International Trade Law - page 3
Keywords: The Vienna Convention
By Nanssi on 17/11/2009
Level: Bachelor Honours Degree (BA, BEng, BSc etc)
Page Number: 3 of 6 pages: 1 2 3 4 5 6
States, while the second is when the rules of private international law lead to the application of the law of a Contracting State. However, there are situations in which the CISG can apply even when neither party has his place of business in a Contracting State and the parties have made no reference to the CISG in their contract. This had been exposed in a case in 1989 which was brought before the arbitral tribunal, since both parties hadn’t determined the applicable law to their contract, and where the tribunal held that the private international law was the appropriate law, and thus applied the CISG.
2.5. Ambiguities
However, the drafting style of the Convention which allows a more subjective approach to the interpretation of the contract, due to its emphasize on general principles has been criticised by different common law countries, such as the United Kingdom where concrete legal solutions to specific problems are preferred to general broad principles. This drafting style of the CISG can nevertheless be explained by the fact that it encourages the development and application of general principles.
Another inconsistency with English law is article 50 of the CISG that allows the buyer “to reduce the price in the same proportion as the value that the goods actually delivered had at the time of the delivery bears to the value that conforming goods would have had at that time”.. This provision has in fact a civil law background, since the right to reduce the price of defective goods is unknown in common law countries. This has hence led during the deliberations of the Draft convention for confusing, as common law participants confounded this remedy with the right to deduct damages from the price, which can be found under article 53(1)(a) of the Sale of Goods Act of 1979. However, both remedies are different since the right to reduce the price has nothing to do with compensation for an actual loss suffered by the buyer.
3. THE UNITED KINGDOM’S APPROACH
As already mentioned before, the United Kingdom has not yet ratified the CISG.
3.1. Contras
Some believe that this could probably be because of “pride in its longstanding common law legal imperialism or in its long-treasured feeling of the superiority of English law to anything else that could even challenge it”. In addition, according to Sally Moss, “Ministers do not see the ratification of the Convention as a legislative priority”. It seems, indeed, that
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