Larry_A_DiMatteo_-_International_Sales_Law_A_Global_Challenge-Cambridge_University_Press_2014

instances where the CISG applies to a dispute between parties and is disregarded either by the attorneys or the courts, or both. A more prevalent occurrence is where national courts prematurely resort to domestic law in interpreting the CISG (homeward trend bias). Some of these cases are discussed in the section entitled “Blatant Disregard.”

B. National Application outside the Scope of the CISG

The CISG has become more than just a shared law in the states that have adopted it; it is being used as a benchmark for international sales law and practice in different contexts – as a blueprint for new laws, as a contract checklist for negotiating contracts, and as a benchmark for good commercial practice. For example, in the modernization and revisions of existing sales laws, the CISG has influenced the drafting of statutory revisions in a number of contracting states. In the recent revisions of the German Commercial Code of 1869 (Handelsgesetzbuch) and Chinese Contract Law, the CISG was relied on heavily as a model law. For some emerging states, the CISG has been incorporated into their commercial codes as the countries’ domestic and international sales law.5

Moreover, the CISG has been used in contracting states beyond its scope of application. One such example is a case decided by the Danish Eastern High Court (Østre Landsret) concerning the leasing of a steam plant, which is outside the scope of the CISG.6 However, the court applied the CISG to the sale of the purely moveable tangible goods (“de rene løsørekøb”) ancillary to the leasing agreement. The substantive issues relating to the lease were settled according to Danish law as dictated by the Rome Convention. But in establishing the proper forum under the criteria found in the Brussels Convention (EC Convention on Jurisdiction and the Enforcement of Decisions in Civil and Commercial Matters), the court relied on the principle that the place of payment is the seller’s place of business as provided in CISG Article 57(1). The court, in essence, used the CISG as support for the argument that there is a general international rule for the place of payment.

Other courts have gone even further by recognizing the CISG as an expression of customary international law.7 One such example is found in a 1989 decision of the Iran–U.S. Claims Tribunal.8 The case involved a reduction in monetary relief sought by the seller for the buyer’s nonpayment of the contract price. The relief sought was reduced to proceeds of the sale, less completion and modification expenses and reselling costs. After ruling on this matter under the applicable law (which was not the CISG), the tribunal stated: “Moreover [seller’s] right to sell undelivered equipment in mitigation of its damages is consistent with recognized international law of commercial contracts. The conditions of Article 88 of the [CISG] are all satisfied in this case – there was

5See Peter Schlechtriem, “25 Years of the CISG: An International Lingua Franca for Drafting Uniform Laws, Legal Principles, Domestic Legislation and Transnational Contracts” in Drafting Contracts under the CISG (ed. Brandt, Flechtner, and Walter) (CELI series, Oxford University Press, 2008).

6Denmark, December 4, 2000, Appellate Court Copenhagen, available at http://cisgw3.law.pace.edu/cases/ 001204d1.html.

7See, e.g., ICC Arbitration Case No. 6149 of 1990, available at http://cisgw3.law.pace.edu/cases/906149i1. html; ICC Arbitration Case No. 7331 of 1994, available at http://cisgw3.law.pace.edu/cases/947331i1. html.

8See Iran/U.S. Claims Tribunal, award of 28.07.1989, available at http://cisgw3.law.pace.edu/cases/ 890728i2.html.

unreasonable delay by the buyer in paying the price and the seller gave reasonable notice of its intention to sell.”

Two decisions of the English Court of Appeals referenced the CISG despite the fact that the United Kingdom has not adopted the CISG.9 In both cases, the judges used CISG Article 8 as a source of inspiration for interpreting the reasonableness of a contracting party’s conduct.10 Both cases involved domestic sales transactions. In the ProForce case, the Court stated:

In addition, careful consideration may have to be given to the aims to be achieved by contractual interpretation and the precise extent to which the law requires an objective interpretation . . . It may be appropriate to consider a number of international instruments applying to contracts. The UN Convention on Contracts for the International Sale of Goods (1980) provides that a party’s intention is in certain circumstances relevant, and in determining that intention regard is to be had to all relevant circumstances, including preliminary negotiations.

