What inevitably happens is a trend referred to as “homeward bound” which reflects a propensity to rely on the domestic forum for interpretive guidance.[136]  As a result uniformity is entirely compromised.

            Uniformity however, is not impossible.  Valuable lessons can be learned from the US experience under the Uniform Commercial Code and the European Economic Community’s experience under the Treaty of Rome.   Each of these systems are structured so that uniformity can be and has been to a large extent accomplished.  In the US, inferior courts have no difficulty looking to precedents from other state courts of a higher authority for guidance on how to resolve conflicting decisions.[137] Additionally, over time, US state courts have developed and subscribed to a body of well defined rules dictating how and when to apply the uniform standards contained in the Uniform Commercial Code to conflicting state decisions.   In other words a body of well-defined rules have been developed and accepted among the various states.[138]

            It is doubtful that judicial practices under CISG can develop a similar trend.  This is particularly so because unlike in the US, signatories to CISG are not bound by a single codified constitution as in the US.  Under circumstances such as those existing in the US, where the political culture and the binding constitution itself creates unity, it is far easier to convince the judiciary to interpret its uniform law with a focus on the need for uniformity among the several states.  Convincing diverse political and legal systems of the need for unity is a far more difficult task.

            The EEC experience however, may be more beneficial to the CISG Convention’s principle of uniformity.  Judicial structure within the EEC commands uniformity.  By virtue of the power and authority of the European Court of Justice, uniformity is not only mandated it is entirely enforceable.[139] Article 177 of the Treaty of Rome confers the final power of interpretation on the European Court of Justice.[140]

While such an approach may not be amenable to the CISG which is comprised of vastly different nations with vastly different legal systems, the creation of an advisory panel would improve upon the uniformity of interpretations under CISG.[141] At the very least, it would set up definitions and specific approaches to conflicting decisions, identify errors of interpretations and developed a well defined set of principles and approaches.  This is preferable to placing the power of interpretation solely in the hands of domestic adjudicators.  At the very least it would encourage a far more uniform approach to interpretation. In this regard adjudicators would be more inclined to adhere to uniform approaches to interpretation.

Be that as it may, UNCITRAL under which CISG was formed, has taken steps toward achieving the goal of uniformity.  Those measures are reflected in CLOUT which allows adjudicators and practitioners to take previous decisions into consideration and to advance the concept of harmony in interpreting and applying the text of UN conventions such as CISG.[142] CLOUT was followed by the CISG Digest which accomplishes a similar purpose, the publication of decisions rendered under CISG.[143]

Despite reports on divergence and disparity among various adjudicators that compromise the principle of uniformity, CLOUT and the CISG Digest has seen some improvement along the lines of uniformity of decision-making.[144] For example in CLOUT Case No. 378 (Tribunale di Vigevano, Italy, 12 July 2000) an Italian ruling relied on forty different foreign decisions in arriving at a conclusion.[145] In another Italian case, Tribunale di Pavia, Italy 29 Dec. 1999 reliance was placed on a Swiss case and the Italian tribunal held that in order to facilitate the goal of uniformity account should be taken of foreign decisions.[146]

            There are currently a number of decisions particularly from the US, Germany and Switzerland recorded in the CISG Digest that reflect a trend toward taking into consideration the international character of CISG as a means of rationalizing a departure from national approaches to interpretation of CISG.[147]  For instance in a US case under CISG, CLOUT Case No. 222 (MCC-Marble Ceramic Center Inc, v Ceramica Nuova D’Agostino S.P.A. 144 F 3d 1384 [11th Cir. 1998], the US Court determined that the US rule relating to oral evidence would not be applied in the interpretation of a CISG contract.[148]

            While these trends are encouraging the requirement to focus on uniformity under CISG lacks the kind of authority found in the judicial structure of the EEC.  Far too much depends on the judiciary’s willingness to apply the principles of uniformity and to pay due regard to foreign decisions.  Any progress in this regard will remain tenuous and perhaps provide some measure of optimism.  However, it will never decidedly promote and secure uniformity unless and until national courts are accountable to a central international panel.

