CISG: an Entire Universe of Sales Law?

Autonomous Interpretation and Uniformity - Article 7(1)

One of the key things to note about any international instrument is that it represents a compromise between the contracting parties, in this case the signatory states. This means that each state has to put aside their own diosyncratic notions about, say, the law of contract or tort and accept a broader, international interpretation of these concepts. These concepts that might be jealously guarded by individual legal traditions. In particular I am thinking of the common law insistence upon consideration for the formation of a valid contract, but other legal systems do just fine without it. In the CISG context it will be irrelevant because here a autonomous interpretation is required. 

Several European Union intruments (such as the Rome I and II Regulations, and the Brussels Regulation) require autonomous interpretations of concepts such as tort and contract. The problem regarding which European countries have got it ‘right’ and ‘wrong’ is fairly simply solved by the authoritative and binding rulings of a supranational court: The European Court of Justice. In addition, domestic courts throughout Europe have been quite good at interpreting in the ‘broad internationalist spirit’ evidently required by an autonomous interpretation.

But how this plays out in the CISG world is likely to be much more fluid because firstly there is no supranational court to keep a watchful eye on CISG signatory courts and secondly in the private world of ICA, awards are generally not available for scrutiny.  

How, then can the CISG live up to its second guideline for interpretation, that of uniformity? It is impossible for all arbitral panels and all courts to live up to this ideal at all times, even with access to the databases of foreign case law and judicial writings. A comparative legal analysis of the rules or an analysis of the travaux preparatoire must be conducted afresh each time, because of the lack of binding precedent.

Filling the gaps...

States have not found agreement in all areas over which CISG has jurisdiction. As a result, CISG is a far from hermetically sealed instrument. The drafters have left gaps, and these gaps must be filled by the arbitral panels or courts in each case. And what are they to use to fill these gaps? They are to use not just their domestic law, nor simply from the UNIDROIT Principles of International Commercial Contracts (which offers itself for this very purpose), but general principles and underlying policies gleaned from the entire CISG document. Flexible indeed. 

No doubt this level of flexibility lends itself to the porous, often ad hoc nature of international trade, and probably has contributed to its popularity and success within international commercial arbitration.