LUMSA * International Commercial Law 24 february 2014

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LUMSA – International Commercial Law
16 October 2015
Prof. Avv. Roberto Pirozzi
Email: [email protected]
LUMSA – International Commercial Law
THE OBSERVANCE OF GOOD FAITH IN INTERNATIONAL TRADE
According to the third element of Art. 7(1), in interpreting the
CISG one must have regard to the need of promoting the
"observance of good faith in international trade."
The inclusion of the good faith principle represented a
compromise between those who supported its inclusion
stating that, at least in the formation of the contract, the
parties should observe the principles of fair dealing and act in
"good faith"; and those who were opposed to any explicit
reference to the principle on the ground that it had no fixed
meaning and would lead to uncertainty and non-conformity.
LUMSA – International Commercial Law
GOOD FAITH AS AN INSTRUMENT OF INTERPRETATION
The placement of the good faith principle in the context of an
operative provision dealing with the interpretation of the CISG
creates uncertainties as to the principle's exact nature, scope,
and function within the CISG.
Some commentators conclude that the principle of good faith
is just an additional criterion to be used by judges and
arbitrators in the interpretation of the CISG. Thus, good faith
is merely a tool of interpretation at the disposal of the judges
to neutralize the danger of reaching inequitable results.
LUMSA – International Commercial Law
GOOD FAITH AS AN INSTRUMENT OF INTERPRETATION
Even if included in the CISG as a mere instrument of
interpretation, good faith can pose problems in achieving the
ultimate goal of the CISG, i.e. uniformity in its application,
because the concept of good faith has not only different
meanings between different legal systems but also multiple
connotations within legal systems
LUMSA – International Commercial Law
REMEDIES AGAINST DIVERGENT INTERPRETATIONS
For example, in case of ambiguities or obscurities in language,
the existence of several equally authentic language versions
of the Convention permits the interpreter to consult another
official version of the CISG for assistance. What follows is an
examination of different means that can be utilized in the
battle against divergent interpretations of the CISG.
LUMSA – International Commercial Law
REMEDIES AGAINST DIVERGENT INTERPRETATIONS - CASE LAW
The most effective means of achieving uniformity in the
application of the CISG consists in having regard to the way it
is interpreted in other countries.
The development of a body of case law based on the
provisions of the CISG and the careful consideration of this
jurisprudence by later courts are very important steps in the
process of interpretation of the CISG.
LUMSA – International Commercial Law
REMEDIES AGAINST DIVERGENT INTERPRETATIONS – CASE LAW
As a matter of principle and common sense, courts should, at
least, consider the jurisprudence developed by foreign courts
applying the CISG. The difficulty lies in the importance (e.g.,
binding force, or merely persuasive value) that a court should
place on a decision of a foreign court and the reasoning
behind that decision, and the degree to which any such
"precedent" may be followed and adopted by other foreign
courts.
LUMSA – International Commercial Law
REMEDIES AGAINST DIVERGENT INTERPRETATIONS – CASE LAW
A judge, or arbitrator, faced with a particular question of
interpretation of the CISG's provisions, which may have
already been brought to the attention of a court in another
Contracting State, should take into consideration the solutions
so far elaborated in the foreign courts.
LUMSA – International Commercial Law
REMEDIES AGAINST DIVERGENT INTERPRETATIONS - DOCTRINE
Another "antidote" to the danger of divergent interpretations
of the CISG is the use of doctrine, i.e., academic writings. The
bibliography concerning the literature on the CISG is
voluminous and still growing. The value of scholarly writings
and international commentaries in the promotion of an
autonomous, international interpretation of the CISG and its
uniform application cannot be overlooked.
LUMSA – International Commercial Law
REMEDIES AGAINST DIVERGENT INTERPRETATIONS - DOCTRINE
In civil law countries, recourse to doctrine as an instrument of
interpretation for domestic and foreign law has never been
doubted.
On the other hand, common law jurisdictions have
traditionally given little effect to scholarly writings. But even
in common law countries, such as England, where judges
traditionally have been reluctant to have recourse to scholarly
writing, the need for uniformity in interpreting international
Conventions has led to the use of doctrine.
LUMSA – International Commercial Law
REMEDIES AGAINST DIVERGENT INTERPRETATIONS –
LEGISLATIVE HISTORY
Another useful guide for resolving doubts about the exact
meaning, scope and effect of the CISG's provisions is the
legislative history of the CISG. The study of the legislative
history which include not only the acts and proceedings of the
Vienna Conference, but also the summary records of the
previous deliberations within UNCITRAL.
LUMSA – International Commercial Law
REMEDIES AGAINST DIVERGENT INTERPRETATIONS –
LEGISLATIVE HISTORY
The CISG directs interpreters to have regard to the
"international character" of the provisions of the CISG and
requires, aside from the international experience that will be
developed through jurisprudence and doctrine, that the
Convention be placed in the proper international setting of its
legislative history.
LUMSA – International Commercial Law
GAP-FILLING IN THE CONVENTION: ARTICLE 7(2)
The CISG does not constitute an exhaustive body of rules and
thus does not provide solutions for all the problems that can
originate from an international sale transaction.
