Larry_A_DiMatteo_-_International_Sales_Law_A_Global_Challenge-Cambridge_University_Press_2014

1. Revocability of an Offer

The revocability of offers (CISG Article 16) is an area where various national legal systems have taken opposing positions. An offer remains freely revocable under common law as long as the offeree has not provided consideration, as one-sided obligations are not generally enforceable. In contrast, continental European legal systems are more protective of the offeree’s reliance in the continued existence of the offer and regularly hold the offeror bound for a certain period of time.53 Article 16 attempts to accommodate this divergence with a rule-exception provision. According to paragraph 1, an offer is generally freely revocable, but paragraph 2 sets out two exceptions to the general rule of revocability. The provision is far from unambiguous, and there is indeed much debate in the literature about how the exceptions should be applied. The interpretation of paragraph 2 has been susceptible to the influence of varying national perceptions.54 However, the revocability of an offer has not generated much dispute in practice, with the Pace Database containing only fourteen decisions and none of them dealing with this specific problem of interpretation.

2. Specific Performance

The different view of the right to specific performance between the civil law (ordinary remedy) and the common law (extraordinary remedy) resulted in the drafting of CISG Article 28, which defers recognition of this remedy to domestic law. Article 28 is not intended to protect the contracting parties, but rather to protect the courts’ discretionary powers over the granting of remedies.55 Therefore, Article 28 is not subject to the principle of party autonomy and the parties cannot opt out of its application.56 Of the nine reported decisions referring to Article 28, only one originated in a common-law court, and there the plaintiff was granted specific performance as special circumstances existed, in which case the domestic law would have also granted such relief.57

Despite its relative insignificance in CISG case law, the right to specific performance plays an important role in the CISG’s remedial scheme. For example, even in a country that regularly grants specific performance, Article 77’s duty to mitigate may in some situations require a party claiming breach to choose a remedy that is less onerous on the breaching party.58 The nonbreaching party may be required to obtain substituted performance to mitigate damages, thus rendering the right to specific performance moot. More importantly, in practice, damages is the preferred remedy, as a cover purchase with

53Konrad Zweigert and Hein Kotz,¨ An Introduction to Comparative Law, 3rd ed. (Oxford: Clarendon, 1998), 356ff.

54Henry Mather, “Firm Offers under the UCC and the CISG,” 105 Dickinson (Penn State) L. Rev. 44ff. (2000); Ulrich Schroeter in Schlechtriem and Schwenzer, Commentary, Article 16, para. 10.

55Bruno Zeller, CISG and the Unification of International Trade Law (Oxford: Routledge-Cavendish, 2007), 59f.; Marco Torsello, “Remedies for Breach of Contract,” in Ferrari, Quo Vadis CISG?, 68.

56Huber and Mullis, CISG, 190; Ingeborg Schwenzer and Markus Muller¨-Chen in Schlechtriem and Schwenzer, Commentary, Article 28, para. 24.

57Magellan International v. Salzgitter Handel, Federal District Court [Illinois], 99 C 5153, December 7, 1999, available at http://cisgw3.law.pace.edu/cases/991207u1.html (interests of the buyer were not sufficiently served by a cover purchase).

58Ingeborg Schwenzer and Markus Muller¨-Chen in Schlechtriem and Schwenzer, Commentary, Article 46, para. 14; Zeller, CISG and Unification, 63.

a subsequent claim for damages is much more sensible in most breach situations. Most businesspersons would not want to incur the delay and uncertainty of receiving goods from the breaching seller when they could get substitute materials elsewhere and then sue for any additional expenses. The circumstances that would persuade a party to request specific performance would exist only in exceptional situations, which would likely warrant specific performance under the common law.59 This analysis is supported by the high number of judicial decisions regarding Article 74 (damages) and the small number of Article 28 cases.60

3. Compromises and the Developing Countries

An explicit goal in the creation of the CISG was to integrate developing nations into the international sales law system. One example of this is found in CISG Article 72(2), which establishes the obligation to give reasonable notice of intent to avoid the contract in cases of anticipatory breach. In practice, Article 72, specifically the obligation to give notice, has produced little case law.61 Late notice is rare given modern methods of communication.62 The more important issue is whether notice of avoidance is still required, when, under the circumstances, it constitutes a mere formality.

