The CISG Advisory Council was established in Paris, France in 2001. A new set of Bylaws in terms of which the Council functions was adopted at its Beijing, China meeting in October 2013.
CISG-AC – Offering Worldwide Authoritative Opinions For the Uniform Application and Interpretation of the CISG
Fan Yang interviews Professor JAN RAMBERG, Chair, CISG-Advisory Council, November 2005, Philadelphia, USA
Fan Yang: Professor Ramberg, please tell our readers about your background.
My father was a solicitor in Gothenburg, Sweden. Although I was not inclined to follow my father as lawyer, I fell into law studies rather than medicine which I had originally intended. Then I graduated in the Uppsala University, which is the oldest university in Sweden, dating back to 1477, and took my basic law degree there. My father and his lawfirm mainly engaged in maritime law representing Swedish shipping lines, so he sent me to New York and from that moment on, after a bit less than one year in New York, I could say I became more internationally minded than most of the lawyers in my home country, Sweden. While in New York I took a course in Admiralty at the New York University. I returned to Sweden because of a collision 1956 between two passenger liners- The Stockholm and The Andrea Doria – which required continued work in Sweden for interrogation of passengers returning from The Stockholm. I continued with practice in maritime law. Then as a result of my interest for law in itself, I got into legal research. I had no intention to leave the Swedish Bar. However, after presentation of my thesis on Cancellation of contracts of Affreightment I was called upon by the law faculty of the Stockholm University to apply for a professorship. I kept the position from 1971 up to retirement in 1997. But my chair there was not maritime law; it was the law of contract and sale of goods. As a result of that combination, on the one hand maritime law, on the other hand the law of contract and sale of goods, it became rather natural for me to take an interest in the delivery terms whereby you connect the contract of carriage with the contract of sale of goods, and that explains why I was busy with the well known Incoterms for delivery clauses sponsored by the International Chamber of Commerce in Paris.
So I then chaired the working groups for the 1980, 1990 and 2000 updating of Incoterms. This is perhaps the field where I am most known to have contributed to the development of commercial law. I then took up a position in the ICC as vice president of its Commission on Commercial Law and Practice, Presumably; this explains why I was invited to become a member of the CISG Advisory Council.
As for my publications, most of them would indeed be in the field of maritime law and other transport law; those books have been translated into several languages, including Chinese. My contributions in the field of contract law and sale of goods, include textbooks in Swedish for students as well as commentaries to the CISG, the Swedish domestic Sale of Goods Act and the Swedish Consumer Sales Act.
After my retirement from the Stockholm University in 1997, I thought life would become more leisurely. But then I was called upon me to assist in setting up a graduate law school in Riga, Latvia, to help the development of law in the Baltic region. I became the first Rector of the Riga Graduate School of Law and kept that position for three years between 1998 and 2001. Much of my present work, in addition to writing and updating text books and commentaries, concerns legal opinions and acting as arbitrator in domestic and international commercial disputes.
Fan Yang: Would you introduce the CISG Advisory Council to our readers?
It is a kind of innovation. Usually you would expect to find what the law means and how it should be interpreted and applied through sources which are more or less official, such as court decisions and authoritative commentaries. The CISG-AC is an academic initiative in 2001 by Pace University and the Centre for Commercial Law Studies at the Queen Mary University, London. Well-known academics engaged in commercial law generally, and with a particular interested in the CISG, have been invited to become members of the Council. The eminent scholar in contract law, Professor Allan Farnsworth, was a member of the Council until his death in 2004. He suggested the topic for the third opinion which deals with the common law principles of prohibition against parol and intrinsic evidence and the plain meaning rule and explores whether those principles are consistent with the principle under Article 11 CISG to allow any kind of evidence. The third opinion was dedicated to the memory of Allan Farnsworth. The Rapporteur was an American Professor, Richard Hyland.
The membership is fairly spread worldwide. On the one hand this is certainly desirable, on the other hand you cannot have too many members because then the deliberations would become too difficult. Presently, there are eleven members of the Council.
How do we select the topic for our opinions? In many cases there is a request to the Council to give an opinion on a certain matter. The first topic deals with something where not much has been written but which apparently has to be addressed in this modern world where you switch from paper communication to electronic communication. The first opinion thus addresses the interpretation of words such as “dispatch”, “notice”, ”reaches”,” writing” and “oral” when you communicate electronically. The Rapporteur was my daughter, Christina Ramberg, who is professor of commercial law in Gothenburg.
Then the second opinion was prepared by one of the members of the Council Professor Eric E. Bergsten as Rapporteur. He is the former Secretary General of UNCITRALand has in such capacity been engaged in the preparation of the CISG. Judging form the reported cases, you could see that a great number concerns two articles (38 and 39) dealing with the notice of claims. Not surprisingly, perhaps, as the most powerful defence a seller could have against the buyer’s claim would be: sorry you are too late!
I have already mentioned the third opinion. The fourth opinion concerns a difficult problem where you have a mixed contract so that one part is sale of goods and delivery of goods and another part is labour and services relating to the sale of goods. Then you must ask yourself whether this is a contract of sale or a contract for labour and services or both. If it is one contract you should look for the preponderant part of the contract and assess whether it is for labour or services or a sale of goods. If the preponderant part is labour or services then it goes out of the CISG and has to be taken care by domestic law. Otherwise it remains within the CISG even if there are some parts which relate to labour or services. But it is very difficult to find the borderline. Therefore the fourth opinion on Article 3 (2) prepared by the member of the Council Professor Pilar Perales Viscasillas from Madrid as Rapporteur is important both from a practical and theoretical point of view.
