Wednesday, October 25, 2017
The U.N. Convention on the International Sale of Goods (CISG) has been ratified by a number of countries in Latin America, including Argentina (1988), Mexico (1989), Cuba (1994), and, most recently, Brazil (2014). Many attorneys routinely exclude application of the CISG, however, probably because they've never taken the time to learn about the CISG and advantages that attach to a contract governed by the CISG. Other countries, such as Panama, are still not parties to the CISG, but operate under its own commercial law and perhaps bilateral commercial treaties. Countries that have ratified the CISG also have their own commercial domestic laws, including the Brazilian Commercial Code (first promulgated in 1850, revised in 2002 and still under review since 2011), the Commercial Code of Cuba (first promulgated in 1886, and re-enacted in 2012), and the Commercial Code of Mexico (dating back to 1889, revised as recently at 2014).
A CLE panel at the Fall Meeting of the American Bar Association Section of International Law explored the CISG in terms of countries that are long-time parties to the Convention, newcomers to the Convention (most notably Brazil, where the CISG entered into effect three years ago on October 16, 2014), countries (like Guatemala, Nicaragua, and Panama) that are still not parties to the CISG, and a country (Costa Rica) that will join the CISG next year. The panel was sponsored by the International Transportation Committee of the ABA Section of International Law and co-sponsored by the International Trade Committee; the Committee on International Commercial Transactions, Franchising, and Distribution; the Latin American and Caribbean Committee of the ABA Section of International Law; and the Cuban Law Subcommittee of the Florida Bar Association Section of International Law.
The Panel Chair was Attilio Costabel of Costabel P.A. in Miami. Panel speakers included: James M. Meyer (Harper Meyer, Miami); Ivette Martinez Saenz (IMS Legal); Henry Rodriquez (Nassar Abogdos, San Jose, Costa Rica), Victor Fernandes (Basch & Rameh, Sao Paolo Brazil); and Pedro A. Freyre (Akerman, LLC, Miami, who presented on behalf of Professor C. Narciso Cobo Roura from the Cuban Commercial Arbitration Court, who had been denied a visa to present at the ABA conference in Miami).
Here are some nuggets from the panel:
- Where a contract is governed by the CISG, a federal court in the United States would have federal question jurisdiction (because the CISG is an international treaty to which the United States is a party).
- State courts in Brazil have jurisdiction with respect to claims involving the international sale of goods.
- The first court decision in Brazil directly applying the CISG was Noridane v. Anexo (14 Feb. 2017, Appellate Court of the State of Rio Grande do Sol), popularly known as "the Chicken Feet Case."
- Panama's failure to join the CISG has not severely affected import-export in Panama, but ratification of the CISG may increase international business opportunities for Panama.
- Central America is not integrated economically or legally -- important differences exist in each country in Central America. For example, while El Salvador and Honduras are parties to the CISG; there is no movement in Guatemala or Nicaragua to join the CISG.
- Even though El Salvador and Honduras are parties to the CISG, courts in those countries are likely to apply local commercial law rather than the CISG (because courts may not know about the CISG, because materials on the CISG are not available in Spanish, or because it may simply be easier for judges in those countries to apply local commercial law).
- The CISG is expected to enter into effect for Costa Rica in August 2018 (Statute No. 9421).
- Legal provisions in forms that are valid in the United States may not necessarily work in other countries.
- A Cuban Commercial Court has ruled that the CISG is part of the law of Cuba. Laudio No. 19/2013, Emiat v. Agrapisa.