December 18, 2005
Canada and the CISG
When you live in a country where courts aren't particularly good at working with the U.N. Convention on Contracts for the International Sale of Goods, it's kind of nice to see your neighbors having the same difficulties.
Canada, for example. In the recent case of GreCon Dimter Inc. v. J.R. Normand Inc., the Supreme Court of Canada muffed it, says Antonin I. Pribetic (Steinberg Morton Frymer LLP) in a new paper on SSRN, The (CISG) Road Less Travelled. Here's the abstract:
At first glance, the Supreme Court of Canada's recent decision in GreCon Dimter Inc. v. J.R. Normand Inc. appears to be a case upholding the primacy of international commercial arbitration, choice of forum and choice of law clauses. Upon closer scrutiny, however, the Supreme Court of Canada failed to consider the application of the UN Convention on Contracts for the International Sale of Goods (CISG) to the overall dispute. Interestingly, the same choice of forum and choice of law clauses were considered by the United States Court of Appeals a year earlier in GreCon Dimter, Incorporated v. Horner Flooring Company, Incorporated. In either of the Canadian and American GreCon decisions, the parties' (and their respective counsel's) characterization of the legal issues, including jurisdictional arguments, ultimately guided the domestic forum court's jurisprudential analysis. Unlike GreCon v. Horner, choice of forum remained a live issue when it reached the Supreme Court of Canada in GreCon v. Normand. In both cases, the parties' choice of law remained an important, but not exclusive, factor in the domestic court's overall determination of proper forum. While the Supreme Court of Canada did not address the applicability of the CISG in GreCon v. Normand, perhaps another opportunity awaits Canada's highest court to contribute to the CISG's global jurisconsultorium.
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