Email as a Written Form in the meaning of the CISG. Pavel Horák Praha 24. 3. 2017

Judicial practice - CISG CISG - is dealt with by the Czech courts usually within the interpretation of conflict of application of this Convention with the national contractual law. Similar : the Convention on the Contract for the International Carriage of Goods by Road (CMR)

Email as a written form (CMR) CMR Convention - article 32 paragraph 2 Written form of a complaint was fulfilled even when it was made through the email without advanced electronic signature (judgment of the Supreme Court of the Czech Republic dated 19 October 2016, No. 31 Cdo 1570/2015).

Email as a written form (CISG)   article 13 of the Vienna Convention – unless the practice which the parties established among themselves or the custom told different, email should be considered as a written form (The Supreme Court of the Czech Republic judgment of 17 December 2013, No. 23 Cdo 1308/2011)

23 Cdo 1308/2011 The court dealt with 1) email as a written form 2) question of the interpretation of the reservations to this Convention of two signature states: the Czech Republic and the People´s Republic of China. 3) question of the rules of getting to know the foreign law by the Czech courts and the rules if such foreign law was not known (here Chinese law)

Why email could be written form 1) CISG in addition to traditional paper forms considered as a written form also the modern means of communication of that time (telegraph and telex). 2) CISG was created at the time when electronic communication could not be considered as a written form of communication.

3) The contents of authentic versions (English, French, Russian) clearly stated that the phrase of “includes writing”, the conventional paper form was also associated with the two other forms;  4) therefore, article 13 of the Vienna Convention did not contain a definitive (exhaustive) list of forms that could be considered as a written form.

5) In the case of those two forms, the information was remotely transferred and the recipient of the legal action was provided with a text. 6) the same characteristics were applicable on both today´s common means of communication such as fax and email.

The same conclusion Eg. Pilz, B. in Westphalen, F. Graf von (ed.): Handbuch des Kaufvertragsrechts in den Staaten EG-einschl. Österreich, Schweiz und UN-Kaufrecht. 1st edition. Köln: Verlag Dr. Otto Schmidt, 1992, p. 21, marg. No. 40 and other literature there mentioned

Practice of the parties The parties might agree on the mean of written communication to be used (article 6).  This assumption might increase or decrease depending on the usage established between the parties or the practices (article 9).  In theory, identically CISG-AC Opinion no 1, Electronic Communications under CISG, 2003. Professor Christina Ramberg (www.cisg.law.pace.edu).

China : article 1 paragraph 1 point b) The reservations of the Czech Republic and the People's Republic of China to the CISG China : article 1 paragraph 1 point b) article 11, as well as the provisions of the related to the provisions of article 11 The Czech Republic: article 1 paragraph 1 point b).  Court: should be used article 1 paragraph 1 letter a)

The reservation of China China made a reservation about article 11 (the form of arrangements cannot be assessed under this article). By the principles of private international law, the collision regulation of PIPL, according to article 4 in conjunction with article 10, for the assessment of the form applies the Chinese law.

The decisive factor The decisive factor was whether the Chinese law required the written form. Compare identically Michael R. Will ed., The CISG and China: Dialog Deutschland-Schweiz VII Faculté de droit, Université de Genève (1999), p. 7-22 (available at: http://www.cisg.law.pace.edu /CISG/biblio/zeller.html

To apply article 13 when the Chinese law stipulated the requirement of written form - necessary to apply article 13 (reservation of China refers only to article 11)

Procedure of the Czech courts in determining the foreign law The judicial authority should take all necessary measures to establish the foreign law 2) If the content of the foreign law was not known, the Court might also request information from the Ministry of Justice for this purpose 3) The Court might also request the cooperation from the participants

4) If the court did not know the content of the law in this manner, it should take all other necessary measures to find it out, for example to order an expert opinion or to use the procedure under article 53 of the PIPL. 5) Only in the case that the court failed, despite all reasonable efforts, to find out the content of the foreign law, which was to be used based on the collision rules, there should be used a substitute law for the unidentified foreign law

Conclusion The application of the CISG are not the most common type of dispute. However, they are not unimportant. The issue of determination, whether there should be used the autonomous interpretation of the international convention and when rather the application of the national legislation, is e.g. just in the context assessing the fulfilment of written form via email significant. By the regulation of the private law until 31 December 2013, i.e. the Civil Code of 1964 and the Commercial Code of 1991, the conclusion if for certain legal action email is the written form, would be different.