THE APPLICATION OF THE CISG IN THE WORLD OF INTERNATIONAL COMMERCIAL ARBITRATION

Anisha Agarwal

Abstract


The UN Convention on Contracts for the International Sale Of Goods was passed in 1980, it has been almost 40 years since the convention was signed in Vienna. The convention as of in 2019 has been adopted by round about 3/4 of world trade countries. Therefore, governs a huge number of international sales contracts throughout the globe. 

The judicial system of the member states boasts about the increasing number of case laws with regards to the discussions on this subject by the legal experts all over the world. It is significant to note that until recently the international arbitral tribunals “haven’t discovered CISG as a subject of discussion”[1]. Though, the awards of the dispute with regard to this subject remain unpublished, the increasing number of published cases would show that parties of international sales contracts have started preferring arbitration as a private dispute resolution mechanism. 
In this present paper CISG application by arbitral tribunals has been analysed as a subject of academic discourse. Furthermore, this paper also discusses the important issues that need to be addressed while determining the application of the convention during the arbitration. For example, the applicability of Art. 1(1)a and 1(1)(b) of CISG itself calls for a debate. A closer look at the applicability of CISG with regards to Art. 1(1) shows that, Hypothetically, if the arbitration tribunals are not bound by Art. 1(1)(a) CISG, can the same be bound under Art. 1(1)(b) CISG. This question could only be answered by reference to the domestic laws of the contracting state while applying the conflict rules. This, in turn, would also depend upon various factors such as who chose the governing law of the tribunal, whether it was the parties or the tribunal itself[2]. The next line of questions pertains to the reasons for applicability of the CISG in the arbitral tribunal, The past is a witness that the application of CISG was owing to the fact that it is represented a trade usage, or form the part of the Lex Mercatoria, or constituted a widely accepted principle of trade law, or due to implication, or alternatively, analogy[3]. This paper analyses whether such a hypothesis by the tribunals is legally correct. Lastly, this paper inquires into the controversy of applicability of the convention to the arbitration agreement. This issue becomes relevant as Art. 11 CISG has abolished the formal requirements of sales contracts which were under the ambit of CISG. Therefore, it could be concluded that by applying this provision on the arbitral agreement, the parties could forego the requirement to comply with the arbitration laws, even such as of written arbitration agreements.


[1] Ingeborg Schwenzer & David Tebel, The Word is not Enough – Arbitration, Choice of Forum and Choice of Law Clauses Under the CISG, 23 JOURNAL OF ARBITRATION STUDIES 1-23 (2013).

[2] Jaephil Hahn, Disputes on the Application of National Compulsory Law in International Sale of Goods under CISG - with a special reference to Case Law for Non-compliance -, 19 JOURNAL OF ARBITRATION STUDIES 147-169 (2009).

[3]  See e.  g. ICC Arbitration Case No.  5713 of 1989 available at <http://cisgw3.law.pace. edu/cases/ 895713i1.html>


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References


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