The CISG Applies When it Says it Does, Even If Nobody Argues It: Why the CISG Should Be Applied Ex Officio in the United States and a Proposed Framework for Judges

Abstract

Ho Myung Moolsan, Co. Ltd. v. Manitou Mineral Water, Inc. is an example of a common scenario. Moreover, this common scenario is likely underreported. In the United States, knowledge of the CISG is rare among both Judges and lawyers. Thus, in cases such as the above, it is quite possible for both lawyers to miss the fact that the circumstances are such that local law is displaced by the CISG. Whether one side argues the issue quite late in the process, or whether the Judge determines the law applicable on her own, Judges have little guidance as to how best to proceed in this scenario. It is this author’s contention that the CISG, as a self-executing international treaty in the United States with the preemptive force of Federal law, applies to cases where by its own terms it is applicable. This is so regardless of any local New York State rules that determine a certain length of delay in invoking the CISG amounts to a “tacit waiver.” Thus, when it has rules on point, the CISG displaces local law, even procedural law. In other words, the CISG applies ex officio. Moreover, because the CISG applies, only an effective exclusion of the CISG, as defined by the CISG, gets the parties back out of the CISG. Because the CISG covers agreements to exclude and a post-contractual agreement to exclude is governed by Article 6 on exclusion, Articles 11, 14-24 on formation, and Article 29 on modification, in order to determine that a lawyer’s conduct amounts to a “tacit waiver,” or an agreement to exclude the CISG, the Judge should analyze the conduct under the standards set forth in those articles. It is submitted that under these standards it will be exceptionally rare to fairly conclude that the litigants had either the incentive, or the requisite awareness of the CISG’s existence, to come to an agreement to exclude it in favor of local sales law.

Thus, regardless of the stage in the process it is realized or argued, the CISG should prevail over local sales law when by its terms it is applicable. In a circumstance such as Ho Myung Moolsan, I argue that the Judge should either request additional briefs or decide the case under the CISG sua sponte.