The United Nations convention on contracts for the international sale of goods ( cisg ) and the Common Law : the challenge of interpreting Article 7

The interpretative methodology applied in Common Law CISG jurisprudence has driven a disparity of reasoning that hinders a uniform application of its provisions. This result is inconsistent with CISG Article 7 which mandates interpretation of the convention in accordance with its international character and the need to promote uniformity. This paper discusses the multiple aspects that have affected the uniform interpretation of CISG norms, including a reference to the case law in USA, Australia and Italy. Finally, the Unidroit principles are presented as an aid to overcome the difficulties in the application of CISG article 7.


Introduction
It has been widely considered that 'the adoption of uniform rules' contributes to the reduction of legal obstacles in 'International Trade' and thereby, facilitates its 'development'1 .To date, the Vienna Convention on the International Sale of Goods (CISG) is part of the legal regime of 79 states 2 .The adoption of the convention allows states to reassess their domestic law and to incorporate a normative framework that more favours the necessities of international trade 3 .The CISG is recognised worldwide as a success towards the achievement of international legal uniformity 4 .
Success of the convention does not appear so evident when examining the Common Law jurisdictions where the CISG has been mostly 'neglected' 5 .The Common Law attitude for the CISG has been considered less than 'enthusiastic' in comparison to its reception by Civil Law countries 6 .Common Law case law has been constantly criticised and accused internationally of being in breach of the interpretative methodology of the CISG 7 ; the predilection for domestic law during the interpretive process being a dominant cause 8 .This obstructs international The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 Searching the obstacles for the correct application of article 7 The implementation of unified laws does not necessarily translate to uniform application 15 .The uniform application of the CISG is challenged by the practice of tribunals, practitioners and commercials parties 16 .When applying the CISG, tribunals produce diverging outcomes, causing uncertainty that has led commercial parties to exclude the CISG from their contracts 17 .As a consequence, such parties often choose to regulate their contracts under the predictability of a precise domestic legal system 18 however, in several cases, studies have illustrated that non incorporation is an automatic response to deficient knowledge of the CISG provisions 19 .

The homeward trend and the CISG incompleteness
The absence of uniform application has been attributed to multiple causes 20 .It has been asserted that the inexistence of a unified court or 'an official administrative body' 21 results in inadequate interpretive guidance on the CISG provisions 22 .
The endeavored uniformity is undermined by the 'homeward trend,' 23 whereby judges, being 'a product of their background assumptions and conceptions,' 24 interpret the CISG through the introduction of criteria proper of domestic laws 25 .The homeward trend can also be manifested in the tendency to achieve results that 15 Smits, above 3, 8. 16 Ibid. 17Ibid. 18Ibid. 19See, Ingeborg Schwenzer & ChistopernKee, Global Sales Law-Theory and Practice in Towards Uniformity: The 2 nd Annual MAA Schechtriem CISG Conference (Eleven International Publishers,eds Ingeborg Schwenzer &lisa Spagnolo), pp 155-159; Spagnolo above 14, 10. 20 Smits above n 3, 6 -9. 21Ibid 9. 22 Ibid. 23Honnold above n 12 "homeward trend" mentions it expression. 24John O Honnold, Uniform Law for International Sales (3rd ed, 1999) 89.lend to the application of domestic laws 26 .The latter is exemplified through the invocation of Article 4(a) of the CISG which states that unless otherwise expressly provided, the Convention 'is not concerned with the validity of the contract' 27 .Through this vehicle, judges tend to identify validity issues, thereby providing grounds for the application of their domestic law 28 .
Scholarly writing has outlined that there are other characteristics of the CISG that exacerbate the obstacles to a uniform interpretation 29 .The CISG is the result of diverse legal traditions and for this reason some terms are 'open ended' 30 and presents ambiguities 31 that confer too much freedom to tribunals 32 .An example is the expression, 'reasonable time' in article 39(1) CISG 33 .Additionally, the CISG is incomplete 34 for it only regulates the formation of the contract, obligation of the parties and contractual remedies 35 .The Convention is devoid of some important legal definitions including the concept of goods, the contract of sale of goods and the concept of good faith 36 .Incompleteness is further highlighted by the exclusion of validity questions 37 , procedural law, taxation law, effects of the contract on the property and specification as to what rate of interest should be paid 38 .When faced with such gaps, solutions must be pursued in the underlying principles of the convention.The difficulty lies in that there is no express mention of general principles and therefore, they are often difficult to identify.Consequently, answers are often sought in domestic law 39 . 26Bruno Zeller The Black Hole: Where are the Four Corners of the CISG?International Trade and Business Law Annual (2002), University of Queensland 261. 27Ibid ; Kilian above n 5, 227. 28Zeller above 26, 261.
The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 Some argue that the concept of freedom of contract underlying the CISG can constitute an obstacle to uniformity 40 .Article 6 allows parties to contract out of the CISG and any of its provisions 41 .Article 95 allows states, while adhering to the CISG, to 'not be bound' 42 by article 1 (1) (b) 43 .It allows exclusion of the CISG 'when only one party has its place of business in a contracting state' 44 .This reservation has been adopted by U.S.A., China and Singapore, amongst others 45 .
Commentators argue that the principle of freedom of contract is incompatible with the objective of the Convention as stated in its preamble which, looks to promote 'equality and mutual benefit' 46 .Some go so far as to state that if it is possible to opt out of the Convention, its purpose is muted 47 .If application of the convention is optional it is more likely that the party with the least negotiation position is forced to consent to the law preferred by the stronger trading partner 48 .Opt outs logically limit the improvement in quality of the CISG jurisprudence towards uniformity.
The drafters of the CISG predicted the 'homeward trend' 49 and attempted to minimise it through use of a 'plain language' 50 , 'using words of common content in the various languages' 51 but particularly with the incorporation of Article 7 (1) which mandates interpretation of the convention in accordance to '[its] international character and the need to promote uniformity in its application' 52 .The article does not detail the mode by which uniformity can be achieved 53 although; it has been understood as 'imperative' to not read the Convention using 'the lenses of 40 Kilian above n 5, 224. 41Ibid. 42Ibid. 43Ibid. 44Davies & Snyder 74, 75. 45Ibid. 46Kilian above n 5, 224. 47Ibid. 48Ibid. 49Honnold above n 24, 89. 50Ibid. 51Ibid. 52Ibid.domestic law' 54 .In other words, domestic legal terms, non-CISG cases and non-CISG provisions should not been applied 55 .
Article 7 has been vastly studied by academics concerned with providing efficient tools to ensure international and uniform application.It has been construed as an invitation to 'tribunals in one contracting state [to] consider the opinions of tribunals in other contracting states' 56 , as 'persuasive authority' 57 which, has been denominated as 'global jurisconsultorium' 58 .However, there is consensus that there is no 'stare decisis' 59 principle and therefore, they are no binding precedents 60 .It is considered that decisions must be analysed critically otherwise bad reasoning will be perpetuated 61 .Article 7 also invites invocation of the CISG legislative history 62 and scholarly opinions as an aid in the achievement of uniform outcomes 63 .
However, in practice commentators have outlined that, "[v]ery rarely do decisions take into account the solutions adopted on the same point by courts in other countries" 64 .Barriers that stem from different legal traditions present challenges in the realization of this task 65 particularly, issues have been observed in Common Law countries 66 .
The CISG is perceived as being reflective of a Civil Law background 67 , grounded in part upon the fact that its predecessor, Ulis, was redacted by civilians 68 .
The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 The Convention finds considerable acceptance in Civil Law jurisdictions 69 where voluminous CISG cases have been reported 70 .To date, the number of Common Law cases is relatively 'scarce' 71 .An obstacle to improving uniformity between Civil Law and Common Law is the UK's disinterest in ratifying the CISG 72 .Some commentators adduce that the reason could be that "the Convention would result in a diminished role for English Law within the international trade arena" 73 .Without the UK's adoption of the CISG, tribunals in countries that have typically adhered to English Law 74 are now without accustomed guidance when attempting to apply the Convention 75 .Some suggest that these jurisdictions have started to evolve their own CISG case law 76 .

