Rechtsanwalt Prof. Dr. Piltz CROSS-BORDER SALES The CISG Which law should be chosen for matters not covered by the CISG

© Prof. Dr. Burghard Piltz

CISG applies in particular:  formation of the contract, 4  incorporation of general terms and conditions  form and modification of contracts, 11, 29, unless reservation, 96  meaning of „writing“, 13  rights and obligations of the seller and the buyer, 4 primary obligations, risk allocation, impairment of the performance of obligations  matters governed by the CISG, but not expressly settled, 7  burden of proof, evidence autonomous and paramount application of CISG national law is irrelevant

© Prof. Dr. Burghard Piltz CISG does not apply in particular:  validity of the contract or any of its provisions, 4a  material validity of standard terms and conditions  effect on the property in the goods, 4b  liability for death or personal injury caused by the goods, 5  limitation of actions  set-off  interest rate on sums in arrears  assignment of receivables  penalties application of other set of rules

© Prof. Dr. Burghard Piltz Transnational Set of Rules:  UNIDROIT - Principles of International Commercial Contracts (PICC)  Principles of European Contract Law (PECL)  European Contract Law (DCFR)  Lex Mercatoria However:  Art. 3 Rome I-Regulation does not allow to choose a non-state law  depending on the applicable Private International Law

© Prof. Dr. Burghard Piltz Private International Law:  party reference, eg Art. 3 Rome I-Regulation  no limitation provided the contract is international  requirements of a valid choice of law clause However:  Rome I-Regulation applies only in 26 European states  each state has his own Private International Law (PIL)  some PILs do not permit party reference  different approaches regarding the requirements of a valid choice of law clause  certain issues not governed by the chosen law  overriding rules

© Prof. Dr. Burghard Piltz  material validity of standard terms and conditions  period of limitation including interruption of the running in particular regarding the remedies in case of delivery of non-conforming goods  limitation of liability  action directe or third party claims / concurring causes of action  statute of frauds or formal requirements  penalty  assignment of receivables

© Prof. Dr. Burghard Piltz  „fragmentary character“ of the CISG no argument against it  applicable law regarding issues not covered by the CISG should be reflected  transnational set of rules helpful provided that the applicable PIL permits to choose them  1st level selection: applicable Private International Law  2nd level selection: applicable national law provided that PIL permits party reference  practicioner`s suggestion: arbitration and Swiss law attractive