“Internationales UN-Kaufrecht Ein Studien- und Erläuterungsbuch zum Übereinkommen der Vereinten Nationen über Verträge über den internationalen Warenkauf (CISG)”
[International UN Sales Law. A Textbook on the United Nations Convention on Contracts for the International Sale of Goods (CISG). 7th, revised edition founded by Peter Schlechtriem and written up to the 4th edition.] 7th newly revised edition; 2022. XXVI, 471 pages.
The seller and the buyer had entered into a contract, which they called the “Export Contract”, in two different languages (English and Chinese).
“There is nothing in the English text of the Export Contract that speaks to the law governing the purchase transaction or otherwise evinces the parties’ intention to exclude the CISG. In contrast, the Chinese text states that the Export Contract is governed by and shall be interpreted in accordance with the laws of the People’s Republic of China, the Convention shall not apply, and in the event of any conflicts between the two texts, the Chinese version shall prevail”.
In these circumstances, the Court held that “[…] having [the seller] proposed to [the buyer] a contract drafted in both the English and Chinese languages through a New York agent [… the seller] could not have been unaware that [the buyer’s] subjective intentions regarding choice of law would be formed on the basis of the purportedly-controlling English text […], which is precisely the intention that any reasonable purchaser would have had under the same circumstances (see CISG, art 8 )”.
In the dispute between AstraZeneca and European Commission, the Belgian Court does not mention (in point IV. A. of the Decision) art. 25 of Regulation (EU) 1215/2012 Of the European Parliament and of the Council. This article states that “[i]f the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen orwhich may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State.”
On the other hand, point IV.B.29 of the Decision states that “Les conventions doivent être interpretées au regard d l’intention commune des parties, conformément à l’article 1156 de l’ancien Code Civil”. But article 3 (1) of Rome I Regulation states that “[a] contract shall begoverned by the law chosen by the parties.”
Has the court held that Article 3(1) of Rome I Regulation excludes the application of the CISG?
Did the Court apply its domestic conflict rules?
Does the choice of Belgian law by the parties preclude the application of the CISG?
We do not know for sure because the Court does not expressly address this issue. Unfortunately, there is still a long way to go before national courts apply, first of all, the principle of the primacy of European law and the CISG.