Then we go on to opinion number five which concerns Article 25, one of the key articles in CISG. The opinion deals with the buyer’s right to avoid the contract because of non-conforming goods and documents. In particular it is important to determine the relation between non-conforming goods and non-conforming documents. If the goods are conforming but the documents are not, which principles would then apply to determine the notion of fundamental breach under Article 25?. The Rapporteur was the member of the Council Professor Ingeborg Schwenzer from Basel, Switzerland. She is not only a contributor, but since the 4th German and the 2nd English Edition she is the co-editor to Professor Peter Schlechtriem’s authoritative commentaries to the CISG, originally in German but translated into English.
We have other opinions in the pipeline. One was discussed at our meeting in Philadelphia, November 2005. The Rapporteur was Professor John Y. Gotanda and the opinion concerns the assessment of damages according to Article 74 of CISG. Another one concerns another key article of CISG, namely Article 79, whereby the party in breach could be excused from the obligation to pay damages. The Rapporteur is the member of the Council Professor Alejandro M. Garro of Columbia University. He is originally from Argentina, so you could say that by his membership in the Council we have members from both Americas. A further opinion is to be prepared by the member of the Council Professor Hiroo Sono from Japan and concerns the interpretation of Art. 5 excluding death and personal injury claims from the ambit of the CISG. But what applies with respect to property damage? Yesterday it was decided to consider the unwinding of the contract in case of avoidance (Arts. 81-84 ) and the preparation was allotted to the Secretary of the Council Professor Loukas Mistelis of Queen Mary University, London.
Fan Yang: So far the CISG-AC has published four opinions and finalised six. Are you satisfied with the way the opinions are drafted and finalised?
It is perhaps very personal what you think about the work and the methodology in getting to the final text of the opinions. The Council owes considerable gratitude to its first Chairman, Professor Peter Schlechtriem, who set the pattern. During his time as chairman a friendly spirit of cooperation was established. Although different views were frequently taken and intensely debated, the force of argument for one view rather than another would by the end of the day always result in total consensus. However, under the rules of the Council dissenting opinions are indeed allowed. You cannot require that someone with a very strong and valuable view should be forced to accept the views of others. But thanks to Peter Schlechtriem, the spirit we developed under his chairmanship has prevailed after I took over as chairman in 2004.
Fan Yang: What do you think are the most interesting and the most challenging part of the role as Chairman of such a distinguished team?
Well, it is an interesting but difficult question. I could compare the time when I was a member under the chairmanship of Peter Schlechtriem and the time as chairman of the Council. As Chairman you could of course present your own opinions as vigorously as you could do as a member, but not forgetting the main function of the chairman to let everyone present their views freely but still all the time trying to reach consensus. Although each member has a right to submit his or her dissenting opinion, it would erode the authority of the Council and the value of the opinion, if there were one or more dissenting opinions. For that reason, the chairman has at times to suppress his own ideas in order to reach consensus.
Fan Yang: What are the commitments of the members of the Council towards the opinions?
The commitment by the members of the Council in the first place is to the blackletter texts, some of which have already been translated into the six authentic languages of the convention. The comments are a little bit different. The policy of the Council is that the Rapporteurs should have some freedom with respect to the style, content, format and reference to appropriate sources. Nevertheless, the Council as a whole would certainly read the comments and would have the right and the obligation to point out if a particular comment is not in line with the blackletter texts or else inappropriate. Members could also suggest adding different sources from various jurisdictions and even deleting some of the sources. So, in this sense the Council takes the responsibility for the whole opinion but commits itself only to the blackletter texts. All the members are invited to come forward with comments and objections.
Fan Yang: What do you consider to be the main strengths of the CISG-AC?
The council is an academic initiative and it is a group created more or less spontaneously. Although its members certainly are well known and hopefully also respected worldwide, what authority do they have to tell people that this is the way you should interpret an international convention? Well, the answer of course is that they have no authority at all. They have perhaps the power of persuasion, but it remains to be seen whether courts and arbitral tribunals will be convinced by the opinions. In some countries it is explicitly acknowledged that not only statutory law and court decisions are sources of law but also academic writings. If you look at it from a practical viewpoint you will undoubtedly be assisted if you get a consolidated opinion by the CISG-AC, so that you do not have to study all that has been written on the CISG perhaps with different answers by different commentators. Therefore I do think that the work of the CISG-AC is very important, particularly in modern times when people don’t have time to make a comparative analysis by reading everything that has been written on the CISG. So, I think it is to be expected that lawyers in the first place will look for the opinions by the Council before engaging in further comparative legal research.
Fan Yang: Are you satisfied with the response of the academic community towards the AC?
I have so far not noted any criticism against the solutions suggested by the Council, but critical remarks are to be expected as even inside the Council we have worked out the solutions in intense debates. Thus, it is normal that critical views will appear in the same manner as court decisions and academic writings from time to time are subject to critical remarks.
We do not have a record of everything that has been said. There is no stenographer present to record everything that has been said and suggested. It is a more spontaneous exchange of views, so it would be very hard to find out which position originally was taken by the respective members, or whether one member had to surrender to a majority view in the Council.
Although the Council has been working for only about four years, I think it is true to say that the opinions are noted all over the world. They are included and referred to in several textbooks and commentaries on the CISG. I am quite convinced that they will be quoted extensively in future litigations before courts of law and arbitral tribunals.