Abstract
This chapter examines the often-cited distinction between private international law and public international law in the context of the UN Convention on Contracts for the International Sale of Goods (‘CISG’). The traditional view holds that private and public international law are separate bodies of law that exist independently of each other. This chapter refutes that view as being constraining and unhelpful. Jurists need a nuanced understanding of the intersectionality of private and public international law to assist them in solving legal problems that contain both dimensions. Such problems occur when public laws or regulations are used by private parties as grounds for invoking private law, such as Article 79, to excuse contractual non-performance. Using the primarily doctrinal methodology, the historical record on the creation of the CISG, and case law on Article 79, it examines select provisions of the CISG to demonstrate how private and public international law intersect in complementary and co-dependent ways. It finds that while the private–public law dimensions within the CISG are separate and distinct, they interact in a manner that resembles a symbiotic relationship and dualistic persona. Understanding this complexity helps to facilitate solutions to cross-border conflicts that contain both public and private law elements.
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Notes
- 1.
Cheshire (4th edn, 1952), p. 16.
- 2.
In the next edition of his book Cheshire changed his mind. He qualified his earlier view by stating: ‘It would, of course, be a fallacy to regard Public and Private International Law as totally unrelated’. (5th edn, 1957).
- 3.
United Nations, Convention on Contracts for the International Sale of Goods (CISG) (1988).
- 4.
Sometimes the order of words is changed, and the term is referred to as ‘international private law’; it is also known in certain legal circles by the term ‘conflict-of-laws’.
- 5.
By ‘national law’ I mean purely domestic law, such as, for example, the UK Sale of Goods Act 1979 or the American Uniform Commercial Code.
- 6.
Of course, it must be recognised that any ‘international’ law, such as the CISG, must be adopted into national law to take affect and to govern sale of goods transactions between parties of different states.
- 7.
Ford (2013), p. 3.
- 8.
CISG, cit. at footnote n. 3, Article 1(1).
- 9.
Honnold (1999), pp. 37–38.
- 10.
United Nations (1981), p. 229. The delegate was from the former state of Czechoslovakia.
- 11.
Ibid.
- 12.
It states: ‘Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.’ CISG, cit. at footnote n. 3.
- 13.
Ibid.
- 14.
Franco Ferrari (2018), p. 92.
- 15.
CISG, cit. at footnote n. 3, Part II and Part III.
- 16.
Ibid, Article 94.
- 17.
United Nations (1981), cit. at footnote n. 10, p. 436. Accordingly, Denmark, Finland, Iceland, Norway and Sweden declared that the Convention would not apply to contracts of sale or to their formation where the parties have their places of business in any of those countries.
- 18.
A current list of contracting states that have made Article 94 reservations, as well as other reservations under the CISG, can be found at United Nations Commission on International Trade Law (UNCITRAL) <http://www.uncitral.org>.
- 19.
CISG, cit. at footnote n. 3, Article 11.
- 20.
Ibid, Article 12.
- 21.
Peter Winship (1990), p. 711.
- 22.
This point is made by Honnold, cit. at footnote n. 9, para 103.2.
- 23.
CISG, cit. at footnote n. 3.
- 24.
United Nations (1980).
- 25.
Rostam J Neuwirth (2000), p. 57.
- 26.
Ibid.
- 27.
CISG, cit. at footnote n. 3, Article 79(1).
- 28.
‘CCPIT Guides Enterprises to Leverage Force Majeure Certificates, which Help to Maintain Nearly 60% Contracts’ (10 April 2020), online: China Council for the Promotion of International Trade <http://en.ccpit.org/info/info_40288117668b3d9b017163990e5a082a.html>. Accessed 9 March 2021. See also Berger and Behn (2019–2020), pp. 79–80.
- 29.
Ibid.
- 30.
‘Déclaration de M. Bruno Le Maire, ministre de l’économie et des finances, sur l’impact économique de l'épidémie de COViD-19, à Paris le 28 février 2020 (28 February 2020), online: Vie Publique <https://www.vie-publique.fr/discours/273763-bruno-le-maire-28022020-coronavirus> ; ‘Mesures d’accompagnement des entreprises impactées par le coronavirus (Covid-19)’ (28 March 2020), online: Direction générale de la concurrence, de la consommation et de la répression des fraudes <https://www.economie.gouv.fr/dgccrf/mesures-daccompagnement-des-entreprises-impactees-par-le-coronavirus-covid-19>. Accessed 9 March 2021. See also Berger and Behn, ibid.
- 31.
‘Iraq’s Crisis Cell extends curfew, announces additional measures to contain Covid-19’ (22 March 2020), online: Government of Iraq <https://gds.gov.iq/iraqs-crisis-cell-extendscurfew-announces-additional-measures-to-contain-covid-19/> . Accessed 9 March 2021.
- 32.
‘Iraq declares Covid-19 a force majeure for all contracts’ (1 April 2020), online: Offshore Technology <https://www.offshoretechnology.com/comment/iraq-covid-19-force-majeure-contracts/> . Accessed 9 March 2021.
- 33.
