Since the initiative laid down in the UNIDROIT to establish a legal system that will govern international transactions, the UN-CISG has become the product of the almost fifty year long pursuit of the states to come up to uniform substantive rules amidst the diverse and different domestic and international legal system concerning international commercial transactions. The Vienna convention has become advanced in its approach towards specific aspects of International Commercial Transactions, and is acclaimed as a very important development in this field.
This was reflected by the massive participation of several states and the subsequent ratification as a multilateral treaty by most nation-states. The UN-CISG does not derogate the applicability of conflict of law rules under the private international law. It rather provides for some leeway for its application and even preference. This situation normally occurs when one of the parties to a contract involving the international sale of goods does not happen to be a citizen of a state, which is Contracting State.
In case only one of the parties is under the jurisdiction of a contracting state, conflicts rules determines which law should apply under the circumstances. The said conflict situation should be resolved not only by the conflict rules of the non-contracting state, but also by the domestic conflict rules of the contracting state. The UN-CISG does not deal with the rules on conflict of laws, but provides for the substantive rights and obligation to the parties.
It applies only in cases when, after resorting to conflict of law rules of both states, the result is the application of the substantive law of the Contracting State. The courts in the said Contracting State should, in such a case apply the provision of the UN-CISG. The latter convention does not insist to have a primacy and preference over other legal system but exists in harmony with some other legal system, and only after the due determination of its applicability, can it now come to have some force and effect.
We can infer from the entirety of the Article I of the UN-CISG its being a “compromise” in character. This means that the convention provides and gives leeway to the application of other legal system in case the latter is the one more proper to apply. The UN-CISG tries not to be mandatory and exclusive in its approach towards international transaction but comes into force only upon the proper time and circumstances.
Contrary to other previous conventions and international agreements, “the most important of the changes is the rejection of the “universalist” approach of the uniform laws and its replacement with a compromise text which requires some connection between sale transaction and a contracting state before the Vienna Convention is applicable ”. It does not insist to be applied in all situations involving international contracts but preserves the integrity and enforceability of other legal systems as the private international law of states.
It tries not to derogate other legal systems but make its provisions in harmony with others. The aim of the preliminary provisions of the UN-CISG is mainly to harmonize its provision with the compulsory rules that has been existing. “But as mentioned before, the CISG only regulates the consent of the parties by matching declarations of will. ” Capacity, errors, the power of representatives, etc. , are not matters governed by this Convention, but instead are within the domain of the domestic laws.
” The purpose of the provision would be defeated is it adds to the prevailing uncertainty in the rights and obligations of the parties to an international transaction. It is for this reason that the UN-CISG has gained wider and larger acceptability among the states. “At least one reason for the quick acceptance of the provisions was the desire to avoid conflict between the convention and “mandatory rules” of national law, a concern which also led to the omission of several provisions of the uniform law which refer specifically to mandatory rules ”.
