Larry_A_DiMatteo_-_International_Sales_Law_A_Global_Challenge-Cambridge_University_Press_2014

This certainly accords with Roy Goode’s point that legal development in this field is dependent on a reeducation of the judiciary.52

The way Italian courts are applying foreign precedents is also very interesting, and shows the progress of the jurisconsultorium. In the first reported case, a lengthy justification is provided for why foreign cases should be consulted, and reference is made to a duty to look at foreign precedents under Article 7(1) CISG. In Tessile v. Ixela, the court stated that a foreign case “although not binding, is however to be taken into consideration as required by Article 7(1).”53 However, in more recent cases, foreign cases have been elevated alongside Italian precedents. The 2008 case Mitias v. Solidea cited a range of decisions from Switzerland, Austria, Germany, France, and the Netherlands on a variety of issues connected with the conformity of goods, notification, and remedies under the CISG.54 In this case, Italian and foreign cases are intermingled and referred to as “the jurisprudence.” The Mitias case illustrates decision making at its best – a court embracing the international character of the CISG and interpreting it as part of a global jurisconsultorium.

The developments and improvements in the use of the global jurisconsultorium are not limited to Italian courts. Since 2005, more CISG cases referring to foreign precedents have been reported. Most importantly, there is a wider variety of countries contributing to the body of reported jurisconsultorium cases. Examples can now be found in Australia, the United States, France, Germany, Italy, Serbia, Poland, Spain, and Switzerland. In 2005, The Netherlands Supreme Court, in the Gran Canaria Tomatoes case, referred to the UNCITRAL Digest and commentary of foreign case law.55

In 2007,56 the Supreme Court of Poland cited an Austrian Supreme Court decision in its analysis of the right to withhold performance under CISG Article 71. The Court stated that its view was “shared by some Contracting States’ courts. For example, the Austrian Supreme Court.” The Polish court did not feel it necessary to justify why the views of other contracting states’ courts were relevant. The Sport d’Hiver di Genevieve Culet v. Ets. Louys et Fils, Rheinland Versicherungen v. Atlarex, and Gran Canaria Tomatoes cases show a natural recourse to international precedents. This is a hopeful indication of the wider acceptability of using cases from foreign jurisdictions as persuasive sources to inform legal reasoning.

Nevertheless, despite the positive evidence of the rise in the number of CISG jurisconsultorium cases, overall, such cases are few. The statistical figures from 2005 indicated that fewer than 1.1% of reported CISG cases used the jurisconsultorium, while the

52See Roy Goode, “Reflections on the Harmonization of Commercial Law,” in Commercial and Consumer Law: National and International Dimensions (ed. Cranston and Goode) (Oxford University Press, 1993), 24–7. (“It is primarily by the spreading of awareness of foreign legal systems among our students that we can hope to accelerate the process of harmonization and to produce practitioners and judges of the future prepared to look beyond the horizon of their own legal system.”)

53District Court Pavia (Tessile v. Ixela), December 29, 1999, available at http://cisgw3.law.pace.edu/cases/ 991229i3.html.

54District Court of Forli (Mitias v. Solidea S.r.l.), December 11, 2008, available at http://cisgw3.law.pace. edu/cases/081211i3.html.

55Supreme Court (B.V.B.A. Vergo Kwekerijen v. Defendant), January 28, 2005, available at http://cisgw3. law.pace.edu/cases/050128n1.html.

56Supreme Court of Poland (Shoe Leather Case), May 11, 2007, available at http://cisgw3.law.pace.edu/ cases/070511p1.html.

proportion today is about 1.5%.57 This confirms the position that judicial resort to the jurisconsultorium is the exception rather than the rule.

V. Criteria for Judging CISG Case Law

Harry Flechtner makes the point that those in pursuit of uniformity should beware not to pursue it at any price. The principal goal is sound judgment, and we must establish a set of criteria for determining the persuasive weight of a foreign precedent.58 According to Flechtner, these criteria should include the authority of the court rendering the decision; the extent of agreement on the issue among other courts and tribunals; the level of experience the court has with international trade law; and the extent to which the foreign precedent complies with the guidelines of internationality, good faith, and uniformity. Given that the primary goals of UNCITRAL are “modernity,” “flexibility,” “clarity,” and “fairness,” such criteria are necessary to distinguish well-reasoned from poorly reasoned decisions. However, criteria aside, a court should not hesitate to consider foreign cases. As long as courts search foreign case law for inspirational guidance, and in the interests of rendering of autonomous interpretations, they are acting properly in avoiding homeward trend bias.

