Fundamentals: The United Nations Convention on Contracts for the International Sale of Goods

Verfasst von Samira Penner

Application of the CISG

The lack of a universally accepted international private law regime has long complicated cross-border trade. Parties often spend considerable time negotiating the applicable law of their contract. A notable attempt to establish internationally accepted rules for cross-border sales was the United Nations Convention on Contracts for the International Sale of Goods (CISG), adopted in Vienna in 1980. The Convention has been and continues to be ratified by major industrial and trading nations, but in practice has gained only limited significance in international business.

The decisive question is in which cases the Convention applies and must therefore be taken into account by the contracting parties. First of all, The CISG only applies to international (i.e., cross-border) sales contracts. In addition, the applicable law chosen by the parties must be the law of a nation that has ratified the Convention. Where the CISG applies, it takes precedence over national private law. This means that, for any disputed issue not regulated by the contract itself, the CISG must first be consulted. Only if the CISG does not provide a solution does national private law apply as a secondary source — regardless of whether the parties actually intended that outcome. In practice, this system causes more confusion and uncertainty than clarity.

Practical Challenges

Two factors have limited the Convention’s usefulness in practice. First, the CISG does not provide a level of detail comparable to established national legal systems such as the German Civil Code or English case law. As a result, national law must be used to interpret and supplement the Convention. Second, the CISG does not establish a supranational court. Its provisions are therefore applied and interpreted by national courts, which can lead to diverging outcomes across jurisdictions.

This combination — limited scope within the Convention itself and inconsistent national interpretations — means that legal uncertainty and fragmentation of international law will remain for the time being. It is therefore difficult to speak of a truly “uniform” law. Instead of creating a unified international regime, the CISG often results in multiple “national versions” of the Convention.

Recommendation: Excluding the CISG

Can a contract still avoid these problems? Fortunately, Article 6 of the Convention permits the parties to exclude its application partially or entirely. A common exclusion clause is:

„This contract, and all questions concerning its performance, validity, and interpretation shall be governed by the law of the Federal Republic of Germany. This contract shall not include, incorporate or be subject to the provisions of the “United Nations Convention on Contracts for the International Sale of Goods.“

Alternatively, the parties can exclude the Convention by choosing the law of a non-signatory state. At present, expressly opting out is generally recommended for reasons of practicality and legal certainty.

Print Sources

  • Pinnells, James / Eversberg, Arndt: Internationale Kaufverträge optimal gestalten. Leitfaden mit zahlreichen Musterklauseln. 3rd ed., C.H. Beck, Munich, 2021.

  • United Nations Convention on Contracts for the International Sale of Goods (1980), Vienna.

  • Schlechtriem & Schwenzer, Commentary on the UN Convention on the International Sale of Goods (CISG), Oxford University Press.

  • Ingeborg Schwenzer, The CISG – A Success Story, The Vindobona Journal of International Commercial Law and Arbitration, 2005.

Online Sources:

Samira Penner
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Fundamentals: Legal Families and Applicable Law