Q 13-1
To which situations does Article 13 CISG refer?
It refers to situations in which the contract or other contractual statements must be in writing. The writing requirement may have been agreed on by the parties or it may be a practice established or a trade usage. A writing requirement may also exist by virtue of Article 12 CISG.
Q 13-2
What might be the reasons for subjecting a contract to written form?
Writing requirements serve several purposes. In international trade, they generally serve as a means of seriousness and of evidence.
Q 13-3
(a) How could Article 13 CISG be extended to include electronic communication data? In this respect, can the UNCITRAL Model Law on Electronic Commerce, the PICC 2016 and the UN Convention on the Use of Electronic Communications in International Contracts be of interpretive help?
(b) In the light of the purpose of writing requirements, should, for example, short text messages sent via mobile telephones be on par with ‘writing’?
(a) From Article 13 CISG, a general principle can be derived (Art 7(2)) that the Convention is amenable to the use of communication which is, from a functional perspective, equivalent to paper messages. It could also be argued that Article 13 CISG ought to be interpreted in the light of other international uniform instruments, such as those cited above.
According to the Advisory Council to the CISG, the functions of a paper message are the ability to save (retrieve) the message and to understand (perceive) it. Similarly, the UNCITRAL Model Law requires that the information contained in a data message be accessible so as to be usable for subsequent reference. The PICC even require that the data message be ‘capable of being reproduced in tangible form’ and of ‘providing a readable record of the statement on both sides’, respectively.
(b) Short text messages are retrievable and perceivable. They even are reproducible in tangible form with the aid of special PC programmes. SMS are thus included in the term ‘writing’.