Sir Basil Markesinis, speaking generally on the use of foreign decisions, drew a biblical parallel, saying that the task of the comparative lawyer is to “probe everything and keep the best,”59 to find cases that can lend inspiration to a given problem.60 This kind of general freedom to explore case law, find analogous foreign decisions, and apply them in the interests of justice is the best overall framework for interpreting the CISG.61

Filip De Ly very cleverly distinguishes between foreign law and uniform law in his discussion of precedents, and makes the point that “uniform law is the law of the land” where it is applied through Article 1(1)(a) versus a CISG state applying its own international sales law via Article 1(1)(b).62 Professor De Ly’s distinction is correct, but courts are likely to consider foreign judicial interpretations of uniform law to be foreign law. However, if emphasis is placed on the notion of this case law being shared, it may even further accentuate the need to consider it at the level of the domestic court.

57For the present chapter, thirty-two cases from national courts and three from arbitral tribunals utilizing the jurisconsultorium have been identified, among the 2,294 cases reported on the CISG database at www. cisg.law.pace.edu.

58Harry Flechtner, “Recovering Attorneys’ Fees as Damages under the U.N. Sales Convention: A Case Study on the New International Commercial Practice and the Role of Case Law in CISG Jurisprudence, with Comments on Zapata Hermanos Sucesores, S.A. v Hearthside Baking Co.,” 22 Northwestern J. of Int’l L. & Bus. 121 (2002), available at http://cisgw3.law.pace.edu/cisg/biblio/flechtner4.html#iv.

59St. Paul, “Letter to the Christians in Thessalonia.”

60See Basil Markesinis, “Judicial Mentality: Mental Disposition or Outlook as a Factor Impeding Recourse to Foreign Law, Centenary Lecture of the Society of Comparative Legislation,” 80 Tulane L. Rev. 1325 (2006).

61Juergen Schwartze suggested another way to screen precedents – similarly broad and based on individual applicability – by reference to the “reasoning which the decisions . . . bring to bear on the problem at hand.” Juergen Schwartze, “The Role of the European Court of Justice (ECJ) in the Interpretation of Uniform Law Among the Member States of the European Communities (EC),” in International Uniform Law in Practice/Le droit uniforme international dans la pratique (Acts and Proceedings of the 3rd Congress on Private Law held by the International Institute for the Unification of Private Law, Rome, September 7–10, 1987) (ed. UNIDROIT) (Oceana Publishing, 1988), 193.

62See De Ly, “Uniform Interpretation: What Is Being Done?,” 357.

VI. Future of the Jurisconsultorium

On the whole – and concluding on an optimistic note – the CISG seems to be enjoying an international perspective in most domestic courts today. It can only be hoped that we are approaching an era where the notion of the CISG as a shared global law is more fully embraced. If this understanding develops, it will contribute to the autonomous uniform interpretation of the CISG.

Part II Interpretation and Use of the CISG

contributions on the methods of interpretation at the national law level4 and at the European level,5 there is scant literature on the methodological aspects for interpreting the CISG. A consensus on CISG interpretive methodologies would support the interpretative aims of Article 7(1) and the functioning of the CISG as a whole.6 In addition, the national courts have failed to develop autonomous interpretive methodologies for interpreting and applying the CISG. Instead, they predominantly apply national interpretative methods to the CISG.7

This chapter focuses on methodological issues relating to the interpretation of the CISG. The authors come from civil and common law backgrounds, so a degree of “methodological homeward trend” is likely to creep into the analysis.8 This chapter is not focused on the interpretative aims of the CISG, as enunciated in Articles 7(1) (international character, promotion of uniformity, good faith), 7(2) (general principles), 8 (party intent, reasonable person standard), and 9 (trade usage). The focus here is the development, or lack of development, of CISG interpretive methodologies.

The first part of the chapter will review “traditional” civil law methods used in the interpretation of statutes: (1) literal interpretation, (2) systemic interpretation, (3) historical interpretation, and (4) teleological or purposive interpretation. In addition, the relative ‘weight’ of these four methods and their appropriateness in interpreting the CISG will be analyzed. The second part will focus on further methodological tools for interpreting the CISG, including analogical reasoning, comparative law analysis, economic analysis, contextualism, use of scholarly commentary, reasoning from soft law, good faith interpretation, and interpretation from party-generated rules.

II. Traditional National Methods for Interpreting the CISG

This part examines the notion of common interpretive methodologies across national legal systems and the combining of them into a methodological blend to be used in the interpretation of the CISG.

