In assessing the interplay and tensions between the CISG and national property law, this work frequently relies on the generally accepted principles of interpretation of the CISG under Article 7(1) of the CISG and its interpretation methods.23 Yet, the use of the history of unified sales law and comparative law in this work necessitate a few words of explanation. To establish a foundation for discussing the usefulness of the history of unified sales law in interpreting the CISG, the relevant history and available documents will be presented first.
1. History of unified sales law, the accessible material, and its usefulness in interpreting the CISG
19
A helpful introduction to the travaux préparatoires is the Secretariat’s Commentary of 1978, but it must be kept in mind that this Commentary is not an official commentary. It was prepared by the UNCITRAL secretariat and contains comments on the provisions as they stood in 1978, thus, two years before the conference. Moreover, the material from the conference has been published in the Official Records, and the UNCITRAL Yearbooks Volumes I–IX from 1968–1978 are accessible on the UNCITRAL website.24
20
Yet, the relevant material cannot be limited to the twelve years during which the unification project was finalized at UNCITRAL.25
8 a) Unidroit: 1928–1951
21
Rather, the discussions and the resulting Convention have been built on a treasure trove of preparatory work that originated from Rabel’s initiative. In 1928, he proposed to Scialoja, the then-president of the newly founded International Institute for the Unification of Private Law (Unidroit) in Rome, to strive for a unification of the law on the sale of goods.26 As early as 1929, Rabel presented a first preliminary report in French.27 A committee was formed in 1930 and, in addition to Rabel, consisted of Hurst and Gutteridge from England, Capitant and Hamel from France, Bagge and Fehr from Sweden, and Ficker as secretary.28 Based on the preliminary report, the committee with the collaboration of other internationally renowned experts29 and the staff of the Institute for Comparative and International Private Law in Berlin,30 of which Rabel was the first director, started discussing the prospects and contents of a uniform law on the sale of goods.
22
Two important drafts, one from 1935 (the first draft of a uniform law on the sale of goods), and the other from 1939 (the so-called “Rome draft”)31 originated from this period, and are frequently cited in scholarly work due to their accessibility.32 Just before finalization of the draft in 1935, the committee decided to deal with rules on contract conclusion separately.33 These drafts were only merged when the preparatory work for the CISG at UNCITRAL began more than thirty years later. It is, however, important to note that these drafts were not created in a vacuum. The comparative law foundations underlying the drafts were published in “Das Recht des Warenkaufs”34.35 The Unidroit committee additionally produced 97 documents between 1929 and 1950 as part of “Etude IV – Vente” that contain the dis 9 cussions and background of the drafts.36 Fortunately, while these documents were difficult to access for a long time, Unidroit has recently made all these documents of the international sales project available on its website.
b) Conference in The Hague in 1951 and the Special Commission
23
World War II halted the work on the unification, and efforts only resumed in 1951 when Unidroit suggested that the Dutch government invite States to participate in a diplomatic conference in The Hague. Delegates of 20 States met from 1–10 November 1951 and discussed the project based on the Rome draft of 1939. The delegates decided to form a Special Commission consisting of Angeloni, Bagge, De Castro y Bravo, Frédérico, Gutzwiller, Hamel, Meijers, Pilotti, Rabel,37 Riese, Ussing, and Wortley to further develop the draft.38 This Special Commission produced the draft of 1956 after only six meetings,39 which was forwarded to the Dutch Government and, subsequently, to other States. The opinions of the States, the ICC and other interested parties were considered during two meetings of the Special Commission and led to the draft of 1963.40 The further drafting of rules on contract conclusion was concurrently but separately advanced by Unidroit.41
24
Apart from the widely available drafts of 1956 and 1963, the eight meetings and further material of the Special Commission have been documented and published. The minutes of the eight meetings and a “rapport” by Gutzwiller have been digitalized and published on the CISG-online.org website in the section “Travaux préparatoires”.42
10 c) ULIS and ULF
25
Based on the preparatory work, another conference in The Hague was convened in 1964, which led to the creation of both the Convention relating to a Uniform Law on the International Sale of Goods (ULIS) and the Convention relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (ULF). These Conventions were ultimately unsuccessful on a global scale,43 which motivated the work at UNCITRAL starting in 1966 and, hence, the creation of the CISG. The relevant material from the conference of 1964 was published in two volumes.44
d) Usefulness of historical records
26
The relevance of the historical background for the interpretation is twofold. First, it aids in assessing the intention and purpose behind the provisions found in the CISG. It is undisputed that the CISG is built on this development and some provisions originated directly from the ULIS and the ULF.45 Therefore, it is helpful to consider the historical background of these conventions, too, when interpreting the CISG.46 Schlechtriem has emphasized the general relevance of the early material with the caveat that specific research has to evaluate whether the propositions by Rabel survived the protracted development over fifty years.47 This broad understanding of the travaux préparatoires is especially important, since some aspects of the CISG originated from work and discussions at Unidroit, and were no longer even discussed at UNCITRAL.48 It is therefore appropriate to explore the relevant material beyond the conventions, including material prepared by Rabel, the Committee at Unidroit, the Special Commission initiated at the conference in the Hague in 1951, and the drafts that have led to the ULIS and the ULF.
