CYIL 2012

PARALLEL NATIONAL AND INTERNATIONAL LAWS ȃ CZECH LAW AND THE PROPOSED… performing (delivery). In sum, Article 55 cannot be used to fill in a price since there was no contract to begin with. The Supreme Court deferred to the “factual” findings of the High Court that there was no contract concluded under Article 18 of the CISG, and, therefore, Article 55 was not applicable. The problem with the Court’s decision is that it does not review whether the lower court properly applied Article 18. It refers to correspondences between the parties that could indicate an Article 18 contract, but then defers to the lower court as to the finding that there was no contract. A more satisfying decision would have entailed a de novo review by the Supreme Court of the correspondence to see if in fact a contract had been concluded. With that said, the Supreme Court, as well as both the lower courts in the Manufactured Paint Case and the appellate court in the Carpet case , correctly understood and applied the substantive rules of the CISG. This provides proof that Czech courts are fully capable of interpreting and applying the CISG. Unfortunately, the existence of just two cases indicates that Czech lawyers have ignored or expressly opted out of the CISG. For international transactions the CISG offers a neutral and modern sales law. Legal academics and the Czech bar should become more knowledgeable on the rules of the CISG before opting out. They may like what they see! 45 Another major issue involves the relationship between CESL and the CISG. The fact is that twenty-three of the twenty-seven EU Member States already have an international or transborder sales law since they have ratified the CISG. So for those contracting states their transborder transactions are covered under the CISG. If the remaining EU countries Ireland, Malta, Portugal, and the United Kingdom joined the CISG then there would be no real necessity for CESL, at least not in the area of sale of goods. This would seem like a superior alternative because it would not only harmonize EU sales law but it would also harmonize EU sales law and international sales law since the CISG has been adopted by fifty-five other non-EU countries (and the number is constantly growing). However, the simplest method is not always the politically plausible method. So, CESL can be seen as bringing in the remaining non CISG EU countries within a unitary, transborder sales law regime. 2.3.1 Western Europe-Eastern Europe Divide: CISG A phenomenon that needs deeper exploration is the divide in the EU between Eastern and Western European countries in the assimilation and application of transborder laws both at the level of the EU and at the level of international law. The CISG will be used as an example. The CISG went into effect in 1988. Currently, the Pace CISG Database 46 contains links to 2,777 court cases and arbitral decisions applying the CISG. A majority of the reported cases are from court decisions. However, the People’s Republic of China and the Russian Federation have actively 45 Dr. Fritz Enderlein, “Vienna Convention and Eastern European Lawyers”, IBA Section on Business Law, International Sales Quarterly (June 1997) 12-14, available at http://www.cisg.law.pace.edu/cisg/ biblio/vienna.html. 46 Pace Law School CISG Database is found at http://www.cisg.law.pace.edu.

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