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TABLE OF CONTENTS
PART 1: SAMPLE AGREEMENT AND CLAUSES
Chapter 1: CISG: Taking the Leap Into Drafting
Appendix A: Sample Clauses
PART II: THE CISG CHALLENGE IN DRAFTING CONTRACTS
Chapter 2: 25 Years of the United Nations Convention on Contracts for the
International Sale of Goods
Chapter 3: A Comparative Perspective of the CISG
PART III: GENERAL CONTRACT DRAFTING ISSUES: CHOOSING THE CISG (OR
NOT): CHOOSING THE FORUM; CHOOSING SUPPLEMENTARY LAW
Chapter 4: Choice of Law and the CISG: Opting In and Opting Out
SCOPE AND INTERPREATION OF THE CISG
The Basis of Application in Article I
Choosing the CISG
May Contracting Parties Extend the CISG to Excluded Cases?
Is the Choice of a Contracting State's Law an Exclusion of the CISG?
The Role of Private International Law in Supplementing the CISG
THE CISG AND STATE DECLARATIONS
Article 95
Article 96
Article 28
THE CISG AND NATIONAL LAW
Framework Contracts
Validity Issues
Passing of Property
Chapter 5: Choice of Forum and CISG: Remarks on the Latter's Impact on the
Former
INTRODUCTION
THE PREVALENCE OF UNIFORM SUBSTANTIVE LAW OVER PRIVATE
INTERNATIONAL LAW AS AN INFLUENCE ON CHOICE OF FORUM
THE CISG'S CONCEPT OF PRIVATE INTERNATIONAL LAW AS AN ELEMENT
THAT MAY INFLUENCE THE CHOICE OF FORUM
THE CISG'S APPLICABILITY PURSUANT TO ARTICLE 1(1)(b) AS AN ELEMENT
THAT MAY INFLUENCE THE CHOICE OF FORUM
THE ARTICLE 95 RESERVATION AS AN ELEMENT THAT MAY INFLUENCE
THE CHOICE OF FORUM
RESERVATUIONS UNDER ARTICLES 92 THROUGH 94 AS ELEMENTS THAT
MAY INFLUENCE THE CHOICE OF FORUM
THE CISG'S CONFLICE OF CONVENTIONS RULE AS AN ELEMENT THAT MAY
INFLUENCE THE CHOICE OF FORUM
THE CISG'S LIMITED SCOPE OF APPLICATION AS AN ELEMENT THAT MAY
INFLUENCE THE CHOICE OF FORUM
THE CISG'S REFERENCE T DOMESTIC LAW IN ARTICLE 28 AS AN ELEMENT
THAT MAY INFLUENCE THE CHOICE OF FORUM
DIVERGENT APPLICATIONS OF CISG PROVISIONS AS AN ELEMENT THAT
MAY INFLUENCE THE CHOICE OF FORUM: THE EXAMPLE OF ARTICLE 6
CISG
THE RELATIONSHIP BETWEEN CISG AND DOMESTIC RULES ON
JURISDICTION AS AN ELEMENT THAT MAY INFLUECE THE (UNILATERAL)
CHOICE OF FORUM
CONCLUSION
Chapter 6: A New Role for Litigation in CISG Contracts: The 2005 Hague Choice
of Court Convention
INTRODUCTION
JURISDICTIONAL IMPACT OF THE CISG IN THE ABSENCE OF A CHOICE OF
FORUM CLAUSE
THE HAGUE CONVENTION ON CHOICE OF COURT AGREEMENTS
History of the Project
Substance of the Convention
Article 22 and the Opportunity for Proactive Drafting
DRAFTING CISG CONTRACTS NOW YO BENEFIT LATER FROM THE
CONVENTION N CHOICE OF COURT AGREEMENTS
The Conditions for Drafting the Agreement
The Choice of Court Agreement
CONCLUSION
Chapter 7: 25 Years of the CISG: An International lingua franca for Drafting
Uniform Laws, Legal Principles, Domestic Legislation and Transnational Contracts
SOME PRELIMINARY REMARKS
INTERNATIONAL AND REGIONAL UNIFICATION OR HARMONIZATION OF
LAW
International Conventions
Requirements for Applications
Directives to Secure Uniform Interpretation
Other Projects of Unification or Harmonization of Law
1. UNDRIOIT Principles of International Commercial Contracts
2. Principles of European Contract Law and EU Common Frame of
Reference of Contract Law
3. The EC Directive on Sales of Consumer Goods
4. The OHADA-Project
INFLUENCE OF THE CISG ON DOMESTIC SALES AND CONTRACT LAWS
Influence of the CISG on Domestic Sales Laws
Influence of the CISG on Domestic Codes of Contract Law or the Law of
Obligations
1. Law Reforms in the Former Socialist States
2. Law Reform in Other States
KEY CONCEPTS USED IN THE PROVISIONS ON REMEDIES
"Avoidance" on Account of Breach of a Contractual Obligations
1. Fundamental Breach
2. Avoidance by Declaration
3. Unwinding of Avoided Contracts
Damages
1. Prerequisites to a Claim for Damages
2. Limitation of Recoverable Damages ("Foresee ability" Rule)
Price Reduction
SOME FINAL CONSIDERATIONS ON THE USEFULNESS OF THE CISG
PART IV: BUSINESS ECONOMICS OF DRAFTING FOR THE CISG
Chapter 8: Preliminary Agreements and CISG Contracts
INTRODUCTION
WHAT ARE "CISG CONTRACTS?"