Two other compromise provisions have come before the courts more often. Article 9(2) makes it a condition for the objective application that a usage “in international trade is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade concerned.” The requirement of “known in international trade” stemmed from the developing countries’ concern that their traders, as newcomers to international commerce, were not informed on the content of industry trade usage and customs, and had no influence in their development.63

Even more interesting, however, is CISG Article 44, which moderates the complete loss of rights for failure to give timely notice of nonconformity. Under Article 44, if a buyer fails to give timely notice of nonconformity, but has a reasonable excuse for failure to give the required notice, the buyer retains his or her right to reduce the price and a limited right to claim damages. The complete revocation of rights under Article 39 was seen as too draconian by the developing countries in light of the fact that the duty to give notice is unknown in numerous legal systems.64 Because many claims fail under the strict requirements of Articles 38 and 39, Article 44 is a defense of last resort for buyers failing to give proper notice. Despite the fact that the Pace Database lists sixty-nine cases referring to Article 44, the granting of relief under Article 44 has rarely been given. The

59Andrea K. Bjorklund¨ in UN Convention, Article 28, para. 2; Zeller, CISG and Unification.

60Zeller, CISG and Unification, 62f.; cf. also Ulrich Magnus, “Beyond the Digest: Part III,” in The UNCITRAL Draft Digest and Beyond (ed. Franco Ferrari, Harry Flechtner, and Ronald A. Brand) (Munich: Sellier European Law Publishers, 2004), 326 (stating: “The provision is a good example of one of those theoretically interesting attempts to deal with irreconcilable conceptual problems which in practice prove unimportant. But since the provision does no harm it seems unnecessary to change it. Equally unnecessary appears extended discussion of it.”).

61See CIETAC Arbitration proceeding, December 31, 1996, available at http://cisgw3.law.pace.edu/cases/ 961231c2.html (decision on Article 72(2)).

62Fritz Enderlein, Internationales Kaufrecht (ed. Fritz Enderlein, Dietrich Maskow, and Heinz Strohbach) (Berlin: Haufe, 1991), Article 72, para. 5; Staudinger, Article 72, para. 22.

63Staudinger, Article 9, para. 16.

64U.N. Conf. on CISG, Official Records 320, 322 (1981).

UNCITRAL Digest shows only two arbitral awards in favor of a buyer who had failed to give the required notice.65 It appears that the practical significance of this exception is extremely slight, and the courts have placed the threshold for its application at a high level.66

E. Part II Formation and Scarcity of Case Law

Looking purely at the numbers, a group of provisions in Part II of the CISG is remarkable for having few citations. This is especially true of the formation rules found in Articles 17, 20, 21, and 22. Article 17, according to which an offer is terminated when the offeror receives a rejection, has produced no substantive decisions regarding its application.67 Article 20 (time for acceptance) appears in only one case; its inclusion is by way of a passing reference. When read more precisely, however, this judgment merely refers again to “Articles 14–24 CISG” for the premise that, under the CISG, sales contracts are concluded through offer and acceptance.68 Regarding Article 21, five cases appear in the Pace Database regarding the consequences of late acceptance, only three of which can be verified.69 Finally, the database returns two decisions appropriately referencing Article 22.70

Part II (contract formation) is strongly influenced by continental European law. The low rate of citation for the aforementioned formation rules is likely due to their technical nature. For example, in the absence of the rules found in Articles 17, 22, and 23, it is unlikely that a court decision would be rendered any differently. Article 20 deals merely with a codified rule of interpretation, subject to the reservation that the offeror explicitly or implicitly provided a different method for calculating the time period for acceptance. Article 21, however, which in certain cases gives effect to a late acceptance, provides a truly original rule favoring the validity of international contracts. It is an expression of the general principle of favor contractus (presumption of the effectiveness of international contracts) enshrined in the CISG.71

65Cf. UNCITRAL Digest, Article 44, para. 6. According to Kroll,¨ the low number of successful references to Article 44 CISG can also be due to the fact that almost all of the published decisions on this issue originate in courts from Western countries, which are perhaps totally unfamiliar with the problems of buyers in developing countries; see UN Convention, Article 44, para. 6.

66DiMatteo et al., International Sales, 92f.