Observance of Good Faith in International Trade
In addition to requiring that interpretation of CISG draw attention to “its international character and the need to promote uniformity” in the application of CISG, Article 7(1) also requires “the observance of Good Faith in international trade.”[149] The requirement of good faith presents some practical interpretive problems particularly since it is not defined by CISG.  Complicating matters, good faith is a complex concept in both civil and common law legal systems.[150]

            While common law systems do not typically rely on the concept of good faith to a great extent, civil law jurisdictions do and usually have wide and complicated interpretations of the term.[151]  In those jurisdictions that rely on the concept of good faith, they each have different concepts and interpretations of the term.[152]  It therefore follows that from the outset, the term good faith as a means of promoting uniformity and internationalization in the interpretation of CISG provides a great deal of difficulties for accomplishing those goals.  Defining and interpreting with reference to good faith is particularly complicated because it lacks a single, universal meaning and Article 7(1) forbids the inclusion of domestic legal concepts in the interpretation of CISG provisions.

            Ideally, it would be a fairly simple task in relation to applying good faith in the interpretation of CISG if there was a universal standard by which to apply its meaning.[153] Be that as it may, the duty of good faith dates back to Roman times and was then a criteria for commercial exchanges.[154]  Once again, the requirement of good faith was emphasized in during the eleventh and twelfth centuries among the “mercantile community.”[155]  As previously stated, good faith functions differently, relying largely on the legal system applying it.[156]

            Arguably, the good faith requirement in the text of CISG merely applies to the interpreter and imposes no such argument on the parties with respect to their dealings throughout the contract.  After all CISG mentions good faith once and it is mentioned only in the interpretation article, Article 7(1).[157] Implicitly however, CISG requires the parties to act in good faith.  For instance Article 4 confers upon its signatories the right to rely on “national policies with regard to contractual validity.”[158] Conceivably, a signatory’s national policies may require good faith as a prerequisite for ascertaining the validity of a contract.

            Moreover, the preamble to CISG purports to have as one of its objectives, the promotion of the principle of “equality and mutual benefit.”[159]Implicitly, this goal can be accomplished by virtue of good faith in that it requires full and honest disclosure of pertinent information, preventing parties acquiring a benefit from conduct calculated to terminate the contract and to sustain the contract if possible and to mitigate damages.[160]

            Scholars have debated the issue of whether or not CISG only imposes a duty of good faith on interpreters as specifically stated in Article 7(1), or whether or not a general duty of good faith exist between the parties to the international sales contract.  The end result, is a division of consensus.[161]In Renard Constructions (ME) PTY Ltd.v Minister for Public Works, 26 New South Wales Law Reports 234 (1992), the Australian court emphasized in a domestic case that the duty of good faith was required in the performance of obligations under a contract. Specific reference was made to the duty expressed in Article 7 of CISG as a recognition of the duty of good faith on an international level.[162]

Similarly, a French court came to the same conclusion in SARL Bri Production “Bonaventure” v Socit Pan African Export, Journal du Droit Internaional 632-639 (Cour d’Appel de Grenoble Chambre Commerciale 1995).[163] In this case the French court came to the conclusion that Article 7 of CISG imposed a duty on the contracting parties to act in good faith during the performance of their respective contractual obligations.[164] A Hungarian arbitral process took a slightly different approach in Failure to Give Guarantee (Aus. v Hung.) Hungarian Chamber of Commerce and Industry Court of Arbitration, UNILEX, No. VB 94124 (Nov. 17, 1995). In this case it was held that Article 7 of CISG confers a duty on the interpreters to act in good faith when interpreting CISG and on the parties to the CISG contract.[165]

Having regard to the fact that all adjudicators are required to and naturally assumed to act in good faith and impartially, it hardly makes sense that Article 7(1)’s reference to good faith refers to the adjudicator’s conduct.  It would therefore make sense that the interpretive guide in Article 7(1) directs the adjudicator to take the concept of good faith and fair dealing in contractual trading internationally into account when interpreting CISG.  So as an interpretive guide, the duty of good faith will have to be referenced with respect to the parties’ conduct throughout the contractual obligations and performance   In the end, the best that can be deduced is that Article 7(1) introduces the concept of good faith and interpreters are obliged to translated CISG in the context of good faith, applying its principle to the parties’ conduct and relationship.[166]

The primary difficulty with using good faith as an interpretive guide is that there is no definitive or universal code of conduct in contractual performances.[167]  In the absence of a clear definition of universal application, the inclusion of good faith can only lead to the prevailing and ever present threat of the homeward trend.  Although it is argued that various provisions under CISG such as the duty to mitigate and to save the contract implicitly require good faith, it is not enough to ensure uniformity of interpretation of the international contract with regard to the principles of good faith.  In order to achieve uniformity, the principles of good faith will have to be clearly defined and not so broad and vague as to give way to flexibility in interpretation.

