Applicability of CISG and Limitation Convention via rules

Applicability of CISG and Limitation Convention via rules of private international law: The withdrawal of Czechia’s declarations and its effects Prague, 24 March 2017 Professor Dr. Ulrich G. Schroeter

Overview I. Introduction II. Applicability of CISG and Limitation Convention via ‘rules of private international law’ III. The declaration against the Conventions’ applicability via rules of private international law IV. The withdrawal of the declaration: What effects does it have? V. Conclusion Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 2

Applicability of CISG and Limitation Convention via ‘rules of private international law’ 1. Preliminary remark: Sphere of application of the CISG and the Limitation Convention 2. Articles 1(1)(a) and 1(1)(b) of the CISG compared Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 3

Articles 1(1)(a) and 1(1)(b) of the CISG compared Article 1 of the 1980 Sales Convention (CISG) (1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States: a) when the States are Contracting States; or b) when the rules of private international law lead to the application of the law of a Contracting State. (2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract. (3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention. Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 4

Articles 1(1)(a) and 1(1)(b) of the CISG compared Article 3 of the 1980 Limitation Convention (1) This Convention shall apply only a) if, at the time of the conclusion of the contract, the places of business of the parties to a contract of international sale of goods are in Contracting States; or b) if the rules of private international law make the law of a Contracting State applicable to the contract of sale. (2) This Convention shall not apply when the parties have expressly excluded its application. Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 5

Articles 1(1)(a) and 1(1)(b) of the CISG compared Article 1 of the 1980 Sales Convention (CISG) (1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States: a) when the States are Contracting States; or b) when the rules of private international law lead to the application of the law of a Contracting State. (2) The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between, or from information disclosed by, the parties at any time before or at the conclusion of the contract. (3) Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention. Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 6

Articles 1(1)(a) and 1(1)(b) of the CISG compared Article 95 of the 1980 Sales Convention (CISG) Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1)(b) of article 1 of this Convention. Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 7

The declaration against the Conventions’ applicability via rules of private international law 1. Historical background of Article 95 of the CISG 2. Use of the declaration by CISG Contracting States 3. Effects of an Article 95 declaration and resulting uncertainty Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 8

Historical background of Article 95 of the CISG Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 9

The declaration against the Conventions’ applicability via rules of private international law 1. Historical background of Article 95 of the CISG 2. Use of the declaration by CISG Contracting States 3. Effects of an Article 95 declaration and resulting uncertainty Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 10

Article 95 of the CISG declaration States Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 11

The declaration against the Conventions’ applicability via rules of private international law 1. Historical background of Article 95 of the CISG 2. Use of the declaration by CISG Contracting States 3. Effects of an Article 95 declaration and resulting uncertainty Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 12

Effect of an Article 95 declaration and resulting uncertainty Article 1 of the 1980 Sales Convention (CISG) (1) This Convention applies to contracts of sale of goods between parties whose places of business are in different States: a) when the States are Contracting States; or b) when the rules of private international law lead to the application of the law of a Contracting State. (2) – (3) […] Article 95 of the 1980 Sales Convention (CISG) Any State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1)(b) of article 1 of this Convention. Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 13

The withdrawal of the declaration: What effects does it have? 1. Withdrawing declarations under the CISG: A general trend 2. Effects of Czechia’s withdrawal of its declarations a) Under treaty law b) In practice c) On international policy Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 14

Overview I. Introduction II. Applicability of CISG and Limitation Convention via ‘rules of private international law’ III. The declaration against the Conventions’ applicability via rules of private international law IV. The withdrawal of the declaration: What effects does it have? V. Conclusion Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law 15

Thank you for your attention. Professor Dr. Ulrich G. Schroeter University of Basel, Faculty of Law Peter Merian-Weg 8, CH-4002 Basel Switzerland Tel. +41 61 207 58 41, Fax +41 61 207 25 48 ulrich. schroeter@unibas. ch, mail@ulrichschroeter. com www. ulrichschroeter. com