CYIL 2012

LARRY A. DĎMATTEO CYIL 3 ȍ2012Ȏ revising of the Chinese, German, and Dutch codes. It is also likely to be influential in the revision of the French and Japanese civil codes. A final suggestion would be to use pieces of CESL to create a more targeted digital content law or as the basis of a broader Czech licensing law. CESL as Alternative Czech National Law or Unified Czech Sales Law CESL if enacted into EU law would be in the form of a Regulation with direct effect in the Czech Republic. However, it is an optional instrument, which means parties to a sales contract would need to expressly agree to it as a choice of law. If the parties do not choose CESL, then Czech national sales law would apply to domestic transactions and to international commercial sales transactions when private international law rules result in the application of Czech law. The question here is what Czech sales law would apply. If both of the parties in an international transaction are from CISG Contracting States, then the CISG would be the law applicable in a Czech court. If the non-Czech party is from a non-CISG EU country (Ireland, Malta, Portugal, or the United Kingdom) and private international law rules direct the Czech court to Czech law, what would be the applicable law? For most CISG countries, the applicable law would be the CISG. As noted earlier, the CISG covers transactions between parties from two CISG countries or where one party is from a CISG country and private international law rules direct the court to the party from the CISG country. However, since the Czech Republic opted out of this second area of CISG jurisdiction, Czech national (domestic) law would apply. Despite the recent revisions to the Czech Civil Code and its full incorporation of contract law, CESL could still hypothetically be enacted as part of the new Civil Code as the only national sales law of the Czech Republic. Instead of having two national laws Czech sales law and CESL for transborder sales the Czech Republic could adopt the final version of CESL as the new law of the country. At the same time, Czech attorneys, judiciary, and businesses should be educated in the substantive rules of the CISG for purposes of non-EU transborder transactions. It represents a modern international sales code that should be more fully utilized. The earlier review of the two existing Czech cases applying the CISG showed that Czech courts are fully equipped to understand and apply the CISG. Instead of being concerned about the nuances of national contract laws whether it is a Czech company doing an international sales transaction with the choice of law being that of the other party’s country or where a foreign company is doing business with a Czech company and has to be concerned with Czech law use of the CISG, as the harmonized international sales law of seventy-eight countries and growing, should be encouraged. Rules for the Sale or Supply of Digital Content Another reason for adopting CESL as the domestic law of the Czech Republic is that it provides rules relating to the sale or supply of digital content. The sale or supply of digital content and information-related products is a fast growing market.

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