The Notion of "Sale" Under the CISG
"Mixed Contracts" Under the CISG
"Long-Term Contracts" Under the CISG
PRELIMINARY AGREEMENTS AND CISG CONTRACTS
Gentlemen's Agreements, Memoranda of Understandings, and Letters of Intent
Preliminary Agreements Binding the Parties to Negotiate
Preliminary Agreements Setting Forth Obligations During the Negotiations
Preliminary Agreements Binding the Parties to Conclude a Final Contract
CLOSING REMARKS
Chapter 9: The Business Layer's Perspective
INTRODUCTION
LAWYERS' PROFESSIONAL OBLIGATION TO BE FAMILIAR WITH THE CISG;
TAKING ADVANTAGE OF THE DIGEST AND CASE LAW
UNDERSTANDING THE RELATIONSHIP BETWEEN THE CISG AND DOMESTIC
LAW
ECONOMICS OF THE APPLICATION OF THE CISG; TEASING BUSINESS
LAWYERS: DOES THE APPLICATION OF THE CIGS HAVE LEGAL
ADVANTAGES? CAN A BUYER/SELLER GET MORE PROTECTUION UNDER
THE CISG THAN UNDER THE UCC? "SHOW ME THE MONEY"
LITTLE KNOWLEDGE ABOUT THE CISG AMOUNG UNITES BUSINESS
LAYERS: IS THIS A DRAFTING ISSUE? WHAT ABOUT PRE=PRINTED
GENERAL TERMS AND CONDITIONS?
CAN THIS TREND BE REVERSED?
Chapter 10: The CISG: Perspectives From An Economist
PART V: SPECIFIC CONTRACT DRAFTING ISSUES: FORMATION
Chapter 11: Contract Formation: UCC and CISG
INTRODUCTION
THE UNDERLYING PHILOSOPHY OF THE CONTRACT LAW OF THE UNIFORM
COMMERCIAL CODE
THE AMERICAN LAWYER MEETS CISG
What is an "Offer"?
What Does an Offer Become Effective?
Revocation of Offers-Firm Offers
When is the Acceptance Effective?
Acceptance by Performance
Silence as Acceptance
Acceptance with Varying Terms-UCC
Acceptance with Varying Terms-CISG
The UCC Section 2-207 or CISG Article 19
CONCLUSION
Chapter 12: CISG Articles 14-24
INTRODUCTION: CLOUT, THE DIGEST AND GENERAL DRAFTING ISSUES
THE ARTICLE 92 RESERVATION
CONSIDERATION OR CAUSA
PROMISSORY ESTOPPEL
OFFER
Addresses of Proposal/Acceptance
Open Price Contracts
Revocability of an Offer
ACCEPTANCE
Silence or Inaction; Letters of Confirmation
Counteroffers
USE OF STANDARD TERMS
Incorporating Standard Terms
1. Rules to be Applied
2. How to Incorporate the Standard Terms into the Offer or Acceptance
3. The Language in which the Standard Forms are Written
Battle of the Forms
PLACE OF THE CONCLUSION OF THE CONTRACT
APPLICATION OF CISG ARTICLE 24 AND THE MEANING OF "REACHES"
SPECIFIC ISSUES WHEN USING ELECTRONIC MEANS FOR COTNRACT
FORMATION
Legal Recognition of Electronic Communications
Proposals on Websites as Invitations to Make Offers
Use of Automated Message Systems for Contract Formation
Error in Electronic Communications
Opting out of Certain Conditions to be Fulfilled by Domestic Laws
Specification of the Time of Dispatch and Receipt
Chapter 13: Addressing Parol Evidence Issues in Contracts Governed by the CISG
THE CISG AND THE PAROL EVIDENCE RULE
Establishing the Intent to Integrate: Merger Clauses
The Parol Evidence Rule under the CISG: A Nuanced View
DRAFTING A MERGER CLAUSE UNDER THE CISG
Merger Clauses and CISG Article 11
Specifying the Law Governing Parol Evidence Questions
TRADE USAGES AND PRACTICES BETWEEN THE PARTIES
The Theory of the Binding Effect of Usages and Practices under the CISG:
Implications for the Drafter
Drafting to Address Usages and Practices
SUMMARY: DRAFTING TO DEAL WITH PAROL EVIDENCE QUESTIONS
UNDER THE CISG
Part VI: Specific Contract Drafting Issues: Performance
CHAPTER 14: TOOLING UP FOR WARRANTIES WITH THE CISG CASE DIGEST
INTRODUCTION
THE UNCITRAL DIGEST AND CLOUT: "DISCLAIMERS" AND SOURCES OF
CISG LAW
THE DIGEST OF ARTICLE 35
The Digest Introduction to Article 35
The Digest of Article 35(1)
Article 35(2): Digest Overview
The Digest of Article 35(2)(a)
The Digest of Article 35(2)(b)
The Digest of Article 35(2)(c)
The Digest of Article 35(2)(d)
The Digest of Article 35(3)
Burden of Proof
Evidence of Lack of Conformity
