Zapata Retold: Attorneys' Fees are (Still) Not Governed by the CISG

Abstract

In this work, the authors reiterate and expand on their conclusion that the question of reimbursement for attorney fees incurred in the course of litigating a claim under the United Nations Sales Convention (CISG) is beyond the scope of the CISG, and is governed by domestic law. As discussed in the paper, this conclusion is in line with a recent CISG Advisory Council Opinion (Advisory Council Opinion No. 6) dealing with the calculation of damages under Article 74 of the CISG. We argue that relegating to domestic law the question of recovering attorney fees incurred during litigation over a CISG transaction reflects the likely view of the Convention's drafters that the recovery of such fees is a procedural matter beyond the intended field of a substantive sales law treaty. The Advisory Council Opinion, while agreeing with our result, objects to and rejects that reasoning. In this paper we (again) defend that approach.

Keywords: United Nations Convention on Contracts for the International Sale of Goods, CISG, U.N. Sales Convention, International Sales Convention, CISG Article 74, breach of contract, damages, consequential damages attorney fees, recovery of attorney fees, loser pays, American rule, substance-procedure