January 19, 2006
Canada and the CISG
It's complicated enough for the average judge of general jursidiction to have to deal with both the common law and various domestic commercial statutes and codes. It gets harder when you add the U.N. Convention on Contracts for the International Sale of Goods to the mix. Peter Mazzacano
(Osgoode Hall) takes a look at Canadian courts' struggles with the CISG in Canadian Jurisprudence and the Uniform Application of the UN Convention on Contracts for the International Sale of Goods, a paper forthcoming in the Pace International Law Review. Here's the abstract:
In 1980 the United Nations Convention on Contracts for the International Sale of Goods ("CISG" or "Convention") came into being because of a growing need for certainty in international sales contracts. As a result, functional uniformity should be at the core of the CISG. This suggests that there should be a growing international convergence of interpretations and applications of the CISG by tribunals and national courts. In this respect the purpose of the CISG is not only to create new, state-sanctioned law, but also to give recognition to the rules born of international commercial practice and to encourage national courts to apply them in a functionally uniform manner. However, to what extent are national courts heeding to the mandate of the CISG and considering international jurisprudence when deciding cases under the Convention? More specifically, this paper analyzes the extent to which Canadian courts have looked beyond domestic law when interpreting the
provisions of the Convention. It considers whether they have become unsuspecting victims of the "homeward trend", by failing to implement the CISG requirement for autonomous, internationally-focused interpretations of the CISG. As the cases analyzed in this research paper illustrate, Canadian courts have tended to treat the CISG in a cursory manner, and have ultimately made decisions reflexively, on the basis of domestic law. Not only have they ignored the mandate of the Convention, but no Canadian court decision to date has treated the CISG in a serious manner, that is, without reference to domestic legal concepts. In other words, Canadian CISG jurisprudence is still permeated with domestic gloss. To the international community, this suggests that Canadian legal practitioners lack a certain analytical sophistication with international law, or suffer from legal parochialism.
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