Q 20-1
(a) Consider which changes in electronic communications have motivated the revisions to CISG Advisory Council Opinion No. 1. How do these changes affect cases in the context of Article 20?
(b) How could Article 20(1) CISG be applied to email communications? Refer to CISG Advisory Council Opinion No 1, the UNCITRAL Model Law on Electronic Commerce, the UN Convention on the Use of Electronic Communications in International Contracts, and the ICC Terms 2004.
(c) Which other examples of electronic communication fall under Article 20 CISG?
(a) The revised version takes a more nuanced view on when electronic communication “reaches” the offeree. For details, review previous chapters. For Article 20, this means that the starting point of a period of time for acceptance is now more nuanced depending on the type of electronic communication. However, as the CISG Advisory Council Opinion No. 1, para. 7.3 notes, “the difference in time between dispatch and reach when communicating electronically is very short” irrespective of the type of electronic communication.
(b) Article 20(1) CISG could apply to email communications whereby the period of time for acceptance of an offer begins to run from when the offeror presses ‘send’ on the email containing the acceptance. This would accord with the dispatch rule in the first sentence of Article 20(1). Alternatively, a period for acceptance could run from the moment the offer reaches the offeree, which in the context of email could mean when it enters the offeree’s email account or when it becomes aware of it entering another email account. This would be in accordance with the second sentence of Article 20(1). The second alternative is preferable, both because email is a form of instantaneous communication and because the offer has entered the sphere of risk of the offeree and places the offeree in a position to give a reply. CISG Advisory Council Opinion No 1 does address the relevance of this distinction in paras. 2.12-2.14, black letter rules 4 and 5. Article 2.1 of the ICC Terms 2004, Art 10.2 UN Convention on the Use of Electronic Communications in International Contracts 2005, and Article 15 of the UNCITRAL Model Law on Electronic Commerce all also differentiate between sending as leaving the offeror’s communication system to receiving as/related to entering the offeree’s communication system.
(c) Chat, Snapchat, WhatsApp, and similar types of electronic communications all also have a “dispatch” and “reach” moment. However, as CISG Advisory Council Opinion No. 1 in its revised version proves, the need to reconsider the classification of modern communication methods.
Q 20-2
(a) Why are holidays included in the calculation? Consider the peculiarities of international trade accounted for in Article 20(2) CISG.
(b) What is the meaning and purpose of the exception in Article 20(2) CISG?
(a) Holidays are included in the calculation to take account of the particularities of international sales, whereby different countries have different holidays.
(b) The sense and purpose of the exception in Article 20(2) is to ensure that the offeror receives notice of acceptance, which would not necessarily be feasible if delivery was made on non-business days.
