Commerce

Topics: Contract, International trade, Law Pages: 66 (22335 words) Published: September 24, 2013
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Reproduced with permission of 17 Journal of Law and Commerce (1998) 343-353 CISG: From the Perspective of the Practitioner
V. Susanne Cook
Introduction
I. Comparing Some Key Provisions of CISG to the Uniform Commercial Code A. The Statute of Frauds
B. Warranty disclaimers
C. The battle of the forms
II. On Opting into and out of CISG
A. Advantages
B. Disadvantages
C. Opting into CISG
III. Conclusion
Introduction
Like it or not, most companies operate in an international environment where economic success is measured in terms of international as well as domestic performance.[1] International trade of goods has grown steadily, offering exciting opportunities for growth and expansion not available to companies that conduct business on a strictly domestic basis.[2] Cross-border trade has become the new frontier, where opportunities abound for those able to adapt to the rules of international trade.[3] In this time of unprecedented globalization of trade, the United Nations Convention on Contracts for the International Sale of Goods (CISG) [4] responds to the need for a uniform sales law with international application and acceptance.[5] When law is at its best, it serves and mirrors the values of society and resolves conflicts in a manner that is consistent [page 343] with such values and expectations.[6] In the case of CISG, with application in fifty Contracting States spanning five continents[7] and diverse legal systems and traditions,[8] that is a formidable task. CISG is fortunate to have a successful predecessor in Lex Mercatoria, the merchants' law created by merchants and administered by special merchant courts.[9] This article is written from the point of view of a practitioner, where practical considerations may defeat scholarly insights. After comparing how the Uniform Commercial Code ("U.C.C.") and CISG deal with the statute of frauds, warranty disclaimers and the battle of the forms dilemma, this article argues that CISG is a good law. It accurately reflects business norms and, with respect to the manner in which it addresses the battle of the forms riddle, is apt at offering guidance. However, this article ultimately concludes that while CISG has been admitted as a full member of Lex Mercatoria among scholars, it is still in the process of earning this honor among merchants, legal practitioners and the courts. I. Comparing Some Key Provisions of CISG to the Uniform Commercial Code CISG is the international counterpart to the Uniform Commercial Code and generally applies to all sales transactions where the parties [page 344] have their places of business in different Contracting States.[10] There is, therefore, a natural inclination to compare the accepted and familiar provisions of the Uniform Commercial Code to the new, and not yet proven, provisions of the CISG.[11] This approach is sound when used as a point of reference for U.S. practitioners and merchants, but critiquing CISG merely for being different from the U.C.C. status quo will not further the debate, since difference, in itself, is not negative. Sometimes different may be better, or it may be merely an equally good alternative solution in an imperfect world. Subsections (A) and (B) below are examples of the former while Subsection (C) is an example of the latter. A. The Statute of Frauds

As a modern statute, CISG had the benefit of guidance from practitioners and scholars concerning their experiences under prior sales law throughout the world.[12] As a result, CISG is generally in touch with the expectations of the business community. For example, CISG abandons the U.C.C.'s formalistic approach of the statute of frauds[13] which generally requires contracts for the sale of goods over $500 to be evidenced in a writing. CISG proclaims a practical approach that recognizes freedom of contract: "A contract of sale need not be concluded in or evidenced by writing and is not subject to...
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