67District Court Oldenburg, 12 O 2943/94, February 28, 1996, available at http://cisgw3.law.pace.edu/ cases/960228g1.html (referenced the Article only once in wholesale as “Articles 14–19” [sic], whereas the revocation of an offer played absolutely no role in the underlying facts); Chateau des Charmes Wines Ltd v. Sabate´ USA, Inc. et al., Superior Court of Justice, Ontario, 03-CV-261424CM3, October 28, 2005, available at http://cisgw3.law.pace.edu/cases/051028c4.html (same).

68Appellate Court Graz, 4 R 224/98p, February 24, 1999, available at http://cisgw3.law.pace.edu/cases/ 990224a3.html.

69ICC Arbitration Case No. 7844 of 1994, available at http://cisgw3.law.pace.edu/cases/947844i1.html; District Court Hamburg, 419 O 48/01, December 21, 2001, available at http://cisgw3.law.pace.edu/cases/ 011221g1.html; Appellate Court Dresden, 10 U 0269/10, November 30, 2010, available at: http://cisgw3. law.pace.edu/cases/101130g2.html.

70Pratt & Whitney v. Malev, Metropolitan Court Budapest, 3 G 50.289/1991/32, January 10, 1992, available at http://cisgw3.law.pace.edu/cases/920110h1.html; Munich Appellate Court, 23 U 4446/99, December 3, 1999, available at: http://cisgw3.law.pace.edu/cases/991203g1.html.

71Bertram Keller, “Favor Contractus in the CISG,” in Andersen and Schroeter, Sharing International Commercial Law across National Boundaries, 252.

In any case, modern business practice often experiences difficulties with rigid offer and acceptance rules. Because of this, the formation rules of the CISG do not represent progressive advancement, bringing the rules, at times, into conflict with actual practice. The scholarly literature is currently focused on whether the CISG contract formation model fits the complex conclusion of contracts in practice, often consisting of protracted negotiations and preliminary and partial agreements.72

A similar decisional vacuum exists regarding Article 70. The provision establishes that the buyer’s right to avoid the contract in cases of a seller’s fundamental breach survives, even when the breach occurs after the risk passed to the buyer and the goods cannot be returned under Article 82(1). The Pace Database does not contain a single reported case referencing Article 70.73 Three CISG Articles – 17, 20, and 70 – are still awaiting their inaugural deployment in a judicial decision.

IV. Conclusion

Regardless of the reasons behind the absence of certain CISG provisions in case law, the CISG should be evaluated as a whole. The fact that references to an article are not found in judicial decisions does not necessarily mean that the provision is of no importance. It remains a part of the system as a whole, and may remain important to the integrity of that system.

This chapter’s brief examination of the “quieter domains” of the CISG has shown that the drafters tried to create a balanced document. This approach required that the delegations reach compromises, with the resulting formulations often seen as less than ideal. With the experience of the past twenty years, interpreters of the CISG view these provisions differently. As a result, there have been attempts to develop the CISG further and work out some of its flaws in other rule-drafting projects, such as the UNIDROIT Principles of International Commerial Contracts and the Draft Common Frame of Reference, as well as the proposed Common European Sales Law.74 The chapter has shown that some theoretical questions often do not result in practical problems. Thus, the goal of reaching agreement over certain conceptual differences between scholars and practitioners from different legal systems may be less important and, at the same time, easier to achieve.

72Peter Schlechtriem and Petra Butler, UN Law on International Sales (Berlin: Springer, 2009), para. 69; cf. Marco Torsello, “Preliminary Agreements and CISG Contracts,” in Flechtner et al., Drafting Contracts, 191ff.

73Conservas La Costena˜ v. Lanın,´ Compromex Arbitration proceeding, M/21/95, April 29, 1996, available at http://cisgw3.law.pace.edu/cases/960429m1.html (Article 70 may have been applicable to the facts, but the court did not discuss its applicability).

74Michael Joachim Bonell, “The Unidroit Principles of International Commercial Contracts and CISG: Alternatives or Complementary Instruments?,” Uniform L. Rev. 26ff. (1996); Sonja Kruisinga, “The Impact of Uniform Law on National Law: Limits and Possibilities – CISG and Its Incidence in Dutch Law,” 13

Electronic J. of Comparative L. 5ff. (2009).