The same wording is used in the Square Mile case. According to these decisions, the CISG is now an appropriate source of sound commercial practice in the interpretation of contracts between two English parties. Given the complicated history of the UK and the CISG, this is an encouraging development.11

II. CISG Case Law: Uniform Law in National Courts

This part notes that a solid body of case law represents “mainstream” CISG jurisprudence. Although overlooked and disregarded in some jurisdictions, the CISG is applied regularly in German courts, as well as numerous Western European countries. It has also been commonly applied in CIETAC arbitration in China, as well as by arbitration tribunals in the Russian Federation. The volume of cases applying the CISG has grown exponentially.

9For a review of the complicated history between the UK and the CISG, see Andersen, “National Report of the United Kingdom,” in The CISG and Its Impact on National Legal Systems (ed. Franco Ferrari) (Selliers European Law Publishers, 2008), 303–11; Michael Bridge, “Uniformity and Diversity in the Law of International Sale,” 15 Pace Int’l L. Rev. 55 (2003); Michael Bridge, “The Bifocal World of International Sales: Vienna and Non-Vienna,” in Making Commercial Law (ed. Cranston) (Oxford University Press, 1997), 277–96; Moss, “Why the United Kingdom Has Not Ratified the CISG,” J. of L. & Commerce 483 (2005); Nicholas, “The Vienna Convention on International Sales Law,” 105 Law Quarterly Rev. 201–43 (1989); Mullis, “Twenty-Five Years On: The United Kingdom, Damages and the Vienna Sales Convention,” 71 Rabels Zeitschrift fur¨ auslandisches¨ und internationals Privatrecht (RabelsZ) 35–51 (2007); Williams, “Forecasting the Potential Impact of the Vienna Sales Convention on International Sales Law in the United Kingdom,” in Pace Review of the Convention on Contracts for the International Sale of Goods (CISG) (Kluwer Law International, 2000–1); Takahashi, “Right to Terminate (Avoid) International Sales of Commodities,” Journal of Business Law 102 (2003); Lee, “The UN Convention on Contracts for the International Sale of Goods: OK for the UK?,” J. of Business Law 131–48 (1993); Bruno Zeller, “Commodity Sales and the CISG,” in Sharing International Commercial Law across National Boundaries

(ed. C. Andersen and U. Schroeter) (Wildy & Sons, 2008), 627–40. See also Wheatley, “Why I Oppose the Winds of Change,” The Times, March 27, 1990, and reply, Roy Goode, “Why Compromise Makes Sense,” The Times, May 22, 1990.

10ProForce Recruit Ltd v. Rugby Group Ltd., available at http://cisgw3.law.pace.edu/cases/060217uk.html;

The Square Mile Partnership Ltd v Fitzmaurice McCall Ltd., available at http://cisgw3.law.pace.edu/cases/ 061218uk.html.

11For a commentary on these decisions, see Bonell, “The UNIDROIT Principles and CISG: Sources of Inspiration for English Courts?,” Uniform L. Rev. 305 (2006).

The Pace Law School CISG Database – W3CISG – lists nearly 3,000 CISG cases. Scholarly works, such as the UNCITRAL Digest and Opinions of the CISG Advisory Council, complement this large body of case law.

The sharing of a uniform law instrument across boundaries of legal cultures, languages, and jurisprudential systems creates a considerable challenge for national courts to apply the law in a uniform manner. Some national courts are acutely aware of their obligation to develop uniform international approaches; others have been more concerned with the compatibility of the CISG with their own domestic laws. Still other courts are blissfully unaware of the transnational precedents they are creating. The context and method with which the CISG is being applied raises important questions: (1) What level of uniform application should be expected in the context of an instrument like the CISG? (2) Given the mass of case law, has the CISG attained a sufficient measure of uniform application?

