International Sales Contracts. The UN Convention and Related Transnational Law

Transcription

1 International Sales Contracts The UN Convention and Related Transnational Law

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3 International Sales Contracts The UN Convention and Related Transnational Law Eldon H. Reiley Professor of Law Emeritus University of San Francisco Carolina Academic Press Durham, North Carolina

4 Copyright 2008 Eldon H. Reiley All rights reserved. ISBN: LCCN: Carolina Academic Press 700 Kent Street Durham, North Carolina Telephone (919) Fax (919) Printed in the United States of America

5 This book is dedicated to the twenty-nine law students who were in my CISG class in Prague in the 2007 summer abroad program of the University of San Francisco. These hearty folks endured the final pre-publication version of the book. They identified hundreds of matters ranging from typographical errors to areas requiring clarification or different emphasis. They also taught me several rules of punctuation. Much of this was done in small groups on hot July afternoons over countless pints of Budvar beer. I am grateful for their help. Such remaining error as survived this process, should be blamed on Budvar. E.H.R. May, 2008

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7 Summary of Contents Preface xxiii Acknowledgment xxv Table of References to the CISG xix Chapter 1 Historical and Geographical Context of CISG 3 Chapter 2 Scope of Application of CISG 25 Chapter 3 Interpretation of CISG 61 Chapter 4 Basic Comparative Distinctions 85 Chapter 5 Contract Formation and Modification 105 Chapter 6 Excuse (Exemption) and Hardship 127 Chapter 7 Performance Issues: Warranty, Payment, Risk, Cure 149 Chapter 8 Remedies for Breach at Common Law and Under the UCC 171 Chapter 9 Remedies Under the CISG 187 Chapter 10 Specific Performance 219 Chapter 11 Dispute Resolution: International Arbitration 235 Chapter 12 Recent Developments: Electronic Transactions, Government Controls, Treaties 255 Chapter 13 Drafting International Sales Contracts 271 Summary of contract clauses by number and titles 271 Appendix A United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) CISG 289 Appendix B UNIDROIT Principles of International Commercial Contracts Appendix C Introduction to the Principles of European Contract Law 353 Appendix D United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) 357 Appendix E Convention on Choice of Court Agreements (2005) 363 Appendix F UNCITRAL Conciliation Rules 375 Appendix G UNCITRAL Arbitration Rules 383 Appendix H United Nations Convention on the Limitation Period in the International Sale of Goods (1974, 1980 Protocol) 397 Appendix I United Nations Convention on the Use of Electronic Communications in International Contracts (2005) 417 Appendix J Convention Relating to a Uniform Law on the International Sale of Goods (1964) and Annex ULIS 427 Appendix K Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (1964) and Annex UFL 451 Index 459 vii

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9 Contents Table of References to the CISG xix Preface xxiii Acknowledgment xxv Chapter 1 Historical and Geographical Context of CISG Contracting States and Treaty Acronym International Treaty Process: Where do Treaties Come From? Treaty Terminology Historical Context of CISG Reservations to CISG Judicial Interpretation of CISG 12 CISG, Article Judicial Interpretation in the United States Jurisdiction of U.S. Federal Courts in CISG Cases U.S.C U.S.C Implus I.D. International. S. L. v. Psion Teklogix, Inc Locating and Using International Authority What Is International Law? Discussion Problems 24 Chapter 2 Scope of Application of CISG Introduction 25 Asante Technologies, Inc. v. PMC-Sierra, Inc Type of Transaction Definition of Goods in Domestic U.S. Law. 29 UCC (original). 29 UCC 2-103(k) (2003 revision). 30 UCC 9-102(a)(44)(revised) Definition of Goods in CISG Leases of Goods Sales and Licenses of Software Mixed Transaction Contracts 34 CISG, Article Type of Issue 35 CISG, Article 4 36 CISG, Article Validity Property in Goods Death or Personal Injury 40 CISG, Article 5 40 ix