II. Brief History of the CISG

The history of the CISG has been extensively documented elsewhere,6 but the uninitiated will benefit from a brief overview7 of the origins and development of the CISG. In the late 1920s, “scholars, lawyers, and traders . . . began to explore the possibility of creating a uniform law to govern international trade.”8 From 1926 until 1939, several draft uniform sales laws were discussed under the guidance of the International Institute for the Unification of Private Law [UNIDROIT] and the Hague Conference on Private International Law. Efforts at unification of international sales law came to a halt with the beginning of World War II, and did not resume until January 1951, when the Dutch government convened a diplomatic conference at The Hague:9 “The conference established a special commission to make further progress in the unification process.”10 During the 1950s and early 1960s, several drafts were circulated, resulting in two documents that proved important to the development of international sales law – the Uniform Law on the Formation of Contracts for the International Sale of Goods [ULF]11 and the Uniform Law on the International Sale of Goods [ULIS].12 Although these conventions, which were finalized at The Hague in 1964, were ultimately adopted by only nine countries and were not considered a success, they were the “basis for the ‘new’ Uniform Sales Law drawn up by . . . UNCITRAL, and they influenced not only the basic structures and key concepts [found] in the . . . [CISG, which was] eventually concluded in 1980, but also many of its detailed solutions.”13

One reason that ULF and ULIS did not win general acceptance was that major trading countries such as the United States and France did not ratify them. In addition, “socialist and developing nations perceived [them] as favoring sellers from industrialized Western economies and thus stayed away . . . as well.”14 In 1966, the United Nations Commission on International Trade Law [UNCITRAL] was established to continue work on an international sale of goods convention. “The drafting and negotiation process, for

6 See, e.g., Kazuaki Sono, “The Vienna Sales Convention: History and Perspective,” in International Sale

ˇ ˇ ´

of Goods: Dubrovnik Lectures (ed. P. Sarcevic and P. Volken) (New York: Oceana, 1986), 1–17; Honnold, Uniform Law, 5–12; Schlechtriem and Schwenzer, Commentary, 1–3. The definitive collection of “studies, deliberations and decisions that led” to the CISG is John O. Honnold, Documentary History of the Uniform Law for International Sales (Deventer: Kluwer Law and Taxation, 1989).

7This overview of the CISG’s history is derived from Schwenzer and Hachem, CISG, 459–60, and from Tom McNamara, “The U.N. Sale of Goods Convention: Finally Coming of Age?,” Colorado Lawyer, February 2003, at 11.

8McNamara, “U.N. Sale of Goods Convention,” 12.

9Schwenzer and Hachem, CISG, 459.

10Id.

11Convention Relating to a Uniform Law on the International Sale of Goods, July 1, 1964, 834 U.N.T.S. 107, available at http://www.cisg.law.pace.edu/cisg/text/ulis.html (last updated May 27, 1998).

12Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods, July 1, 1964, 834 U.N.T.S. 107, available at http://www.cisg.law.pace.edu/cisg/text/ulf.html (last updated January 1996).

13Schlectriem and Schwenzer, Commentary, 1–2. Commentators have noted other positive effects. “ULIS and ULF have achieved considerable importance in the practice of German, Benelux, and Italian courts. When developing domestic sale of goods laws, national reformers and legislatures have increasingly used ULIS and ULF as an example and model.” Id.

14Schwenzer and Hachem, CISG, 460 (citing Peter Schlectriem, Uniform Sales Law: The UN-Convention on Contracts for the International Sale of Goods 16, 17 (1986)).

what ultimately became the CISG, was quite inclusive.”15 A draft dealing with contract formation and substantive sales law was circulated to members of the United Nations in 1978, and the UNCITRAL Secretariat issued a Commentary on the draft.16 In 1980, representatives of sixty-two nations gathered in Vienna to deliberate.17 The representatives came from a variety of different legal systems, and included “[a]cademics, corporations, traders, diplomats, and lawyers.”18 Ultimately, forty-two countries voted in favor of the CISG, and after ratification by the required ten countries, it entered into force on January 1, 1988. Reflecting its international character, the CISG was published in six official languages: Arabic, Chinese, French, English, Russian, and Spanish.19

III. Challenges in Researching the CISG and Its Uniform Application

The CISG has generated a significant amount of commentary.20 In fact, it has been suggested that “[m]ore has been written on this uniform law than on any law since the Code of Hammurabi.”21 It has also generated a large and growing body of case law from courts and arbitral tribunals:22 “With such an abundance of material, the challenge is not its availability but mining it in an efficient manner.”23 In addition, cases and commentaries may be written in foreign languages with no translations available. These hurdles to research on the CISG have largely been eliminated thanks to free online sources on the CISG. However, perceptions about the difficulty of performing international law research persist, creating disincentives to select the CISG as applicable law.24

15McNamara, “U.N. Sale of Goods Convention,” 12.