Indeed, the issues governed by the Convention are limited to
the formation of the contract and the rights and obligations of
the parties resulting from such a contract. This limitation gives
rise to problems relating to the necessity of filling gaps that
exist in any type of incomplete body of rules
LUMSA – International Commercial Law
GAP-FILLING IN THE CONVENTION: ARTICLE 7(2)
In the manner that Article 7(2) is drafted, the risk of diversity
in the CISG's gap-filling from one jurisdiction to another is
minimized, since recourse to domestic laws is to be had only
when it is not possible to fill a gap by applying the general
principles on which the Convention is based.
LUMSA – International Commercial Law
GAP-FILLING IN THE CONVENTION: ARTICLE 7(2)
The aim of this provision is not very different from that which
the interpretation rules found in Article 7(1) are pursuing, i.e.,
uniformity in the CISG's interpretation and application. Article
7(2) and gap-filling are directly connected to Article 7(1) and
interpretation, not only due to the proximity of their location
in the text but, more importantly, because of their substantive
relationship with each other.
LUMSA – International Commercial Law
GAP-FILLING IN THE CONVENTION: ARTICLE 7(2)
An approach to gap-filling , one based on the concept of
internationality and on generally acknowledged principles
upon which the CISG is based, would serve and promote the
purpose of the new law (i.e., uniformity in its application)
rather than hinder it.
LUMSA – International Commercial Law
GAP-FILLING IN THE CONVENTION: ARTICLE 7(2)
In accordance with the basic criteria established in Article 7(1)
and discussed earlier, uniformity in the CISG's application is
the ultimate goal. It follows that for the interpretation of the
CISG in general, not only in the case of ambiguities or
obscurities in the text, but also in the case of gaps praeter
legem courts should to the largest possible extent refrain
from resorting to the different domestic laws and try to find a
solution within the Convention itself.
LUMSA – International Commercial Law
GAP-FILLING IN THE CONVENTION: GENERAL PRINCIPLES
When the solution to a gap-filling problem cannot be
achieved by analogical application of a rule which might found
in a specific CISG provision dealing with similar issues as those
present in the gap, gap-filling can be performed by the
application of the "general principles" on which the CISG is
based.
LUMSA – International Commercial Law
GAP-FILLING IN THE CONVENTION: GENERAL PRINCIPLES
Despite the clear provision for the use of the CISG principles
in gap-filling by Art. 7(2), there is no other textual reference as
to the identification of such principles and the manner of
their application, once identified, in order to fill a gap in the
CISG. General principles that are capable of being applied to
matters governed by, but not expressly regulated by the CISG,
may be inferred from specific rules established by specific
CISG provisions dealing with specific issues. A general
principle stands at a higher level of abstraction than a rule, or
might be said to underpin more than one such rule.
LUMSA – International Commercial Law
ANTITRUST – GENERAL PRINCIPLES
Article 101
1. The following shall be prohibited as incompatible with the internal
market: all agreements between undertakings, decisions by
associations of undertakings and concerted practices which may affect
trade between Member States and which have as their object or effect
the prevention, restriction or distortion of competition within the
internal market, and in particular those which:
• (a) fix purchase or selling prices or any other trading conditions;
• (b) limit or control production, markets, technical development, or
investment;
• (c) share markets or sources of supply;
LUMSA – International Commercial Law
ANTITRUST – GENERAL PRINCIPLES
(d) apply dissimilar conditions to equivalent transactions with
other trading parties, thereby placing them at a competitive
disadvantage;
(e) make the conclusion of contracts subject to acceptance by
the other parties of supplementary obligations which, by their
nature or according to commercial usage, have no connection
with the subject of such contracts.
LUMSA – International Commercial Law
ANTITRUST – GENERAL PRINCIPLES
2. Any agreements or decisions prohibited pursuant to this
Article shall be automatically void.
3. The provisions of paragraph 1 may, however, be declared
inapplicable in the case of
- any agreement or category of agreements between
undertakings,
- any decision or category of decisions by associations of
undertakings,
- any concerted practice or category of concerted practices,
LUMSA – International Commercial Law
ANTITRUST – GENERAL PRINCIPLES
• which contributes to improving the production or distribution
of goods or to promoting technical or economic progress,
while allowing consumers a fair share of the resulting benefit,
and which does not:
• (a) impose on the undertakings concerned restrictions which
are not indispensable to the attainment of these objectives;
• (b) afford such undertakings the possibility of eliminating
competition in respect of a substantial part of the products in
question
LUMSA – International Commercial Law
ANTITRUST – GENERAL PRINCIPLES
• Article 102
• Any abuse by one or more undertakings of a dominant
position within the internal market or in a substantial part
of it shall be prohibited as incompatible with the market in
so far as it may affect trade between Member States. Such
abuse may, in particular, consist in:
• (a) directly or indirectly imposing unfair purchase or selling
prices or other unfair trading conditions;
• (b) limiting production, markets or technical development
to the prejudice of consumers;
LUMSA – International Commercial Law
ANTITRUST – GENERAL PRINCIPLES
• (c) applying dissimilar conditions to equivalent transactions
with other trading parties, thereby placing them at a
competitive disadvantage;
• (d) making the conclusion of contracts subject to
acceptance by the other parties of supplementary
obligations which, by their nature or according to
commercial usage, have no connection with the subject of
such contracts.
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