10 x CONTENTS 2.12 Location of Parties 40 CISG, Article CISG Applicability under Article 1(1)(a) CISG Applicability under Article 1(1)(b) Other Grounds for Applicability Opting Out of the CISG 50 CISG, Article Opting into the CISG 52 UCC 1-105(1). 53 UCC (c) and (f) (revised) Governing Law Clauses Discussion Problems 56 Prime Start Ltd. v. Maher Forest Products Ltd. 57 Chapter 3 Interpretation of CISG Relationship between CISG, UNIDROIT Contract Principles and Principles of European Contract Law CISG was first in time Differences in Scope of Application Hard Law or Soft Law? Concerns for American Lawyers Use of UNIDROIT Contract Principles in Cases within CISG Interpretation: Context of the Transaction Interpretation: Understanding Article 7 69 CISG, Article Commentaries on Article Distillation of the Commentaries Illustrative Examples 75 Example 3.1 (standing timber as goods) 75 Example 3.2 (addition of arbitration clause) 76 Example 3.3 (addition of arbitration clause followed by performance) 76 Example 3.4. (time to fix currency exchange rate) 77 Schmitz-Werke GmbH & Co. v. Rockland Industries, Inc. 77 Example 3.5 (attempt to recover attorney fees in U.S. court) 78 Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., Inc., 79 CISG-AC Opinion No. 6, excerpt 80 Example 3.6 (limitation of damages) 81 Berry v. Ken M. Spooner Farms, Inc Of Maps and Gaps, External or Ethereal? Role of Foreign Law in U.S. Courts Discussion Problem 83 Chapter 4 Basic Comparative Distinctions CISG and the Statue of Frauds 85 CISG, Article CISG, Article CISG, Article CISG, Article CISG and the Parol Evidence Rule 88

11 CONTENTS xi UCC (Pre-2003 text). 89 CISG, Article 8 89 Filianto, S.p.A. v. Chilewich Int Corp. 90 Beijing Metals & Minerals Imports/Export corp. v. American Bus. Ctr. Inc. 90 MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D Agostino CISG and Consideration 95 CISG, Article CISG, Article Geneva Pharmaceuticals Technology Corp. v. Barr Laboratories, Inc. 97 UNIDROIT Contract Principles, Article CISG and the Perfect Tender Rule 99 Prescott & Co. v. J.B. Powles & Co. 100 UCC UCC UCC Discussion Problems 103 Chapter 5 Contract Formation and Modification Introduction Indefiniteness: Definition of Offer: Open Price Term 106 CISG, Article UCC CISG, Article UNIDROIT Contract Principles, Article (Price determination) Revocation of Offers 108 Restatement (Second) Contracts, 87, Option Contract 109 Uniform Commercial Code, Firm Offers 109 CISG, Article CISG, Article CISG, Article Mail Box Rule 111 Adams and Others against Lindsell and Another Mail Box Rule and Definition of Issues 113 Morrison v. Thoelke Mirror Image Rule : Battle of the Forms 116 CISG, Article CISG, Article UNIDROIT Contract Principles, Article (Contracting under standard terms) 120 UNIDROIT Contract Principles, Article (Battle of forms) 121 UNIDROIT Contract Principles, Article (Writings in confirmation) 121 UCC (original). 121 UCC 2-206(3) (revised). 122 UCC (revised). 122

12 xii CONTENTS 5.7 Modification of Existing Contracts 122 UCC CISG, Article Chateau des Charmes Wines Ltd. v. Sabante USA Inc. 123 Berry v. Ken M Spooner Farms, Inc Discussion Problems 126 Chapter 6 Excuse (Exemption) and Hardship Excuse at Common Law 127 Paradine v. Jane 128 Taylor v. Caldwell 129 Carroll v. Bowersock 131 Albre Marble & Tile Co. v. John Bowen Co Excuse under the UCC 134 UCC UCC UCC UCC UCC Exemption under the CISG 137 CISG, Article CISG, Article Raw Materials Inc. v Manfred Hardship and Force Majeure under UNIDROIT Contract Principles 141 UNIDROIT Contract Principles, Article (Force Majeure) 141 UNIDROIT Contract Principles, Article (Effects of hardship) Relationship of UNIDROIT Contract Principles on Hardship to CISG, Art Summary Discussion Problems 146 Chapter 7 Performance Issues: Warranty, Payment, Risk, Cure Warranties of Quality and Title 149 UCC, UCC, CISG, Article CISG, Article Payment Provisions: Letters of Credit, UCP Passing of Risk: Delivery, Title, Insurance, Incoterms Contract Interpretation: Usage, Course of Dealing, Course of Performance 158 CISG, Article CISG, Article Performance Problems Future Performance Concerns 161 UCC UCC

