Original scientific paper
Gap-filling mechanism in United Nations Convention on Contracts for International Sale of Goods and unification of law on international sale of goods
Nina Tepeš
; Faculty of Law, University of Zagreb, Croatia
Abstract
Article 7 of United Nations Convention on Contracts for International Sale of Goods deals with two important legal notions of the law of international sale of goods. Paragraph 1 states a general rule on interpretation of the Convention, while paragraph 2 contains a gap-filling mechanism. This paper discusses the application of the two paragraphs, particularly by referring to the arbitral case-law which uses UNIDROIT Principles of International Commercial Contracts for gap-filling, while disregarding differences between the Convention and the Principles (scope of application and differences in content). Namely, paragraph 2 prescribes a two-step mechanism for gap-filling which primarily applies general principles on which the Convention is based and in the case that there are no such principles, the applicable law is determined by conflict-of-laws rules. But a part of legal theory, as well as a part of legal practice indicates (by invoking the same provision) that gaps can be filled using the principles which should be deemed, with regard to the Vienna Convention, external sources, especially the UNIDROIT Principles. The paper explains the reasons against such a theory and practice (contrary to Art. 7, par. 2 of the Convention, contrary to the Principles whose application should be agreed upon, unjustified expansion of the Convention’s scope of application) and concludes that such a practice is dangerous for the international sale of goods and legal certainty upon which the parties rely.
Keywords
UN Convention on Contracts for the International Sale of Goods; unification of law on international sale of goods; UNIDROIT Principles of International Commercial Contracts
Hrčak ID:
93128
URI
Publication date:
3.5.2012.
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