Document Type

Article

Publication Title

Pace International Law Review

Abstract

Among the most important conventions on uniform commercial law in force are the 1980 United Nations Convention on Contracts for the International Sale of Goods and the two 1988 Ottawa Conventions: International Factoring and International Financial Leasing. The CISG assumes importance due to its great success. This is evidenced by the number of contracting States and by the attention it has drawn from scholars and judges alike. The Ottawa Conventions are also of notable importance, as they constitute the most recent uniform commercial law conventions to come into force. This article examines the relationship between the general principles and these Conventions. Initially, this does not appear to be a problematic task, considering that Article 7(2) of the CISG, Article 4(2) of the Convention on International Factoring, and Article 6(2) of the Convention on International Financial Leasing make express reference to general principles. These Articles affirm that "questions concerning matters governed [by these Conventions] which are not expressly settled in [them] are to [be] settled in conformity with the general principles on which [they are] based." They also state that in the absence of these principles, such matters must be resolved in conformity with the law applicable by virtue of the rules of private international law. It appears, therefore, that the general principles, at least within the context of these Conventions, have the function of filling gaps. These gaps are inevitable, as such Conventions are not meant to be exhaustive; they govern only a limited number of matters. This inevitability derives from the fact that these conventions constitute a compromise between the different ideas expressed by national representatives of diverse economic, political, and legal systems, all promoting their own national interests. By limiting oneself to the observation that general principles are to be used to fill these gaps, it is impossible to clarify some of the more important issues that the Articles raise. On the one hand, the specific identification of the general principles is referred to in abstracto. On the other hand, it must be determined in which instances recourse must be derived from general principles (i.e. the type of gaps to be filled by having recourse to such principles must be identified). Thus, the assertion that the general principles constitute the means to fill the gaps can only be a starting point and not the result of a study of the relationship between the uniform commercial law conventions and general principles.

First Page

157

DOI

https://doi.org/10.58948/2331-3536.1257

Volume

10

Publication Date

1998

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