Q 4-1
Which law governs the issues which do not fall within the CISG’s scope of application?
The law applicable in accordance with the private international law rules of the lex fori/lex fori arbitri.
Q 4-2
Are remedies for vitiated consent based on domestic law applicable in addition to the CISG?
The CISG only deals with the formation of the contract and the rights and obligations of the parties. However, to the extent that the mistake relates to the characteristic of the goods or to the creditworthiness or ability of the other party to perform the contract, its consequences should be governed by the provisions of the CISG explicitly dealing with those questions (Arts 35 et seq, Arts 45 et seq, Art 71), to the exclusion of domestic law. If the domestic law governing vitiated consent aims at remedying a wrong for which the CISG does not state any provision, as is, for example, the case with ‘fraud’, the domestic law remedy is concurrently applicable.
Q 4-3
Other uniform law does not show the same restriction in the scope of application. The PICC 2016, for example, also deal with the validity of contract, including mistake, fraud, threat and gross disparity.
(a) Why did the drafters of the CISG refrain from settling settling issues affecting the validity of the contract?
(b) Why are there no particular difficulties when dealing with those issues in the PICC 2016?
(a) The purpose of the CISG was to be accepted by as many countries as possible. It therefore had to broadly respect domestic rules embodying important social values on those points.
(b) Those principles are not ratified by a country, that is, they do not directly interfere with domestic provisions. When the parties decide to opt in for those principles, despite Article 3.1.4 PICC 2016, any mandatory rule of the law applicable under the private international law of the lex fori/lex fori arbitri will have priority.
Q 4-4
What might have been the reason for excluding the issue of ownership from the Convention’s scope of application?
National laws on ownership and transfer of property differ considerably. Thus, agreement on those points seemed unlikely.
Q 4-5
When will domestic law pre-empt a right granted to a party to the contract by the CISG? See C 4-1.
It will be the case where domestic law grants property rights or other rights in rem in the goods sold under the CISG contract, such as a security interest in the goods. Thus, as the CISG only deals with the rights of the seller and the buyer, domestic law rules might indirectly interfere and prevent a party from claiming or exercising a right under the CISG.