A. Understanding Uniformity

It stands to reason that uniformity in law cannot be defined by a dictionary definition of “uniformity,” as laws are never applied in “always the same” way. One definition of uniformity as it relates to uniform laws states that: “We can define ‘uniformity’ as the varying degree of similar effects on a legal phenomenon across boundaries of different jurisdictions resulting from the application of deliberate efforts to create specific shared rules in some form.”12 This definition highlights the need to distinguish between textual uniformity and uniform application, as well as the need to determine basic interpretive rules that encourage autonomous interpretations of the CISG.

Modern uniform law is a relatively new form of law making, with a different origin and a different focus from those of conventional domestic law making.13 It is a voluntary process whereby different jurisdictions elect to share a set of rules. This process is to be contrasted with mandated legal uniformity imposed by Roman law14 and the common law.15 Transborder uniform laws are laws created with the deliberate aim of establishing shared law across multiple jurisdictions. Agreeing to a uniform text is the beginning of the process; it is in the uniform application of the text that a uniform law achieves its intended purpose. It is only when a uniform law has been applied cross-jurisdictionally on the intended legal phenomenon and creates the intended degree of similarity that the label “uniform” can be affixed.

B. Textual Uniformity versus Applied Uniformity

Applied uniformity is the true goal of international law unification. Peter Schlechtriem distinguished between “unity achieved at a verbal level” (substantive legal rules) and the “uniform understanding–interpretation” of law (commentary and application of the

12Camilla Baasch Andersen, “Defining Uniformity in Law,” 12 Uniform Law Review 5 (2007).

13See Niklas Luhmann, who defines the process of law in globalization as a process of law where “functional criteria increasingly replace geographic ones, with nation-states’ traditional law-generating organs diminishing in importance in determining legal significance, regulation and evolution.” In Das Recht der Gesellschaft (trans. Vivian Curran) (1993).

14See Cicero, De Republica, 3.22.33: “[T]here shall not be one law at Rome, another at Athens, one now, another hereafter, but one everlasting and unalterable law shall govern all nations for all time.”

15De Cruz argues that James the First, King of England and Scotland, introduced uniformity to England and Scotland when proposing to unify them under a single legal system in the early sixteenth century; see Peter De Cruz, Comparative Law in a Changing World (Cavendish Publishing, 1999), 23.

rules).16 This is the distinction between textual uniformity17 and applied uniformity. Textual uniformity, like applied uniformity, is not an absolute. The textual uniformity of legal instruments can vary immensely depending on the quality of translations and the style of promulgated text (model laws versus conventions). Language is not a precise science. Harry Flechtner labels the limitation of language as “textual non-uniformity.”18 Such differences may, naturally, have an effect on the way scholars and practitioners working in these different languages interpret and use provisions of the CISG, so the degree of textual uniformity directly affects the degree of actual uniformity.

Although it is true that textual uniformity has profound effects on applied uniformity, even the most diligently created piece of textually uniform legislation will not achieve uniformity of application. As pointed out by Honnold, “uniform words do not create uniform results.”19 Textual uniformity is the means to the end of actual uniformity, but it is in the decisions of differing national courts where true uniformity is measured.

C. The CISG and Uniformity

The CISG finds its basis for uniformity in its preamble, and in CISG Article 7(1), which provides: “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.” The question at issue is “how uniform is uniform?” A detailed analysis of the CISG, its travaux preparatoires´ (including the Secretariat’s Commentary and antecedent laws ULF and ULIS), and current practice indicates that different provisions aspire to different degrees of applied uniformity as some CISG articles are drafted in more flexible terms than others. However, given the genesis of the CISG, and the professed aim of its drafters to create a level playing field in commercial law and remove barriers to international trade, a reasonable level of applied uniformity is needed to serve those purposes.20 The greatest threat to uniformity of application is national courts’ inappropriate reliance on domestic law and domestic legal tradition in applying the CISG.