13 CONTENTS xiii UCC CISG, Article CISG, Article Withholding Performance Tender and Cure 165 UCC (original). 165 CISG, Article CISG, Article CISG, Article CISG, Article Installment Contracts. 167 UCC 2-612(2). 168 CISG, Article Summary of Approach to Remedies 169 Chapter 8 Remedies for Breach at Common Law and Under the UCC Severity of Breach Common Law Contract Remedies Judicial Limitations on Expectancy 173 Hadley v. Baxendale 175 Victoria Laundry Ltd. v. Newman Industries, Ltd. 177 Restatement (Second) Contracts Structure of Remedy Provisions in the UCC Buyers remedies under UCC Article UCC UCC UCC UCC UCC UCC Sellers Remedies under UCC Article UCC UCC UCC UCC (original) Contractual Control of Damages 184 UCC UCC 2-719(3). 185 Chapter 9 Remedies Under the CISG Generally 187 CISG Part III. Sale of Goods Right to Avoid; Fundamental Breach; Consequences of Avoidance 189 CISG, Article CISG, Article CISG, Article 51(2) Damage-Type Remedies in CISG 193 CISG Article Relationship between Articles 74 and 75 and

14 xiv CONTENTS 9.5 Mitigation 195 CISG, Article Interest 196 CISG, Article CISG, Article 84 (1) 197 UNIDROIT Principles, Article Currency issues 198 UNIDROIT Principles, Article Reduction of Price by Buyer 199 CISG, Article UCC Calculation under Article Steps to Invoke Article Contractual Control of Damage Remedies Liquidated Damages Clauses 201 UNIDROIT Contract Principles, Article (Agreed Payment for non-performance) Clauses Limiting Remedies Buyer s Remedies for Breach by Seller Breach Due to Lack of Conformity Definition of Conformity 204 CISG, Article 35(2) Duty to Examine and Give Notice Time to Comply 206 CISG-AC Opinion no Extent of Examination Sufficiency of Notice Consequences of Failure and Excusing Provisions, Art. 40 and CISG, Article CISG, Article Seller s Right to Cure Lack of Conformity Restitution Obligation Following Avoidance 211 CISG, Article 81 (2) 211 CISG, Article 82 (1) 211 CISG, Article 82 (2) Breach due to Delivery Failures 212 CISG, Article Breach due to Conflicting Rights of Third Parties 213 CISG, Article CISG. Article Roadmap (Checklist) of Buyer s Remedies and Duties 214 Roadmap of Buyer s Remedies under CISG Seller s Remedies for Breach by Buyer Duty to Preserve the Goods 217 CISG, Article CISG, Article Chapter 10 Specific Performance Specific Performance at Common Law 219

15 CONTENTS xv 10.2 Is the Irreparable Injury Rule Dead? Current American Law and Specific Performance UCC Article 2 and Specific Performance 223 UCC UCC UCC 2-716(1) (Revised) CISG and Specific Performance 224 CISG, Article CISG, Article The Article 28 Compromise 225 CISG, Article What is Meaning of would do so? What is Meaning of a court? What is Meaning of under its own law? What is Meaning of similar contracts of sale? May Parties Waive Article 28? How Should American Courts Apply Article 28? 228 Magellan International Corp. v. Salzgitter Handel GmbH Other Limits on Right to Specific Performance Under CISG CISG Article 77 and Specific Performance CISG Article 79 and Specific Performance 231 CISG, Article 79 (5) CISG Article 82 and Specific Performance 232 CISG, Article UNIDROIT Contract Principles and Specific Performance 232 UNIDROIT Contract Principles, Article (Performance of non-monetary obligation) Discussion Problems 233 Chapter 11 Dispute Resolution: International Arbitration Overview The Treaty Background 235 New York Convention, Article II 236 Choice of Court Convention Article 8 Recognition and Enforcement Overview Ethical Obligations Overview Dispute Resolution Alternatives Renegotiation Mediation and Conciliation Litigation in U.S. Courts Litigation in Foreign Courts Forum Selection Clauses Arbitration of Private Transnational Disputes Drafting Arbitration Clauses Whether to Arbitrate Should Mediation/Conciliation be a Pre-condition? Scope of Issues Subject to Arbitration Institutional Supervision or Ad Hoc Arbitration? Rules of Arbitration Number, Selection and Replacement of Arbitrators Location of Arbitration Language of Arbitration 248