Jurisdictional Issues
THE DIGEST OF ARTICLE 41
THE DIGEST OF ARTICLE 42
CONCLUDING REMARKS
Chapter 15: Force Majeure and CISG Article 79: Competing Approaches and
Some Drafting Advice
Chapter 16: Delivery Terms and the Passing of Risk: Drafting Clauses Related to
CISG Articles 66-70
INTRODUCTION
Structure of the CISG Provisions on Passage of Risk
Agreeing on Aspects of the Passing of Risk
Clarifying Whether Carriage of the Goods Is Involved
The Role of Custom and Trade Practice
Allocating the Risk of Agreement
Specifying Which Party Bears the Burden of Proof
CISG ARTICLE 66 AND RISK
Seller Liable for Lack of Conformity: Buyer Liable to Pay Price
Specifying the Types of Risk That Pass
Legal Risk; Export and Import Permits
"Force Majeure"
Damages to Other Goods and Personal Harm to the Buyer Not a CISG Risk
Tort Liability
Quantum of the Risk Involved
Seller's Fault and the Passing of Risk
CISG ARTICLE 67(1) & (2)
Does the Sale "Involve Carriage"?
The Rules of Article 67(1)
"Handling the Goods Over"
Seller Bound to Hand the Goods over at a Particular Place
"In Accordance with the Contract of Sale"
Effect of the Seller's Retention of Documents
The Identification Requirement
CISG ARTCILE 68: GOODS SOLD IN TRANSIT
Identification
If Circumstances Indicate, Risk is Assumed Retroactively
If the Seller Knew of Loss or Damage
ARTICLE 69
Identifying the Goods
ARTICLE 70: REMEDIES FOR FUNDAMENTAL BREACH PRESERVED
Part VII: Specific Contract Drafting Issues: Breach and Remedies
Chapter 17: Drafting Contracts to Deal with Insecurity and Prospective Breach
(Articles 71, 72, 73(2))
INTRODUCTION
ANTICIPATORAOTY BREAH IN CONTEXT: AN HISTORICALLY COMMON-
SENSE APPROACH
APPLICATION OF THE RULES GOVERNNING INSURECUTRY AND PRPSECTIV
BREACH: NECESSARY PERILS IN THE CISG
Articles 71 and 72-Insecurity and Prospective Breach: An Overview
DRAFTING ISSUES
To Derogate or to Define?
The Risk that a Contract Clause Protecting Against Another Party's Deficiency or
Conduct Will Act as Evidence that the Event Triggering the Clause Was Apparent
Before the Contract Was Concluded
The Risk that Other Clauses in the Contract-Such as a Clause for Avoidance
after Performance Begins-Will Inhibit the Effectiveness of a Prospective Breach
Clause
The Necessary Balance between Specificity and Generality
The Potential Benefits to Drafting a Clause that Limits One's One Liability in the
Event of Prospective Inability to Perform
SPECIFIC ADVICE FOR DRAFTING, AND SAMPLE CLAUSES
CONCLUSION
Chapter 18: Dealing with Non-Conformity-A Transaction Test Analysis of CISG
Regulations on Examination and Notice under Articles 38-44
INTRODUCTION
REASONS FOR AVOICING THE CISG IN GENERAL
You Cannot Change the Habits of a Lifetime
Additional Transaction Costs
Lack of Predictability
Lack of Quality
Lack of Completeness
Trial and Transaction Consequences
SPECIFIC PROBLEMS UNDER CIST ARTICLES 38-44
Specific Problems Resulting from the Language of the CISG
1. Vague and Flexible Wording
2. Two Separate Periods of Time for Examination and
Notification
3. Specifications of Lack of Conformity
4. Reasonable Excuse Under CISG Article 44
5. Different Impact for Trial Lawyers and for Transactional
Lawyers
Specific Problems and Solutions Added by Jurisprudence
1. CISG Articles 38 and 39 at the Disposition of the Parties
2. Periods of Time for Examination and Notification
3. A Combined Period of Time for Examination and Notification
4. Starting Time for Examination
5. Specification of Lack of Conformity
6. Waiver of Delayed Notification by the Seller
TRANSACTION CONSIDRATIONS
Disposition by the Parties
Total Exclusion of CISG Articles 38 and 39
Specific Adaptation of CISG Articles 38 and 39
1. Modification of the Period of Time for Examination and Notification