IV. Gap-Filling Under CISG

The term lacuae iuris is used to refer to situations in which a statute fails to specifically provide for an issue.[168] Article 7(2) of CISG provides a remedy for such a situation.[169]  The remedy is to resolve the unaccounted for issue by reference to the general principles contained in CISG.[170]  Ultimately, Article 7(2) requires consultation with CISG’s general principles prior to applying national laws to a matter not specifically covered by CISG.[171]  Complicating matters, CISG provides no specific list of general principles and again a flexible approach is required to deduce the general principles.

            The general principles can be deduced from CISG’s goals and objectives which are undoubtedly the promotion of uniformity and the removal of trade barriers in the form of divergent legal, political and social systems.[172] Moreover, several general principles can be deduced from the various provisions contained in CISG.  For instance, the requirement to give reasonable notice of non-conforming goods, the requirement to give reasonable notice of intention to avoid the contract,[173]and a general duty to mitigate damages.[174]

            Courts have deduced general principles from the CISG by analogy.  For instance the Court in Case HG930238 U/H93 (Italy v Switz) Handelsgerich Zurich (Sept. 9, 1993) concluded that it can be implied from CISG that the burden of proof relating to non-conforming goods is on the purchaser since CISG explicitly requires the purchaser to provide reasonable notice of the same.[175]  However, where there is no means by which to draw an analogy or extract a general principles, courts can compromise the goal of uniformity by resorting to domestic law.  For example in Arbitral Award 6653 (Fr. v Syria) ICC Cr. Arb. (Feb. 7, 1993) the arbitrator said that although Articles 35 and 36 of CISG provides for a united concept of non-conformity, it does not distinguish between non-conforming goods and defective goods, but France does.  Therefore the question with respect to the burden of proof relating to non-conforming goods is not provided for under CISG and would be settled by virtue of French law.[176]

Obviously, resort to national provisions to fill in gaps left by CISG is a method of last resort.  This approach will compromise the goal of uniformity in international trade law.  The logical approach would be to take an analogous approach to gap-filling.  This is a fairly frequent occurrence in common law jurisdictions.  In common law jurisdictions gap-filling by analogy occurs under the auspices of the doctrine of stare decisis which adheres to a practice of respecting court judgments for guidance.[177]  It provides a means by which case precedents permit the application of rules from previous cases to a new set of facts and circumstances.[178]  It allows for adjusting to novel situations which may not have been covered by rules or in practice.[179]

Resorting to gap-filling by analogy or otherwise under civil law systems is a bit more complicated than in the common law systems.  Civil law systems typically expect legislative provisions to be complete and authoritative.[180] Judges are expected to resolve disputes strictly by reference to and within the framework of the legislative provision.[181]  In the event there is a gap, the civil judge will look to another code or “analogize” from another code to resolve the matter.[182]

            In either case, the approach taken by both civil systems, although vastly different from one another are perfectly acceptable under CISG Article 7(2) for gap-filling within the interpretive framework of CISG.  The difficulty for civil law systems is that those adjudicators will be forced to fill in the gaps by looking to comparative legal codes which can invariably lead to the homeward trend. In fact, this is what the arbitrator did in the case of Arbitral Award 6653 (Fr. v Syria) ICC Cr. Arb. (Feb. 7, 1993) cited above.  The arbitrator found that CISG did not make specific provision for the burden of proof with respect to non-conforming goods and looked to French law for the answer. Common law systems are prepared to look at comparative rulings by foreign judgments under CISG which accommodates the drive for uniformity.  However, the homeward trend is a potential source of problems under both systems.

V. Conclusion

            Contracts for the sale of goods are generally subject to diverse concepts and approaches under distinct national legal and political systems.[183]  CISG 1980 has as its aim the unification of the laws applicable to the international sale of goods as a means of eliminating or removing these national differences particularly since they can act as barriers to the facilitation of international sales.[184]

During the course of this research it has become increasing clear that uniformity of laws among diverse political and legal systems is no small task.  In order to comply with the drive to unify the laws of these diverse cultures the terms and provisions of the substantive laws were necessarily required to be broad and in some instances vague. This was entirely necessary in order to take account of the differences among the many signatory nations.  Moreover, the fact that it is virtually impossible for any legislative provision to cover every conceivable issue that might arise, the content of CISG was deliberately broad and perhaps vague to accommodate that eventuality.

Having found it necessary to take a broad and even vague approach to the substantive law with respect to unifying the international sale of goods, much is left open to interpretation. Recognizing that the same national diversity that necessitate incorporating broad terms and provisions can also compromise the application and interpretation of CISG, a unique approach to CISG was necessary.  To this end, CISG include Article 7 as a guiding post for the uniform interpretation of its substantive provisions.