Features of the common law that may affect the application of the CISG
There are several distinctive features between Common Law and Civil Law jurisdictions that have been referred to as obstacles to uniform application.One is Common Laws 'attachment' to its legal history which makes difficult the incorporation of external concepts 77 .Furthermore, the notion of legal precedent does not have a 'global definition' and the differences in approach are intense amongst various jurisdictions 78 . 69Ibid. 70Ibid. 71Kilian above n 5, 235. 72Ibid. 73 a.The concept of precedent Under Common Law 79 , judicial precedents are binding authorities 80 and central to the law making process 81 .In Civil Law jurisdictions 'rules are derived from statutes' 82 and judicial decisions are not technically a source of legal rules although, precedent can possess considerable persuasive value and therefore have great significance in the legislative process 83 .
Of consideration is that in its tradition of applying precedents, Common Law has been limited to decisions made in respect of their own national law 84 .The precedent as a persuasive authority of the CISG more closely resembles that of Civil Law 85 .

b. Different method of interpretation
Other aspect of distinctiveness is the different method of interpretation proper of Common Law countries.Under Civil Law, interpretative doubts are resolved with the application of principles whereas 86 , under common law systems interpretation must be 'narrow' with the meaning of the legislation primarily deduced from the words of the statute and application of general principles seemingly unfamiliar 87 .
Narrow interpretation does not favourably fit the international character of the Convention which, calls for identifying its underlying principles in order to fill gaps.A 'broader interpretation' can result in a more orthodox application of Article 7 (1) 88 .
The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 67 for civilians for whom doctrinal opinions have traditionally been an 'interpretative' aid and parliamentary material has habitually provided ideological approach to the purpose of legislations 90 .
Wider interpretation of Article 7 is unaccustomed with the Common Law perspective where traditionally, 'parliamentary intention must appear in the text' of the statue and neither the legislative history nor the doctrine have regularly been consider as an appropriate aid for statutory interpretation 91 .However, there is some academic reference that modern Common Law interpretation has started to display a more encompassing approach 92 .c. Procedural differences 'iura novit curie' Commentators have also made reference to procedural issues in Common Law countries 93 .In most Civil Law jurisdictions there is an 'inquisitorial system' 94 and there is application of the 'iura novit curie' 95 ('the judge knows the law') 96 whereby, the judges have an 'ex officio' 97 duty to search for the correct precedent.In most Common Law countries the judge relies on the pleading of the parties 98 .For this reason, if the counsel omits to mention the CISG judges cannot apply it 99 .
The reality is that even in 'jura noscit curia' 100 jurisdictions, for practical reasons, the judges often limit themselves to the material presented by counsel 101 , with the duty being predominantly upon the party to look to international case law.For this reason some argue that the non-uniform CISG application is a consequence of the ignorance of the parties rather than that of the court 102 .However, Spagnolo 90 Ibid. 91Ibid. 92Ibid. 93See Baasch above n 58; Lutz above n 75. 94Ibid. 95Ibid. 96Ibid. 97Ibid. 98Ibid. 99Ibid. 100Ibid. 101Ibid.
has pointed out that there is not a real barrier for judges to apply the 'jura noscit curia' in demand of the correct application of the CISG 103 .

d. Different legal notions
Another difficulty is the differences between legal notions that are incorporated into the Common Law system and those of the CISG 104 .