III. The CISG and Nonuniformity

There are two basic instances where there is cause for concern regarding the uniform application of the CISG in national courts, and both create a pattern of misapplication

16See Peter Schlechtriem, introduction to Commentary on the UN Convention on the International Sale of Goods (ed. Peter Schlechtriem and Ingeborg Schwenzer) (Oxford University Press, 2005), 6.

17This term also accords with the way in which Harry Flechtner talks of “textual non-uniformity” when comparing the different texts of the six official languages of the CISG and their meanings, but Flechtner uses it to indicate the level of similarity between the texts in question. By inference, if they did have the same meanings linguistically then these texts would (together) represent a textual uniformity. An instrument with only one official text will thus, by definition, always represent a single textual uniformity. See Harry 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 (1998), available at http://cisgw3.law.pace.edu/cisg/biblio/flecht1.html.

18Id.

19See John Honnold, “Uniform Words and Uniform Application: The 1980 Sales Convention and International Juridicial Practice,” in Einheitliches Kaufrecht und Nationales Obligationenrecht (ed. Peter Schlechtriem) (Nomos, 1987), 146–7.

20See Camilla Baasch Andersen, Uniform Application of the International Sales Law (Kluwer 2007), chapter 2.

within the sphere that encourages forum shopping; the inadvertent “homeward trend” of interpretation and the blatant disregard for the uniform characteristics of the CISG.

A. Inadvertent “Homeward Trend”

Some CISG rules are open to various interpretations. In these cases, inadvertent homeward trend analysis may be used to select from feasible, variant interpretations.21 The inadvertent application of domestic law traditions and perceptions to the interpretation of a CISG provision leads to specific, predictable patterns, which are clearly nonuniform. CISG Article 39’s “reasonable time” requirement to give notice of nonconformity is an example of this phenomenon. Courts have interpreted the reasonable time requirement to range from no more than four days to up to four months or longer.22 This wide variation of time periods is best explained by the identity of the national court making the interpretation. For example, French courts, where domestic law is more buyer-friendly, have allowed for longer periods to give notice, while Germany courts have applied stricter time periods. German domestic law is more seller-friendly, requiring shorter periods of time for notice giving. Article 39 is one of the most disputed areas of the CISG because failure to comply with the notice requirement, with few exceptions,23 deprives the buyer of remedies for nonconformity of goods. In the interpretation of key provisions such as the inspection and notice requirements of CISG Articles 38 and 39,24 with regard to this particular issue, the determination of “reasonable time,” the domestic variations observed in the case law are unacceptable.25 The various interpretations are so predictable as to encourage forum shopping by one of the contracting parties.

A similar problem is created surrounding the principle of “good faith.” CISG Article 7 prescribes a duty to promote “the observance of good faith in international trade.” However, it has been hotly debated whether this reference to good faith in the interpretation of CISG rules is sufficient grounds for imposing on parties a general duty to act in good faith. Jurisdictions such as France, Italy, Austria, and Germany – where general principles of good faith have long been embraced – support a broad application of the good faith principle in the interpretation of contracts and in judging party conduct.26 But

21See Franco Ferrari, “Have the Dragons of Uniform Sales Law Been Tamed?,” in Sharing International Commercial Law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of His Eightieth Birthday (ed. Andersen and Schroeter) (Wildy & Hill, 2008), 134–67 (problem of homeward trend bias).

22See CISG Advisory Opinion No. 2, available at http://www.cisg.law.pace.edu/cisg/CISG-AC-op2.html; Camilla Baasch Andersen, “Reasonable Time in the CISG,” in 1998 Rev. of the CISG (ed. Pace) (Kluwer, 1998), 63.