16 xvi CONTENTS 8. Interim Relief Party Contact with Arbitrators Procedural Rules; Discovery Reasons for Award Confidentiality of Award Calculation of Interest Allocation of Costs Currency of Award and Conversion Rate Governing Law Anatomy of an International Arbitration 251 UNCITRAL Arbitration Rules, Article Litigation/Arbitration Compared 252 Chapter 12 Recent Developments: Electronic Transactions, Government Controls, Treaties Electronic Transactions Issues Relating to Electronic Signatures Issues Relating to Agency Issues Relating to Location of Parties Issues Relating to Place and Time of Contract Issues Relating to Consumer Contract Exclusion in CISG art. 2(a) Issues Relating to Contract Terms National Government Controls over International Sales U.S. Laws Foreign Law Overview of Treaties Relevant to Transnational Sales Limitation Convention Cape Town Convention and other Treaties Relating to Security Interests Treaties and Laws Relating to Trans-Border Insolvency Proceedings 268 Chapter 13 Drafting International Sales Contracts Introduction: To Be a Copy Cat Is a Good Thing To an Extent Clauses Discussed in Prior Chapters Governing Law Clauses: Opt-In, Opt-Out and Back-Up Opting Into the CISG Opt-out of CISG Governing Law Clause in Arbitration Agreement Merger Clause to Preserve Parol Evidence Rule: No Oral Modifications Revocable and Irrevocable Offers Force Majeure and Hardship Clauses Clauses Relating to Incoterms, UCP and Usage Clause Providing for Retained Security Interest to Secure Payment Obligation Clauses Relating to Remedies Interest rate Time of Currency Conversion Exclusion of CISG Article Contractual Right to Require Specific Performance 285

17 CONTENTS xvii 5. Attorney Fees Limitation of Damage Remedies Liquidated Damages Dispute Resolution Clauses Signatures on Multiple Copies 288 Summary of contract clauses by number and titles 271 CLAUSE 1. Recommended Governing Law Clause for contracts within the CISG (specifying UNIDROIT Contract Principles as back-up law.) 275 CLAUSE 1A. Alternative Governing Law Clause for contracts within the CISG, specifying domestic law as back-up law. 276 CLAUSE 2. Opt-in Clause for contracts not within the CISG specifying UNIDROIT Contract Principles as back-up law. 276 CLAUSE 2A. Alternative Opt-in Clause for contracts not within the CISG specifying domestic law as back-up law. 276 CLAUSE 3. Opt-out clause. 277 CLAUSE 4. Governing law clause for arbitration agreement. 278 CLAUSE 5. Merger clause (AC opinion no. 3). 278 CLAUSE 5A. Alternative merger clause excluding negotiations, practices and usages. 278 CLAUSE 6. No oral modifications clause. 279 CLAUSE 7. Irrevocable Offer with expiration date. 279 CLAUSE 7A. Alternative Irrevocable Offer 279 CLAUSE 8. Revocable Offer with expiration date. 279 CLAUSE 9. Force Majeure. 280 CLAUSE 10. Hardship 280 CLAUSE 11. Incoterms. 281 CLAUSE 12. UCP 281 CLAUSE 13. Derogation from trade usage. 281 CLAUSE 14. Retention of purchase money security interest. Sale by foreign seller to U.S. buyer. 282 CLAUSE 14A. Retention of PMSI by U.S. seller 282 CLAUSE 15. Specific interest rate. 284 CLAUSE 15A. Generic rate of interest. 284 CLAUSE 15B. Generic rate of interest established by UNIDROIT formula. 284 CLAUSE 16. Currency exchange (UNIDROIT Contract Principles) 284 CLAUSE 17. Exclusion of CISG article CLAUSE 18. Agreement for specific performance 285 CLAUSE 19. Attorney fees allocated to losing party. 286 CLAUSE 19A. Attorney fees borne by each party. 286 CLAUSE 20. Damage exemption clause. 286 CLAUSE 20A. Damage exemption clause extending definition of conformity and time for identifying non-conformity. 286 CLAUSE 21. Liquidated damages clause 287 CLAUSE 22. Exclusive forum selection clause. 287 CLAUSE 22A. Non-exclusive forum selection clause. 287 CLAUSE 23. Signatures on counterparts. 288

