CYIL 2012

LARRY A. DĎMATTEO CYIL 3 ȍ2012Ȏ the construction of a contract or in drafting a multi-faceted choice of law provision. Article 6 of the CISG clearly allows the parties to pick and choose what parts or Articles of the CISG that they want to make applicable to their contract. Since CESL provides broader coverage and more detailed rules, this would allow a trader the ability to opt out of less clear or less comprehensive provisions of the CISG, as well as in areas where CISG gaps need to be filled externally, by opting into provisions of CESL. Unfortunately, CESL has numerous mandatory rules that obstruct such a partial use of CESL provisions. Despite the fact that the CISG and CESL are complementary legal regimes that is, if one applies the other does not there remains real possibilities for confusion in the interpretation and application of the two instruments. The potential for confusion is high because the instruments have similar, if not identical, provisions, especially in the area of contract formation, and both instruments mandate “autonomous interpretation” of their provisions. Thus, the courts and arbitration panels are directed to look within each instrument in interpreting its provisions generally though the use of “general principles.” Autonomous interpretation implies that the courts should not to look to other soft laws, such as, the Draft Common Frame of Reference (DCFR 90 ), or Principles of European Contract Law (PECL 91 ) or hard laws (CISG) in the interpretation of CESL. This leads to the very real possibility of divergent interpretations that is, identical or similar provisions in both instruments may be interpreted differently. This would clearly complicate the law of transborder sales. Conceivably, in a transaction between businesses from different EU countries and between EU and non-EU countries (in some cases), one party may win under CESL, while the other party would win under the CISG due to divergent interpretations of the same or similar provisions found in each instrument! Professor Ulrich Magnus has studied this issue of divergent interpretation of similar CISG and CESL provisions. 92 He notes that the two instruments could be interpreted using different interpretive methodologies, thus increasing the likelihood of divergent interpretations. The CISG interpretive methodology makes clear that the CISG is to be interpreted with reference to good faith, uniform application, and its “international character.” 93 Since CESL, if enacted, would be a EU Regulation, it may lead to an EU law-centered interpretive approach, as opposed to the international law approach of the CISG. Under the EU approach, regulations and directives are interpreted in the context of the whole body of EU law. Thus, the interpretation of provisions of CESL must not be different or inconsistent with provisions found elsewhere in the EU acquis . Magnus 90 Christian von Bar, Eric Clive & Hans Schulte-Nölke eds., Principles, Definitions and Model Rules of European Private Law: Draft Common Frame of Reference (DCFR) (6 volumes, Sellier: Munich 2009). 91 Ole Lando, et al. eds., Principles of European Contract Law (2 volumes, Kluwer Law International: The Hague, 2001-2003). 92 Ulrich Magnus, “Interpretation and Gap-filling in the CISG and in the CESL”, Journal of International Trade Law & Policy 12 (2012) (in press). 93 CISG, Article 7(1).

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