23Exceptions are found in Article 40 (for the seller in bad faith or quasi-bad faith) and Article 44 (for the buyer who has a reasonable excuse). For more on these exceptions, see Camilla Baasch Andersen, “Exceptions to the Notification Rule: Are They Uniformly Interpreted?,” 9 Vindobona L. J. 17 (2005).

24For more on the civil law versus common law approach to solving the problem of reasonable time, see Camilla Baasch Andersen, “Noblesse Oblige . . . ? Revisiting the ‘Noble Month’ and the Expectations and Accomplishments It Has Prompted,” in Festschrift for Ingeborg Schwenzer: Private Law National – Global – Comparative, Vol. 1 (ed. Muller-Chen and Buchler) (Bern: Stampfli¨ Verlag, 2011), 33–50; see “Differing Mentalities: Each to His Own?”

25Andersen, “Reasonable Time in the CISG,” 63; Daniel Girsberger, “The Time Limits of Article 39 CISG,” 25 J. of L. & Commerce 241 (2005–6).

26Cases where courts and tribunals infer a general good faith obligation include: Cour d’Appel Grenoble, No. 93/3275 (February 22, 1995), J. du Droit Int’l [J.D.I.] 632 (1995), Hungarian Chamber of Commerce

CISG scholarship. Collectively, these contributions can be described as a global jurisconsultorium.33 It can be defined as a process of consultation that takes place across borders and legal systems with the aim of producing autonomous uniform interpretations and applications of uniform law.

A. The “Legal” Arguments

Jurisconsultorium or shared interpretational sphere is based on jurists from around the globe consulting with one another, either in scholarly contexts or by referring to each other’s decisions and opinions. This jurisconsultorium can be divided into two major groups: the scholarly jurisconsultorium (the sphere of cooperation and consultation between transnational scholars) and the practical jurisconsultorium (the sphere in which transnational shared case law is used to resolve disputes before domestic courts). An example of the latter group can be found in the United States, where shared doctrines and precedents relating to the Uniform Commercial Code (UCC) are throughout the country. The English Commonwealth system has developed a shared body of persuasive precedents, used to decide cases in a wide range of jurisdictions.

Article 7(1) provides the legal basis for a duty to aim for a uniform, transnational interpretation of the CISG. Professor Lookofsky argues that “Article 7(1) commands national courts also to have (some measure of) ‘regard’ to the international view.”34 This is a logical conclusion based on the wording of Article 7(1) CISG and its requirement of “regard” for internationality and uniformity. However, it does not support a duty for uniform application – merely a uniform interpretation. Uniformity of interpretation does not guarantee uniformity of application.

In the words of John Honnold: “tribunals construing an international convention will appreciate that they are colleagues of a world-wide body of jurists with a common goal.”35 The judges and legal counsel who apply an international uniform convention must recognize that they are sharing it with colleagues in other jurisdictions, and that the development of its jurisprudence is a communal effort requiring an approach different from the one that they use when applying domestic law. The jurisconsultorium requires that the sources be shared.

The principle of comity supports a shared interpretive approach when a uniform or transjurisdictional law is the applicable law. The legal basis of this principle is the duty to understand that shared international laws are unique, and the sources of such laws are as diverse as the legal systems that share them. This duty requires the interpreter to refer to and consider foreign sources and to take relevant foreign decisions into account. This view of a shared interpretive approach has been supported by numerous CISG experts,

33In the context of the CISG, this term was first employed by Rogers and Kritzer: “A global Jurisconsultorium on uniform international sales law is the proper setting for the analysis of foreign jurisprudence on terminology of international sales”; see Vikki Rogers and Albert Kritzer, “A Uniform International Sales Law Terminology,” in Festschrift fur¨ Peter Schlechtriem zum 70. Geburtstag (ed. Schwenzer and Hager) (Tubingen: Mohr/Siebeck, 2003), 223; Andersen, Uniform Application of the International Sales Law

(global jurisconsultorium); Camilla Baasch Andersen, “The Uniform International Sales Law and the Global Jurisconsultorium,” 24 J. of L. & Commerce 159 (2005).

