Chapter 5. Conflict of laws. Is uniformity possible?
| Pages | 54-77 |
| Author | Bruno Zeller |
Chapter5
Conflictoflaws
Isuniformitypossible?
A. Controversies in the application of the CISG
Unification, as shown in previous chapters, is an elusive goal. It is a myth
that the mere existence of a unified document, such as the CISG or the
UNIDROIT Principles, guarantee unification in sales and contract law,
respectively. To expect a full unification would be a utopian enterprise, as
domestic public policy and the desire to protect a particular class of people
will never allow a full unification to take place. However, what can be said
is that unification on the main issues of contractual laws is achievable. Not
only is it achievable, it already has happened. The necessity for unification
of laws is evidenced by the fact that domestic law is inadequate as a
framework in dealing with international commercial transactions. As to
international commercial sales, every opportunity must be seized to take
recourse to the CISG, and any recourse to domestic law must only be the
last resort. In other words, an interpretation of the CISG must be within its
four corners.
There are, in essence, three levels of the legal process, which create – in
some instances – an irreconcilable nationalisation of a problem which is in
contrast to the mandate of uniformity. The process is started by the plaintiff
applying to a particular jurisdiction to have the case adjudicated.
Unfortunately, this in turn will trigger the application of a domestic
determination of the particular substantive law through the conflict of laws
rules.
The domestic character of these rules stands in sharp contrast to the
international or transnational character and quality of the cases that are
subject to these rules. The inherent conflict has been rightly characterized
as the ‘inveterate evil of private international law’.132
Once the applicable domestic law has been ascertained, the question of
whether the CISG is part of that body of law and, hence, applicable needs to
be determined. Arguably, therefore, the conflict between international and
domestic laws ‘is played out each time a judge or arbitrator has to decide
whether an issue fallswithin the scope of the Convention’.133 This is not the
only point where a conflict can potentially emerge; many judges and
arbitrators approach a unified document, such as the CISG, in an
ethnocentric manner. They look at the wording, and because it looks
familiar, the assumption is made that domestic jurisprudence can be used to
determine the matter. However, the method of construction is stipulated in
the CISG in articles 7 and 8 and domestic rules as to interpretation cannot
be used. The latest example which illustrates this point is Raw Materials Inc
v Manfred Forberich GmbH.134 This case was nominated as the worst CISG
decision in 25 years.135 It is rather disturbing that, despite ample academic
writing, a court in 2004 still can maintain that ‘ . . . in applying Article 79 of
the CISG, the court will use as a guide case law interpreting a similar
provision of article 2-615 of the UCC’.136 This was in response to the
plaintiff’s assertion that ‘[w]hile no American court has specifically
interpreted or applied Article 79 of the CISG, case law interpreting the UCC
[provides] guidance for interpreting the CISG article 79’.137 The correct
approach would have been to consult international case law on the CISG,
which, in this case, consisted of 27 reported cases.138
It is encouraging to note that domestic courts have started to understand
that uniformity in the interpretation of international law is an important
feature, which contributes towards certainty and predictability in
international trade. Especially in the area of transplantation – in this case
the Warsaw Convention – the courts have recognised that:
[a] decision must be reached by this court with close attention to any
relevant developments of international law, including decisions of the
municipal courts of other states parties.139
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