The absence of consideration
The requisite of 'consideration' pertaining to Common Law systems is not 'demanded' under CISG provisions 105.Article 29 (1) of the CISG establishes that "[a] contract may be modified or terminated by the mere agreement of the parties" 106 .This provision has been understood to "overrule" the common law requirement of consideration 107 .The inapplicability of consideration in the CISG has been well recognised in some decisions.In Shuttle Packaging Systems LLC v Jacob Tsonakis 108 the Court stated that "under the Convention, a contract for the sale of goods may be modified 'without consideration for the modification'" 109 .However, some tribunals have made evident their misunderstanding of this distinction and show a clear 'homeward trend' 110 , interpreting 'consideration' as a validity issue which, allows the application of CISG Art 4(a) and provides room to analyse the lack of consideration under domestic law 111 . 103Lisa Spagnolo, Iura Novit Curia and the CISG: Resolution of the Faux Procedural Black Hole (December 16, 2010).In I. Spagnolo Schwenzer & L. (eds), Towards Uniformity: the 2nd Annual MAA Schlechtriem Conference (2011, Eleven International Publishing, The Hague).Available at SSRN: http://ssrn.com/abstract=2050215 104See also Hofman above n 72; Kilian above n 5; Lutz above n 75. 105Honnold above n 24, 234; Spagnolo above 14, 15; See also Hofman above n 72; Kilian above n 5; Lutz above n 75. 106Ibid. 107Ibid.The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 In the formation of the contract, under the CISG its existence is dependent upon the correspondence between offer and acceptance 112 .This CISG provision allows that even if there is not a complete compatibility between offer and acceptance the contract can still exist although, just in those cases where the acceptance introduces changes that do not materially alter the terms of the offer 113 .However, in practice it is difficult to find contractual changes that do not materially affect the offer 114 .
Under the CISG the 'acceptance of an offer becomes effective at the moment the indication of assent reaches the offeror' 115 .Practices established by the parties that 'may indicate assent by performing an act' 116 can constitute acceptance 117 .This displays some distinctiveness from some Common Law regulations which generally require 'communication of acceptance' 118 .

Absence of the parol evidence rule
The common law parol evidence rule does not allow 'the consideration of any agreement that contradicts a contemporary or subsequent writing intended by the parties as a final expression of their agreement' 119 .'Oral or any other extrinsic evidence cannot be permitted to alter, contradict or explain terms of a written contract' 120 .This concept is inapplicable to the CISG 121 .Article 8 of the CISG refers to the interpretation of statements or other conduct of a party, stating in its subparagraph 3 that: In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of 112 CISG Art 19 (2); see Spagnolo above 14, 12-15. 113Ibid. 114Ibid.
the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties (Ibid).
This provision has been understood to supersede any domestic law that would prevent a tribunal from 'considering' 122 other agreements and it is therefore in direct contradiction to the parol evidence rule 123 .

The notion of good faith
The concept of good faith is included within Article 7 (1) of the CISG although; it was the object of great discussion during the drafting period 124 .The different approaches amongst Common Law and Civil Law jurisdictions can make this concept 'vague' 125 .Under the German concept of good faith parties are expected 'to act in good faith before and after a contract' 126 and 'Italian law considers it an ethical obligation' 127 while in English law 128 , the concept of good faith is not accepted as 'clarity on its exact meaning is considered difficult to determine' 129 .However, in other Common Law countries such as the United States the concept has been adopted, being defined as 'honesty in fact in the contract or transaction concerned' 130 .It appears that the Australia legal system is moving nearer towards acceptance of the concept as illustrated in Renard Constructions (ME) Pty v Minister for Public Works where it was stated, 'Australian law has reached a point where it should consider the implied inclusion of concepts similar to good faith in contracts as is done in the US' 131 . 122Ibid. 123Ibid; see also Killian above 5, 231. 124Honnold above n 12. 125  The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 Article 7 of the CISG states that in the interpretation of the Convention regard is to be given to the 'observance of good faith in international trade' 132 .The plain text of this provision appears to provide insufficient clarity as to the exact meaning of the good faith notion in the CISG ambit.The main discussion has been whether the concept of good faith is to be understood as a contractual duty of the parties or as an interpretative tool of the convention 133 .In this regard Korenu has expressed that good faith cannot be said to exist exclusively as an interpretative tool as 'it is not possible to interpret the Convention without also affecting the contract' 134 .In practice it seems that the concept has been understood as a principle of interpretation and not as a duty 135 .However, some courts and arbitral panels have implied a general duty of good faith to dealings between contracting parties 136 .

