CESL v CISG

On 11-12 May, the Max Planck Institute for Comparative and International Private Law held a so-called ‘CISG Conference’ where experts on the international sale of goods came together to review the Vienna Convention in the light of similar structures such as its latest contender, the Common European Sales Law, or the UCC. Accompanied by William Bull and Mark Kawakami, my hopes were high as we were eager to hear what world renowned speakers made of fresh European private law developments (and why not, draw inspiration from that).

Who were these speakers and what did they cover? For a very structural feedback of the program, it is worth saying that the organizers, led by Ulrich Magnus (Hamburg) covered no less than four continents: Harry Fletchner (Pittsburgh) and Larry DiMatteo (Florida, Gainesville) covered the USA, Bruno Zeller (Victoria) brought the Australian perspective, Franco Ferrari (NYU) gave insights into the African experience and Ulrich Magnus himself, joined by Robert Koch (Hamburg), went straight to one of the most sensitive debates of the event, referring to Europe and its CESL.

Attending a Max Planck Institute event was in my case a premiere. It so goes without saying that I was impressed with the quality of information disseminated there, whether I’m talking about the speaker panels or the audience in general (even Reinhard Zimmermann himself joined some of the sessions). However, the tone of the discussion was somewhat predictable. Assemble a room full of CISG-friendly high-profile researchers, and no matter how neutral they strive to be in their analysis of all non-CISG regional sales law, the end result will always bear an echo of ‘if only more universities taught CISG courses, this would be a better commercial and legal world’. Being less familiar with Australian or African sales law, I will focus on depicting the sessions covering the USA and Europe (Although truth be told, I cornered Bruno Zeller in one of the coffee breaks before his talk – who by the way, finished his PhD in two years part-time; Intimidating. – to ask him about how the application of the CISG in Australia can be described overall and he instantaneously replied ‘poor’.)

The USA experience portrayed by Harry Fletchner and Larry DiMatteo was focused on comparative perspectives between the CISG and the UCC. The discourse was fluid and narrative, emphasis was placed on the drafting procedures, generous references to Karl Llewellyn were made, together with some comments on the desirability of provision reviews, interesting differences were underlined (e.g. Statute of frauds – CISG less formal) and then the conclusion followed naturally: practitioners are not rejecting the CISG, it is just a matter of the latter being applied where it is eligible to be applied. End of story. A very descriptive example of two sales regimes competing for jurisdiction, with an overall constructive message.

But then, the acronym CESL was pronounced (very chameleonic set of letters, I don’t think there were two speakers pronouncing it in the same way) and the audience caught fire. Ulrich Magnus and Robert Koch did a wonderful job trying to have a neutral researcher’s take on the CESL, and while the first approach was rather anatomical, focusing on specific provisions, the second was more case-study oriented, as Robert Koch actually adapted a case to understand the sequences of conflict of laws. The message resulting from both presentations: the CESL is trying to replace the CISG, and wrongfully so, since the CISG has all instruments necessary to cover situations arising from contracts of sale, while the CESL is a mere theoretical tool that should stay theoretical. The issues touched upon were extensive and covered, amongst others, procedural aspects, like jurisdictional issues (e.g. if a contract is covered by the CISG by virtue of its opt-out nature, what happens if the parties actually opt into the CESL?), substantive aspects, like the scope of the CESL on contract actors and its specific category of SMEs (to quote DiMatteo “What is a shmee? Maybe something like a shinook.”), but the exciting part if I may say so, was that even political aspects were addressed. This was very much reflected by a discussion on how the Commission has a plan to take over contract law, and it is doing so gradually. There was even intense speculation on how the CESL will enter into force in no time and when the Commission will make a point by showing that legislative efforts creating an optional instrument do not support the internal market, a creeping mandatory instrument on European private law will take CESL’s place.

So in the end I was rather confused. Was it a CISG conference, was it an anti-CESL conference, probably the answer lies in the eye of the beholder. One thing is for sure: I am getting really interested in this topic and am looking forward to episode 2 of the Cecil/Sezl/Ceezil/Sesl debate, here, at M-EPLI, on June 15.