A. Need for a “Blend” of Different National Methodologies

CISG Article 7(1) requires an autonomous interpretation of CISG rules. From this it follows that the applied method of interpretation within the sphere of application of the

4See Bydlinski, Juristische Methodenlehre und Rechtsbegriff, 2nd ed. (Vienna: Springer, 1991) (Austria); Bennion, Statutory Interpretation: A Code, 4th ed. (London: Butterworth, 2002) (England); Geny,´ Methode´ d’interpretation´ et sources en droit prive´ positif, 2 vols., 2nd ed. (Paris: F. Pichon et Durand-Auzias, 1919) (France); Larenz, Methodenlehre der Rechtswissenschaft, 6th ed. (Berlin: Springer, 1991) (Germany); Wiarda, Drie typen van rechtsvinding (Deventer: Tjeenk Willink, 1999) (Netherlands); Kramer, Juristische Methodenlehre, 2nd ed. (Berne: Stampfli,¨ 2002) (Switzerland); Dickerson, The Interpretation and Application of Statutes (Boston: Little, Brown, 1975) (United States); Eskridge, Dynamic Statutory Interpretation (Cambridge, MA: Harvard University Press, 1994) (United States); Hager, Rechtsmethoden in Europa (Tubingen: Mohr Siebeck, 2009) (comparative law perspective); Henninger, Europaisches¨ Privatrecht und Method (Tubingen: Mohr Siebeck, 2009) (same).

5See, e.g., Langenbucher, “Europaische¨ Methodenlehre,” in Europarechtliche Bezuge¨ des Privatrechts, 2nd ed. (Baden-Baden: Nomos, 2008), 3.

6Ulrich Magnus, “Tracing Methodology,” in Janssen and Meyer, CISG Methodology, 59 (“a uniform method of interpretation is indispensable in order to achieve and further the unification purpose of the Convention”).

7See Gruber, Methoden, 61.

8See Janssen and Meyer, foreword to CISG Methodology (methodological homeward trend).

CISG must be autonomous, too.9 Thus, an immediate, direct resort to national interpretive methodology would be inappropriate. As the CISG remains silent on how to reach autonomous interpretations,10 the question arises as to which methods of interpretations are appropriate to interpreting the CISG. Even though it is accepted that direct recourse by a judge to his or her own national methodology is prohibited, it is, however, acknowledged that the sum of the national methodologies are useable as an Erkenntnisquelle or “source of insight” and as an “aid to orientation” (Orientierungshilfe).11 The rationale for resorting to commonly used national methodologies is that they are international in nature because, taken as a whole, they all follow similar logical rules of reasoning.12 Assuming a “methodological minimum common understanding” among national laws, there is good reason to make use of this understanding in interpreting the CISG. However, it would be inappropriate for a court to use a single or idiosyncratic national methodology. The use of traditional national methodologies for interpreting the CISG derives from the principle of the Natur der Sache or “nature of things.”13 In the words of Professor Filip De Ly: “Uniform interpretation creates a new methodology in which different interpretation techniques from different legal traditions are being blended.”14 But what should such a “blend” of different national methodologies look like? What ingredients can be taken from national legal systems to create a useful international methodology for the interpretation of the CISG?

B. National Methodologies: A Summary

This section provides a brief summary of traditional national interpretive methodologies with a focus on civil law countries.15 The ancient roots of legal interpretive methodology – at least in continental Europe – can be found in Roman law.16 The reception of Roman law allowed for its interpretative rules to play an important role in the development of national methodologies. The Roman jurists developed “the fine art of law finding” as the interpretation of statutes under Roman law contained grammatical and systemic elements.17 However, the Romans never established a fully developed methodology to interpret legal statutes as are found in today’s Western legal systems.18

9Ferrari, “Article 7,” in Kommentar zum Einheitlichen UN-Kaufrecht, 5th ed. (ed. Schlechtriem and Schwenzer) (Munich: C.H. Beck, 2008); Gruber, “Legislative Intention and the CISG,” in Janssen and Meyer, CISG Methodology, 95.

10See Hager, Rechtsmethoden, 84.

11Gruber, Methoden, 67. See also Schwenzer and Hachem, “Article 7,” in Schwenzer, UN Convention (the national methods to be used for interpretation “may . . . help in interpreting the Convention, unless they conflict with the maxims of Article 7(1)”).

12Schwenzer and Hachem, “Article 7” (“their methods no longer fundamentally differ from each other”); van Alstine, “Dynamic Treaty Interpretation,” 146 U. Pa. L. Rev. 687, 740 (1998) (“substantial agreement”).

13Hager, Rechtsmethoden, 84.

14De Ly, “Uniform Interpretation: What Is Being Done? Official Efforts,” in The 1980 Uniform Sales Law: Old Issues Revisited in the Light of Recent Experiences (ed. Franco Ferrari) (Milan: Sellier, 2003), 344.

15See generally Hager, Rechtsmethoden; Henninger, Europaisches¨ Privatrecht, 45; Torsello, Common Features of Uniform Commercial Law Convention: A Comparative Study Beyond the 1980 Uniform Sales Law (Munich: Sellier, 2004), 157; Linhart, Internationales Einheitsrecht und einheitliche Auslegung (Tubingen: Mohr Siebeck, 2005), 33.

