Part of a comprehensive analysis of the Sale of Goods (United Nations Convention) Act 1995
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Analysis of Key Final Provisions in the United Nations Convention on Contracts for the International Sale of Goods (CISG)
The final provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG), encapsulated primarily in Articles 89 to 101, establish the procedural framework for the Convention’s operation, its relationship with other international agreements, territorial application, and mechanisms for declarations, reservations, and denunciations. These provisions are critical to understanding how the CISG functions in practice and how Contracting States may tailor their obligations under the Convention. This analysis explores these key provisions, their purposes, and their implications for Contracting States and international commercial transactions.
Article 89: Designation of the Depositary
"The Secretary-General of the United Nations is hereby designated as the depositary for this Convention." — Article 89, Sale of Goods (United Nations Convention) Act 1995
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Article 89 designates the Secretary-General of the United Nations as the depositary of the CISG. This provision exists to centralize and formalize the administration of the Convention, ensuring that all instruments of ratification, acceptance, approval, accession, declarations, notifications, and denunciations are properly received, recorded, and disseminated. The depositary role is essential for maintaining the integrity and transparency of the Convention’s operation, providing an authoritative source for the status of Contracting States and their declarations.
Article 90: Non-Prevalence Over Other International Agreements
"This Convention does not prevail over any international agreement which has already been or may be entered into and which contains provisions concerning the matters governed by this Convention, provided that the parties have their places of business in States parties to such agreement." — Article 90, Sale of Goods (United Nations Convention) Act 1995
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This provision acknowledges the coexistence of the CISG with other international agreements governing similar subject matter. Article 90 ensures that where parties to a contract have their places of business in States that are parties to a different international agreement on the sale of goods, that other agreement will prevail over the CISG. The rationale is to respect pre-existing or concurrent treaties that may better reflect the parties’ expectations or regional legal harmonization efforts. This prevents conflicts between treaties and promotes legal certainty in international trade.
Article 91: Signature, Ratification, Acceptance, Approval, and Accession
"This Convention is open for signature... subject to ratification, acceptance or approval... open for accession... Instruments... are to be deposited with the Secretary-General of the United Nations." — Article 91, Sale of Goods (United Nations Convention) Act 1995
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Article 91 outlines the procedural steps for States to become parties to the CISG. It distinguishes between signature (an initial expression of intent), ratification, acceptance, approval (formal consent to be bound), and accession (joining after the Convention has entered into force). The requirement that instruments be deposited with the Secretary-General ensures a formal and transparent process. This provision exists to facilitate orderly accession and to confirm the legal commitment of States to the Convention.
Article 92: Declarations Excluding Parts II or III
"A Contracting State may declare at the time of signature, ratification, acceptance, approval or accession that it will not be bound by Part II of this Convention or that it will not be bound by Part III of this Convention." — Article 92(1), Sale of Goods (United Nations Convention) Act 1995
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Article 92 permits Contracting States to exclude their application of either Part II (Formation of the Contract) or Part III (Sale of Goods) of the CISG. This flexibility allows States to tailor their obligations under the Convention to align with their domestic legal systems or policy preferences. For example, a State may prefer to apply its national law to contract formation while accepting the CISG’s provisions on the sale of goods. This provision exists to encourage wider acceptance of the CISG by accommodating States’ legal particularities.
Article 93: Territorial Application
"If a Contracting State has two or more territorial units... it may... declare that this Convention is to extend to all its territorial units or only to one or more of them." — Article 93(1), Sale of Goods (United Nations Convention) Act 1995
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Article 93 addresses the territorial scope of the CISG within Contracting States that have multiple territorial units, such as federal States or States with autonomous regions. This provision allows such States to specify whether the Convention applies uniformly across all territories or selectively to certain units. The purpose is to respect the internal constitutional arrangements of States and to provide clarity on the Convention’s territorial reach, thereby avoiding uncertainty in cross-border transactions involving different territorial units.
Article 94: Exclusion by Agreement of Contracting States
"Two or more Contracting States which have the same or closely related legal rules... may... declare that the Convention is not to apply to contracts of sale or to their formation where the parties have their places of business in those States." — Article 94(1), Sale of Goods (United Nations Convention) Act 1995
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This provision allows Contracting States with similar or closely related legal systems to agree that the CISG will not apply to contracts where both parties have their places of business in those States. The rationale is that the Convention’s harmonizing function is less necessary where domestic laws are already aligned, and parties may prefer to rely on their national laws. This mechanism prevents unnecessary application of the CISG and respects regional legal integration.
Article 95: Declaration Excluding Sub-paragraph (1)(b) of Article 1
"Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by sub-paragraph (1)(b) of article 1 of this Convention." — Article 95, Sale of Goods (United Nations Convention) Act 1995
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Article 95 permits a State to exclude the application of the CISG to contracts where the parties have their places of business in different States but one of those States is not a Contracting State. Sub-paragraph (1)(b) of Article 1 generally extends the CISG’s application to such contracts. This declaration allows States to limit the Convention’s extraterritorial reach, reflecting concerns about applying the CISG to parties outside the Contracting State network. It provides States with control over the Convention’s scope in cross-border transactions.
