The duty to cooperate in international sales : the scope and role of Article 80 CISG

292 Pages·2012·1.59 MB·English

by  Thomas Neumann

| The Duty to Cooperate
in International Sales
© sellier european law publishers
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Beiträge zum Internationalen Wirtschaftsrecht
Contributions on International Commercial Law
herausgegeben von Professor Dr. Klaus Berger, LL.M., Köln
Band 11
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|
The Duty to Cooperate

in International Sales
The Scope and Role of Article 80 CISG
Thomas Neumann
s|e| l |p
sellier european law publishers
© sellier european law publishers
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ISSN 1618-2294
ISBN (print) 978-3-86653-220-5
ISBN (eBook) 978-3-86653-962-4
The Deutsche Nationalbibliothek lists this publication in the Deutsche Na tio -
nal bibliografie; detailed bibliographic data are available on the Internet at
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© 2012 by sellier european law publishers GmbH, Munich.
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Preface
I first caught interest in article 80 during the Willem C. Vis Moot in Vienna,
where my team and I tried to claim that a duty to cooperate applied as part
of the International Sales Convention (CISG). Little did we succeed in this
particular argument, most probably since very little had been written on
this specific provision at the time. A few commentaries mentioned that
article 80 was, among other provisions, an expression of a general duty to
cooperate.
Subsequently, I got a PhD position at the Centre for International Busi-
ness Law at The Aarhus School of Business in Denmark. This gave me the
chance to investigate the intrinsic potential, quality and characteristics of
article 80. It was my belief that scholarly attention to article 80 in turn
would raise awareness of the provision and be beneficial to practitioners
and adjudicators.
On the 2nd of May 2011 I successfully defended my doctoral dissertation
with the titel An Exploration of Article 80 CISG. The defence panel consisted
of Professor Hans Henrik Edlund (chairman), Professor Ulrich Magnus
and Associate Professor Camilla Baasch Andersen. I am very grateful for
the comments I received from these people at the defence and naturally, I
am very happy that they all decided to award me the doctorate. I welcome
further comments on this material on [email protected].
Before my final remark, I will mention that there of course are many more
people than just the three mentioned above who have been of support dur-
ing the three years of my doctorate. To these people I whish to say that; I
appreciate the support I have received from all of you, be it with proofread-
ing, a venison stew dinner or just a common interest in the human behind
the research.
Finally, I express my gratitude to the foundation Margot og Thorvald Dreyers
Fond who’s kind donation enabled me to publish this work.
December 2011, Aarhus, Denmark Thomas Neumann
v
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Chapter
Preface v
Contents ix
Abbreviations and Terminology xv
1. Introduction 1
2. Methodology Considerations 9
3. Development 59
4. Comparison to Other Provisions 77
5. Underlying Principles and Good Faith 107
6. Conditions for Exemption 143
7. Legal Consequences 181
8. Domestic Law and Homeward Trends 205
9. Conclusions 239
Bibliography 247
Case Law and Arbitral Awards 260
Other Materials 267
Index 271
vii
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© sellier european law publishers
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Contents
Preface v
Chapter vii
Abbreviations and Terminology xv
1. Introduction 1
1.1 Article 80 and the Goal of Uniformity 2
1.2 Purpose and Relevance 4
1.3 Delimitation 6
1.4 Outline of Presentation 6
2. Methodology Considerations
2.1 The General Rules of Interpretation 9
2.1.1 Application as Customary Law 10
2.1.2 Relevance of State to State Regulation 11
2.1.3 Purpose and Political Nature of the CISG 13
2.2 The Specific Rule of Autonomous Interpretation 17
2.2.1 Considering the International Character of CISG 19
2.2.2 Promoting Uniform Application 22
2.2.2.1 Accessibility of Case Law 25
2.2.2.2 Scholarly Works 26
2.2.3 Interpreting in Good Faith 27
2.3 Litteral Interpretation as the Starting Point 30
2.3.1 Discrepancies Between the Convention Texts 32
2.4 Supplementing the Convention Text 35
2.4.1 How to Identify Underlying Principles 36
2.4.2 Implications of Having Identified Underlying Principles 38
2.4.2.1 Expansion of Scope of the CISG 38
2.4.2.2 Expansion of Interpretation Aids 39
ix
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Contents
2.5 The Use of Soft Law as Interpretation Aid 40
2.5.1 Sources of Lex Mercatoria 42
2.5.2 Value of Soft Law and Interpretation Aid 45
2.5.3 Temporal Issue 46
2.5.4 Limits to the Use of Soft Law 47
2.6 Sources Superseding the Convention Text
2.6.1 The Unequivocal Agreement by the Parties 48
2.6.2 Interpretation of the Parties’ Agreement 49
2.6.3 Relevance of Practice and Usages 52
2.7 The Methodology and Sources Summarised 55
3. Development 59
3.1 ULIS and ULF 60
3.2 The Drafting of CISG and Article 80 62
3.2.1 Wording and Placement 63
3.2.2 Motivation to Maximise Adoption 66
3.2.3 A Last-Minute Inclusion 67
3.2.4 An Expression of an Underlying Principle 68
3.2.5 Broad Interpretation Appropriate 69
3.3 Developments Compared to the Pre-CISG Rule 70
3.4 Latest Developments in Other Instruments 73
3.5 Concluding Argument 75
4. Comparison to Other Provisions
4.1 A Unique Concept of Contribution to Failure to Perform 77
4.1.1 Systematic Context 78
4.1.2 The Cause of the Detriment 79
4.1.2.1 Impediments Beyond Control 80
4.1.2.2 Mitigation of Loss 81
4.1.2.3 The Promisee’s Contribution to Promisor’s
Non-Performance 82
x
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