CYIL 2012

LARRY A. DĎMATTEO CYIL 3 ȍ2012Ȏ applied the CISG mostly through their arbitration courts. China has 432 cases reported in the Database. These are mostly decisions of the China International Economic and Trade Arbitration Commission (CIETAC). Russia has 294 reported cases mostly from the Tribunal of International Arbitration at the Russian Federation Chamber of Commerce and Industry (MKAC). Subtracting out these cases from the Database leaves a total of 2,051 cases worldwide. A further analysis shows an overwhelming majority of the remaining cases come from EU countries despite the fact that there are seventy-eight Contracting States to the CISG. The total number of cases from EU countries is 1544, or 75%, of all CISG cases worldwide not including China and Russia. This can be explained by the fact that the common law countries have not embraced the CISG and, therefore, almost all contracts in those countries opt out of the CISG. This also supports the proposition that the CISG has become an important transborder sales law for EU countries. However, a closer examination shows that the popularity of the CISG is a Western European phenomenon. Of the 1544 CISG cases from EU countries 1408, or 91%, were from Western European countries. The countries with fifty or more cases include Germany (482), Netherlands (205), Switzerland (183), Belgium (142), Austria (130), France (112), Spain (87), and Italy (50). 47 In contrast, the number of eastern EU countries reporting cases includes the Slovak Republic (75), Hungary (22), Greece (13), Bulgaria (12), Slovenia (5), Poland (4), Czech Republic (2), Romania (1), Estonia (1), and Lithuania (1). Why such a difference? This question is an extremely important one not only for the effectiveness of the CISG as a harmonizing international sales law, but also for purposes of the creation and application of EU private laws, such as CESL. The answer would seem to be that it is one thing to enact transborder private laws, but it is another thing for those laws to become viable parts of national legal systems. The experience of the uneven use of the CISG, and in the uneven application of EU Directives, provides important lessons on the difference between adoption and application of transborder laws. For these laws to be fully assimilated into national laws, a trans-EU legal culture, legal education (law school and practitioner-based), and judicial competency will need to be developed before EU and other transborder laws can become truly functional. 3. Common European Sales Law: Coverage and Key Provisions The underlying rationale for CESL is that differences in sales and consumer protection laws among EU countries act as barriers to the transborder sale of goods in the common market. As a Regulation, CESL will become an optional national law for transborder transactions within the EU. Its optional nature immediately calls into question whether it will become a meaningful law. The advantage of CESL for businesses is they will no longer, theoretically, have to worry about the intricacies of twenty-seven different national sales and consumer laws. Therefore, there are potentially

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47 http://www.cisg.law.pace.edu/cisg/text/casecit.html (last reviewed on 8 May 2012).