18 xviii CONTENTS Appendix A United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) CISG 289 Appendix B UNIDROIT Principles of International Commercial Contracts Appendix C Introduction to the Principles of European Contract Law 353 Appendix D United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) 357 Appendix E Convention on Choice of Court Agreements (2005) 363 Appendix F UNCITRAL Conciliation Rules 375 Appendix G UNCITRAL Arbitration Rules 383 Appendix H United Nations Convention on the Limitation Period in the International Sale of Goods (1974, 1980 Protocol) 397 Appendix I United Nations Convention on the Use of Electronic Communications in International Contracts (2005) 417 Appendix J Convention Relating to a Uniform Law on the International Sale of Goods (1964) and Annex ULIS 427 Appendix K Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (1964) and Annex UFL 451 Index 459

19 Table of References to the CISG (Primary discussions are indicated by bold face.) Art. 1: 31, 32, 33, 41, 54, 63 1(1)(a): 14, 41, 42, 43, 48, 58, 59, 87 1(1)(b): 10, 14, 41, 43 49, 58, 59, 87 1(2): 42, 257 1(3): 42 Art. 2: 67 2(a): 28, 258 2(b): 28 2(c): 28 2(d): 28 2(e): 28, 29, 76 2(f): 28, 29 Art. 3: 34, 35, 3(1): 34, 35 3(2): 34, 35 Art. 4: 35 36, 63, 143, 274, 286, 287 4(a): 35 39, 81, 97, 98, 123, 151 4(b): 36, 39, 153, 213 Art. 5: 36, 40, 63 Art. 6: 26, 50, 51, 53, 54, 61, 65, 67, 69 75, 82, 160, 228 Art. 7: (1): 12, 32, 65, 69, 70, 71, 72, 73, 76, 82, 143, 230, 276 7(2): 14, 65, 69, 70, 71, 72, 73, 76, 77, 82, 102, 143, 145,197, 202, 276 Art. 8: 74, 89, 94, 158, 159 8(1): 91, 159 8(2): 159 8(3): 89, 94, 104, 159 Art. 9: 120, 158, 159, 281 9(2): 143, 160, 281 Art. 10: 41, 42, 56 Art. 11: 85 88, 96 Art. 12: 86, 87 Art. 13, 256 Art. 14: 106, 107, 108 Art. 15: 110, 116, 256 Art. 16: 110, 279 Art. 17: 110 Art. 18: 18(2): 116 Art. 19: 118, (1): 76, (2): (3): 119, 124 Art. 25: 65, , 264 Art. 26: 168, 189 Art. 27: 189 Art. 28: , 285 xix

