1. History [1]
2. Time and Mode of Declaration; Withdrawal; Denouncements [2-4]
3. The Problem of the Connection Between Article 92 and Article 1: State Not to Be Considered a Contracting State Within the Meaning of article 1(1) [5-7]
1. History
1. In the Hague Conventions, the formation part and the sales part were separated, thereby
making it possible to accede to either one or the other or to both conventions. During the
preparatory work on Article 92 CISG (compare the chronology of Article 92 CISG at the Pace website) a majority of States had spoken out in favour of combining the rules on formation of the contract and the sale of goods part into one single convention. In the CISG Convention the starting point is that offers are revocable, article 16, but in the Scandinavian States offers are, as a starting point, irrevocable, compare the (Uniform) Scandinavian Contracts Act §§ 1 and 7 . This difference made it impossible to reach a compromise on the rules of formation. Hence, the possibility for a State to declare a reservation that it will not be bound by Part II or Part III of the convention was created ( Winship in Galston & Smit (ed.), International Sales: The United Nations Convention on Contracts for the International Sale of Goods, § 1.03[4][a]; Evans in Bianca-Bonell Commentary on the International Sales Law, Article 92, section 1). So far only the Scandinavian countries (Denmark, Norway, Sweden and Finland) have made a Part II reservation. No countries have made a part III reservation.
2. Time and Mode of Declaration: Withdrawal
1. The declaration, formally a reservation according to The Vienna Convention on the Law of Treaties, Section 2, can be made at the time of signature, ratification, acceptance, approval or accession. The possibility of declaration at the time of signature ended 30 September 1981,
article 91 (1), and a reservation now has to be made upon ratification, acceptance, approval or accession, see also The Vienna Convention on the Law of Treaties Article 14 and Article 15.
3. If a State wishes to withdraw a reservation, the procedure in article 97 (4) CISG has to be followed, see infra…
4. If a state wants to make a reservation on part II or III later than at the time of ratification, acceptance, approval or accession of the convention, this is formally a denouncement according to CISG article 101(1), see infra …
3. The Problem of the Connection Between Article 92 and Article 1: State Not to Be Considered a Contracting State Within the Meaning of article 1(1)
5. A state that has made a declaration according to article 92(1) is not to be considered a Contracting State within paragraph (1) of
article 1 of this Convention in respect of matters governed by the Part to which the declaration applies. This, however does not mean that the rules in the relevant Part do not have to be applied even in cases with parties from states which have made an Article 92 reservation, see below section 3.1 and 3.2.
3.1 Problems in Relation to Article 1(1)(a)
6. In a contract between parties whose places of business are in different contracting states, one of which has made a Article 92 reservation, this state will not be regarded as a contracting state in relation to Article 1(1)(a) and the part of the convention the specific declaration concerns. In other words, if the contract is between a party with his place of business in a state which has made a reservation and a party with his place of business in a state with no reservation according to Article 92, the rules in Part II or Part III of the Convention can not apply by virtue of Article 1(1)(a), e.g. in a case between a party with his place of business in Finland and a party with his place of business in Germany, see regarding Part II reservation, Finland, Turku Court of Appeal, decision of 12 April 2002, in section 2 a)1(1)(b), irrespective of whether one of the parties is from a state with an Article 92 reservation, see below.
3.2 Problems in relation to Article 1(1)(b)
7. According to
article 1(1)(b), the convention will also have to be applied when the rules of private international law leads to the application of the law of a contracting state. Therefore, in the illustration above, the rules in Part II of the convention will be applied if the rules of private international law refer to German law (but not if they refer to Finnish law, see e.g. the Turku court decision of 12 April 2002 referred to above, irrespective of the Finnish reservation because the Convention is part of German law, and is to be applied under Article 1(1)(b), an issue which was overlooked by the Scandinavia states (Lookofsky: Alive and Well in Scandinavia, 18 Journal of Law and Commerce, 1999, p. 289-299; Flechtner, The Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and Other challenges to the Uniformity Principle in Article 7(1), section II(A)(2), by note 22 and 23). This observation has been confirmed in case law, see > Denmark Eastern Appelate Court decision of 23 April 1998 (Elinette Konfektion Trading v. Elodie) but was seemingly overlooked in other jurisdictions, see United States Federal District Court (New Jersey) decision of 15 June 2005 (Valero Marketing v. Greeni. Therefore, in order to avoid the application of Part II or Part III in the Convention, parties must seek to resolve this issue either by a relevant choice of law or by an exclusion of the relevant parts in the contract, see
article 6 CISG.
4. Autonomous Uniform Narrow Interpretation of “Matters Governed by the Part to Which the Declaration Applies
8. In general, the interpretation of “matters governed by the part to which the declaration applies” should be interpreted narrowly in order not to endanger the application of other parts of the Convention not affected by a ratification. If, e.g., a question can be governed both by the rules on formation of contracts and the rules on the interpretation of contracts, the rules of interpretation in the Convention should apply in an Article 92 context. This solution would also be in line with the recognised principles of international law for the interpretation of reservations, since the presumption is that a reservation must be interpreted narrowly, so that other Convention provisions which are not covered by the reservation are not undermined, see United States Federal District Court (Illinois) decision of 27 October 1998 (Mitchell Aircraft Spares v. European Aircraft Service).