ELECTRONIC COMMERCE AND THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG)

Abstract

The text of the United Nations Convention on Contracts for the International Sale of Goods (hereinafter “ CISG” )1 is a quarter of a century old. The drafting process ended in 1980 and the Convention entered into force in 1988. Since then, the CISG became potentially applicable to international trade transactions within a group of States that account for over twothirds of world trade.2 While the number of Contracting States increased, the reality of international trade changed significantly with the development information technology tools, particularly after the beginning of the 1990’s. Parties began to conclude international contracts by using those tools, giving birth to the expression “ electronic commerce” (or simply “ ecommerce” ); even in cases where the contract was concluded by more traditional means, international commerce players began to interact with each other electronically in order to deal with post conclusion matters, such as the performance of the contract3. These changes in the behavior of the actors of international trade were certainly not foreseen by the drafters of the CISG; indeed, there are no specific provisions in the Convention dealing with the issues that arise in ecommerce. Since the CISG is a multilateral treaty with many Contracting States, a proposal of concluding a protocol to the CISG would certainly take a long time, if a compromise is indeed possible4. If changing the CISG is not an alternative in a short term, the question is whether the CISG itself could provide a workable framework for ecommerce transactions. That is the topic explored in this paper. The CISG has a provision dealing specifically with gapfilling: Article 7(2). Under this provision, gaps (or, to use the CISG definition, “ matters governed by [the] Convention which are not expressly settled in it” ) are to be filled in “ in conformity with the general principles on which it is based” ; only in the absence of such principles the matters will have to be solved by recourse to the domestic law applicable by virtue of the conflict of law rules. Therefore, if some of the issues related to ecommerce are not expressly settled by the Convention, the CISG itself might nevertheless provide the tools to develop a rule to solve these questions.