CISG Exclusion during Legal Proceedings

Abstract

In the contracting States of the Convention on Contracts for the International Sale of Goods (CISG), where the CISG applies via its Article 1, the courts have a duty under public international law to apply its rules automatically, regardless of the parties’ awareness in this respect. At the same time, the parties have a subsequent autonomy based on Article 6 of the CISG to exclude the application of the Convention, which may be done expressly or by implication. Such an exclusion may take place at various stages of the parties’ legal relationship, including during legal proceedings. Due to the fact that the legal representatives are often not aware of the CISG’s existence and its potential automatic application to the given case, when a dispute arises, they may fail to plead or base their arguments on the basis of its applicable rules. This article focuses on the adjudicator’s duty to apply the CISG ex officio, together with the possibility and requirements regarding its exclusions made during legal proceedings, given the example of two recent Chinese cases. In this contribution, it is advocated that the failure by the parties’ representatives to plead and base their arguments during litigation over the applicable CISG rules is not a sufficient indication of their intention to exclude the Convention.