International Trade Law - page 4
Keywords: The Vienna Convention
By Nanssi on 17/11/2009
Level: Bachelor Honours Degree (BA, BEng, BSc etc)
Page Number: 4 of 6 pages: 1 2 3 4 5 6
the United Kingdom has little interest to ratify the Convention, due to the fact that there doesn’t seem to be a problem with the current position of the country, as business is not suffering. Furthermore, neither consultations of the business community or arbitrators and academics have shown any support for the implementation of the Convention. And thus, the concluding answer of the United Kingdom remains, “we will ratify the CISG if and when Parliamentary time allows”.
The main argument put forward against the implementation is that “London would lose its edge in international arbitration and litigation” .
However, even if the United Kingdom hasn’t yet ratified the Convention, the business community will or already deals with it in certain circumstances. This has been demonstrated by Anna Rogowska where in four possible instances the CISG already applies to the international sales contracts of English tradesmen.
The other foreign party to the contract incorporates the CISG by referencing in the contract and therefore forcing in somehow the English trade’s man to agree on the choice of law.
The Convention has also a direct application if both parties choose the law of a Contracting State.
Private international law rules can decide on the application of the Convention.
As mentioned before, according to article 17(1) and (2) of the ICC Rules of Arbitration 1998, often referred to as the ICC rules, the Convention may be chosen as the appropriate law where a certain issue on conflicts of law arise and when the parties has not agreed on a domestic law.
It is worth discussing the last instance, where arbitral tribunals not bound to apply a given domestic law, decide on the CISG as a governing law. Even if they do not choose the CISG as the most appropriate law, they may also decide to apply the lex mercatoria, a non-national, uncodified legal system generally accepted in international trade, they apply in someway indirectly the CISG as it attempts to codify the lex mercatoria. Moreover, there have been two recent decisions of an English Court of Appeal, namely Square Mile Partnership Ltd v Fitzmaurice McCall Ltd and Proforce Recruit Ltd v Rugby Group Ltd , in which the judge referred the issue to the CISG, as well as the UNIDROIT Principles of the Commercial Contracts.
This shows in fact that English companies can not ignore the Vienna Sales Convention completely.
3.2. Pros
On the other hand, in 1989,
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