These guideline require an autonomous approach in that all national nuances, rules and influences must be disregarded.  Instead adjudicators are required to focus on the international character of the contract for the sale of goods internationally, the need for uniformity and good faith in the international sale of goods.  Lacking specificity and definition has been a problem for interpreters who invariably adopt a homeward trend in instances where the law is not immediately clear.  Although there appears to be a growing trend toward referring to foreign decisions applying CISG since the publication of CLOUT and the CISG Digest, uniformity remains compromised by the likelihood of the homeward trend.

Drawing on the fact that the publication of CLOUT and the CISG Digest has had an appreciable impact on adjudicators, an expansion of this theme appears to be the solution to promoting uniformity.  The establishment of a central and higher court with the authority to define terms and correct errors will certainly improve the uniformity goals of CISG.  As it is, lower courts are accountable to their national courts in the hierarch of their national legal systems.  It is understandable that these courts will have a natural inclination to lean on domestic interpretive rules for guidance.

In the event a central and higher court is impractical because of the sheer number of signatories that might want to participate, an advisory panel should be appointed.  The panel should be charged with the responsibility of commenting on decisions and rendering authoritative opinions on the correctness of lack thereof of these decisions.  These opinions should then be published and available to all adjudicators and practitioners.  Like any successful legal system, such a practice will create and develop a more precise and acceptable method of interpretation and will also create and develop a list of precise definitions.  While this approach will take time, it is preferable to providing adjudicators with the authority to interpret CISG, with no real recourse for departure from the rules.  The risk of being overruled or criticized will provide an incentive for adjudicators to adhere to CISG’s goal of uniformity.