UK Cabinet Office, ‘Guidance on responsible contractual behaviour in the performance and enforcement of contracts impacted by the Covid-19 emergency’ (7 May 2020) at para 15(c), online: GOV.UK <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/883737/_Covid-19_and_Responsible_Contractual_Behaviour__web_final___7_May_.pdf> . Accessed 9 March 2021.
- 34.
Supreme People’s Court, Guiding Opinions (Part III), 8 June 2020, No. 20 [Guiding Opinions III], online: Institute of International Commercial Law, Pace Law Albert H Kritzer CISG Database <https://iicl.law.pace.edu/cisg/case/china-june-8-2020-supreme-peoples-court-guiding-opinion-2020>. Accessed 9 March 2021.
- 35.
Also referred to as ‘Guiding Cases’.
- 36.
Supreme People’s Court Monitor, Supreme People’s Court’s New Policy on Cross-border Commercial Issues and Covid-19, 19 June 2020, online: <https://supremepeoplescourtmonitor.com/2020/06/>. China is primarily a civil law country, so higher court precedents are not treated as binding on lower courts. Thus, when a court refers to a Guiding Opinion, it may quote it as a contributing reason for its decision, but it cannot cite it as the basis for the decision.
- 37.
Mazzacano (2014), pp. 123–124.
- 38.
Leclercq (1989), p. 238.
- 39.
Gerechtshof [Appellate Court, Netherlands] (UAB Ivabalté v Nederlandse Schapen- en Geitenfokkersorganisatie), 1 December 2020 [Dutch sheep case], online: Pace Law School CISG Database <https://iicl.law.pace.edu/cisg/case/netherlands-december-1-2020-gerechtshof-appellate-court-uab-ivabalte-v-nederlandse-schapen>. Accessed 8 March 2021.
- 40.
Many of the public and private law clashes at CIETAC, as discussed in this section, are documented in more detail in Mazzacano (2013a), pp. 195–200.
- 41.
CIETAC Arbitration Award, 7 August 1993 [CISG/1993/11] [Semi-automatic weapons case], online: Pace Law School CISG Database <http://cisgw3.law.pace.edu/cases/930807c1.html>. Accessed 9 March 2021.
- 42.
CIETAC Arbitration Award, 31 December 1996 [CISG/1996/58] [High carbon tool steel case], online: Pace Law School CISG Database <http://cisgw3.law.pace.edu/cases/961231c2.html>. Accessed 9 March 2021.
- 43.
Ibid.
- 44.
Ibid.
- 45.
CIETAC Arbitration Award, 4 February 2002 [CISG 2002/17] [Steel bar case], online: Pace Law School CISG Database <http://cisgw3.law.pace.edu/cases/020204c2.html>. Accessed 11 March 2021.
- 46.
Ibid.
- 47.
CIETAC Arbitration Award, 26 June 2003 [CISG 2003/10] [Alumina case], online: Pace Law School CISG Database <http://cisgw3.law.pace.edu/cases/030626c1.html>. Accessed 11 March 2021.
- 48.
CIETAC Arbitration Award, 17 September 2003 [CISG 2003/14] [Australia cotton case], online: Pace Law School CISG Database <http://cisgw3.law.pace.edu/cases/030917c1.html>. Accessed 11 March 2021.
- 49.
Alumina case, cit. at footnote n. 47.
- 50.
CIETAC Arbitration Award, 7 May 1997 [CISG/1997/11] [Sanguinarine case], online: Pace Law School CISG Database <http://cisgw3.law.pace.edu/cases/970507c2.html>. Accessed 11 March 2021.
- 51.
CIETAC Arbitration Award, 25 May 2005 [CISG 2005/09] [Iron ore case], online: Pace Law School CISG Database <http://cisgw3.law.pace.edu/cases/050525c1.html>. Accessed 11 March 2021.
- 52.
Landgericht [LG] [District Court] Ellwangen, 21 August 1995, 1 KfH O 32/95 [Spanish paprika case], online: Pace Law School CISG Database <http://cisgw3.law.pace.edu/cases/950821g2.html>. Accessed 11 March 2021. See Mazzacano (2013a), cit. at footnote n. 40 pp. 231–233 from which this material on the Spanish paprika case is extracted, See also Mazzacano (2013b).
- 53.
See CISG, cit. at footnote n. 3, Article 35.
- 54.
CISG, cit. at footnote n. 3, Article 25 states: ‘A breach of contract committed by one of the parties is fundamental if it results in such detriment to the other party as substantially to deprive him of what he is entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result’.
- 55.
CISG, cit. at footnote n. 3, Article 74 states:
-
Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract.
-
- 56.
CISG, cit. at footnote n. 3, Article 75 states: ‘If the contract is avoided and if, in a reasonable manner and within a reasonable time after avoidance, the buyer has bought goods in replacement or the seller has resold the goods, the party claiming damages may recover the difference between the contract price and the price in the substitute transaction as well as any further damages recoverable under article 74’.
- 57.
Spanish paprika case, cit. at footnote n. 52, para III A.
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Mazzacano, P. (2022). Public International Law Versus Private International Law: Competing or Complementary Intersectionality in the CISG?. In: Sooksripaisarnkit, P., Prasad, D. (eds) Blurry Boundaries of Public and Private International Law. Springer, Singapore. https://doi.org/10.1007/978-981-16-8480-7_10
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