16“Upon completion of the 1978 Draft, the Secretariat prepared a Commentary on it that summarized the thinking that led to this text . . . The Secretariat Commentary which accompanied it was prepared pursuant to United Nations General Assembly Resolution 33/93 . . . Ziegel, “Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods” (July 1980), at p. 5) . . . This Commentary is the closest counterpart to an Official Commentary on this Convention.” “Summary of UNCITRAL Legislative History of the CISG,” CISG Database, http://cisgw3.law.pace.edu/cisg/linkd. html (last updated January 7, 1999). Unfortunately, there is no commentary on the 1980 Convention. Honnold, Documentary History, 404.

17Schwenzer and Hachem, CISG, 460.

18McNamara, “U.N. Sale of Goods Convention,” 12.

19The official texts are available at the UNCITRAL Web site, http://www.uncitral.org/uncitral/en/uncitral texts/sale goods/1980CISG.html (last accessed August 5, 2013), and at the Pace University School of Law Albert H. Kritzer CISG Database, http://www.cisg.law.pace.edu/cisg/text/text.html (last updated June 21, 2013) (hereafter referred to as CISG Database). Deviations among the texts have led to problems of interpretation because “no matter how much care was taken in casting the CISG into its six official language versions, there were bound to be differences in the meanings conveyed.” Harry M. Flechtner, “The Several Texts of the CISG in a Decentralized System: Observations on Translations, Reservations and Other Challenges to the Uniformity Principle in Article 7(1),” 17 J. of L. & Commerce 187, 190 (1997–8).

20As of August 5, 2013, the CISG Database listed 10,049 texts in its bibliography on the CISG; http://www. cisg.law.pace.edu/.

21Albert H. Kritzer, foreword to A Practitioner’s Guide to the CISG (ed. Camilla Baasch Andersen, Francesco G. Mazzotta, and Bruno Zeller) (Huntington, NY: Juris, 2010), vii.

22As of July 17, 2013, the CISG Database listed 2,872 cases from fifty-three jurisdictions and arbitral tribunals; http://www.cisg.law.pace.edu/.

23Kritzer, foreword, ix.

24Even when known by practicing lawyers, “there still seems to be a tendency to recommend the exclusion of the Convention.” Schwenzer and Hachem, CISG, 463. There are four reasons why parties opt out of the

A. Moving from “Homeward Trend” to Uniform Application

Reliance on domestic law for purposes of interpreting the CISG contradicts the intent of CISG Article 7(1), which states that: “In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application.” Despite this mandate, some misguided practitioners and judges have too quickly resorted to domestic law when applying the CISG. Professor John Honnold coined the term “homeward trend” for the practice of choosing domestic law concepts and rules over unfamiliar CISG rules:

The Convention . . . will often be applied by tribunals (judges or arbitrators) who will be intimately familiar only with their own domestic law. These tribunals, regardless of their merit, will be subject to a natural tendency to read the international rules in light of the ideas that have been imbedded at the core of their intellectual formation. The mind sees what the mind has means of seeing.25

Although uniformity in international sales transactions leads to predictability in contracts and facilitates international transactions, it has proven to be somewhat elusive in the application of the CISG:

[U]niformity does not follow automatically from a proclamation of uniform rules . . . [U]niform words do not always ensure uniform results, especially where a Convention is in effect throughout countries with completely differing social, economic, and cultural backgrounds, and perhaps most significantly, different legal systems. Differences in interpretation and application will arise.26

There is another difficulty in achieving uniform interpretation, namely, that there is no central appellate court, tribunal, or other body whose function it is to ensure uniformity of application:

Before the CISG entered into force, the Convention was debated at a conference in Freiburg, Germany in 1987, where Professor John O. Honnold – in anticipation of the problems of uniformity that would arise – stated that he presumed most countries would condition their ratification of the Convention on the establishment of an International Sales Law Centre to monitor the international practice of the convention, as proposed by Professor Rajski of Poland. Such a centre was never created.27

In order to fill this need, the CISG Advisory Council (CISG-AC) was founded in 2001 “as a private initiative to respond to the emerging need to address some controversial,

CISG when drafting contracts governing international sales of goods: lawyers are not particularly familiar with the CISG and prefer the predictability of their domestic law; “whenever the position of a party in the market allows that party to retain its own domestic law in a contract, it prefers to do so”; some parties think that their domestic law is more advantageous to them; and although there are six official languages for the CISG, inevitably there are inconsistencies among the versions which can lead to problems in application and interpretation. Id., 463–4.