The non application of the 'perfect tender rule'
The 'perfect tender rule' 137 proper of the Anglo American Law provides the buyer with a 'broad right' 138 to reject the goods if they are nonconforming to the contract in any aspect however; this concept is not applicable under the CISG 139 .Given the long distances that are implicated in international trade, the CISG requires buyers to accept delivery of nonconforming goods in most situations 140 .This is intended to prevent the detrimental economic costs that may be involved if the goods were to be returned 141 .Where there is nonconformity, the CISG provides the remedies of 'unilateral price reduction' 142 and 'subsequent claim for damages' 143 .
132 Cisg Art 7 (2); See Odur Fredick above n 64. 133See Nottage above n 5. 134 Hofman above n 72; Odur Fredick above n 64. 135Ibid. 136 Furthermore, the option exists for an additional reasonable period of time to be fixed by the buyer for the seller to perform his obligations 144 .
The CISG also provides for the remedy of avoidance which requires a fundamental breach that 'foreseeably and substantially deprives the innocent party of what they were entitled to expect under the contract 145 ; or alternatively, in cases of non-delivery, where the seller does not deliver within the 'additional period of time fixed' 146 .
The CISG regulates the right to compel performance from both the buyer and seller 147 which is a right not ordinarily admissible in the Common Law system 148 .
The application of article 7; an overview of the tendecies in the USA, Australia and Italy

United States
The attitude of U.S. practitioners and courts towards the CISG has drawn much criticism from scholars 149 ; exclusion of the Convention is common with many U.S. practitioners 150 .Rather than apply the CISG, some U.S. courts prefer to arrive at outcomes exclaiming 'the CISG is not the law of the contract' 151 .A minimal reference to CISG foreign case law has been displayed by the U.S. courts although, the majority have relied on domestic cases and authors 152 .Some federal decisions have incorrectly stated that 'there is little CISG case law' 153 while the truth is that to date, the CISG website of Pace University Law School has reported 161 cases The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 in the U.S. alone 154 .However, the homeward trend is fragrantly evident 155 .Many U.S. decisions erroneously have asserted that the UCC case law can constitute an aid for interpretation 'where the language of the relative CISG provision tracks that of the UCC' 156 which, clearly contradicts the mandate of Article 7 of interpreting the Convention in accordance with its international character and its derived suggestion to refer to international case law 157 .
In Delchi Carrier s.p.A. v Rotonex Corp the Court, when applying Article 79 of the CISG, relied on case law interpreting 2-615 of the UCC, asserting similarity between the provisions.This argument has been reproduced in subsequent cases 158 .In Genpharm Inc v Pliva-Lachema 159 the Federal District Court of New York stated that: The result of the case would also be appropriate if analysed under the UCC.The Second Circuit has recognised that case law interpreting analogous provisions of Article 2 of the Uniform Commercial Code… may also inform a court where the language of the relevant CISG provisions tracks that of the CISG (Ibid).
Very little reference has been made to foreign doctrinal writing 160 .In Barbara Berry, S.A.de C.V. v. Ken M. Spooner Farms, Inc. 161 , a brief reference was made to the author Franco Ferrari however, in a footnote only 162 .
Despite, the U.S. courts still having much to do in order to achieve at least a relative uniformity, some decisions have shown that there is a consciousness of the obligation to construe the convention in an international manner.The incorporation of domestic law concepts in CISG cases is still a constant but some improvements have been observed 163 .Some decisions have given light to the understanding of the inapplicability of some Common Law concepts in the scope of the CISG.One particular example can be seen below: In Beijing Metals & Minerals v American Business Centre Inc. 164, the Court stated that the 'parol evidence rule' would apply 'regardless of whether Texas Law or the CISG applied' 165 .Commentators 166 criticised the fact that the 'CISG was treated as a mere extension of the UCC' 167 .However, In MCC-Marble Ceramic Centre Inc v Ceramica Nouva D'Agostino SpA 168 the U.S. Court of Appeals, while reversing a District Courts judgment 169 , considered the doctrine in this matter, finally concluding that 170 CISG Article 8 (3) displaces the parol evidence rule and furthermore dismissed the opinion in Beijing Metals as inadequately persuasive on the issue.This position was confirmed in subsequent decisions 171 .Some cases, although not being a majority, have been considered a correct application of the CISG interpretative methodology, particularly because of their reference to foreign cases 172 .In Medical Marketing International Inc. v. Internazionale Medico Scientifica, S.R.L 173 the Eastern District Court of Louisiana confirmed an arbitral award which granted damages to the plaintiff because the defendant had delivered units that failed to comply with U.S. safety standards 174 .The court took into account a German Supreme Court case for the statement that under Article 35 of the CISG a 'seller is generally not obligated to supply goods that conform to The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 ISSN: 1900-0448, IUSTA, N.º 40, enero-junio de 2014, pp.57-93 75 public laws and regulations enforced at the buyers place of business' 175 .The court considered that the arbitrators gave correct application to the German case and that the situation fitted within an exception recognised by the German Supreme Court 176 .
Chicago Prime Packers Inc v Northam Food Trading Co 177 is considered a correct application of Article 7 (1) of the Convention.The U.S. District Court, Northern District of Illinois, Eastern Division recognised the duty of interpreting the convention in accordance to its international character.The Court cited seven foreign cases 178 .In this case the seller purchased from another 'U.S. company 40 500 pounds of frozen pork ribs' 179 that 'it immediately' 180 'resold to a Canadian meat wholesaler (the buyer)' 181 who 'entrusted' 182 a U.S. party to process the meat.When receiving the goods the processor expressed that 'they were in good condition with the exception of 21 boxes that had holes gouged in them' 183 .Just 9 days later when starting to 'process the ribs,' 184 the processor 'noticed their poor condition' 185 .A USDA inspector established the poor condition and ordered them to be destroyed 186 .'Buyer informed Seller that it was not willing to pay' 187 and the Seller, who had already paid its own supplier for the goods 'brought a law suit against Buyer for breach of contract' 188 .
Leading issues to be identified were whether Buyer was dutiful in examining the goods within a reasonable period once receiving them and whether Buyer informed Seller of the 'alleged' 189 non-conformity within a reasonably acceptable term of time 190 .
In explaining that 'the buyer bears the burden of proving that the goods were inspected within a reasonable time' 191 the Court relied on Fallini Stefano & Co. S.n.c.v. Foodic BV 192 , a case from the Netherlands.In elaborating on 'reasonable time' 193 in the identifying and informing of defects or non-conformity under the CISG, the U.S. District Court looked at a number of foreign cases related to distinct circumstances 194 , concluding that Buyer could not provide suitable evidence that proved it examined the goods or had them examined in a 'reasonable time' 195 .
The case Treibacher Industrie, A.G. v. Allegheny Technologies, Inc 196 .Is an example of how lawyers can contribute to the improvement of the CISG jurisprudence 197 .It involved a purchase of chemical compound for 'consignment' 198 which, amounted to a discussion concerning the meaning of this term.The buyer argued that this means that the sale only occurred when the compound is used.The supplier argued that according to the dealing between the parties it means that there is purchase but the buyer 'would not be billed until the product was used' 199 .The court in the first instance determined that the buyer was obligated to pay for the compound delivered even when it was not used, in accordance 'with evidence of the parties interpretation of the term in the course of dealing' 200 .The buyer appealed and the decision was confirmed during the appeal 201 .The supplier's lawyers submitted a 'brief' supported by exhaustive references to pertinent CISG foreign cases highlighting that CISG Article 8 (3) mandates that in determining the parties intent, all the circumstances surrounding the transactions, including the conduct of the parties must be considered 202 .These arguments helped to support the Court of Appeal's decision 203 .

