Monday, January 22, 2007
Given that I am gearing up to teach MCC-Marble v. Ceramica Nuova D'Agostina, 144 F.3d 1384 (11th Cir. 1998), I was happy to find today in LSN Contracts & Commercial Law (Vol. 8 No. 8, 01/22/2007) that Karen Halverson Cross (John Marshall) has posted to SSRN a piece entitled Parol Evidence under the CISG: the 'Homeward Trend' Reconsidered. Here's the abstract:
The CISG has been described as one of history's most successful attempts to harmonize international commercial law. Consistent with its goal of harmonizing the law of international sales, Article 7(1) of the CISG instructs courts and arbitrators to interpret the Convention in light of “its international character and the need to promote uniformity in its application.” MCC-Marble v. Ceramica Nuova D'Agostina is a U.S. decision that has been praised for its adherence to Article 7(1). In contrast with conventional academic commentary, which praises MCC-Marble and criticizes the tendency of courts to interpret the CISG in light of their respective domestic legal traditions (the 'homeward trend'), this essay critiques MCC-Marble as a decision that emphasizes uniformity at the expense of other important considerations. Notwithstanding Article 7(1), uniformity was not the exclusive goal of the CISG project. Although it may result in some inconsistency in the Convention's implementation, the homeward trend also should enhance the CISG's legitimacy and acceptability over the long term. MCC-Marble is examined to illustrate how its interpretative approach to the CISG's provisions regarding parol evidence may exacerbate the tendency of U.S. parties to opt out of the CISG. The essay argues for an interpretation of the CISG that allows greater weight to be afforded the terms of a final written agreement.
[Meredith R. Miller]