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Art. 76 CISG–UP, by Bruno Zeller [Australia]

Published online by Cambridge University Press:  20 October 2009

Bruno Zeller
Affiliation:
Senior Lecturer in Law, Victoria University Law School, Melbourne, Australia; Adjunct Professor of Law, Murdoch University, Perth
John Felemegas
Affiliation:
University of Technology, Sydney
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Summary

INTRODUCTION

It is true that both the UNIDROIT Principles and the Convention are instruments that can be used to assist in the interpretation of contracts if they address the same issues. Indeed the Preamble to the Principles states that they may be used to interpret or supplement international uniform law instruments. The ICC Court of Arbitration in Paris took advantage of this possibility in a case where no express choice of law clause was included in the contract. It referred to both Article 76 CISG and Article 7.4.6 of the UNIDROIT Principles as being relevant to assist in their deliberations. Arguably the tribunal was guided by the Official Comments on the UNIDROIT Principles, which included a direct reference to CISG Article 76:

The purpose of this Article, which corresponds in substance to Art. 76 CISG, is to facilitate proof of harm where no replacement transaction has been made …

However, it must also be remembered that the CISG is part of municipal law; that is, courts are obliged to use it when applicable. At best, the UNIDROIT Principles can be used by courts to assist where the provisions of the CISG are not clear. Furthermore, such assistance can only be considered if CISG Articles 7 or 8 have not produced a solution. It can be argued that if there is a gap in the CISG, then the UNIDROIT Principles should be consulted if possible to fill it before recourse to domestic law is taken.

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  • Art. 76 CISG–UP, by Bruno Zeller [Australia]
    • By Bruno Zeller, Senior Lecturer in Law, Victoria University Law School, Melbourne, Australia; Adjunct Professor of Law, Murdoch University, Perth
  • Edited by John Felemegas, University of Technology, Sydney
  • Book: An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law
  • Online publication: 20 October 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511511417.032
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  • Art. 76 CISG–UP, by Bruno Zeller [Australia]
    • By Bruno Zeller, Senior Lecturer in Law, Victoria University Law School, Melbourne, Australia; Adjunct Professor of Law, Murdoch University, Perth
  • Edited by John Felemegas, University of Technology, Sydney
  • Book: An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law
  • Online publication: 20 October 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511511417.032
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Art. 76 CISG–UP, by Bruno Zeller [Australia]
    • By Bruno Zeller, Senior Lecturer in Law, Victoria University Law School, Melbourne, Australia; Adjunct Professor of Law, Murdoch University, Perth
  • Edited by John Felemegas, University of Technology, Sydney
  • Book: An International Approach to the Interpretation of the United Nations Convention on Contracts for the International Sale of Goods (1980) as Uniform Sales Law
  • Online publication: 20 October 2009
  • Chapter DOI: https://doi.org/10.1017/CBO9780511511417.032
Available formats
×