Australia
The unfamiliarity of Australian lawyers and Courts in regard to the CISG has been strongly critised by scholars 204 .The ignorance of the CISG by practitioners has been evidenced through a significant number of automatic exclusions of the Convention and with untrained behaviour at times when the CISG arises in litigation 205 .Court decisions have also shown an intense homeward trend, an unduly return to domestic law, inclusion of Common Law concepts incompatible with the CISG and an almost inexistence of references to International case law 206 .
To date, the website of Pace University Law reports 25 CISG Australian cases with earlier decisions having received positive reviews by scholars although, there is criticisms of little progress since 207 .In Renard Constructions (ME) Pty Ltd v Minister for Public Work 208 , although this case did not imply application of the CISG, 199 Ibid. 200Ibid. 201Ibid. 202Ibid. 203Ibid. 204See Spagnolo above n 14. 205  there was a reference in the obiter to CISG provisions 209 .The case coming from an arbitral award to the New South Wales Court of appeals centred on a to 'show cause' 210 notice with 'subsequent termination of the contract' 211 .Priestley J drew from 'scholarship,' 212 the 'UNCITRAL Model Law on Arbitration' 213 and 'Article 7 (1) of the CISG' 214 while referring to notions of good faith and concluded that the acceptation of the concept of good faith in Australia could be fast 'approaching' 215 .
Spagnolo signaled Roder Zelt Und Hallenkonstruktionen Gmbh V Rosedown Park Pty Ltd 216 as one of the best CISG cases 'by Australian standards' 217 .Roder Zelt, a German company had sold tent hall structures to the Australian buyer, Rosedown 218 .The later was required to pay for the goods by installments and came in arrears with the company later being placed under administration 219 .Roder sued Rosedown and the administrator, claiming that it had retained ownership of the goods by virtue of a retention of title clause in the sales contract 220 .Von Doussa J correctly considered Article 4 (b) which states that the CISG is not concerned with 'the effect the contract may have on property in the goods sold' 221 and applied Australian property law to support the effect of the Article 222 .No reference was given to foreign CISG case law 223 .
The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 224 was concerned with scrap metal sold by an Australia seller to a Malaysian buyer 225 in which the latter failed in its obligation to open a the letter of credit.In this case it was decided that the failure constituted a fundamental breach in accordance with art 25 226 .This enabled the seller to declare the contract void pursuant to art 64 (1) 227 .In this decision, the only foreign case cited was Delchi Carrier S.p.A v. Rotorex Corp. which, has been strongly criticised for its poor quality 228 .