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• [1] ‘Unification and Certainty: The United Nations Convention on Contracts for the International Sale of Goods.’ (Jun., 1984) 97(8) Harvard Law Review, 1984-2000, 1984.
  [2] R. Hillman. ‘Applying the United Nations Convention on Contracts for the International Sale of Goods: The Elusive Goal of Uniformity.’ (1995) Cornell Review of the Convention on Contracts for the international Sale of Goods 21-49, 21.
  [3] M. Gebauer. ‘Uniform Law, General Principles and Autonomous Interpretation.’ (2000-4) Uniform Law Review, 683-705, 683.
  [4] M. Bonell. ‘Article 7.’ Cited in Bianca-Bonell (Ed) Commentary on the International Sales Law. (Guiffre: Milan, 1987) 65-94, 65.
  [5] R. Hillman. ‘Applying the United Nations Convention on Contracts for the International Sale of Goods: The Elusive Goal of Uniformity.’ (1995) Cornell Review of the Convention on Contracts for the international Sale of Goods 21-49, 21..
  [6] ibid, 21.
  [7] R. Hillman. ‘Applying the United Nations Convention on Contracts for the International Sale of Goods: The Elusive Goal of Uniformity.’ (1995) Cornell Review of the Convention on Contracts for the international Sale of Goods 21-49, 21-22.
  [8] ibid, 22.
  [9] ibid, 22.
  [10] R. Hillman. ‘Applying the United Nations Convention on Contracts for the International Sale of Goods: The Elusive Goal of Uniformity.’ (1995) Cornell Review of the Convention on Contracts for the international Sale of Goods 21-49, 22.
  [11] ibid 22.
  [12] ibid 22.
  [13] ibid 22.
  [14] F. Diedrich. ‘Maintaining Uniformity in International Uniform Law Via Autonomous Interpretation: Software Contracts and the CISG.’ (1996) 8 Pace International Law Review, 303-338, 303.
  [15] B. Zeller. ‘Four-Corners – The Methodology for Interpretation and Application of the UN Convention on Contracts for the International Sale of Goods.’ (May 2003) Ch. 2.
  [16] P. Winship. ‘The Scope of the Vienna Convention on International Sales Contracts.’ Cited in Galston and Smit (ed) International Sales: The United Nations Convention on Contracts for the International Sale of Goods. (Matthew Bender, 1984)  Chapter 1, 2.
  [17] ibid, 2.
  [18] ibid, 2.
  [19] J. Felemgas. An International Approach to the United Nations Convention on Contracts for the International Sale of Goods (1980) As Uniform Sales Law. (Cambridge University Press, 2007) 4.
  [20] J. Felemgas. An International Approach to the United Nations Convention on Contracts for the International Sale of Goods (1980) As Uniform Sales Law. (Cambridge University Press, 2007) 4.
  [21] N. Povrzenic. ‘Interpretation and Gap-Filling Under the United Nations Convention on Contracts for the International Sale of Goods.’ (1998) http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html Retrieved July 25, 2009.
  [22] M. Rosenberg. ‘The Vienna Convention: Uniformity in Interpretation for Gap-Filling – An Analysis and Application.’ (1992) 20 Australian Business Law Review, 442-460, 447.
  [23] P. Koneru. ‘The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles.’ (1997)6 Minnesota Journal of Global Trade, 105-152, 106.
  [24] CISG 1980, Art. 7(1).
  [25] M. Alstine. ‘Dynamic Treaty Interpretation.’ (1998) 146 University of Pennsylvania Law Review, 687-783, 730.
  [26] ibid, 730.
  [27] ibid, 731.
  [28] ibid, 731.
  [29]ibid, 731.
  [30] M. Alstine. ‘Dynamic Treaty Interpretation.’ (1998) 146 University of Pennsylvania Law Review, 687-783, 731.
  [31] ibid, 731.
  [32] J. Felemgas. An International Approach to the United Nations Convention on Contracts for the International Sale of Goods (1980) As Uniform Sales Law. (Cambridge University Press, 2007) 9.
  [33] ibid 9.
  [34] ibid 9.
  [35] ibid 9.
  [36] J. Felemgas. An International Approach to the United Nations Convention on Contracts for the International Sale of Goods (1980) As Uniform Sales Law. (Cambridge University Press, 2007) 9.
  [37] ibid 10.
  [38] ibid 10.
  [39] ibid 12.
  [40] ibid 11.
  [41] ibid 11.
  [42] N. Povrzenic. ‘Interpretation and Gap-Filling Under the United Nations Convention on Contracts for the International Sale of Goods.’ (1998) Section 4  http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html Retrieved July 25, 2009.
  [43] CISG 1980, Art. 7(2)
  [44]N. Povrzenic. ‘Interpretation and Gap-Filling Under the United Nations Convention on Contracts for the International Sale of Goods.’ (1998) Section 4  http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html Retrieved July 25, 2009.
