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Judicial refusal to apply treaty law: domestic law limitations on the CISG’s application
Uniform Law Review  (IF),  Pub Date : 2017-06-01, DOI: 10.1093/ulr/unx025
Clayton P. Gillette, Steven D. Walt

In numerous cases, courts have declined to apply the United Nations Convention on Contracts for the International Sale of Goods in litigation where the parties have pleaded domestic law, notwithstanding that the underlying contract satisfies criteria necessary for the CISG to serve as governing law. Courts that have reached this conclusion maintain that domestic procedural law permits exclusion of the CISG notwithstanding that it would otherwise be applicable. Other courts and numerous commentators maintain that the judicial refusal to apply to the CISG in these cases violates both the substantive provisions of the CISG and the law of treaties that governs the obligations of states that have adopted it. In this article, we maintain that courts that invoke domestic procedural doctrines to avoid application of the CISG are acting reasonably and consistently with the intent of Contracting States. In the first instance, the substantive provisions of the CISG do not preclude use of procedural doctrines in as broad of a set of cases as commentators who read the domain of the CISG more broadly maintain. More generally, the argument that states are obligated to subordinate domestic procedural doctrines where a treaty is silent about its effect on those doctrines fails to consider whether those states intended to displace domestic procedures. We conclude that in the case of many treaties, including the CISG, the appropriate default rule would consider the costs to the signatory state of displacing domestic procedures, and that those costs would often lead a state to desire to allow its domestic procedural doctrines to prevail over application of substantive treaty provisions.