11 27
Second, examining the material beyond the UNCITRAL Yearbooks, the Secretariat’s Commentary and the Official Records of 1980 is a preemptive force against the so-called “homeward-trend”.49 Honnold has convincingly argued that “[o]ne who examines the evolution of uniform law will be disabused of the view that the statutory language is simply an awkward attempt to state one’s familiar domestic law.”50 To this end, the statement that historic interpretation becomes less persuasive the longer the Convention is in force,51 should not be interpreted as a rejection of the idea that the historical records remain highly relevant as a basis for an interpretation that has regard to the need to promote uniformity of application of the CISG. Instead, it should be taken to merely mean that the historical interpretation should not block the consideration of trends in international sales law which have occurred after the negotiations or a general further development of the CISG. In a nutshell, “a page of history” can be “worth a volume of logic.”52
2. Comparative law pre- and post-unification
28
Comparative law was of paramount importance in laying the foundations for drafting and negotiating the CISG.53 Magnus considers the CISG even to be coagulated comparative law.54 Thus, the relevance of pre-unification comparative law cannot be overstated.
29
In contrast, the usefulness of comparative law in the context of interpreting the CISG post-unification is frequently mentioned, but evaluated divergently (sometimes referred to as a “disputed question”).55 It is unclear whether the expressed opinions would lead to different results or if they merely reflect a discussion about the precise line between methods and principles of interpretation on one hand, and varying notions of what comparative law entails on the other. Moving away from technical distinction and breaking the question down into separate aspects may alleviate some of this uncertainty.
12 30
“Principles of interpretation” or “aims” are understood to refer to the three building-blocks of Article 7(1) of the CISG: the relevance of the CISG’s international character, the need to promote uniformity in its application, and the observance of good faith in international trade.56 Since the CISG does not explicitly explain how to achieve results in line with these principles, scholars have introduced the umbrella-term “methods of interpretation” to refer to methods to interpret provisions of the CISG (the wording, the systematic position, the travaux préparatoires, and teleological interpretation).57 This categorization can be helpful, but should not serve as an end in itself. Even scholars who refuse to accept comparative law as an interpretation method under the CISG readily accept that in order to have sufficient regard to the need of uniformity in the application of the CISG, jurists should interpret the CISG autonomously.58 To achieve this goal, it is first necessary to be aware that one’s own national unharmonized law might be different from other laws, including the CISG. To this day, jurists are mainly educated in their respective national sales law (frequently the CISG does not form part of the standard curriculum) and, thus, the risk of interpreting the CISG as identical to one’s own national sales law is already inherent in the system. Applying the CISG with expertise only in one national sales law is like reading a text drafted in a foreign language translated by poorly programmed software. This translation software translates the text word by word, but is incapable of conveying the full and sufficiently nuanced meaning. As a reader, one might be familiar with certain words, and be inclined to supply them with the legal concepts or terms that one is familiar with. Awareness of one’s own biases requires “comparing” one’s own law to other laws to assess whether following an initial instinct would result in a concealed application of one’s national law under the cloak of the CISG. Whether comparing national laws to form a foundation to substantiate a truly uniform application of the CISG is only considered to be necessary in the context of the “principles” of interpretation (need for uniformity) or also accepted as a “method” of interpretation, produces no diverging results and appears to be a discussion of mere terminology.
31
It is unclear whether “comparative law” is understood by some scholars in this discussion who argue against its usefulness to refer to a form of functional comparative method.59 This might be in line with Zweigert’s statement 13 that “the basic methodological principle of all comparative law is that of functionality.”60 Functionalist comparatists generally agree that their method does not focus on dogmatics and rules, but rather results and facts.61 If the term “comparative law” is understood to be this limited, its use might indeed be slim. It is not completely obvious whether a less technical understanding of comparative law is employed by the authors in favor of comparative law as a method of interpretation. They might look at various doctrinal and practical solutions under national law to help avoid interpreting the CISG from a biased perspective. This is because even these proponents of using “comparative law” caution not to transplant the results reached under national law into the CISG.62 Additionally, they emphasize its usefulness in avoiding the homeward trend and consider the latter to be a symptom for the lack of comparative studies.63
32
Hence, when interpreting the CISG, using comparative law to avoid national bias should be welcomed. It is unclear whether scholars would still disagree if misunderstandings about whether comparative law is a “method” or a means to achieve an “aim of interpretation”, as well as the definition of “comparative law”, were resolved.
3. Summary
33
In summation, besides the general tools for interpreting the CISG, one needs to understand the (national and historical) rules in order to apply uniform law in a truly uniform manner. This not only concerns the results reached under national law, i.e., functional comparative law in a technical sense, but extends to the general approach and the underlying principles of national legal doctrines. Courts and tribunals often lack the resources to conduct such extensive research. Therefore, the academic world must contribute to this end. Discovering divergent solutions can help reduce the risk of preconceived interpretations of the CISG that disregard its international character. Both the historical background of uniform law and comparative studies can foster international understanding, while neither a (non-)categorization as “methods”, “principles”, or “comparative law” should be taken to pose abstract obstacles in this regard.