  [45] CISG 1989, Art, 4.
  [46] ibid Art. 4.
  [47]N. Povrzenic. ‘Interpretation and Gap-Filling Under the United Nations Convention on Contracts for the International Sale of Goods.’ (1998) Section 4  http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html Retrieved July 25, 2009.
  [48] ibid, Section 4.
  [49] ibid, Section 4.
  [50]ibid, Section 4.
  [51] ibid, Section 4.
  [52] N. Povrzenic. ‘Interpretation and Gap-Filling Under the United Nations Convention on Contracts for the International Sale of Goods.’ (1998) Section 4  http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html Retrieved July 25, 2009
  [53] ibid Section 4.
  [54] ibid Section 4.
  [55] ibid Section 4.
  [56] ibid Section 4.
  [57] ibid Section 4.
  [58] N. Povrzenic. ‘Interpretation and Gap-Filling Under the United Nations Convention on Contracts for the International Sale of Goods.’ (1998) Section 4  http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html Retrieved July 25, 2009
  [59] ibid Section 4.
  [60] ibid Section 4.
  [61] ibid Section 4.
  [62] N. Povrzenic. ‘Interpretation and Gap-Filling Under the United Nations Convention on Contracts for the International Sale of Goods.’ (1998) Section 4  http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html Retrieved July 25, 2009
  [63] ibid Section 4.
  [64] ibid Section 4.
  [65] N. Povrzenic. ‘Interpretation and Gap-Filling Under the United Nations Convention on Contracts for the International Sale of Goods.’ (1998) Section 5  http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html Retrieved July 25, 2009
  [66] ibid, Section 5.
  [67] ibid, Section 5.
  [68] ibid, Section 5.
  [69] N. Povrzenic. ‘Interpretation and Gap-Filling Under the United Nations Convention on Contracts for the International Sale of Goods.’ (1998) Section 5  http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html Retrieved July 25, 2009
  [70] O. Lando. ‘CISG and Its Followers: A Proposal to Adopt Some International Principles of Contract Law.’ (2005) 53(2) The American Journal of Comparative Law, 379-401, 380.
  [71] J. Lookofsky. ‘Digesting CISG Case Law: How Much Regard Should We Have?’ (2004)8 Vindobona Journal of International Commercial Law and Arbitration, 181-195, 184.
  [72] S. Bazinas. ‘Uniformity in the Interpretation and the Application of the CISG: The Role of Clout and the Digest.’ (22-23 September, 2005) Presented at Celebrating Success: 25 Years United Nations Convention on Contracts for the International Sale of Goods (Collation of Papers at UNCITRAL, SIAC Conferences 22-23 September 2005, Singapore, 18-27, 18.
  [73] ibid, 19.
  [74] ibid, 19
  [75] ibid, 19
  [76] ibid, 19
  [77]S. Bazinas. ‘Uniformity in the Interpretation and the Application of the CISG: The Role of Clout and the Digest.’ (22-23 September, 2005) Presented at Celebrating Success: 25 Years United Nations Convention on Contracts for the International Sale of Goods (Collation of Papers at UNCITRAL, SIAC Conferences 22-23 September 2005, Singapore, 18-27, 20.
  [78] ibid, 20.
  [79] ibid, 20.
  [80]ibid, 20.
  [81] J. Felemgas. An International Approach to the United Nations Convention on Contracts for the International Sale of Goods (1980) As Uniform Sales Law. (Cambridge University Press, 2007) 2.
  [82] CISG 1980, Preamble.
  [83] CISG 1980, Art. 1.
  [84] C. Andersen. ‘The Uniform International Sales Law and the Global Jurisconultorium.’ (2005) 24 Journal of Law and Commerce, 159-179, 160.
  [85] ibid, 160.
  [86]P. Winship. ‘The Scope of the Vienna Convention on International Sales Contracts.’ Cited in Galston and Smit (ed) International Sales: The United Nations Convention on Contracts for the International Sale of Goods. (Matthew Bender, 1984), 16.
  [87] ibid, 16.
  [88] ibid, 16.
  [89] ibid, 16.
  [90]S. Salama. ‘Pragmatic Responses to Interpretive Impediments: Article 7 of the CISG, an Inter-American Application.’ (2006)38 University of Miami Inter-American Law Review, 225-250, 226.
  [91] J. O’Honnold. Uniform Law for International Sales under the 1989 United Nations Convention. (Kluwer Law International, The Hague, 3rd Edition, 1999) 88-114, 88.
  [92] ibid, 88.
  [93] ibid, 89.
  [94] ibid, 89.
  [95] ibid, 89.
  [96] J. O’Honnold. Uniform Law for International Sales under the 1989 United Nations Convention. (Kluwer Law International, The Hague, 3rd Edition, 1999) 88-114, 93.
  [97] F. Mann. ‘The Interpretation of Uniform Statutes.’ (1946) 62 Law Quarterly Review, 278-291, 278.
  [98] ibid, 278.
  [99] ibid, 278.
  [100] ibid, 279.
