The CISG’s Internatıonal Sphere of Applıcation, Party Autonomy and Some Interpretation Problems
Hüseyin Akif KaracaThe CISG is a treaty that aims to unify substantial law in international sales contracts. It regulates its own application sphere. According to these regulation, the CISG is applied to international sales contracts between parties whose business places are in different contracting states. In addition to this method of application, CISG can be applied to international sales contracts between parties in which at least one of the parties’ business place is not in a contracting state, through the reference of the forums’ conflict of laws rules to the law of a contracting state. The contracting states could make a reservation to the application of the CISG through this second method. The parties could also prevent the application of the CISG totally or partially based on the party autonomy that is provided to them by the CISG. This could be done through an explicit provision in the contract or through choice of the law of a non-contracting state. In this article, interpretation of the CISG provisions that regulates the application of the CISG through the conflict of laws rules of the forum and the effect of the reservation of the states to this kind of application, which has been subject to extensive doctrinal discussion, is analysed in detail. Prevantion of the CISG’s application based on the party autonomy provided to contracting parties by the CISG is also analysed in detail.
CISG’in Milletlerarası Uygulama Alanı, İrade Serbestîsi ve Bazı Yorum Meseleleri
Hüseyin Akif KaracaUluslararası satım sözleşmeleri alanında maddi hukukun yeknesaklaştırılması yönünde bir antlaşma olan CISG kendi uygulama alanını düzenlemektedir. Bu düzenlemelere göre işyerleri farklı akit ülkelerde olan taraflar arasındaki satım sözleşmelerinde CISG uygulanacaktır. Bu uygulama yöntemine ek olarak, taraflardan en az birinin işyeri akit ülkede değilse CISG forumun kanunlar ihtilafı kurallarının akit ülke hukukuna atıf yapması yoluyla uygulanabilecektir. Akit ülkelere CISG’in bu ikinci yöntem yoluyla uygulanabilmesine çekince koyma yetkisi tanınmıştır. CISG’in uygulanması aynı zamanda uluslararası satım sözleşmesinin taraflarına tanınan irade serbestîsi kapsamında tarafların anlaşması yoluyla bütünüyle veya kısmen engellenebilecektir. Bu engelleme sözleşmeye açık hüküm koyma yoluyla olabileceği gibi CISG’e taraf olmayan bir ülke hukukunun seçilmesi yoluyla da olabilir. Makalemizde, özellikle doktrinde yoğun tartışmalara konu olmuş forumun kanunlar ihtilafı kurallarının atfıyla CISG’in dolaylı uygulanmasının ve bu tür uygulamaya konulabilecek çekince hükmünün yorumu ayrıntılı bir şekilde incelenmektedir. CISG’in taraflara tanınan irade serbestîsi kapsamında uygulanmasının engellenmesi de makale kapsamında ayrıntılı incelenmektedir.
The CISG is an international treaty that creates uniform rules for international sales of goods. It has been ratified and applied by 89 states including Turkey, who represent all legal systems in the world. In this article, international application sphere of the CISG is analysed. In order to achieve this, some interpretation problems regarding indirect application of the CISG according to the Article 1 and the Article 95 reservation to indirect application is analysed in detail. The party autonomy principle situated in Article 6 is also analysed in detail. In terms of the CISG, a sales of goods contract is international when business places of the parties are in different countries. This should be understood either from the contract or from the negotiation stage of the contract. The CISG regulates its’ application sphere in Article 1. It applies to international sales of goods either when the business places of the parties are in different contracting states or when at least one of the parties’ business place is not in a contracting state and the conflict of laws rules of the forum refers to the law of a contracting state. The first type of application is named as direct application and the second type of application is named as indirect application since it applies through the conflict of laws rules of the forum. It should be mentioned that either direct application of the CISG or indirect application of the CISG and the effect of Article 95 reservation to indirect application can come into place in the courts of a contracting state. Since, it is the obligation of a contracting state under international law due to being party to the treaty. The courts of a noncontracting state can apply the CISG when their conflict of laws rules refer to the law of a contracting state. In this case, the CISG is applied as part of the law of that contracting state. The indirect application of the CISG had created concern to some contracting states that it would expand too much the application of the CISG. Therefore, a right to make a reservation to the indirect application is provided to the contracting states in Article 95. The reservation states do not obliged to apply the CISG under international law through indirect application. Although due to the increasing number of contracting states, the CISG has been applied through direct application and indirect application is very rare, Article 95 reservation has caused much doctrinal debate. As it is rightly explained in the CISG AC Opinion No 15, indirect application of the CISG comes into place due to the reference of the forum’s conflict of laws rules to the law of a contracting state. The CISG is applied since reference condition is met, it is not applied as part of the law of that state to whom reference is made. It is submitted that there is no need for a treaty provision that can be interpreted as latter type, since that kind of application is requirement of coflict of laws system of any country. Although Article 95 reservation removes obligation of a reservation state to apply the CISG through indirect application under international law, if coflict of laws rules of reservation state refer to the law of a contracting state, the CISG is applied as part of the law of that country. In this case, the CISG is applied as in the courts of the country that is not party to the CISG. In the courts of a non-reservation contracting state if the conflict rules of the forum refers to the law of a reservation state the CISG should be applied, since reservation does not remove the contracting status of that state. In the courts of a non-contracting states, if the forum’s conflict of laws rules refer to a contracting state’s law that makes reservation, the CISG should not be applied and domestic sales law of that country should be applied. Since, the judge should apply the foreign law as the judge of that country and the application conditions of the CISG is not met in that country. Article 6 of the CISG provides a right to the parties based on party autonomy principle. According to this article, parties to a sales contract can prevent the application of the CISG to their contract even the application conditions situated in Article 1 are met. This could be made either through a clear provision in their sales contract that states the CISG will not be applied to contract between them. They could also made this through choosing the law of a country who is not party to the CISG. The parties to a sales contract can also prevent the application of the CISG partially. This could be made also through clear provision or choosing the law of a third country who is not party to the CISG for that part of the contract. They can also regulate that subjects in the sales contract between them. Since the CISG provisions are not mandatory and primarily the provisions of the sales contract should be applied. The parties to the sales contract can also choose the CISG to be applied to their contract when the application conditions are not met. However, this is not a choice of law in state courts. Since the CISG on itself is not law of a state. This kind of choice can be regarded as incorporation and the CISG is applied as contract provisions. Therefore, the provisions of the CISG can be applied if they are not against the mandatory provisions of the applicable law.
