Study On The Application Of Gap-filling Provision Of United Nations Convention On Contracts For The International Sale Of Goods

The United Nations Convention on Contracts for the International Sale of Goods (short forConvention) is a milestone in the process of harmonization in the field of international trading law,representing the highest level of harmonization.However, due to the big differences of legalsystems and culture among the countries, the Convention only to achieve the goal of a unified text.However, the text of the Convention is not perfect, because of the need for compromise, theConvention shall be adjusted for many matters which are not specifically regulated, resulting in“gaps” which is filled with a serious impediment to the implementation of a unified goal. Article7(2) of the Convention (hereinafter referred to as “Gap-filling provision”) provides internalmechanism of “gaps”, namely,using the methods of general principles and the methods of privateinternational law to fill “gaps”. The text first studies the content, the legislative history and value ofGap-filling provision, and then defines the “gaps” of the Convention, analyses the two standards of“gaps”, and then analyses the two methods to discussing their specific application, in order tobenefit the international trade practice.In addition to the introduction and the conclusion, the paper is divided into four parts, the maincontents are summarized as follows:The first part is an overview of Gap-filling provision. Firstly, summarizing the content ofGap-filling provision, then investigating the legislative history, finally on the basis of the analysisof the content and legislative history,studying the value of Gap-filling provision.The second part focuses on the premise of the application of Gap-filling provision Firstly,defining the “gaps” of the Convention, and then describing the two standards of “gaps”withcases.The third part discusses the first method to fill “gaps”, the general principles method.Firstly,discussing the identification of the general principles method. Through the analysis of theprovisions of the Convention, discussing some usual general principles: the principle of autonomy,the principle of reasonableness, the principle of maintaining trade, the principle of full compensation and the principle of good faith. Lastly, discussing the application of UNIDROIT tothe general principles.The fourth part discusses the second method, the method of private international law. Firstly,summarizing this method, and then analyzing the theoretical basis of private international law rules,finally studying the specific application of this method with cases.