  [101] ibid, 285.
  [102]ibid, 289.
  [103] S. Salama. ‘Pragmatic Responses to Interpretive Impediments: Article 7 of the CISG, an Inter-American Application.’ (2006)38 University of Miami Inter-American Law Review, 225-250, 226.
  [104] CISG 1980 Art. 7(1).
  [105] ibid, Art 7(2)
  [106] ibid, Preamble.
  [107] Andersen, C. ‘The Uniform International Sales Law and the Global Jurisconultorium.’ (2005) 24 Journal of Law and Commerce, 159-179, 162.
  [108] CISG 1980, Art, 39(1).
  [109] Andersen, C. ‘The Uniform International Sales Law and the Global Jurisconultorium.’ (2005) 24 Journal of Law and Commerce, 159-179, 162.
  [110] ibid, 162.
  [111] ibid, 162.
  [112] Andersen, C. ‘The Uniform International Sales Law and the Global Jurisconultorium.’ (2005) 24 Journal of Law and Commerce, 159-179, 164.
  [113] ibid, 164.
  [114] Fothergill v Monarch Airlines [1981] AC 251 Cited in Andersen, C. ‘The Uniform International Sales Law and the Global Jurisconultorium.’ (2005) 24 Journal of Law and Commerce, 159-179, 164.
  [115] Air France v Saks 479 US 392 (1985) Cited in Andersen, C. ‘The Uniform International Sales Law and the Global Jurisconultorium.’ (2005) 24 Journal of Law and Commerce, 159-179, 164.
  [116] Andersen, C. ‘The Uniform International Sales Law and the Global Jurisconultorium.’ (2005) 24 Journal of Law and Commerce, 159-179, 164.
  [117] Andersen, C. ‘The Uniform International Sales Law and the Global Jurisconultorium.’ (2005) 24 Journal of Law and Commerce, 159-179, 164.
  [118] P. Koneru. ‘The International Interpretation of the UN Convention On Contracts for the International Sale of Goods: An Approach Based on General Principles.’ (1997) 6 Minnesota Journal of Global Trade, 105-152, 107.
  [119] ibid 107.
  [120] ibid 108.
  [121] ibid 108.
  [122]ICC Arbitration No. 7331 of 1994 Cited in  P. Koneru. ‘The International Interpretation of the UN Convention On Contracts for the International Sale of Goods: An Approach Based on General Principles.’ (1997) 6 Minnesota Journal of Global Trade, 105-152, 108.
  [123] P. Koneru. ‘The International Interpretation of the UN Convention On Contracts for the International Sale of Goods: An Approach Based on General Principles.’ (1997) 6 Minnesota Journal of Global Trade, 105-152, 108.
  [124] F. Ferrari. ‘Uniform Interpretation of The 1980 Uniform Sales Law.’ (1994-95) 24 Georgia Journal of International and Comparative Law, 183-228, 183.
  [125] ibid, 183.
  [126] ibid, 184.
  [127] P. Hackney. ‘Is the United Nations Convention on the International Sale of Goods Achieving Uniformity?’ (Winter 2001) 61 Louisiana Law Review, 473-486, 475.
  [128] ibid, 475-476.
  [129] Ibid, 476/
  [130]M. Gebauer. ‘Uniform Law, General Principles and Autonomous Interpretation.’ (2000-4) Uniform Law Review, 683-705, 695.
  [131] ibid, 695.
  [132] ibid, 695.
  [133] ibid, 684.
  [134] F. Diedrich. ‘Maintaining Uniformity in International Uniform Law Via Autonomous Interpretation: Software Contracts and the CISG.’ (1996) 8 Pace International Law Review, 303-338, 303.
  [135] ibid, 303-304.
  [136] F. Diedrich. ‘Maintaining Uniformity in International Uniform Law Via Autonomous Interpretation: Software Contracts and the CISG.’ (1996) 8 Pace International Law Review, 303-338, 304
  [137] V. Cook. ‘The Need for Uniform Interpretation of the 1980 United Nations Convention on Contracts for the International Sale of Goods.’ (Fall 1988) 50 University of Pittsburgh Law Review, 197-226, 223.
  [138] ibid, 223.
  [139] V. Cook. ‘The Need for Uniform Interpretation of the 1980 United Nations Convention on Contracts for the International Sale of Goods.’ (Fall 1988) 50 University of Pittsburgh Law Review, 197-226, 225.
  [140] ibid, 225.
  [141] ibid, 225.
  [142] A. Komarov. ‘Internationality, Uniformity and Observance of Good Faith as Criteria in Interpretation of CISG: Some Remarks on Article 7(1)’. (2005-06) 25 Journal of Law and Commerce, 75-85, 79.
  [143] ibid, 80.
  [144] A. Komarov. ‘Internationality, Uniformity and Observance of Good Faith as Criteria in Interpretation of CISG: Some Remarks on Article 7(1)’. (2005-06) 25 Journal of Law and Commerce, 75-85, 81.
  [145] CLOUT Case No. 378 (Tribunale di Vigevano, Italy, 12 July 2000) Cited in A. Komarov. ‘Internationality, Uniformity and Observance of Good Faith as Criteria in Interpretation of CISG: Some Remarks on Article 7(1)’. (2005-06) 25 Journal of Law and Commerce, 75-85, 81.