34Joseph Lookofsky, Understanding the CISG (Kluwer, 2008), 34, 35.

35John Honnold, “Uniform Laws for International Trade: Early ‘Care and Feeding’ for Uniform Growth,” 1 International Trade and Business Law Journal (2005), 1.

including Professors Schlechtriem,36 DiMatteo,37 Ferrari,38 Zeller,39 Flechtner,40 and – last but not least – Honnold himself.

B. The “Policy” Arguments

The notion of a global jurisconsultorium is not unique to the CISG. It is also apparent in the decision of the House of Lords in Fothergill v. Monarch Airlines – concerning the interpretation of the Warsaw Convention on the Liability of Air Carriers (1929) – where the Lords stated that uniform international aviation law is unique and must be treated uniquely.41 The U.S. Supreme Court decided in the Air France v. Saks case – a case concerning the meaning of the term “accident” in the Warsaw Convention – that judicial decisions from other countries interpreting a treaty term are “entitled to considerable weight.”42 This premise was restated by the U.S. Supreme Court in the El Al case,43 which restated the propriety of using foreign case law in applying international conventions.

International commercial law is especially dependent on the efforts of a global jurisconsultorium. First, the harmonization of commercial law gives immediate economic benefits to the community of states by reducing barriers to international trade. Second, there is no one body charged with the task of monitoring international commercial laws. Despite suggestions dating back to 1911, there is no international commercial court competent enough to monitor the application of shared global instruments such as the CISG.44 So, in the application of uniform international commercial law, courts should treat such laws as a unique phenomenon, and not follow the path of domestic law. Using a jurisconsultorium – whether practical or scholarly – can help to ensure a common

36See Peter Schlechtriem, “Uniform Sales Law: The Experience with Uniform Sales Laws in the Federal Republic of Germany,” 2 Juridisk Tidskrift (1991–2), available at http://cisgw3.law.pace.edu/cisg/biblio/ schlech2.html (critique of case law in other jurisdictions, as well as help from scholars and comparative law centers, smooth out divergent interpretations of uniform law).

37See Larry A. DiMatteo, “The CISG and the Presumption of Enforceability: Unintended Contractual Liability in International Business Dealings,” 22 Yale Int. L. J. 111 (1997); Larry A. DiMatteo et al., “The Interpretive Turn in International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence,” 24

Northwestern J. of Int’l L. & Business 299 (2004).

38Franco Ferrari, “CISG Case Law: A New Challenge for Interpreters?,” 17 J. of L. & Commerce 246 (1999) (“As many legal writers have pointed out, this means, above all, that one should not read the Convention through the lenses of domestic law, but rather in an autonomous manner”).

39Bruno Zeller, “Traversing International Waters: With the Growth of International Trade, Lawyers Must Become Familiar with the Terms of the Convention on Contracts for the International Sale of Goods,” 78(9) Law Institute Journal (2004) 52.

40Harry 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 (1998), available at http://cisgw3.law.pace.edu/cisg/biblio/flecht1.html.

41Fothergill v. Monarch Airlines [1980] 2 All E.R. 696.

42Air France v. Saks, 470 U.S. 392, 404 (1985).

43El Al Israel Airlines, Ltd. v. Tsui Yuan Tseng, 525 U.S. 155, 176 (1999).

44See Hans Wehberg, Ein Internationaler Gerichtshof fur Privatklagen (Liebheit & Thiesen, 1911), 23; Louis Sohn, “Uniform Laws Require Uniform Application: Proposals for an International Tribunal to Interpret Uniform Legal Texts,” in Uniform Commercial Law in the Twenty-First Century: Proceedings of the Congress of the United Nations Commission on International Trade Law, 18–22 May 1992 (UN doc E.94.V.14), 50–4; Filip De Ly, “Uniform Interpretation: What Is Being Done? Official Efforts,” in The 1980 Uniform Sales Law (ed. Franco Ferrari) (Selliers, 2003), 346.