Downs Investments Pty Ltd v Perwaja Steel Sdn Bhd
In Guang Dong Zhi Gao Australia Pty Limited v Fortuna Network Pty 229 Limited the court recognised that under CISG 8 (2) the parol evidence rule is not applicable stating that, In determining what are the terms of contract that is partly written and partly oral, surrounding circumstances may be used as an aid to finding what the terms of the contract are 230 .
Notwithstanding this reasoning, the court omitted the application of art 9 and relied upon domestic case law in its decision 231 .
In Castel Electronics Pty Ltd v. Toshiba Singapore Pte Ltd 232 the court recognised the application of art 35 233 but the claimant "invoked, further or alternatively, the warranties of fitness for the purpose and merchantable quality implied by section 19 (a) and (b) of the Goods Act 1958 (Vic)" 234 and the Court considered that this provision has been: Treated by Australian courts as imposing, effectively, the same obligations as the implied warranties of merchantable quality and fitness for purpose arising under The decisions cited by the Court had been previously criticised for ignoring the non-alternative application amongst the CISG and the Sale of Goods Act as well as the differences between provisions 235 .
Other jurisdictions; the italian example A glance at the reported cases on the Pace website allows the inference that application of the CISG by Civil Law traditions has been higher compared to those of Common law jurisdictions.Germany has registered 493 cases, China 432, Netherlands 242 and Switzerland 186.Although, Italy has reported only 52 decisions its cases will be analysed due to important scholarly writings and decisions that have been produced by this country which, has contributed to the notion of 'uniform interpretation'.
Italy has produced laudable CISG decisions with International implications.The 'Cuneo case' 236 has the merit of being the first CISG case to refer to foreign jurisprudence 237 .In 1996 the Italian District Court judge in Cuneo considered German and Swiss CISG jurisprudence when analysing a case that involved a French seller and an Italian buyer 238 .The seller shipped clothes in French sizes rather than Italian and the Court determined that the notice of non-conformity sent by the buyer 23 days after delivery was not within an acceptable time frame 239 .After this outcome, several Italian cases have invoked International Case Law 240 .Prominent cases that followed include Al Palazzo Srl v Bernardaud di Limoges SA 235 Zeller above n 231, 15.
The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 Tribunale Rimini241 in which 30 cases were cited from nine states 242 .M Agri Sas v Erzeugerorganisation Marchfeldgemüse GmbH & Co KG 243 cited numerous decisions from Germany, France, Swizerland, Austria, Belgium and an ICC arbitral award 244 .
Of particular relevance is the 'Vigevano case' 245 in which an Italian seller delivered vulcanized rubber to a German buyer for the production of shoe soles, after which the seller claimed lack of conformity 246 .
The Court cited 40 foreign decisions from Austria, France, Germany, the Netherlands, Switzerland and the US as well as arbitral awards 247 .When analysing the expression 'reasonable time' for notice contained within Article 39 (1) CISG, it was determined that it should established case by case.On this point the court took into account decisions from German, Italy and the Netherlands 248 .When outlining the importance of the nature of the goods in establishing the 'reasonable time' the judge relied on Dutch, Swiss and German cases 249 .Again consulting German case law, the Court outlined the necessity of taking into account the time when the buyer was required to examine the goods which, is regulated in Article 38 (1) 250 .The Court relied on Swiss and German CISG in clarifying the necessity to specify 'the nature of the defect' when arguing non-conformity 251.The expression "caused problems" or "are defective" were deemed insufficient 252 .
The Court stated that the burden of proof is a matter governed by the CISG but is "not expressly settle by it" rather, being 'resolved' through its underlying principles 253 .The Court outlined that Article 79 (1) CISG requires that the party in breach 'must prove that its failure was due to an impediment beyond his control' 254 which allows the deduction that one CISG principle is that 'the burned of proof rests upon the one who affirms' 255 .
The challenge for courts and lawyers in the improvement of the CISG Analysis conducted thus far indicates the marginal relevance of the CISG in Common Law countries and outlines the low quality of case law amassed through its courts.A lack of understanding of art 7 of the CISG has undoubtedly been one of the main obstacles to consistent application 256 .The achievement of at least a 'consistent' uniformity is mostly dependent upon the aptitude of practitioners, tribunals and commercial parties 257 .The way forward is for lawyers to divorce from their prejudices in relation to the CISG and to permit greater familiarity with its 'advantages and fundamental issues' 258 .The accusation of uncertainty in the CISG can be overcome if more parties consider its application to their contracts thereby, adding to the production of CISG jurisprudence and in turn allowing for greater improvement of the case law 259 .
This does not mean that the CISG must always be included 260 .The exclusion of the CISG is not always negative as it does not pretend to substitute domestic sale of goods regimes 261 .The CISG must be understood as an available option for the parties with its application not being appropriate in all cases 262 however; the CISG is specifically designed for international trade and for that reason it can be 254 Ibid. 255Ibid. 256See Zeller above n 231; Spanolo above n 14. 257 Ibid. 258Ibid. 259Ibid. 260See, Spagnolo above n 14, 11-20. 261Ibid. 262Ibid.
The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 a more neutral and simple option in many circumstances 263 .Furthermore, some counsels can find strategic advantages for clients when considering the CISG as a choice off law 264 .The CISG can minimise the legal risk of misapplication of the law chosen by a jurisdiction with a different legal system 265 .
Spagnolo has observed situations in which the CISG can be substantially advantageous for some clients.For example, in the instance where there is 'nonconformity' in the goods, the seller may find removal from liability where the buyer is not prompt in communicating the defects as the CISG requires the notice of non-conformity within a reasonable time 266 .
Notwithstanding, the CISG application has evidenced some difficulties in national courts.The relevance of the CISG in international trade is highlighted by the number of signatory states which is still growing 267 .Many countries have shown a great acceptance and often include the Convention in their contracts, being China an important example 268 .The CISG has proven successful in arbitration which is a considerable merit acknowledging that the majority of international contractual disputes are being arbitrated 269 .The freedom conferred to the arbitrator to apply the law it considers more appropriate to the dispute 270 has led to the application of the CISG to international sale contracts without consideration as to whether either party in the dispute is an adhering state or regardless of the site of arbitration 271 .If a country is to be a leader centre of arbitration it must obviously be well versed and practiced in the CISG 272 .The considerations mentioned above emphasise the necessity of Common Law countries to overcome their neglect of the CISG 273 .
Overcoming the incompleteness of the CISG; the aid of the unidroit principles Taking into account the importance of the Convention, the search for solutions towards at least a consistent uniform application must be provided.As previously explained, the CISG Article 7 invites an international interpretation rather than a parochial approach.However, one of the main interpretative difficulties is that the CISG 'is unable to regulate every issue'274 and contains some gaps which scholars have differentiated as 'internal' and 'external gaps' 275 .'External gaps' 276 refer to the matters which the CISG definitely does not deal with while 'internal gaps' are matters that are regulated but not expressly 277 .Article 7(2) provides a guide to conduct the gap filling process: 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 (CISG Art 7 (2)).
