1. Filling the gaps in CISG as a practical problem Zdeněk Kapitán International conference on the CISG and UN Limitation Period Convention Prague, March 24th 2017

2. Solution proposal at the beginning
Any issues not covered by this contract shall be governed by the UNIDROIT Principles of International Commercial Contracts.
For all relationships between Contracting Parties concerned with this Contract (for which the choice of law is admissible) the Contracting Parties elect the Czech law. Czech conflicts law rules are excluded.
Questions which are not settled in CISG are to be settled also in accordance with the Czech law. Article 7 paragraph 2 CISG shall not apply.
The Contracting Parties shall also consider writing a simple message.
Filling the gaps in CISG – Zdeněk Kapitán – Faculty of Law, Masaryk university (Brno, Czech Republic)

3. Any issues not covered by this contract shall be governed by the UNIDROIT Principles of International Commercial Contracts.
material choice of law
extension of the contract content – gap prevention
promoting international character of relations regulated by CISG
lex mercatoria
Filling the gaps in CISG – Zdeněk Kapitán – Faculty of Law, Masaryk university (Brno, Czech Republic)

4. 2) For all relationships between Contracting Parties concerned with this Contract (for which the choice of law is admissible) the Contracting Parties elect the Czech law. Czech conflicts law rules are excluded.
creation of a specific framework for regulation of question non-regulated by contract
higher level of prevention for exclusion of applicable law
Filling the gaps in CISG – Zdeněk Kapitán – Faculty of Law, Masaryk university (Brno, Czech Republic)

5. The essence of the problem
art. 7 para (2) CISG: Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.
typology – three qualities of regulation:
expressly settled questions
not expressly settled questions (internal gaps)
completely unregulated issues (external gaps)
Filling the gaps in CISG – Zdeněk Kapitán – Faculty of Law, Masaryk university (Brno, Czech Republic)

6. 3) Questions which are not settled in CISG are to be settled also in accordance with the Czech law. Article 7 paragraph 2 CISG shall not apply.
What is “not expressly settled question”?
How to fill in the gaps?
unclear catalogue of general principles on which CISG is based
the hierarchy of rules for gaps filling
Filling the gaps in CISG – Zdeněk Kapitán – Faculty of Law, Masaryk university (Brno, Czech Republic)

7. 4) The Contracting Parties shall also consider writing a simple e-mail message.
support of party‘s autonomy of will
establishing of „agreed form“
problems:
states which have made the reservation according art. 98 CISG
use of conflict rules for questions of validity (for example art. 11 Rome I-Regulation)
Filling the gaps in CISG – Zdeněk Kapitán – Faculty of Law, Masaryk university (Brno, Czech Republic)

8. Summary for practice Properly and suitably formulated choice of law.
Material choice of law (for example UNIDROIT Principles) – substantially expands the scope of contractual rules.
Contractual unification of rules for filling of internal and external gaps.
Filling the gaps in CISG – Zdeněk Kapitán – Faculty of Law, Masaryk university (Brno, Czech Republic)

9. Thanks for your attention.
Filling the gaps in CISG – Zdeněk Kapitán – Faculty of Law, Masaryk university (Brno, Czech Republic)