Uniform Interpretation of CISG

Abstract

This UN Convention on Contracts for the International Sale of Goods (CISG) has been U.S. law for a generation and requires that it be interpreted “to promote uniformity in its application”. This article argues that uniform interpretation is impractical because 1) it is written in six official languages which do not always mean the same thing; 2) with more than 90 countries’ courts and arbitrators applying CISG, each in its own language, some of which do not regularly print their opinions, it is difficult to access all opinions on a single point; 3) since Civil Law countries consider the writings of distinguished professors to be sources of law, those writings must also be accessed; 4) there is no official authority interpreting CISG, though the unofficial CISG Advisory Council issues its interpretations from time to time; 4) CISG interpretations are to be autonomous, not analogous to comparable provisions of domestic law, which means that many opinions interpreting CISG must be disregarded because they are self-declared as analogous. The article then discusses the New Zealand mussel case, clearly the right result announcing the wrong rule, and asks how a court should decide the next case in a uniform manner considering the strength of the precedent, the factual differences between the precedent and the current case, and the likely impact of the rule announced on the next case to come before a court or arbitration panel. The conclusion is that although full uniformity is impossible (and may not even be desirable), it is a goal worth pursuing, though the fears of forum shopping if there is no uniformity are quite overblown.