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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).
The kinds of questions that the CISG leaves open or reopens seem unrelated to the kinds of issuesthat parties might want to leave unsettled. The most one can argue is that the existence of CISGmight help in cases of fierce national hostility where parties would refuse to contract altogether unlessthey could avoid submitting to the other’s laws. In such cases, the Convention might a way out,albeit at the cost of considerable legal indeterminancy.If the CISG has an overall effect of increasing legal risk and does not seem to advance any othersubstantive social goal, what must remain in the way of potential benefits involves the creation of aclass of CISG specialists who will promote international sales through their mediation andinvolvement in these transactions. Since the Convention has been in force only for ten years, it maybe premature to ask whether it has produced such a cadre, and if so whether their existence promotesinternational sales in spite of legal indeterminancy. But some skepticism seems in order.Before the adoption of the CISG, we had specialists in comparative law and internationalcommercial arbitration, both of which may add value to transactions. The CISG may diminish, butdoes not destroy either area of expertise. Whatever the reasons prompting the United Kingdom, thecountry with the oldest and richest body of case law governing international sales transactions (anda specialist court in London set up to apply it) and Japan, with perhaps the most distinct (and leasttransparent) body of applicable law, to hold out from the CISG system, the continuing incompletenessof the system will mean that the need to master commercial arbitration and comparative law willremain with us for some time. Why we also need CISG specialists then becomes unclear.How, then, should we assess the CISG? We have good reason to suspect that the good thingsit does, especially in providing a way around nationalist preferences in contract law, do not explainwhy so many states have adopted it. The costs from increased legal risk seem more than sufficientto offset the desirable aspects of the Convention. One then must speculate what other, less generalbenefits flow from its adoption. Given that the CISG seems to produce no particular return todiscrete groups, other than to legal specialists involved in its development, we must suspect that theConvention may exist primarily because those involved in its production, especially in the WorkingGroup, preferred an agreement that offended no one to no instrument at all.This claim, if true, does not impeach the motives of those who worked on the CISG or suggestthat unification projects of the type it represents necessarily harm the world economy. Rather, onecomes away with the sense that the Convention inflicts no great injuries, but also seems a somewhathollow accomplishment. Perhaps the process that produced it may serve as a model for serious andsustained international cooperation in other, more difficult areas, and perhaps those who took partcame away with intellectual insights that they then could employ to the benefit of local contract law.But it seems hard to shake off a sense that the game hardly seems worth the candle, at least if onewishes substantially to improve the legal environment for international transactions. There must bea better way of doing this.27
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