The UNIDROIT Principles of International Commercial Contracts and ...

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388 (2002) 36 R.J.T. 375 ii. UN Convention on Contracts for the International Sale of Goods – Vienna, 1980 A rgentina and Uruguay are parties to the Vienna Convention, which establishes uniform law provisions on international contracts of sale of goods for more than 60 countries, including France, United States, Canada, Germany and Japan 19 . As a matter of fact, the Convention only regulates the formation of the contract and the rights and obligations of both the seller and the purc h a s e r. The matters not falling under the Convention rules are governed by the general principles on which the Convention is based and, by lack thereof, by the law applicable by virtue of the conflict rules in force in the forum. Under Article 1 of the 1980 Vienna Convention, the uniform contractual law applies when the contracting parties are domiciled on the territory of the Convention member-States, or else, when the c o n flict rules applicable to the contract determine the application of the law of one of the Convention’s signatory State. However, according to its Article 6 the parties to the contract can themselves refuse the application, wholly or in part, of the uniform conventional law stipulated in the 1980 Vienna Convention. In the present context, as shall be seen hereafter, the Principles can be used, in the cases where the 1980 Vienna Convention is applicable, to interpret and integrate the uniform law stipulated therein. b. Domestic Law i. Argentina – Civil Code, 1869 The Argentine private international law rules that govern conflicts in contractual matters are established in Articles 1,205 to 1,216 of the country’s Civil Code. In cases where the agreement does not bear a connection with Argentina, the applicable law is that of the place of conclusion (lex celebrationis), as stated in Article 1,205 19 Chile, a ME R C O S U R associated member, is also a party to the 1980 Vi e n n a Convention. For more information, including jurisprudence, please refer to the following homepage of the Pace University School of Law: [http://cisgw3. law.pace.edu].
THE UNIDROIT PRINCIPLES AND MERCOSUR COUNTRIES 389 of the Civil Code. On the other hand, when the contract is executed a b road but its place of perf o rmance is situated in the Arg e n t i n e territory, it is then governed by the territorial law, that is, by the A rgentine law (lex executionis), a c c o rding to Article 1,209 of the C i v i l Code. Though the Argentine rules of private international law neither distinguish themselves by their clarity, nor expressly mention the party autonomy principle, eminent Argentine jurists such as Goldschmidt and Boggiano support the acceptation of the latter principle 20 . A rgentine courts, however, reject it massively, except for rare exceptions 21 . In that sense, a decision often mentioned is the case Feramérico v. Lital S.A., in which the parties’ autonomy to choose the law applicable to the contract was, more clearly, acknowledged by the Supreme Court 22 . – Arbitration The Argentine Federal Code of Civil and Commercial Procedure, along with the provincial codes, govern domestic arbitration. At international level, Argentina is a party to the 1958 UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), the 1975 I n t e r-American Convention on International Commercial Arbitration (Panama Convention) and the 1979 Inter-American Convention on the Extraterritorial Validity of Foreign Judgements and Arbitral Awards (Montevideo Convention) 23 . 20 Didier OPPERTI BADÁN, “El tratamiento juridico de los contratos comerciales i n t e rnacionales en el continente americano”, in The UN I D R O I T Principles: A Common Law of Contracts for the Americas?, op. cit., note 10, p. 35. According to the author, Goldschmidt grounds the autonomy on a consuetudinary norm, originated in Articles 1,143 and 1,197 of the Argentine Civil Code. Boggiano accepts the autonomy based on Articles 19 and 31 of the Argentine Constitution. 21 Cecilia FRESNERO, La autonomia de la voluntad en la contratación intern a c i o n a l , Montevideo, Fundación de Cultura Universitaria, 1991, p. 49, in N. de ARAÚJO, op. cit., note 13, p. 73. 22 Id. 23 For a panorama of arbitration in the Mercosul countries, see: Adriana Noemi PUCCI, Arbitragem Comercial nos Países do Mercosul, S P, LTr, 1997. In this excellent work the author does not examine, however, the question of the law applicable to the arbitration in the respective countries.
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