Establishing a Uniform Interpretation of the CISG: A Case Study of Article 74

Abstract

The debate on whether a satisfactory degree of uniformity in the interpretation of the UN Convention on Contracts for the International Sale of Goods (CISG or Convention) is being achieved seems more relevant than ever. Thus, more than 30 years after the adoption of the convention it is still doubtful whether the aim of establishing uniform rules for the international sale of goods as set out in Article 7(1) is being achieved and this raises the question if it ever will be. In a recent article published in the Danish Weekly Law Report,1 Joseph Lookofsky, a prominent CISG scholar, shows that Danish courts do not take much note of the sources of law relevant to the CISG when dealing with matters pertaining to it. Such an approach is in direct contravention of Article 7(1) and if it applies to the courts and arbitral tribunals in the other CISG jurisdictions as well, it is clear that we are dealing with a serious problem. The purpose of this article is to address the question of whether said aim of establishing a uniform interpretation of the CISG is being achieved. This is done by doing essentially two things: First, it is examined what potential each of the internationally recognised sources of law pertaining to the convention has for contributing to bringing about a uniform interpretation. This should give a good indication as to the theoretical feasibility of establishing uniformity. Second, in order to show to what extent said sources of law help achieve uniformity in practice, an extensive case study of Article 74 is conducted. In order to embark further on what seems to be a much needed empirical work, one could have wished to conduct case studies of all the articles of the CISG, but this has not been possible within the limits of this article. This is, of course, an important caveat but the study of the unifying potential of the sources of law and the case study of Article 74 do in fact seem to provide a good basis for commenting on the question at hand. Parts two and three are devoted to a general introduction to the CISG and the command for uniformity laid down in Article 7(1). Part four critically analyses the potential of the wording of the convention for establishing uniformity. This part discusses a number of weaknesses related to the CISG as an international convention and certain inherent linguistic flaws and the general lack of convergence of legal terms are also dealt with,. Part five discusses the quality of the travaux préparatoires as an interpretative guide and part six examines the capability of CISG precedents to create uniformity. In part seven the potential of scholarly writings for contributing to uniformity is examined. Part eight is dedicated to said case study of Article 74. As will become apparent the study shows that many of the (general) problems pertaining to the relevant sources of law (examined in parts four to seven) apply to the important issue of measuring damages and it does not seem that uniformity is being achieved to an acceptable extent.