16See Zimmermann, “Europa und das romische¨ Erbe,” 202 Archiv fur¨ die Civilistische Praxis 243, 303 (2002).

17Hager, Rechtsmethoden, 12.

18Lundmark and Suelmann, “Der Umgang mit Gesetzen im europaischen¨ Vergleich,” 52 Zeitschrift fur¨ Rechtsvergleichung 173, 184 (2011); S. Vogenauer, Die Auslegung von Gesetzen in England und auf dem Kontinent, Vol. 1 (Tubingen: Mohr Siebeck, 2001), 433.

The foundation for the modern interpretative methodology in Germany was laid down by Friedrich Carl von Savigny in the early to mid-nineteenth century. Von Savigny developed the so-called Viererkanonlehre,19 which remains the most influential and leading methodology used in Germany to interpret statutes. It is because of the Viererkanonlehre that the Burgerliches¨ Gesetzbuch refrained from incorporating rules of statutory interpretation. The widely accepted traditional methodologies are grammatical or textual, historical, systemic, and teleological.20 Teleological interpretation can be divided into subjective-teleological and objective-teleological interpretation methodologies.21 Subjective-teleological interpretation is based on the uncovering of legislative intent at the time of drafting and to a certain extent overlaps with the historical interpretation method. The more widely used approach in Germany is the objective-teleological method, which looks at the intention of the article or statute in question and, lastly, at the intention of the whole legal system or a subpart, such as the law of obligations. The comparative law approach is sometimes seen as a “fifth interpretative method” for interpreting German law – as proposed by Konrad Zweigert22 and other scholars.23 However, it has so far not been accepted as an appropriate mainstream interpretive methodology.24 In addition, other nations of the German legal tradition, such as Austria (ABGB §§6, 7) and Switzerland (ZGB Article 1),25 also use the four aforementioned interpretative methods26 Further, comparable methods can be found in countries from the non-German, Roman legal tradition, such as Italy in Article 12 of the Disposizioni sulla legge in generale of the Codice civile of 194227 and Spain in Articles 3 and 5 of the Codigo´ civil of 1889.28 Even in countries, such as France, that do not expressly recognize a specific interpretative methodology, the four traditional methods are an important part of legal reasoning, but are often shrouded in different terminology.29

Larger differences in interpretive methodologies exist between the civil and common law systems. However, despite these differences, differences in terminology and approaches often mask the fact that the methodologies generally lead to the same or at least similar results. Unlike in the civil law’s statutory system, the common law of contracts is primarily the product of case law. Nonetheless, the starting point in English interpretation is similar to that of the continental European methodology – an

19Von Savigny, System des heutigen Romischen¨ Rechts, Vol. 1 (Berlin: Veit und Comp., 1840), 212.

20Henninger, Europaisches¨ Privatrecht, 54; Larenz, Methodenlehre der Rechtswissenschaft, 6th ed. (Berlin: Springer, 1991), 320.

21Hager, “Zur Auslegung des UN-Kaufrechts: Grundsatze¨ und Methoden,” in Festschrift fur¨ Huber zum 70 Geburtstag (Tubingen: Mohr Siebeck, 2006), 319, 322; Gruber, Methoden, 183.

22Zweigert, “Rechtsvergleichung als universelle Interpretationsmethode,” 15 Rabelszeitung 1, 8 (1949–50).

23See, e.g., Haberle,¨ “Grundrechtsgeltung und Grundrechtsinterpretation im Verfassungsstaat: zugleich zur Rechtsvergleichung als “funfter”¨ Auslegungsmethode,” Juristenzeitung 913, 916 (1989).

24See Janssen and Schulze, “Legal Cultures and Legal Transplants in Germany,” 19 European Rev. Private L. 224, 246 (2011).

25See Henninger, Europaisches¨ Privatrecht, 76, 100 (Austria and Switzerland). In Dutch law (1992 Nieuw Burgerlijk Wetboek), the four interpretative methods (spraakgebruik, systeem, wetsgeschiedenis, and ratio) are accepted and applied. Id., 176.

26In Switzerland, the comparative law approach is more commonly used as a fifth interpretative method. Also, some civil codes contain specific provisions on interpretation, such as those of Austria, Italy, and Spain. See S. Vogenauer, “Statutory Interpretation,” in Elgar Encyclopedia of Comparative Law (ed. Smits) (Cheltenham: Edward Elgar, 2006), 677, 682.

27See Henninger, Europaisches¨ Privatrecht, 168.

28Id., 149.

29Hager, “Zur Auslegung,” 322. See also Henninger, Europaisches¨ Privatrecht, 113 (Scandinavian countries).