20 xx TABLE OF REFERENCES TO THE CISG Art. 29: 85, 86, 96, (1): 123, (2): 123, Art. 31: 213 Art. 32: 213 Art. 34: 103 Art. 35: 149, 151, 152, (1): 204, (2): 152, 204, 205 Art. 36: 151 Art. 37: 166, 192, 201, 204, 207, 208, 210 Art. 38: , 210, 213 Art. 39: 152, , (1): 167 Art. 40: 205, , 213, 214 Art. 41: 151, 153, 203, 213, 214 Art. 42: 151, 214 Art. 43: 151, 153, 203, 206, Art. 44: 205, 206, , 213 Art. 46: 169, 188, 224, (1): (2): 140, 152, 188, 189, 207, 225, (3): 140,152, 188, 207, 225, 230 Art. 47: 167, 188, 190, 191, 192, 201, 211 Art. 48: 65, 166, 191, 192, 193, 201, 207, 208, 210, 211 Art. 49: 166, 169, 189, , 193, 201,203, 208, 211, (1)(b): 192, 203, (2)(a): 192, (2)(b): 192, 211 Art. 50: 152, 169, 198, , 215, 230, 285 Art. 51: 152, 192, (1): (2): 192, 193 Art. 52: 102, 166, 169, 203, 213 Art. 55: 105, 107, 108 Art. 61: 217 Art. 62: 188, 217, 225 Art. 63: 188, 191 Art. 64: 169, 189, 203, 217 Arts : 156 Art. 66: 156, 157 Art. 67: 157, 189 Art. 68: 157 Art. 69: 189 Art. 70: 157 Art. 71: 102, 162, 163, 164, 191 Art. 72: 162, 163, 168, 189, (2): 163, 189 Art. 73: 102, 168, 173, (3): 193 Art. 74: 74, 78, 79, 80, 141, 169, 178, , 215, 230, Art. 75: 169, 193, 194, 195, 211, 217 Art. 76: 169, 193, 194, 195, 211 Art. 77: 169, , , 233 Art. 78: 65, 169, ,

21 TABLE OF REFERENCES TO THE CISG xxi Art. 79: , 233, (1): 138, (2): (3): (4): (5): 65, 137, 139, 140, , Art. 80: 137, 138 Art. 81: 147, 163, (2): 211 Art. 82: 211, (1): 211, 230, (2): 211, 212, 232 Art. 84: 169, 193, (1): 169, (2): 212 Arts : 217 Art. 86: 217, 218 Arts : 8, 10 Art. 91: 91(4): 8 Art. 92: 11 Art. 93: 11 Art. 94: 11 Art. 95: 11 Art. 96: 11, 86 Art. 98: 11 Art. 99: 8 99(1): 8 Art. 85: 217

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23 Preface This book has had a long gestation period. I first taught a CISG-related course in Shaghai in May (That course finished on the Friday before the weekend events in Tiananmen Square but that is another story.) The East China School of Law had asked me to teach a course comparing the common law of contracts to the UCC. I added a component on the U.N. Convention on Contracts for the International Sale of Goods to which both the U.S. and China were parties and which had taken effect a year earlier. Over the next nineteen years the materials from that course gradually evolved into what is contained in the following chapters. The present text is designed to support a 2 or 3 credit course on Sales Law applicable to transnational transactions. It also may be used as a source of materials to be drawn on to provide a CISG supplement for basic JD contract courses. However, while writing, I found that I was constantly thinking about what discussion would be most useful to that group of young (compared to me) U.S. attorneys who had not had a course on the CISG but were confronted with international sales issues. (During its first decade, , the CISG was largely ignored by both U.S. courts and U.S. legal education.) For that group I hope this book might be useful as a research starting place. I also hope it might encourage American attorneys to draft governing law clauses that affirm the applicability of the CISG instead of drafting clauses that seek to opt-out. The first three chapters consider the nature, function and sources of international law, the scope of application of the CISG, and the highly structured rules for interpretation of the CISG, including the relationship of the Convention to the UNDROIT Contract Principles. The fourth chapter is a celebration of the absence from the CISG of common law anachronisms (namely the Statute of Frauds, Parol Evidence Rule, Consideration and the Perfect Tender Rule.) The focus then turns to formation (and modification) excuse, and remedies including specific performance. I attempt to identify and separate issues which are clearly determined under the CISG from those issues as to which the outcome is not so clear. As to the latter, I attempt to present the reader with contrasting points of view in the actual words of various international scholars. The final chapters of this book endeavor to consider CISG transactions in the context of a larger body of rapidly developing transnational law. This includes treaties dealing with dispute resolution, electronic communications, limitation periods, secured transactions and insolvency. The complex structure of national import/export laws and regulations is also noted. The Appendix is very large. I thank the publisher for permitting me to include the full text of a number of related treaties, including the twin predecessor treaties to the CISG (the ULF and the ULIS), the New York Arbitration Convention and the 2005 Choice of Court Convention. A set of arbitration rules and conciliation rules is also included. Most importantly, the full text of the CISG is accompanied by the full text of xxiii