72 International Sales Law

approach to similar problems, and to ensure the shared development of uniform law.

Moreover, it is directly in the interest of legal counsel and their clients to “shop” for precedents and scholarship as widely as possible. If courts share common commercial values, as assumed in international commercial law,45 and also share one uniform legal text, then it would be appropriate for judges to use transnational sources and determine their persuasive weight. As Professor Koch states: “Only a fool would refuse to seek guidance in the work of other judges confronted with similar problems.”46

C. Global Jurisconsultorium: The CISG in National Courts

The past decade or so has witnessed a growing number of soundly argued cases from a number of jurisdictions that have referenced cases from other jurisdictions as persuasive or inspirational precedents. An Italian court, in Sport d’Hiver di Genevieve Culet v. Ets. Louys et Fils, cited German and Swiss case law in applying CISG Articles 38 and 39 CISG.47 A French court followed a German decision on CISG Article 57 to determine that the place of payment was the seller’s place of business.48 Eventually, jurisconsultorium-focused cases became more abundant.49 Here, it is sufficient to make two observations. First, numerically and statistically these cases are the exception rather than the rule (1.1% of reported CISG cases). Second, Italian courts have produced a proportionately high level of well-reasoned decisions.

The Italian courts have been the most successful in applying the practical jurisconsultorium. First, most of the early jurisconsultorium cases came from Italian courts, which were the first to consistently reference foreign case law. Second, some of the most comprehensive examples of the use of international CISG sources and precedents are found in Italian cases. The acclaimed Vigevano case, Rheinland Versicherungen v. Atlarex, cited American, Austrian, Dutch, French, German, Italian, and Swiss CISG cases as well as arbitral awards.50 The Italian cases indicate that well-reasoned cases, using the jurisconsultorium, are more of a production of education than of judicial method. Italian judges are relatively young when they take office, and when they do so they bring their modern understanding of the role of uniform laws and shared sources to the bench.51

45This view has prevailed since 1974 when Otto Kahn-Freund, the noted comparativist, first stated that commercial law is comparatively culture-free; see Otto Kahn Freund, “On Uses and Misuses of Comparative Law,” 37 Modern L. Rev. 1 (1974).

46Charles Koch, “Envisioning a Global Legal Culture,” 25 Michigan J. of Int’l L. 51 (2003).

47District Court of Cuneo (Sport d’Hiver di Genevieve Culet v. Ets. Louys et Fils), Italy, January 31, 1996, available at http://cisgw3.law.pace.edu/cases/960131i3.html. Ten years ago, in Franco Ferrari, “Remarks on the Autonomy and the Uniform Application of the CISG on the Occasion of Its Tenth Anniversary,” in International Contract Advisor (Kluwer, 1998), the decision from Cuneo was the only one of 300 cases reported by Michael Will to comply with the duty to look to foreign case law.

48CA Grenoble (Scea. Gaec des Beauches B. Bruno v. Societ´e´ Teso Ten Elsen GmbH & Co KG), France, October 23, 1996, available at http://cisgw3.law.pace.edu/cases/961023f1.html.

49See Andersen, “The Uniform International Sales Law and the Global Jurisconsultorium.”

50District Court Vigevano (Rheinland Versicherungen v. Atlarex), Italy, July 12, 2000, available at: http:// cisgw3.law.pace.edu/cases/000712i3.html. (Although criticized by Sant ‘Elia for not containing references to commentaries at the aforementioned link, it should be remembered that Italian civil procedure prohibits references to such academic work in cases).

51As an interesting aside, according to Professor Franco Ferrari, the judges in all the reported Italian jurisconsultorium cases are his recently graduated students from law school. This is heartening news for the crusading academic trying to make a difference in a practical world of law.