Drafting Contracts Under the CISG

The CISG is the United Nations Convention on Contracts for the International Sale of Goods; a treaty ratified by about 70 countries that provides a uniform international sales law. The occasion of the CISG's 25th anniversary signals something extremely significant in the world of international commercial law: the true coming of age of the CISG, as evidenced by (and as a result of) several thousand available court and arbitration decisions world-wide applying the CISG. To celebrate this occasion, in November 2005, a conference was organized by the University of Pittsburgh's Center for International Legal Education and the United Nations Commission on International Trade Law (UNCITRAL). This publication brings together the intellectually sophisticated yet extremely practical and original contributions written by leading CISG scholars from around the globe and practitioners experienced in dealing with the CISG. Included are 140 sample clauses, a complete model sales agreement, and contextual analysis of contract drafting issues. The CISG is a new realty and is very relevant to US attorneys at the planning and negotiation stages of a sales transaction. It is increasingly the case that a lawyer in the US, or virtually anywhere else, cannot adequately serve a client's needs without knowledge of and skill in using the Convention to help, for example, prevent transactions from aborting over choice of law conflicts, and to offer creative alternatives that can resolve bargaining impasses. This book features: BL Comprehensive analysis of contract drafting issues raised by the CISG BL A complete set of standard terms and conditions for a sales contract BL A wide variety of sample clauses addressing important specific issues under the CISG, with accompanying analysis of matters implicated by those clauses that should be considered in the drafting process BL Original and clearly written contributing chapters by the most noted and eminent scholars on the CISG from around the world In this book, international commercial lawyers will find sample clauses dealing with major contract issues under the CISG, including: BL opting into the CISG while providing an appropriate gap-filling source of law BL passage of risk of loss BL right to inspection of goods BL force majeure BL warranties and warranty disclaimers BL limitations on remedies BL choice of forum BL pre-contractual relationships and prior communications BL confidentiality of negotiations BL retention of the power of revocation of an offer BL strict time limits for acceptance of an offer BL the "battle of the forms" BL the law governing contract validity BL parole evidence BL party rights upon breach BL notice requirements to preserve rights BL notice of avoidance BL entitlement to interest BL specific performance versus damages BL buyer's right to substitute goods

Table of Contents:
PART I: SAMPLE AGREEMENT AND CLAUSES CISG: Taking the Leap into Drafting Sample Agreements of Installment Sale and Purchase PART II: THE CISG CHALLENGE IN DRAFTING CONTRACTS 1.: 25 Years of the United Nations Convention on Contracts for the International Sale of Goods 2.: A Comparative Perspective of the CISG PART III: GENERAL CONTRACT DRAFTING ISSUES: CHOOSING THE CISG (OR NOT): CHOOSING THE FORUM; CHOOSING SUPPLEMENTARY LAW 3.: Choice of Law and the CISG: Opting In and Opting Out 4.: Choice of Forum and CISG: Remarks on the Latter's Impact on the Former 5.: A New Role for Litigation in CISG Contracts: The 2005 Hague Choice of Court Convention 6.: 25 Years of the CISG: An International lingua franca for Drafting Uniform Laws, Legal Principles, Domestic Legislation and Transnational Contracts PART IV: BUSINESS ECONOMICS OF DRAFTING FOR THE CISG 7.: Preliminary Agreements and CISG Contracts 8.: The Business Layers Perspective 9.: The CISG: Perspectives from an Economist PART V: SPECIFIC CONTRACT DRAFTING ISSUES: FORMATION 10.: Contract Formation: UCC and CISG 11.: CISG Articles 14-24 12.: Addressing Parol Evidence Issues in Contracts Governed by the CISG PART VI: SPECIFIC CONTRACT DRAFTING ISSUES: PERFORMANCE 13.: TOOLING UP FOR WARRANTIES WITH THE CISG CASE DIGEST 14.: Force Majeure and CISG Article 79: Competing Approaches and Some Drafting Advice 15.: Delivery Terms and the Passing of Risk: Drafting Clauses Related to CISG Articles 66-70 PART VII: SPECIFIC CONTRACT DRAFTING ISSUES: BREACH AND REMEDIES 16.: Drafting Contracts to Deal with Insecurity and Prospective Breach (Articles 71, 72, 73(2)) 17.: Dealing with Non-ConformityA Transaction Test Analysis of CISG Regulations on Examination and Notice under Articles 38-44 18.: Delays in Performance Under CISG 19.: Dealing with Avoidance and Its Consequences: Articles 49(2), 64(2), and 81 thru 88 20.: The UNCITRAL Digest, the Right to Interest, and the Interest Rate Controversy 21.: Liquidated Damages, Specific Performance Clauses, Limitations on Remedies, and Attorneys Fees PART VIII: APPENDIX United Nations Convention on Contracts for the International Sale of Goods