On 11-12 May, the Max Planck Institute for Comparative and International Private Law held a so-called ‘CISG Conference’ where experts on the international sale of goods came together to review the Vienna Convention in the light of similar structures such as its latest contender, the Common European Sales Law, or the UCC. Accompanied by William Bull and Mark Kawakami, my hopes were high as we were eager to hear what world renowned speakers made of fresh European private law developments (and why not, draw inspiration from that).

Who were these speakers and what did they cover? For a very structural feedback of the program, it is worth saying that the organizers, led by Ulrich Magnus (Hamburg) covered no less than four continents: Harry Fletchner (Pittsburgh) and Larry DiMatteo (Florida, Gainesville) covered the USA, Bruno Zeller (Victoria) brought the Australian perspective, Franco Ferrari (NYU) gave insights into the African experience and Ulrich Magnus himself, joined by Robert Koch (Hamburg), went straight to one of the most sensitive debates of the event, referring to Europe and its CESL.

Attending a Max Planck Institute event was in my case a premiere. It so goes without saying that I was impressed with the quality of information disseminated there, whether I’m talking about the speaker panels or the audience in general (even Reinhard Zimmermann himself joined some of the sessions). However, the tone of the discussion was somewhat predictable. Assemble a room full of CISG-friendly high-profile researchers, and no matter how neutral they strive to be in their analysis of all non-CISG regional sales law, the end result will always bear an echo of ‘if only more universities taught CISG courses, this would be a better commercial and legal world’. Being less familiar with Australian or African sales law, I will focus on depicting the sessions covering the USA and Europe (Although truth be told, I cornered Bruno Zeller in one of the coffee breaks before his talk – who by the way, finished his PhD in two years part-time; Intimidating. – to ask him about how the application of the CISG in Australia can be described overall and he instantaneously replied ‘poor’.)

The USA experience portrayed by Harry Fletchner and Larry DiMatteo was focused on comparative perspectives between the CISG and the UCC. The discourse was fluid and narrative, emphasis was placed on the drafting procedures, generous references to Karl Llewellyn were made, together with some comments on the desirability of provision reviews, interesting differences were underlined (e.g. Statute of frauds – CISG less formal) and then the conclusion followed naturally: practitioners are not rejecting the CISG, it is just a matter of the latter being applied where it is eligible to be applied. End of story. A very descriptive example of two sales regimes competing for jurisdiction, with an overall constructive message.

But then, the acronym CESL was pronounced (very chameleonic set of letters, I don’t think there were two speakers pronouncing it in the same way) and the audience caught fire. Ulrich Magnus and Robert Koch did a wonderful job trying to have a neutral researcher’s take on the CESL, and while the first approach was rather anatomical, focusing on specific provisions, the second was more case-study oriented, as Robert Koch actually adapted a case to understand the sequences of conflict of laws. The message resulting from both presentations: the CESL is trying to replace the CISG, and wrongfully so, since the CISG has all instruments necessary to cover situations arising from contracts of sale, while the CESL is a mere theoretical tool that should stay theoretical. The issues touched upon were extensive and covered, amongst others, procedural aspects, like jurisdictional issues (e.g. if a contract is covered by the CISG by virtue of its opt-out nature, what happens if the parties actually opt into the CESL?), substantive aspects, like the scope of the CESL on contract actors and its specific category of SMEs (to quote DiMatteo “What is a shmee? Maybe something like a shinook.”), but the exciting part if I may say so, was that even political aspects were addressed. This was very much reflected by a discussion on how the Commission has a plan to take over contract law, and it is doing so gradually. There was even intense speculation on how the CESL will enter into force in no time and when the Commission will make a point by showing that legislative efforts creating an optional instrument do not support the internal market, a creeping mandatory instrument on European private law will take CESL’s place.

So in the end I was rather confused. Was it a CISG conference, was it an anti-CESL conference, probably the answer lies in the eye of the beholder. One thing is for sure: I am getting really interested in this topic and am looking forward to episode 2 of the Cecil/Sezl/Ceezil/Sesl debate, here, at M-EPLI, on June 15.