GAPFILLING IN THE CISG:MAY THE UNIDROIT PRINCIPLES SUPPLEMENT THE GAPS IN THE CONVENTION?

Abstract

It seems evident that an international body of law such as the United Nations Convention on Contracts for the International Sales of Goods (hereinafter “ CISG” or “ Convention” )1 cannot be exhaustive2. As it is difficult to cover all necessary matters, there must be provisions to fill gaps when one faces issues which are not dealt with by an instrument of law such as the Convention. Thus, it is essential that all treaties have a provision regarding gapfilling to guide in cases where there is an omission or lack of specific rules. The CISG, as other similar Conventions3, refers to general principles regarding gapfilling in its article 7(2). As shall be further discussed in this paper, recourse to general principles will be made whenever there is a gap, and, as ultima ratio one will reach to domestic law rules to fill gaps. On the other hand, if there are no gaps, there shall not be recourse to general principles, but solely to the specific provisions and rules set forth in the Convention. Under the CISG, due to the party autonomy principle, parties can stipulate in the contract which rules and/or principles will be taken into consideration to fill in any gaps. In fact, in practice, it is common that the parties do not specify how to fill gaps, notwithstanding their ability to do so under the party autonomy principle. This paper will, therefore, disregard parties’ provisions regarding gapfilling and consider possibilities as if there were no agreement in this respect. In cases that the parties of a contract under the CISG do not provide for filling of gaps, there is a discussion whether external principles, such as the UNIDROIT Principles of International Commercial Contracts4 (“UNIDROIT Principles” ) are able to fill those. The UNIDROIT Principles were first enacted in 1994 and stated in their preamble the idea of supplementing other international uniform law instruments. Hence, the main issue that will be analyzed in this paper is the possibility of filling CISG gaps with the UNIDROIT Principles.