June 24, 2011
Article: Understanding Exclusion of the CISG
If you are interested in international business involving sales of goods, my friend and colleague Bill Johnson's article, Understanding Exclusion of the CISG: A New Paradigm of Determining Party Intent, 59 Buff. L. Rev. 213 (2011), is worth a look. Here's an excerpt:
One increasingly important body of law that governs certain international sale of goods transactions is the United Nations Convention on Contracts for the International Sale of Goods (“CISG”). The CISG is an international treaty that has been ratified by the United States and is part of U.S. law. It automatically applies to certain sale of goods transactions. But when it applies or more specifically how it can be excluded has befuddled U.S. courts for the CISG’s entire history.
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This Article seeks to bring understanding where there is misunderstanding regarding effective exclusion of the CISG, including with respect to (i) the role that a choiceoflaw clause ought to play in the analsyis and (ii) the obligation under the CISG to consider extrinsic evidence to determine the parties’ actual intent. To achieve that goal, this Article primarily analyzes four related but distinct items: (1) the text of the CISG itself, (2) the travaux préparatoires, or drafting history, of the CISG, (3) the American Biophysics decision and the five cases cited as authority by the American Biophysics court to support its incorrect conclusion, and (4) illustrative reasoning of U.S. courts that have engaged in analysis, some sound and some faulty, of a variety of other issues under the CISG.