This provision has been understood to 'clarify the role of domestic law as the final resource in the interpretation of the CISG' 278 ; provisions and principles of the CISG having been found 'unable to provide answers' 279 .In order to achieve the international interpretation predicated in article 7 (1) the use of domestic law in the gap filling process must be limited 280 .Scholarly writing in this field explains that domestic law should be restricted to matters that qualify as 'external gaps' 281 .
The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 A correct application of article 7 (2) is indeed for the achievement of the international interpretation demanded by article 7 (1).
In practice, the application of the interpretive methodology of the CISG has proven challenging 282 with a prominent point of difficulty being the ability to accurately identify which gaps are internal and which are external 283 .The CISG does not regulate procedural matters however, it has not provided a test to determine which are procedural matters 284 ; often resulting in the obstacle of differentiation between substantial and procedural gaps 285 .Article 4 states that the Convention is not 'concerned with validity issues' 286 although, in many cases there is confusion in establishing whether a particular issue characterises a validity question 287 .Some argue 288 that validity has often been misleading and invoked merely because of its label 289 .A point that poses an even bigger challenge is compliance with the requirement to discern the principles underlying the CISG, a task for which the Courts and practitioners can feel unaided 290 .In practice, the Courts make little attempt to search for the general principles either through study of legal doctrine or international jurisprudence 291 .This cumulative disorientation results in an overclassification of external gaps and a subsequent excessive return to domestic law which, obviously impacts the uniform application of the Convention 292 .
Although gap filling is a complex matter, each day more supportive doctrinal material is produced.International case law in some matters has become abundant and a deeper study of the material available can allow for a laudable result.It may be accurate to state that the most difficult task for common law practitioners is the identification of underlying CISG principles 293 , not only because this activity 282 Zeller above n 275, 254. 283Ibid. 284Ibid. 285Ibid. 286Ibid. 287Ibid. 288Ibid. 289Ibid, 257. 290Ibid. 291Zeller above n 275, 7. 292 Ibid 263.
is unfamiliar with the accustomed interpretation method of Common Law as has been previously mentioned 294 , but also because it can be difficult to find a complete answer in the case law, with the finding of principles being mostly an independent interpretative exercise that is made case by case 295 .
The difficulties mentioned previously have led some to argue that the CISG Article 7 does not contain a detailed system of rules corresponding to a 'true methodology for interpretation', and simply constitutes an aim 296 .For this reason it has been further proposed that the principles of UNIDROIT can constitute a means of 'interpreting and supplementing the CISG' 297 .The preamble of the UNIDROIT Principles explicitly stipulates the possibility of its application in the interpretation and supplementation of 'international uniform law instruments' 298 .
The arguments to support application of the UNIDROIT Principles have been various.Some scholars suggest that in accordance with article 7 (2), the UNIDROIT Principles can be employed to fill CISG gaps as they 'constitute principles of international contract law upon which the Convention is based' 299 .Others assert that when they hold sufficient similarity, the provisions of the UNI-DROIT Principles can be used to 'interpret or supplement' 300 CISG provisions providing that the general principles underlying the CISG are expressed301 .A third and probably more extreme view considers that they can be invoked even when the principle cannot be inferred directly from the Convention302 as the expression 294 Ibid. 295Ibid. 296 The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 "general principles" 303 in CISG Article 7 includes the 'evolving' and 'following transitions in international commerce' 304 .
The arguments outlined below have been subject to great debate.A considerable group of academics argue the impossibility of supplementing the CISG with the Principles of UNIDROIT as they are not an exact reflection of the principles of international contract law 305 .Reasoning eludes that the Principles as a whole do not mirror the general principles that underlay the Convention 306 as they "reflect concepts found in many... legal systems... [and] also embody what are perceived to be best solutions, even if not yet generally adopted" 307 .This description is clearly established in the introduction of the UNIDROIT Principles 308 .This argument is further grounded with the fact that the UNIDROIT Principles are the work of the 'International Institute for the Unification of Private Law' 309 but not of the 'UNCITRAL and therefore [they] cannot represent a formal source of law for the purpose of supplementing the Vienna Convention' 310 .
Furthermore, a more formalist view denies the supplementary and interpretative role of the UNIDROIT Principles upon the argument that they were adopted post CISG.Application of the Principles of UNIDROIT requires parties consent otherwise its application is 'ilegitimate' 311 as it is in contradiction of article 7(2) which mandates reliance upon the principles of the CISG 312 .UNIDROIT Principles are not the base of the CISG 313 , they were merely construed from the CISG 314 .
The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7 89 for this reason the response to the question 'if a seller is entitled to pay by cheque or by other similar instruments or by a funds transfer' can be found in Art.6.1.7 of the UNIDROIT Principles whereby, 'the obligor may pay in any form used in the ordinary course of business at the place for payment, but cheques or other similar instruments are accepted by the obligee on condition that they will be honoured' 326 .
On the other hand, academics have suggested the possibility of invoking the UNIDROIT Principles, relying on CISG Article 9 327 ; considering them as 'usages or practices' 328 established among the parties.In this regard, scholarly writing argues that trade usages are activities of commerce regularly observed by those involved in a particular industry or marketplace 329 .Therefore, 'general contract rules' per se do not constitute a trade usage 330 .In order to apply CISG Article 9(2), all of the articles of the UNIDROIT Principles would have to prove to be regularly observed and widely known 331 .It is possible that in some cases a provision of the UNIDROIT Principles can be considered as a trade usage 332 although, this requires an 'individualised factual analysis' 333 .
The afore mentioned makes clear that the possibility of using the UNIDROIT Principles to supplement the CISG does not seem a simple issue considering the assumption that they are not law in a strict sense.However, there are compelling reasons to consider that they can play an important role as an interpretative tool 334 , assisting in the confirmation of a principle that has previously been deduced from the Convention 335 .
Some 336 may consider it fair to argue that both the UNIDROIT Principles and the CISG draw their principle 'policy reasoning's from shared 'common ground' and it might therefore naturally occur that the Principles identify an underlying principle of the CISG 337 .However, in order to support this argument it would be necessary to infer 'the principle in question' from the text of the CISG 338 .
The UNIDROIT principles have been gaining much importance in the global sphere where they have been a model for lawmakers in states such as Russia, China, and Spain and have been cited in several domestic decisions 339 .Its incorporation as interpretative criteria in the CISG can assist towards the construction of the notion of 'international interpretation' and a uniform interpretation not just of the CISG but also of other international instruments.The UNIDROIT principles can provide equality; reducing the unduly return to domestic law that often leads to an advantage for the local party.

