INTRODUCTION

CISG Article 6 lays down the general rule that the Convention applies to international contracts of sale of goods, subject to a contrary agreement by the parties. Its counterparts in PECL Articles 1:102 and 1:103 likewise address the principle of freedom of contract and its limitations, but differ from CISG Article 6 in several respects. These differences primarily follow from the different legal nature of the two sets of rules – whereas the CISG in its Contracting States forms part of the substantive law that the courts have to apply (lex fori), the applicability of the PECL in general requires an agreement of the parties to submit their contract to the Principles (PECL 1:101). However, these differences also reflect the different approaches adopted by the drafters of the CISG and the PECL to the limitations to the freedom of contract, in particular those limitations arising from so-called mandatory rules of law. As a consequence, the use of PECL Articles 1:102 and 1:103 as an aid to interpret CISG Article 6 is subject to several important caveats discussed below.

FREEDOM OF CONTRACT UNDER THE CISG AND THE PECL

The principle of freedom of contract, one of the basic principles underlying the international law of contracts in general, has been recognized by both the drafters of the CISG and of the PECL. The wording of CISG Article 6 and PECL Article 1:102(2) is in fact quite similar, and the prominent position of both provisions among the first articles in the Convention and the PECL illustrates the important role of the parties' autonomy.