Product liability under the CISG and Concurring tort law claims ...

taken into account when discussing the issue of concurring claims, since it adds to the advantages of applying
the Convention and the uniform system provided therein.
4.4.4. Summary
There are some protective interests underlying domestic product liability laws that would simply not be
appropriate to dismiss and there are some interest underlying the Convention that it would be ill-advised to
allow circumvention of through domestic tort law.
This complex issue requires courts and arbitrators to perform a balancing act, which is not easy, and agreeing
on a uniform balancing act is even more difficult. It is, however, necessary in order to provide certainty
in international trade and therefore it is very important to shed some light on the topic.
In the following sections a proposal will be presented to determine where the line between contract and
tort should be drawn and which interests should be protected in this context, in order to find a solution to
the issue of concurring claims.
4.5. Circumvention of the CISG or domestic product liability laws
When dealing with concurring claims, one of the most disputed topics in doctrine is whether to allow a partial
circumvention of the Convention or of domestic product liability laws. Will placing the word 'tort' at the
top of a claim release the buyer from the notice obligation in art 39 CISG and does it deprive the seller of
the defenses that the Convention provides?
As has been shown previously the considerations underlying the Convention are very different from the considerations
underlying product liability laws. In this section the considerations underlying the noticerequirements
in the Convention will be explored further, in conjunction with the issue of circumvention of
domestic product liability rules, in an effort to clarify what is at risk of being circumvented and in which situation
circumvention will have the most detrimental effect.
4.5.1. Considerations underlying art 39 CISG
According to art 39 CISG “the buyer loses the right to rely in a lack of conformity of the goods, if he does not
give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has
discovered it or ought to have discovered it. In any event, the buyer loses the right to rely on a lack of conformity
of the goods, if he does not give the seller notice thereof at the latest within a period of two years
from the date on which the goods were actually handed over to the buyer, unless this time-limit is inconsistent
with a contractual period of guarantee”.
Art 39 acts as the seller´s protection against a buyer, who calls into question a contract that has already
been completed, by placing the seller in a position in which he is given the possibility to remedy a lack of
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