About the Author :
Harry M. Flechtner, Editor Professor of Law, University of Pittsburgh School of Law Harry M. Flechtner is professor of international and domestic commercial law at the University of Pittsburgh School of Law, where he joined the faculty in 1984 after three years of private law practice in Washington, D.C. He is the first four-time recipient of the Excellence in Teaching Award from the Student Bar Association at the University of Pittsburgh Law School, and he has received the Chancellor's Distinguished Teaching Award from the University of Pittsburgh. He has authored a variety of books, articles and chapters on commercial law topics, with special emphasis on international sales law, and has been cited by the Solicitor General of the United States as one of the leading academic authorities on the [United Nations Sales] Convention. He received his J.D. (cum laude) from Harvard Law School, an M.A. in English and American Language and Literature from Harvard University, and an A.B. (magna cum laude) from Harvard College. Professor Flechtner is one of two National Correspondents for the United States to the United Nations Commission on International Trade Law (UNCITRAL), and was one of five experts appointed by UNCITRAL to prepare the initial draft of the UNCITRAL Digest of Case Law on the United Nations Convention on the International Sale of Goods. He co-organized, with Professor Brand, three major symposia on the United Nations Convention on Contracts for the International Sale of Goods (CISG). Ronald A. Brand, Editor Professor of Law and Director of the Center for International Legal Education, University of Pittsburgh School of Law Ronald A. Brand is Professor of Law and Director of the Center for International Legal Education at the University of Pittsburgh School of Law. He received his B.A. from the University of Nebraska and his J.D. from Cornell Law School. He regularly teaches courses in International Business Transactions, International Trade Law, and Transnational Litigation, as well as an Introduction to American Law course for foreign law students. His books include Fundamentals of International Business Transactions (Kluwer International Publishers 2000), International Civil Dispute Resolution (with Baldwin, Epstein, and Gordon; West 2004), Beyond the Draft UNCITRAL Digest (with Ferrari and Flechtner; Sellier 2004), and Private Law, Private International Law, & Judicial Cooperation in the EU-US Relationship, (West 2005). Professor Brand was a member of the U.S. Delegation to the Special Commission and Diplomatic Conference of The Hague Conference on Private International Law that concluded the 2005 Convention on Choice of Court Agreements. He is a past-Chairperson of the Interest Group on International Economic Law of the American Society of International Law, a former Fulbright Scholar in Belgium, and a former Fellow of the Institute of Advanced Studies at the University of Bologna. Professor Brand has been the organizer of four major symposia on the United Nations Convention on Contracts for the International Sale of Goods (CISG). Mark S. Walter, Editor Chief of Party, USAID Doha WTO Accession Project Mark S. Walter currently heads the U.S. Agency for International Development Doha Project for WTO Accession in Ethiopia, a project implemented by Booz, Allen Hamilton. Mr. Walter is a trade lawyer with experience in ten different countries implementing and leading legal education and capacity building programs with a focus on international commercial law. He has served as Assistant Director for the Center for International Legal Education at the University of Pittsburgh, as an Adjunct Professor of Law and as International legal consultant specializing in contract law. Mr. Walter has extensive experience working with nascent legal communities in complying with international agreements and sharing lessons learned from around the world. His experience developing commercial law and international legal education reform programs includes extensive work in Eastern Europe, including Ukraine, Serbia, and Kosovo. Most recently, he participated in a USAID sponsored Commercial, Legal, Institutional Reform and Trade Assessment of Ethiopia, designed to guide government and donors in interventions that support the enabling environment for economic growth. EMINENT CONTRIBUTORS: The list of contributors is a who's who of the most eminent CISG scholars: Volker Behr, University of Augsburg School of Law Michael Bridge, University College London School of Law V. Susanne Cooke, Cohen & Grigsby, PC Vivian Grosswald Curran, University of Pittsburgh School of Law Johan Erauw, University of Ghent School of Law Franco Ferrari, University of Verona School of Law Alejandro M. Garro, Columbia Law School Henry Deeb Gabriel, Loyola University of New Orleans School of Law Kenneth Lehn, Katz Graduate School of Business, University of Pittsburgh Joseph Lookofsky, University of Copenhagen, School of Law Ulrich Magnus, University of Hamburg School of Law John E. Murray, Jr., Duquesne University School of Law Alejandro Osuna-Gonzalez, Iberoamericana University Pilar Perales Viscasillas, University Carlos III of Madrid School of Law Sandra Saiegh, United Nations Procurement Service Peter H. Schlechtriem, Albert-Ludwigs-Universität Freiburg Jernej Sekolec, Secretary, UNCITRAL Marco Torsello, University of Bologna School of Law Michael P. Van Alstine, University of Maryland School of Law