(a) The decisions of courts of last instance, such as the US Supreme Court or the Court of Justice of the European Union, are binding the courts of lower instances, which ensures a uniform application of the law.

(b) Not at present. This would necessitate an extension of the mandate of UNCITRAL.

No, they are not binding on foreign courts or on arbitral tribunals. However, foreign CISG precedents serve the purpose of a uniform interpretation of the CISG. Whether the decisions of a higher court are binding for lower courts within the same jurisdiction depends on the system of jurisdiction and the constitution of the courts in the respective country.

They should be consulted only to the extent that certain terms or solutions of the CISG have clearly been influenced by this legal system.

(a) The fact that the case law is in an unknown language; that it may be unpublished or difficult to find for a foreigner; the quality of the foreign decision; and the different styles of domestic courts in rendering a decision which make it difficult to understand the facts and/or its content.

(b) The accessibility of case law thanks to various electronic databases (eg, www. cisg-online.ch) or the Digest and the translation of many cases into English (CISG Pace).

The Digest is a synopsis of the relevant case law on each article of the CISG. It shows the evolution of case law, by highlighting common views and reporting divergent approaches. The CISG Advisory Council issues opinions relating to the interpretation and application of the Convention, in order to respond to the need to address some controversial and unresolved issues.

(a) Most countries with more than one official language publish their legal texts in various languages, for instance, Belgium, Canada, Cyprus, India, Montenegro and Switzerland.

(b) Not really. Although a definitive interpretative approach under the CISG is yet to be developed, it is often emphasised in the literature, but also in the case law that a literal interpretation of the CISG is just one interpretative approach out of several. Thus, the various official CISG texts actually prevent a too literal (and too technical) interpretation in favour of an integrated purposive approach, which takes into account the CISG’s international character, its underlying principles and its drafting history.

(a) It is a principle which only relates to the interpretation of the Convention and cannot be applied directly to individual contracts or to the parties’ behaviour.

(b) The consequence is that ‘good faith’ may influence the relationship between the parties only indirectly, in particular by limiting abuse by the parties and in the way the provisions of the Convention and its concepts are interpreted. Apart from that, ‘good faith’ under the CISG serves a gap-filling purpose which allows for reading ethical business standards into the Convention.

(c) Manifestations of good faith as a standard of conduct can be found in Article 8 CISG (individual communications); Article 9 (usages and practices the parties have agreed on, including ethical business standards); Articles 16(2)(b), 29(2) and 80 (venire contra factum proprium); Article 40 (no right to rely on the lack of notice of non-conformity of the goods if seller could not have been unaware of the non-conformity); Articles 32(3) and 60(a) (duty to cooperate); Article 77 CISG (duty to mitigate damages).

(d) All of the provisions depicted here use the principle of good faith for interpreting the parties’ behaviour. The duty to act in good faith as a party is even embodied in the UCC (note that the common law of contract has generally been reluctant to adopt an implied duty of good faith).

(e) Delegations with a common law background were against adopting a duty of good faith as a standard of conduct for the formation and performance of the contract, as the common law has hitherto in general rejected such a doctrine because of the vagueness of the term and because it might weaken existing contractual common law doctrines. On an international level, it could also have been feared that contractual parties may have different expectations and a different understanding of ‘good faith’, corresponding to their own ethical values. Stating ‘good faith’ as a tool of interpreting the Convention was the compromise achieved in the drafting process of the CISG.

Article 7(2) CISG addresses the question of gap-filling. Matters governed by the CISG but not expressly settled in it (internal gaps) are to be solved in conformity with the general principles on which the CISG is based, whereas matters which are not governed by the CISG are to be solved by having recourse to domestic law.

(a) The burden of proof is considered to be a question of substantive law.

(b) By considering that the Convention enshrines the general principle that the party who invokes a right or a fact bears the burden to prove it.

(c) Article 79(1) CISG, for example, explicitly mentions burden of proof by stating that ‘[a] party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences’.

(a) The question was whether or not set-off is a matter not explicitly settled in the Convention but governed by it.

(b) In C 7-6, the court held that the CISG could not govern set-off and that recourse should be made to domestic law in order to decide whether or not set-off was admissible in the case at hand. In C 7-7, the court found that the set-off was governed by the CISG.

(c) In C 7-6, one of the claims resulted out of a contract not governed by the Convention, whereas in C 7-7, both claims arose out of the same contract which was subject to the CISG. This might explain the different positions taken in the two decisions.

(d) Articles 58(1) and 81(2) CISG (those two articles underlie the principle of concurrent performance) and Article 88(3) CISG (this article gives a right to set-off to the party who sold goods subject to rapid deterioration).

(e) According to the CISG Advisory Council, the CISG should govern the set-off of claims that are both subject to the CISG, regardless of whether the claims arise out of the same contract or not.

(a) Examples are: issues related to the transfer of ownership, the validity of the contract, assignment of claims, and transfer of the contract to a third party or agency.

(b) Article 4 CISG, which delimitates the legal issues dealt with by the Convention.

As general principles are not labelled as such, and as their content, operation and effect are not expressly defined in the CISG, there is the risk of diverging solutions, not only with regard as to whether a general principle exists, but also as to its content, operation and effect.