Article 96: Declarations Regarding Writing Requirements
"A Contracting State whose legislation requires contracts of sale to be concluded in or evidenced by writing may... make a declaration... that any provision of article 11, article 29, or Part II of this Convention... does not apply where any party has his place of business in that State." — Article 96, Sale of Goods (United Nations Convention) Act 1995
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Article 96 addresses States with domestic laws mandating that contracts of sale be in writing. The CISG generally allows contracts to be concluded in any form, including oral agreements (Article 11). This provision permits such States to declare that the CISG’s provisions on contract formation and evidence do not apply when a party is located in that State. The purpose is to reconcile the Convention’s flexible approach with domestic legal traditions requiring written contracts, thereby facilitating acceptance of the CISG by States with stricter formal requirements.
Article 97: Formalities for Declarations and Their Withdrawal
"Declarations made under this Convention at the time of signature are subject to confirmation upon ratification, acceptance or approval... Declarations and confirmations of declarations are to be in writing and be formally notified to the depositary... A declaration takes effect simultaneously with the entry into force of this Convention... Any State which makes a declaration under this Convention may withdraw it at any time by a formal notification in writing addressed to the depositary." — Article 97, Sale of Goods (United Nations Convention) Act 1995
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Article 97 sets out the procedural requirements for making, confirming, notifying, and withdrawing declarations under the CISG. These formalities ensure transparency and legal certainty, allowing other Contracting States and parties to be aware of the specific obligations and exceptions applicable to each State. The ability to withdraw declarations provides flexibility for States to adapt their commitments over time as their legal systems evolve or as practical experience with the Convention develops.
Article 98: Prohibition of Reservations Except as Authorized
"No reservations are permitted except those expressly authorized in this Convention." — Article 98, Sale of Goods (United Nations Convention) Act 1995
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Article 98 prohibits Contracting States from making reservations to the CISG except those explicitly allowed by the Convention itself. This provision preserves the uniformity and integrity of the CISG by preventing unilateral modifications that could undermine its harmonizing purpose. By limiting reservations to those expressly authorized, the Convention ensures that States accept the Convention’s core provisions as a package, fostering predictability and consistency in international sales law.
Article 99: Entry into Force and Denunciation of Earlier Conventions
"This Convention enters into force... on the first day of the month following the expiration of twelve months after the date of deposit of the tenth instrument of ratification, acceptance, approval or accession... A State which ratifies... shall at the same time denounce... the 1964 Hague Sales Convention and the 1964 Hague Formation Convention... The depositary of this Convention shall consult with the Government of the Netherlands... so as to ensure necessary co-ordination in this respect." — Article 99, Sale of Goods (United Nations Convention) Act 1995
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Article 99 governs the timing of the CISG’s entry into force and the transition from earlier international sales law conventions. The twelve-month waiting period after the tenth ratification ensures sufficient international support before the Convention becomes operative. The requirement that new Contracting States denounce the 1964 Hague Conventions prevents overlapping obligations and legal confusion. Coordination with the Government of the Netherlands, the depositary of the earlier Conventions, facilitates a smooth transition. This provision exists to promote legal clarity and the effective adoption of the CISG as the prevailing international sales law instrument.
Article 100: Temporal Application of the Convention
"This Convention applies to the formation of a contract only when the proposal for concluding the contract is made on or after the date when the Convention enters into force... This Convention applies only to contracts concluded on or after the date when the Convention enters into force..." — Article 100, Sale of Goods (United Nations Convention) Act 1995
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Article 100 clarifies the temporal scope of the CISG, limiting its application to contracts formed or concluded on or after the Convention’s entry into force. This provision prevents retroactive application, which could disrupt existing contractual relationships and legal expectations. It ensures that parties have clear notice of the legal regime governing their contracts, thereby upholding principles of legal certainty and fairness.
Article 101: Denunciation of the Convention or Its Parts
"A Contracting State may denounce this Convention, or Part II or Part III of the Convention, by a formal notification in writing addressed to the depositary... The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary." — Article 101, Sale of Goods (United Nations Convention) Act 1995
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Article 101 provides Contracting States with a mechanism to withdraw from the CISG or from specific parts of it. The twelve-month notice period balances the State’s sovereign right to denounce with the need to protect the legitimate expectations of other Contracting States and commercial parties. This provision ensures orderly withdrawal, avoiding abrupt disruptions in the international sales legal framework.
Conclusion
The final provisions of the CISG, as set out in Articles 89 to 101, are foundational to the Convention’s effective operation and international acceptance. They establish the administrative framework, respect existing international agreements, allow for tailored application through declarations, and provide mechanisms for entry into force and denunciation. These provisions collectively ensure that the CISG functions as a coherent, flexible, and widely accepted instrument for harmonizing international sales law.
Sections Covered in This Analysis
- Article 89: Depositary Designation
- Article 90: Relationship with Other International Agreements
- Article 91: Signature, Ratification, Acceptance, Approval, and Accession
- Article 92: Declarations Excluding Parts II or III
- Article 93: Territorial Application
- Article 94: Exclusion by Agreement of Contracting States
- Article 95: Declaration Excluding Sub-paragraph (1)(b) of Article 1
- Article 96: Declarations Regarding Writing Requirements
- Article 97: Formalities for Declarations and Withdrawal
- Article 98: Prohibition of Reservations Except as Authorized
- Article 99: Entry into Force and Denunciation of Earlier Conventions
- Article 100: Temporal Application of the Convention
- Article 101: Denunciation of the Convention or Its Parts
Source Documents
For the authoritative text, consult SSO.