25Honnold, Documentary History, 1.

26Camilla Baasch Andersen, “Furthering the Uniform Application of the CISG: Sources of Law on the Internet,” 10 Pace International L. Rev. 403, 404 (1998) (citing John O. Honnold, “The 1980 Sales Convention: Can Uniform Words Give Us Uniform Results?,” 2 Juridisk Tidskrift vid Stockholms Universitet 3–14 (1990–1).

27Andersen, “Furthering the Uniform Application,” 410 (footnote omitted).

unresolved issues relating to the CISG which merit interpretative guidance.”28 Its ultimate goal is the uniform interpretation of the CISG. Scholars representing different legal traditions “issue opinions relating to the interpretation and application of the Convention on request or on its own initiative.”29 Such requests may come from “international organizations, professional associations and adjudication bodies.”30 So far, the CISG-AC has issued twelve opinions, which are available on its own website31 and on the Pace CISG Database.

Uniformity in interpreting the CISG is impossible; a more realistic goal is “for the provisions of the Convention to be applied similarly, if not identically, throughout the Signatory States.”32 This places a responsibility on the researcher to locate and take into consideration “similar cases from international practice.”33 Some commentators have argued that the failure to consider relevant case law from foreign jurisdictions may “give rise to . . . malpractice.”34 The term “jurisconsultorium” has been applied to the process of comparing case law (and scholarly commentary) from varying jurisdictions to determine how the law has already been applied, thus enhancing uniformity of application.35

B. Internet to the Rescue

The Internet has provided a mechanism for promoting uniform application of the CISG by making available to the international community the primary and secondary sources needed for thorough research. The Internet has played a critical role in creating a common legal culture for the CISG.36 According to Professor Albert H. Kritzer, the founder of the CISG Database at the Pace University School of Law, “the birth of the CISG coincided with the birth of the Information Age. That has led to an explosion of

28Loukas Mistelis, “CISG-AC Publishes First Opinions,” http://www.cisg.law.pace.edu/cisg/CISG-AC.html (last updated March 26, 2008). The CISG Advisory Council was founded by the Institute of International Commercial Law at Pace University School of Law and the Centre for Commercial Law Studies, Queen Mary, University of London.

29Id.

30Id.

31http://www.cisgac.com/default.php?sid=128 (last accessed August 5, 2013).

32Andersen, “Furthering the Uniform Application,” 404.

33Id., 405. “[W]hen taking [CISG] cases out of their domestic context, they have no real value on a precedential scale in any event, so it will be the commercial reasoning which speaks for itself . . . ” Andersen et al., A Practitioner’s Guide, xxi. The use of foreign law by judges in the United States to inform their decisions is highly controversial. Nonbinding authorities, including law reviews, scholarly treatises, and judgments of courts from other U.S. jurisdictions, are widely consulted. See Martha Minow, “The Controversial Status of International and Comparative Law in the United States,” 52 Harvard International L.J. Online 1, 18–19 (2010), http://www.harvardilj.org/2010/08/online 52 minow/. (“[C]onsultation of nonbinding sources can be instructive and clarifying though never binding.” Id., 19.) See also Gary F. Bell, “Uniformity through Persuasive International Authorities: Does Stare Decisis Really Hinder the Uniform Interpretation of the CISG?,” in Sharing International Commercial Law across National Boundaries: Festschrift for Albert H Kritzer on the Occasion of His Eightieth Birthday (ed. C.B. Andersen and U.G. Schroeter) (London: Wildy, Simmonds & Hill, 2008), 47 (concluding that the common-law doctrine of stare decisis need not stand in the way of uniformity in international sales law).

34Andersen et al., A Practitioner’s Guide, 87.