Concluding remarks
The practical skepticism of Common Law countries in the acceptance of the CISG has been translated in a strong 'homeward trend' in the CISG case law, constituting a breach of Article 7 which demands interpretation of the Convention in accordance to its international character and the need to promote uniformity.
Relevance of the CISG in the International arena justifies the necessity that Common Law practitioners and Courts learn about the CISG and understand why it can be a good legal instrument to regulate international sales.Only the reduction of automatic exclusion and thereby, an increase in the application of the CISG can contribute to an improvement in the case law which, brings about greater certainty and predictability in outcomes.
The incompleteness of the CISG gives rise to the necessity to follow a gap filling process which, in some cases, can prove troublesome.There is abundant scholarly writing and case law that can assist in this process with the Principles of UNIDROIT constituting an appropriate guide in the identification of the CISG underlying principles although, its character as a first source in gap filling is doubtful. 337Ibid. 338Ibid.The United Nations convention on contracts for the international sale of goods (cisg) and the Common Law: the challenge of interpreting Article 7

339
See in this sense, Hideo Yoshimoto V Canterbury, Golf International Limited [2000] Nzca 350 (27 november 2000 ); Christine M. Whited, International Commercial Contracts: An Overview Of Their Utility And The Role They Have Played In Reforming Domestic Contract Law Around The World.
See Ahmad Azzouni, The Adoption of the 1980 Convention on the International Sale of Goods by the United Kingdom, 27 may 2002.Available at http://www.cisg.law.pace.edu/cisg/biblio/azzouni.html; Nathalie Hofmann, Interpretation Rules and Good Faith as Obstacles to the UK's Ratification of the CISG and to the Harmonization of Contract Law in Europe, 22 Pace Int'l L. Rev. 145 (2010) Available at http://digitalcommons.pace.edu/pilr/vol22/iss1/4;see also Fredrick above n 64.
See, see Larry DiMatteo et al., The Interpretive Turn in International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence p. 27. 137Larry DiMatteo et al., The Interpretive Turn in International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence 24.
section 19 of the Goods Act; see Playcorp Pty Ltd v Taiyo Kogyo Ltd [2003] VSC See, Di Matteo above n 137, 19-31; John Y. Gotanda 'Using The Unidroit Principles To Fill Gaps In The CISG'.Contract Damages: Domestic & International Perspectives, Hart Publishing, 2007, 15. 297 Michael Joachim Bonell, The Unidroit Principles of International Commercial Contracts and CISG -Alternatives or Complementary Instruments?Uniform Law Review (1996) 26-39.See M.J. Bonell, "General Report," in A New Approach to International Commercial Contracts: The UNIDROIT Principles of International Commercial Contracts, XVth International Congress of Comparative Law, Bristol, 26 july-1 august 1998, pp.12-13 (1999); see Gotanda above n 298.