2. Coverage of Examination
3. The Time When the Duty to Examine Begins
4. Overall Time for Examination and Notification
5. Transmission Problems
Modification of the Requirement of Specified Notice
The Battle of the Forms
CONCLUSION
Chapter 19: Delays in Performance Under CISG
INTRODUCTION
DELAY AS BREACH OF COTNRACT UNDER THE CISG
Defining Delay
Remedies in Case of Delay
Different Delay Situations
1. Delay on the Part of the Seller
Delayed Performance of Other Obligations
1. Delay on the Part of the Buyer
DRAFTING ISSUES
In General
Drafting Proposals for Different Situations
1. The Export Perspective
2. The Import Perspective
CONCLUDING REMARKS
Chapter 20: Dealing with Avoidance and Its Consequences: Articles 49(2), 64(2),
and 81 thru 88
INTRODUCTION
The UNCITRAL Digest and Drafting in Civil Law and Common Law Legal
Practice
The CISG Digest as a Contract Drafting Tool
1. Using the Digest to Restate a Rule Contemplated in the CISG
2. Using the Digest to Deviate from a Rule Contemplated in the CISG
3. Using the Digest to Add Certainty on Issues Where There is Divergent
Case Law
DEALING WITH AVOIDANCE AND ITS CONSEQUENCES
The Period of Time for Making a Declaration of Avoidance
1. Avoidance by the Buyer When the Goods Have Been Delivered
(Article 49(2))
2. The Period of Time for the Seller's Declaration of Avoidance After the
Price Has Been Paid (Article 64(2))
3. A Clause Proposed to Deal with Avoidance After Performance Has
Been Rendered
The Effects of Avoidance and Preservation of the Goods
1. Unilateral Avoidance
2. Restitution Under Article 81(2)
3. The Right of Restitution Under Article 81(2) and Third Party Rights
Under National Law
4. A Clause to Govern the Issue of the Consequences of Avoidance
Articles 82 and 83: The Buyer's Loss of the Right to Declare the Contract
Avoided or to Require the Seller to Deliver Substituted Goods, and the Buyer's
Retention of Rights to Other Remedies
Article 84: The Buyer's Right to Interest on Amounts Paid and the Buyer's
Obligation to Account to the Seller for Benefits Derived from the Goods
Preservation of the Goods
1. Preservation of the Goods by the Seller
2. Preservation of the Goods by the Buyer
3. The Duty to Take Steps to Preserve the Goods
4. A Preserving Party's Right to Sell the Goods to a Third Party
5. A Suggested Clause Regarding Preservation of the Goods
Chapter 21: The UNCITRAL Digest, the Right to Interest, and the Interest Rate
Controversy
INTRODUCTION
THE BASIC ELEMENTS OF THE RIGHT TO AN INTEREST RECOVERY
Article 78: The Prerequisites to Entitlement
Article 84: The Prerequisites to Entitlement
Articles 78 and 84: The Question of Interest Rate
THE INTEREST RATE CONTROVERSY
The Context for the Controversy
1. A Brief Review of the Drafting History
2. Interpretation of the Convention: The Goal of Uniformity
3. Interpretation of the Convention: Gap-Filling
The Competing Solutions
1. Uniformity and Full Compensation
2. The Retreat to Domestic Law
3. Other Approaches, Especially Reliance on International Trade Usages
4. Summary Thoughts: The Importance of Reducing Legal Transition
Costs
PLANNING FOR INTEREST: WORDS TO THE WISE DRAFTER
Party Autonomy and the Interest Entitlement
Drafting for the Interest Issue: Sample Clauses
CONCLUSION
Chapter 22: Liquidated Damages, Specific Performance Clauses, Limitations on
Remedies, and Attorneys' Fees
SPECIFIC PERFORMANCE CLAUSES
LIMITATION OF REMEDIES: TIME FOR PERFORMANCE
LIMITATION OF REMEDIES: CURE
REMEDIES: DECLARATION OF AVOIDANCE
REMEDIES: PRICE REDUCTION
REMEDIES: PARTIAL PERFORMANCE
LIMITATION OF DAMAGES
PART VIII: APPENDIX
United Nations Convention on Contracts for the International Sale of Goods
Library of Congress Subject Headings for this publication:
Export sales contracts.
Contracts (International law).