Wednesday, March 26, 2008
The University of Michigan's Bruce Frier has raised the following interesting question in the aftermath of the Supreme Court's decision in Medellin v. Texas (already mentioned on this blog here) yesterday:
Does anyone know whether the CISG is among the treaties whose enforceability within the United States is endangered by today's Supreme Court decision?
I'm not sure anyone knows, but two Contracts Profs have ventured opinions and given me permission to post them here.
University of Maryland's Michael Van Alstine writes:
The CISG should satisfy even the Court's (misguided and historically unfounded) heightened requirement for self-execution. In his message to the Senate in 1983, President Reagan expressly stated the premise that the CISG would be self-executing upon Senate consent and later ratification. See Message from the President of the United States to the Senate Transmitting the United Nations Convention on Contracts for the International Sale of Goods, Sept. 21, 1983, S. Treaty Doc. No. 98-9 (1983) ("The Convention is subject to ratification by signatory States (Article 91(2)), but is self-executing and this requires no federal implementing legislation to come into force throughout the Untied States").
Seton Hall's Michael Zimmer is unpersuaded:
Given that the Court said the Treaty must explicitly include a provision that it is self-executing, I am not sure that, without more, President Reagan's statement is any better than President Bush's statement.
One note of clarification might be helpful for our readers. Because the CISG is a treaty, under the Supremacy Clause, it is binding law for international contracts for the sale of goods, provided that the parties to the contract are nationals of signatory states. The parties might clarify that they intend to be bound by the CISG or by the UCC, and if they do so, this issue would not arise, because parties can freely contract around the CISG or free to choose to be bound by it. The issue would only arise if the parties do not specify which law governs and at least one party tries to argue that U.S. law relating to the sale of goods rather than the CISG should govern.
The Blog would welcome additional thoughts.