MEMORANDUM FOR CLAIMANT

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Rheinische Friedrich-Wilhelms-Universität Bonn al/Magnus, Art. 6, note 20; Schlechtriem et al, Art. 6 note 13]. The parties have to indicate their intention in an objectively recognizable way [Schlechtriem et al, Art. 6 note 16]. A choice of law clause in an international sale of goods contract that selects the law of a Contracting State means that the CISG applies to the contract and not the domestic law of the Contracting State unless the domestic law is referred to in particular in the clause. This is the rule supported and applied by the overwhelming majority of national courts, arbitral Tribunals and scholars around the world [BGH, 25 November 1998 (Germany); BGH, 23 July 1997 (Germany); Kantonsgericht Nidwalden, 3 December 1997 (Ch); Assante Technologies, Inc. v. PMC-Sierra, Inc. (U.S.); Sté Ceramique Culinaire de France v. Sté Musgrave Ltd. (Fr); ICC Court of Arbitration, 8324/1995; 7844/1994; 7656/1994; 6653/1993 (Fr); Schiedsgericht der Handelskammer Hamburg, 21 March 1996 (Germany); Int. Schiedsgericht der Bundeskammer der gewerblichen Wirtschaft – Vienna, 15 June 1994 (Austria); for further reference cf. UNCITRAL digest of CISG article 6 case law, para. 8; Honnold et al, Art. 77 note 1; Staudinger et al/Magnus, Art. 6, note 24 et seq.; Schlechtriem et al, Art. 6 note 16; Bonell/Liguori, ULR 1997, p. 392; Drago/Zoccolillo, The Metropolitan Corporate Counsel 2002, p. 9]. 44. The rule is also supported by legislative history. It corresponds to the intention of the majority of delegations at the Vienna Conference. During the Conference, a large number of delegations rejected proposals by Canada and Belgium [A/CONF.97/C.1/L.45] suggesting that the domestic sales law, and not the Convention, would have to be applied whenever the parties chose the law of a Contracting State for their contract [Official Records, p. 250]. Therefore, it is generally agreed that the CISG applies if the parties simply chose the law of a Contracting State. 45. According to these requirements, reference to the “commercial law of Equatoriana” in general was not sufficient to exclude the application of the CISG. One generally accepted way of an implied exclusion of the CISG is making reference to a certain (domestic) codification, such as the U.C.C. or any other national commercial code [Assante Technologies, Inc. v. PMC-Sierra, Inc. (U.S.); Staudinger et al/Magnus, Art. 6, note 30; Schlechtriem (2 nd ed.) et al, Art. 6 note 14]. However, since there is no formal field of commercial law in Equatoriana [Procedural Order No. 2, Clarification No. 35] reference simply to the “commercial law of Equatoriana” is by no means comparable to cases where the parties refer to a certain commercial code. 17
Rheinische Friedrich-Wilhelms-Universität Bonn 46. Furthermore, interpretation of the choice of law clause pursuant to Art. 8 CISG shows that it cannot reasonably be understood as an exclusion of the CISG. The “commercial law” of Equatoriana covers various kinds of transactions [Procedural Order No. 2, Clarification No. 35; cf. Art. 1 Model Law, note 2: “the term ‘commercial’ should be given a wide interpretation so as to cover matters arising from all relationships of a commercial nature”]. Accordingly, applying the standards for interpretation as set forth in Art. 8(2) CISG, one has to consider that a reasonable person would understand “commercial law of Equatoriana” in a very broad sense. This understanding of the term “commercial law” in Equatoriana is significant as well as the fact that the CISG is the part of the commercial law of Equatoriana governing international sale of goods [cf. para. 42]. Especially in the context of an international sale of goods contract, a reasonable person could only understand the reference to the “commercial law of Equatoriana” as including the CISG. Since the choice of law clause was not a negotiated term [Procedural Order No. 2, Clarification No. 30], there is no indication of a different understanding of the clause by either of the parties. Thus, interpretation according to Art. 8 CISG confirms that the choice of law clause does not amount to an implied exclusion of the CISG. 47. Further supporting this conclusion, recent case law shows that strong requirements have to be met with respect to a clear indication in the choice of law clause that the parties intended to opt out of the CISG. In Assante Technologies, Inc. v. PMC-Sierra, Inc. [U.S.], the court held that even the choice of the law of one region of a Contracting State (“the laws of the State of California”) does not suffice to presume the exclusion of the CISG. It stated that in the absence of clear language indicating that both contracting parties intended to opt out of the CISG the contention that the choice of law of a Contracting State precludes the applicability of the CISG has to be rejected. This decision manifests the tendency to resolve any doubts in favor of the applicability of the CISG. This tendency corresponds to the ratio of Art. 6 CISG, which was intended to discourage exclusion of the CISG by implication [Secretariat Commentary, p. 44; Ziegel/Samson, Art. 6]. 48. Finally, one cannot draw a different conclusion from the fact that the law of Equatoriana (and thus the CISG) would have to be applied even without the choice of law clause. In practice, contracts often contain clauses of pure declaratory nature. Especially if there is a constellation that could give rise to doubts as to the applicable law, parties may wish to clarify which law applies. In the case at hand where buyer and seller have their places of business in 18
Page 1 and 2: On Behalf of TENTH ANNUAL WILLEM C.
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MEMORANDUM FOR CLAIMANT

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