2. Interpretation of the Convention
The CISG sets out two distinct standards of interpretation: One with regard to the interpretation of the Convention itself and one with regard to the interpretation of party statements. It is important to clearly distinguish between these two standards of interpretation. The following sections deal with the interpretation of the Convention whereas the interpretation of party statements will be addressed later.
a. Principles of Interpretation
Art. 7(1) lays down certain principles to be regarded in the interpretation of the CISG:
(1) In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.
Regarding the international character of the CISG primarily requires that the Convention is interpreted autonomously. This requirement gives regard to the fact that the CISG is was designed as a compromise between many different legal systems. Consequently, it is important that the interpretation of CISG provisions is not influenced by similar domestic legal concepts. Such so-called homeward trend would result in different understandings of the same legal concept in different member states and thus undermine the CISG’s aim of unification. Sometimes it is suggested that regarding its international character allows interpreting the CISG along the lines of other international unification projects, first and foremost the UNIDROIT Principles of International Commercial Contracts (PICC) or the Principles of European Contract Law (PECL). This approach is, however, rightly criticized as being inconsistent with the requirement of an autonomous interpretation.
The need to promote uniformity in the application of the CISG is best ensured by courts and arbitral tribunals giving regard to decisions rendered by judicial bodies in other member states. While there is no system of binding legal precedents, such decisions serve as persuasive authority. Nowadays, state courts in most member states as well as arbitral tribunals make use of the exhaustive databases and digests of case law on the CISG. Furthermore, the CISG Advisory Council, a private initiative of legal scholars, contributes to the uniform application of the CISG by issuing opinions and declarations on certain questions that are also regarded as persuasive authority.
Finally, good faith in international trade is to be observed in interpreting the CISG. This principle gives courts and tribunals the necessary flexibility to give regard to established rules and understandings in international trade. Notably, observance of good faith is required in the interpretation of the Convention, not within the legal relationship of seller and buyer. Determining the obligations of the parties through the concept of good faith was expressly rejected during the drafting of the CISG. It is possible, however, to rely on Art. 7(2) to fill existing gaps in the CISG regarding the legal obligations of the parties by determining certain general principles the Convention is based on similar to domestic notions of good faith.
b. Methods of Interpretation
The actual methods of interpretation are not specifically laid down in the CISG. In general, the widely acknowledged standard methods of interpretation of statues can be used.
Accordingly, the wording of the provisions to be interpreted serves as starting point of any interpretation. Pursuant to the Witness Clause at the end of the CISG all six official language versions of the CISG are “equally authentic”. This approach can lead to difficulties due to contradictions between the different language versions. In case of contradictions preference should be given to the English language versions because the preparations and the drafting process mainly was conducted in the English language.
Furthermore, regard is to be had to the history of the provisions, in particular to the travaux préparatoires, the materials documenting the drafting process of the CISG like the Official Records containing the discussions during the 1980 diplomatic conference in Vienna and Secretariat’s Commentary.
Also the purpose of a provision as well as its positioning within the regulatory system of the CISG can shed light on the content of a provision.