The Futility of Unification and Harmonization in International ...

26Another problem that the UCC resolves but that the CISG does not involves open quantity andprice terms. Article 14(2) states that an offer must “make provision for determining the quantity andthe price,” but does not indicate whether leaving quantity open for the buyer (“requirements”) or53seller (“output”) or price to be agreed at a later date is a permitted practice. Article 55, which statesthat the parties who fail to state a price will pay the generally prevailing price at the time ofperformance, does not help in cases where the parties want to leave the matter for futurenegotiations. 54Finally, consider a fairly straightforward problem, namely the time of delivery in cases where theparties do not advert to the issue. Both the UCC and the CISG state that in the absence of an expressagreement, a course of dealing between the parties, or a customary industry practice, the seller must55deliver the goods within a “reasonable” time. One might argue that where the CISG duplicates thelanguage of national law, it neither adds nor subtracts from legal stability and risk management. Butif national law contains a body of practice and authority that refines the meaning of “reasonable” andgives the term some precision, decisionmakers must wrestle with the choice between using local lawto interpret the CISG and following CISG Article 7(1) admonition’s to promote “uniformity” amongnational interpretations. 56In all these examples, the CISG enhances, or at least does not restrict, the autonomy of thosepersons who must apply the Convention in subsequent disputes over international sales contracts.The decisionmaker often can choose to apply the CISG or not, given the ambiguities in theConvention’s coverage. Where it does choose to follow the Convention, the decisionmaker mayselect among a wide range of possible solutions to particular problems. This autonomy comes at thecost of predictability and hence increases the legal risk associated with a contract.Suppose, for example, that before adoption of the CISG the law of country A clearly permittedrequirements contracts, and the law of country B clearly regarded them as unenforceable. Legal riskwould exist to the extent that either country might gain jurisdiction over a dispute. But once thatissue were confronted, perhaps with a (possibly valid) choice-of-law or -forum clause, a course ofconduct that avoided any contact with either country A or country B, or by fatalistically acceptingthe possibility that the contract might fail, the parties would have covered all bases. Now supposeboth countries entered into the Convention. The parties would have to worry whether a court wouldapply the Convention to their agreement, if so whether a court would enforce their requirementscontract under the Convention, and if not whether the local law of country A or B would apply.Adding the CISG increases legal risk.This augmented legal risk might be desirable, of course, if it enhanced party flexibility or gavegreater sway for variances in risk preferences among potential parties. But this does not seem likely.53CISG Art. 14(2).54Id. Art. 55. See also Arthur Rosett, note 47 supra, at 288-89.55Compare CISG Art. 33(c) with UNIFORM COMMERCIAL CODE § 2-.56See CISG Art. 7(1). For a more general critique of the CISG’s interpretative rules, see Arthur Rosett, note 47 supra,at 286-88. For a defense of these rules, see Michael P. Van Alstine, Dynamic Treaty Interpretation, 146 U. PA. L. REV. 687(1998).