CROSS-BORDER SALES
The CISG
Which law should be chosen
for matters
not covered by the CISG
Rechtsanwalt
Prof. Dr. Piltz
www.brandi.net
© Prof. Dr. Burghard Piltz
CISG applies in particular:
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formation of the contract, 4
incorporation of general terms and conditions
form and modification of contracts, 11, 29, unless reservation, 96
meaning of „writing“, 13
rights and obligations of the seller and the buyer, 4
primary obligations, risk allocation,
impairment of the performance of obligations
 matters governed by the CISG, but not expressly settled, 7
 burden of proof, evidence
autonomous and paramount application of CISG
national law is irrelevant
© Prof. Dr. Burghard Piltz
CISG does not apply in particular:
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validity of the contract or any of its provisions, 4a
material validity of standard terms and conditions
effect on the property in the goods, 4b
liability for death or personal injury caused by the goods, 5
limitation of actions
set-off
interest rate on sums in arrears
assignment of receivables
penalties
application
of other
set of rules
© Prof. Dr. Burghard Piltz
Transnational Set of Rules:
 UNIDROIT - Principles
of International Commercial Contracts (PICC)
 Principles of European Contract Law (PECL)
 European Contract Law (DCFR)
 Lex Mercatoria
However:
 Art. 3 Rome I-Regulation does not allow to choose a
non-state law
 depending on the applicable Private International Law
© Prof. Dr. Burghard Piltz
Private International Law:
 party reference, eg Art. 3 Rome I-Regulation
 no limitation provided the contract is international
 requirements of a valid choice of law clause
However:
 Rome I-Regulation applies only in 26 European states
 each state has his own Private International Law (PIL)
 some PILs do not permit party reference
 different approaches regarding the requirements of a valid
choice of law clause
 certain issues not governed by the chosen law
 overriding rules
© Prof. Dr. Burghard Piltz
 period of limitation including interruption of the running
in particular regarding the remedies in case of delivery of non-conforming goods
 material validity of standard terms and conditions
 limitation of liability
 action directe or third party claims / concurring causes of action
 statute of frauds or formal requirements
 penalty
 assignment of receivables
© Prof. Dr. Burghard Piltz
 „fragmentary character“ of the CISG no argument against it
 applicable law regarding issues not covered by the CISG should
be reflected
 transnational set of rules helpful provided that the applicable PIL
permits to choose them
 1st level selection: applicable Private International Law
 2nd level selection: applicable national law provided that PIL
permits party reference
 practicioner`s suggestion: arbitration and Swiss law attractive
© Prof. Dr. Burghard Piltz