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The United Nations International Sale Of Goods Convention On Contracts For The Interpretation Of Research

Posted on:2008-05-12Degree:DoctorType:Dissertation
Country:ChinaCandidate:Y LiuFull Text:PDF
GTID:1116360215984246Subject:International Law
Abstract/Summary:PDF Full Text Request
The dissertation makes research on interpretation issues on United Nations Convention on Contracts for the International Sale of Goods(hereinafter CISG). As a convention dealing with civil legal affairs, the interpretation of CISG surely should follow common rules on interpretation of treaties. Meanwhile, as for those private rules, CISG sets out special interpretation rules of its own in article 7, so we may mainly interpret those rules in conformity with factors stipulated in article 7.The dissertation is of six chapters: Chapter one make a concise analysis on article 7, and explains the relationship among interpretation factors contained in article 7 and some of basic issues in interpretation of CISG; Chapter two makes research on general interpretation rules of CISG which embody in section 1 of article 7; Chapter three analyzes the gap-filling interpretation rules in section 2 of article 7; Following the analysis of interpretation rules of CISG, chapter four and five respectively deal with two controversial issues in interpretation of CISG——the roles of Principles of International Commercial Contracts(hereinafter UNIDROIT Principles) and foreign case law in the interpretation of CISG, and make special research on these two issues; Chapter six looks back on the situation of China, and makes special analysis on problems in China's application and interpretation practice of CISG with the means of interpretation contained in former chapters.The dissertation points out that the three factors stipulated in Section 1-"international character", "need to promote uniformity in its application" and "the observation of good faith in international trade" respectively declare interpretation background, purpose and value of CISG. The three factors require us to interpret CISG autonomously and on basis of international legal infrastructure, abandon all preconceived ideas from domestic law, meanwhile develop value interpretation function of good faith to achieve the purpose of promoting good faith in international trade. Section 2 refers to gap-filling on questions concerning matters governed by CISG which are not expressly settled in it. We should extends the scope of gaps praeter legem, apply analogy, general principles to fill the gaps and make every effort to avoid using the means of private international law which is inferior to general principle methods.UNIDROIT Principles and CISG are of same notion and have common relationship, thus it may make assistance in provision and gap-filling interpretation of CISG. Where there is not any rule contradiction, stipulation of UNIDOIT Principles can be used to interpret CISG.. And provisions of UNIDOIT Principles can also be used in gap-filling of CISG while these provisions are expression of general principles on which CISG is based. Nowadays, tribunals have begun to apply UNIDOIT Principles to assist the interpretation and gap-filling of CISG in practice.In outcome-oriented angle, making reference to foreign case law is an effective method to realize the uniform application of CISG and is also the last step. In practice, tribunals usually analyze legal reasoning of foreign case law to help them arrive at conclusion. After times of choice and accumulation, those interpretations in international case law which conform to international character can deposit and be commonly followed and thus constitute interpretation of real binding force.Looking though decided cases of China, we find out that tribunals in China don't attach enough importance to interpretation of CISG. As for the application of CISG, there is divergence on relations between CISG and domestic civil law. In fact, article 1(1)(a) of CISG has expressly stipulated conditions for the direct application of CISG. To apply CISG according to article 1(1)(a) is our international obligation, and the application is in conformity with the notion of domestic law as well. Courts of China should deal with the direct application of CISG in more positive attitude.
Keywords/Search Tags:Interpretation of CISG, Foreign Case Law, UNIDROIT Principles, Article 7 of CISG
PDF Full Text Request
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