The CISG’s Sphere of Application: Articles 1-3 and 10,
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Description
The CISG's provisions contained in Chapter I of Part I (relating to the "Sphere of Application") are without any doubt the Convention's most important provisions. Indeed, unless it has been decided on the basis of those provisions that the CISG applies at all, neither the Convention's substantive provisions, nor its provisions on interpretation (i. e. Articles 7 and 8), can be used to solve any dispute. This is why it is no surprise that the Convention's applicability has been dealt with in many state courts and arbitral tribunals, as can easily be evinced from a look at the draft Digest. Despite the large number of court decisions and arbitral awards concerning the issue at hand, there are many issues regarding the CISG's applicability that have not yet been touched upon in any decision. This chapter deals both with the issues to which the draft Digest refers, for which there is case law, and to those with which the draft Digest does not deal due to the lack of case law. In doing so, this paper will go beyond the draft Digest in two ways: on the one hand, it will criticize those court decisions that deserve criticism; on the other hand, it will examine issues that are not at all touched upon by the draft Digest. This way of proceeding is designed to guide the practitioners in a way the Digest cannot due to its limited scope. Before looking more closely into the issues relating to the Convention's applicability, it is necessary to focus briefly on a preliminary problem—very important in practice—that has to be solved before even examining whether the CISG's applicability requirements are met: the question of whether a court (of a Contracting State) has to resort to its private international law rules in order to determine the applicable substantive law or whether it has to have direct recourse to the Convention. This problem arises due to the fact that both the Convention's rules and private international law rules are specifically designed to deal with international (sales) disputes.
Source Publication
The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention - Papers of the Pittsburgh Conference Organized by the Center of International Legal Education (CILE)
Source Editors/Authors
Franco Ferrari, Harry Flechtner, Ronald A. Brand
Publication Date
2004
Recommended Citation
Ferrari, Franco, "The CISG’s Sphere of Application: Articles 1-3 and 10," (2004). Faculty Chapters. 593.
https://gretchen.law.nyu.edu/fac-chapt/593