35Vikki Rogers and Albert H. Kritzer, “A Uniform International Sales Law Terminology,” in Festschrift fur¨ Peter Schlechtriem zum 70. Geburtstag 227–8 (ed. I. Schwenzer and G. Hager) (Tubingen:¨ Mohr Siebeck, 2003).

36Shani Salama, “Pragmatic Responses to Interpretive Impediments: Article 7 of the CISG, an InterAmerican Application,” 38 University of Miami Inter-American L. Rev. 225, 236 (2006). “A common

material on the Internet on this law.”37 Internet-based sources provide research material that “conforms with the transnational character” of the CISG, the global reach of the Web, the nature of the new lex mercatoria,38 and the “quick and continuous updating and dynamic evolution” of information.39

IV. Methodology for CISG Research

Every attorney in the United States is familiar with online databases such as Lexis and Westlaw. Attorneys also still rely on printed annotated codes, which include the text of the statute, as well as supplementary material to aid in its interpretation. Supplementary materials typically include related case law, legislative history, administrative regulations, and secondary authorities40 such as law review articles and practice materials.

When approaching a CISG issue, the best place to begin is with the text of the relevant CISG Article, along with the travaux preparatoires´,41 the Secretariat’s official commentary, scholarly commentary, and cases and arbitral awards.42 Professor Claire Germain recommends that CISG researchers also consider:

[I]nternational trade usages and practices (e.g., Article 9 of the Convention, UNIDROIT principles of international commercial contracts43 which might supplement the CISG

legal culture refers to a common socioeconomic and political structure, combined with a common general legal framework, which plays a significant role in how legal rules are understood and applied.” Id., 236.

37Kritzer, foreword, vii.

38New Lex Mercatoria (NLM) is a synonym for transnational commercial law. NLM includes the CISG, but is broader in scope, also encompassing “general transnational commercial law principles such as ‘good faith,’ [etc.].” Klaus Peter Berger, “The TransLex Principles: An Online Research Tool for the Vis Moot and International Arbitration,” in International Arbitration and International Commercial Law – Synergy, Convergence and Evolution: Liber Amicorum Eric Bergsten (ed. S. Kroll)¨ (Alphen aan den Rijn: Wolters Kluwer Law & Business, 2011), 34.

39Id., 44, discussing specifically the Transnational Law Database of the Center for Transnational Law (CENTRAL), at the University of Cologne, http://www.central-.uni-koeln.de.

40Some codes, such as McKinney’s Consolidated Laws of New York Annotated, also include commentaries written expressly for the publication by expert practitioners. William H. Manz, Gibson’s New York Legal Research Guide, 3rd ed. (Buffalo: William S. Hein, 2004), 76.

41Travaux preparatoires´ may be useful to understand the “common intentions and agreed definitions” of the drafters as long as “all the parties had become familiar with the documents or material by the time the treaty was signed.” Young Loan Arbitration, 59 I.L.R. 495, 545 (Arb. Trib. for the Agreement on Ger. External Debts 1980). They are not, however, the equivalent of legislative history, a term used in the United States for the “chronology of events and the publications generated during the legislative process . . . A legislative history is the record of the events that transpire, the dates of those events, and the publications generated.” Elyse H. Fox, The Legal Research Dictionary: From Advance Sheets to Pocket Parts, 2nd ed. (Chapel

`

Hill: Legal Information Services, 2006), 59. See generally Jonathan Pratter, “A la Recherche des Travaux Preparatoires´: An Approach to Researching the Drafting History of International Agreements,” GlobaLex (November/December 2012), http://www.nyulawglobal.org/globalex/Travaux Preparatoires1.htm.

42“The importance of CISG precedents does not solely apply to court judgments. Arbitral awards are also, indeed especially, significant due to their internationality and ‘stateless’ context. ‘[A]n arbitral award could have more influence on a specific solution than a decision of a supreme court of a country whose judges are not accustomed to dealing with international issues in general, and the CISG in particular.’” Camilla Baasch Andersen, “The Uniform International Sales Law and the Global Jurisconsultorium,” 24 J. of L. & Commerce 159, 170 (2005) (quoting Franco Ferrari, “CISG Case Law: A New Challenge for Interpreters?,” 17 J. of L. & Commerce 245, 260 (1999)).

43The UNIDROIT Principles of International Commercial Contracts, which were prepared under the aegis of UNIDROIT, were first published in 1994. “[T]hey attempt to set forth the principles that the drafters