  [146] Tribunale di Pavia, Italy 29 Dec. 1999 Cited in A. Komarov. ‘Internationality, Uniformity and Observance of Good Faith as Criteria in Interpretation of CISG: Some Remarks on Article 7(1)’. (2005-06) 25 Journal of Law and Commerce, 75-85, 81.
  [147] . Komarov. ‘Internationality, Uniformity and Observance of Good Faith as Criteria in Interpretation of CISG: Some Remarks on Article 7(1)’. (2005-06) 25 Journal of Law and Commerce, 75-85, 81.
  [148] CLOUT Case No. 222 (MCC-Marble Ceramic Center Inc, v Ceramica Nuova D’Agostino S.P.A. 144 F 3d 1384 [11th Cir. 1998] Cited in A. Komarov. ‘Internationality, Uniformity and Observance of Good Faith as Criteria in Interpretation of CISG: Some Remarks on Article 7(1)’. (2005-06) 25 Journal of Law and Commerce, 75-85, 82.
  [149] CISG 1980, Art. 7(1).
  [150] B. Sheehy. ‘Good Faith in the CISG: Interpretation Problems in Article 7.’ (2004) Bepress Legal Series Paper 339, 1-47, 4.
  [151] ibid, 4.
  [152] bid, 4.
  [153] B. Zeller. ‘Good Faith – The Scarlet Pimpernel of the CISG.’ (May 2000) Pace Law School Institute of International Commercial Law, 1-14, 1.
  [154] P. Powers. ‘Defining the Undefinable: Good Faith and the United Nations Convention on Contracts for the International Sale of Goods.’ (1999) 18 Journal of Law and Commerce, 333-353, 335.
  [155] ibid, 335.
  [156] ibid, 335.
  [157] J. Klein. ‘Good Faith in International Transactions.’ (1993) 15 Liverpool Law Review, 115-141, 124.
  [158] ibid, 124.
  [159] ibid, 125.
  [160] J. Klein. ‘Good Faith in International Transactions.’ (1993) 15 Liverpool Law Review, 115-141, 125-126.
  [161]P. Powers. ‘Defining the Undefinable: Good Faith and the United Nations Convention on Contracts for the International Sale of Goods.’ (1999) 18 Journal of Law and Commerce, 333-353, 347.
  [162] Renard Constructions (ME) PTY Ltd.v Minister for Public Works, 26 New South Wales Law Reports 234 (1992) Cited in P. Powers. ‘Defining the Undefinable: Good Faith and the United Nations Convention on Contracts for the International Sale of Goods.’ (1999) 18 Journal of Law and Commerce, 333-353, 347.
  [163]SARL Bri Production “Bonaventure” v Socit Pan African Export, Journal du Droit Internaional 632-639 (Cour d’Appel de Grenoble Chambre Commerciale 1995) Cited in P. Powers. ‘Defining the Undefinable: Good Faith and the United Nations Convention on Contracts for the International Sale of Goods.’ (1999) 18 Journal of Law and Commerce, 333-353, 347.
  [164] ibid, 347..
  [165]Failure to Give Guarantee (Aus. v Hung.) Hungarian Chamber of Commerce and Industry Court of Arbitration, UNILEX, No. VB 94124 (Nov. 17, 1995) Cited in P. Powers. ‘Defining the Undefinable: Good Faith and the United Nations Convention on Contracts for the International Sale of Goods.’ (1999) 18 Journal of Law and Commerce, 333-353, 347.
  [166] B. Zeller. ‘Good Faith – Is it a Contractual Obligation?’ (2003) 15 BLR 215-239, 227.
  [167] A. Komarov. ‘Internationality, Uniformity and Observance of Good Faith as Criteria in Interpretation of CISG: Some Remarks on Article 7(1)’. (2005-06) 25 Journal of Law and Commerce, 75-85, 83.
  [168] N. Povrzenic. ‘Interpretation and Gap-Filling Under the United Nations Convention on Contracts for the International Sale of Goods.’ (1998) Section 4. http://www.cisg.law.pace.edu/cisg/biblio/gap-fill.html Retrieved July 25, 2009.
  [169] ibid Section 4.
  [170] CISG 1980 Art. 7(2).
  [171]P. Koneru. ‘The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles.’ (1997)6 Minnesota Journal of Global Trade, 105-152, 115.
  [172] ibid, 116.
  [173] ibid, 118.
  [174]P. Koneru. ‘The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles.’ (1997)6 Minnesota Journal of Global Trade, 105-152, 119.
  [175] Case HG930238 U/H93 (Italy v Switz) Handelsgerich Zurich (Sept. 9, 1993) Cited in P. Koneru. ‘The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles.’ (1997)6 Minnesota Journal of Global Trade, 105-152, 120.
  [176] Arbitral Award 6653 (Fr. v Syria) ICC Cr. Arb. (Feb. 7, 1993) Cited in P. Koneru. ‘The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles.’ (1997)6 Minnesota Journal of Global Trade, 105-152, 120.
  [177] W. Barnes. ‘Contemplating a Civil Law Paradigm for a Future International Commercial Code.’ (Winter 2005) 65 Louisiana Law Review, 677-774, 692.
  [178] ibid, 692.
  [179] ibid, 692.
  [180] ibid, 720.
  [181] ibid, 722.
  [182]ibid, 722.
• [183] A. Komarov. ‘Internationality, Uniformity and Observance of Good Faith as Criteria in Interpretation of CISG: Some Remarks on Article 7(1)’. (2005-06) 25 Journal of Law and Commerce, 75-85, 75.
  [184] ibid, 75.