Lecture Contents Limits of the Application: Additions and Filling the Gaps Interpretation of Party Statements and Conduct Trade Usages and Party Practices Freedom of Form
Limits of the Application: Additions and Filling the Gaps Limits of the CISG Jurisdiction and Arbitration Clauses Revocation as a result of Mistake 1.3 Limits of the Application: Additions and Filling the Gaps
1.3 Limits of the Application: Additions and Filling the Gaps • 1.3.1 Limits of the CISG ("External gap') • The scope of the CISG is limited, as stated in Articles 4(a) and 4(b) CISG, to the formation of the contract and the rights and obligations of the seller and the buyer arising from the contract. • It excludes some substantive issues which can arise during a sale of goods, issues which also occur in regard to contracts other than sale of goods contracts, such as: legal capacity and legal competence of the parties, legality of powers of attorney, set-off, assignments of claims and receivables and the question whether a claim can be assigned, the transfer of debts, and the legal situation of joint debtors and their relations.
• All of these issues have to be addressed by reference to the domestic law which is applicable according to the private international law of the forum. Whether or not the transfer of a whole contract is covered by the CISG is controversial. • Jurisdiction and Arbitration Clauses • The most acceptable relevant scholarly opinion here is jurisdiction and arbitration clauses do not fall within the ambit of the CISG as they are better seen as procedural law. - This position is supported by the Article 90 CISG which provides that the CISG does not prevail over matters governed by the CISG which are regulated by international conventions preceding the CISG
• Therefore, the Brussels Regulation has, for example, priority in Europe. Formal requirements especially have to conform to the procedural law of the lex fori.(the law of the country in which an action is brought) • However, insofar as domestic or international national jurisdictions or arbitration provisions do not govern the formation of the jurisdiction or arbitration clause, Articles 14, 24 and 29 CISG are applicable, provided that the clause is or will be part of a sale of goods contract which falls within the ambit of the CISG • Therefore, the question whether a jurisdiction or arbitration clause is valid can be a mixture between the procedural rules of the lex fori (for example Article 23 Brussels Convention) and the CISG (for example Articles 8, 19, 29 CISG).
• Revocation as a result of Mistake • A number of controversial issues remain such as The revocation for mistake must be treated as a question of validity and is, therefore, not governed by the CISG according to Article 4 (2 nd ), but instead is governed according to the applicable domestic law. However, the CISG does govern mistakes, such as mistakes in respect of the other party's capacity to perform which become apparent after the conclusion of the contract, or mistakes regarding the conformity of the goods with the contract.
- Spring '13
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