24 xxiv PREFACE the UNIDROIT Principles of International Commercial Contracts. I hope the reader will find this mini-reference library a useful supplement to the discussions in the text. I wish to thank the folks at Carolina Academic Press, especially Keith Sipe, Karen Clayton, Reuben Ayres, Kelly Miller and Martha Hopper, for their patience and assistance. Thanks also to University of San Francisco Law School Deans, Jay Folberg and Jeff Brand, who supported me in developing and teaching a number of CISG related courses over the long gestation period of this book. USF law reference librarians Lee Ryan and John Schaffer provided significant research assistance. Finally, I wish to acknowledge the contribution of my partner, Stefan Ziegler, whose presence at my side for the last 15 years has, in no small measure, made the completion of this book possible. E.H.R. May, 2008

25 Acknowledgment I wish to acknowledge various permissions to quote from a number of prior publications. Foremost among these is Albert Kritzer, Executive Secretary of the Institute of International Commercial Law at Pace University School of Law for permission to quote from various articles on the Pace CISG database and, more generally, for his supervision of that database. The Pace database is an enormously useful reference tool which makes a huge reservoir of scholarly writings and judicial opinions on the CISG freely available and only a computer click away. Additional acknowledgment is expressed to Professor Douglas Laycock of the University of Texas with respect to his article on the Irreparable Injury Rule; Professors Clayton Gillette, New York University, and Steven Walt, University of Virginia, with respect to their book on Sales Law, Domestic and International; Charles Routh, Seattle attorney, with respect to his comments about arbitration; and Professor Harry Flechtner at the University of Pittsburgh, who I thank not only for permission to quote from his article on the MCC-Marble case, but even more significantly for THE CISG SONG (discussed on page 4 of the text). There should be more areas of law where we have something to sing about! Additional acknowledgment is express for permission to reprint: Selected sections from Restatement, Second, Contracts, copyright 1981 by the American Law Institute. Reprinted with permission. All rights reserved. Selected sections from Restatement, Second, Conflict of Laws, copyright 1971 by the American Law Institute. Reprinted with permission. All rights reserved. Selected sections from Uniform Commercial Code, copyright by the American Law Institute and the National Conference of Commissioners on Uniform State Laws. Reproduced with the permission of the Permanent Editorial Board for the Uniform Commercial Code. All rights reserved. The UNIDROIT Principles of International Commercial Contracts, copyright 2004 by the International Institute for the Unification of Private Law. Reprinted with permission. All rights reserved. Selected excerpts from Commentary on the UN Convention on the International Sale of Goods (CISG) (2005) edited by Schlechtriem & Schwenzer. By permission of Oxford University Press. This work is discussed in Chapter 1, 1.9 at pages 16 and 17. The Hague Convention of 30 June 2005 on Choice of Court Agreements. By permission of the Hague Conference on Private International Law ( United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958), and United Nations Convention on the Limitation Period in the International Sale of Goods (New York, 14 June 1974) together with Resolution 31/98 adopted by General Assembly on 15 December 1976, and United Nations Convention on the Use of Electronic Communications in International Contracts and xxv

26 xxvi ACKNOWLEDGMENT UNCITRAL Conciliation Rules, and UNCITRAL Arbitration Rules. All of the foregoing by permission of United Nations Commission on International Trade Law (UNCI- TRAL). The format of this book is such that it contains numerous references to or short quotations from other works. Some of these are not specifically mentioned above because they are included in the general permission from the Pace CISG database or because the references were such that it was deemed that specific copyright permissions were not required. Nevertheless, the author wishes to acknowledge his indebtedness to the authors of the vast and rich literature on International/Transnational Sales Law from which this analysis has benefited. My indebtedness to the thinking of others extends far beyond the works quoted or specifically cited in the text and footnotes.