THE APPLICATION OF THE CISG IN THE WORLD OF INTERNATIONAL COMMERCIAL ARBITRATION
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”. Though, the awards of the dispute with regard to this subject remain unpublished, the increasing number of published cases would show that parties of international sales contracts have started preferring arbitration as a private dispute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. 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. 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.
 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).
 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).
 See e. g. ICC Arbitration Case No. 5713 of 1989 available at <http://cisgw3.law.pace. edu/cases/ 895713i1.html>
[I] 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).
[II] 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).
[III] Klaus Peter Berger, Institutional arbitration: harmony, disharmony and the ‘Party Autonomy Paradox’, 34 Arbitration International 473-493 (2018).
[IV] T. W. Walsh, Agora: International Commercial Arbitration by Gary Born, 26 Arbitration International , 161-161 (2010)
[V] Peter Huber & Alastair Mullis, The CISG (2013).
[VI] E. A. Schwartz, The ICC Arbitration Rules and the UNCITRAL Model Law, 9 Arbitration International 231-248 (1993).
[VII] Dr. Clarisse von Wunschheim, A Study on CIETAC Arbitration Case about Applying the CISG - Focus on Dispute between China and HK Parties -, 23 JOURNAL OF ARBITRATION STUDIES 191-209 (2013).
[VIII] Mathias Reimann, The CISG in the United States: Why It Has Been Neglected and Why Europeans Should Care, 71 Rabels Zeitschrift für ausländisches und internationales Privatrecht 115 (2018).
[IX] Marlene Wethmar-Lemmer, Applying the CISG via the rules of private international law: Art.s 1(1)(b) and 95 of the CISG - analysing CISG Advisory Council Opinion 15, 49 De Jure 58-73 (2016).
[X] Keon-Hyung Ahn, The Main Contents and Its Implications of the 2017 Revisions to the ICC Arbitration Rules, 13 Korea International Trade Research Institute 357-374 (2017).
[XI] Susan J. Martin-Davidson, Selling Goods Internationally: The Scope of the 1980 United Nations Convention on Contracts for the International Sale of Goods (CISG), SSRN Electronic Journal (2008)
[XII] Marlene Wethmar-Lemmer, Applying the CISG via the rules of private international law: Art.s 1(1)(b) and 95 of the CISG - analysing CISG Advisory Council Opinion 15, 49 De Jure 58-73 (2016).
[XIII] Giuditta Cordero-Moss, Limits to Party Autonomy in International Commercial Arbitration, 4 Oslo Law Review 47-66 (2017).
[XIV] André Janssen & Matthias Spilker, The Application of the CISG in the World of International Commercial Arbitration, 77 Rabels Zeitschrift für ausländisches und internationales Privatrecht , 131 (2018)
[XV] B. Davenport, The UNCITRAL Model Law on International Commercial Arbitration: the Users' Choice, 4 Arbitration International , 69-74 (1988)
[XVI] Gustav Flecke-Giammarco & Alexander Grimm, CISG and Arbitration Agreements: A Janus-Faced Practice and How to Cope with It, 25 JOURNAL OF ARBITRATION STUDIES 33-58 (2015).
[XVII] S. M. Schwebel, A Celebration of the United Nations New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, 12 Arbitration International 83-88 (1996).
[XVIII] Choong Lyong Ha, The Writing Requirement of Contracts for International Sales of Goods: the CISG and the US Laws, 14 International Commerce and Information Review 201-223 (2012).
[XIX] kim sang man, A Study on Some Issues Disputable as to the Scope of CISG in the International Trade, 20 Seoul Law Review , 205-234 (2012)
[XX] Vorobey, D. (2013). CISG and Arbitration Clauses: Issues of Intent and Validity. Journal of Law and Commerce, 31, pp.133-160.
How to Cite
Copyright (c) 2022 International Education and Research Journal (IERJ)
This work is licensed under a Creative Commons Attribution 4.0 International License.