| Concerning whether the parties can impliedly exclude the application of United Nations Convention on Contracts for the International Sale of Goods(CISG)by choice-of-law clause where the parties have stated that their contract is subject to the laws of contracting states,because of the obscure text of CISG Article 6,the legal experts have different viewpoints of the above problems.The lack of theoretical guidance has resulted in different handling of legal disputes,so that is important to resolve these problems.It is difficult to determine the parties’ real intend to impliedly exclude application of the CISG.The courts or arbitral tribunal need to confirm whether the parties reach consensus about implied exclusion,and this process is accompanied with the risk that the courts or arbitral tribunal regard their own hypothetical intention as the parties’ real intention.Through the analysis of the interpretation of CISG article 6 by the interpretation rule of Vienna Convention on the Law of Treaties and CISG article 7,this paper concludes that the CISG conditionally permits the implied exclusion through choice-of-law clause reached by the parties.And it is irrational to deny the right of the party of implied exclusion application of the CISG,and the key question is how to determine the conditions of implied exclusion,which can regulate the uncertainty of applicable law and respect autonomy of will of the parties.The clue of the analysis is how to confirm the parties mutual intend to implied exclude application of the CISG.There are two major difficulties the judges would face when confirming the parties’ mutual intention.Firstly,the interference of conflict rules,that is,because party autonomy principle is the primary principle when determine the applicable law of contracts,the judge would consider the choice-of-law clause in conflict rules and apply the law that the parties choose.But the choice-of-law clause plays a completely different role in CISG,and its sole purpose is to determine whether or not the parties have mutual intend to opt out the CISG.Secondly,lack of ways to confirm parties’ mutual intention to opt out CISG.This paper sets out two conditions for above difficulties:(1)confirm the contend of the applicable law to infer whether the parties intend to opt out CISG;(2)through the contract terms and all relevant circumstances,determine whether there’s another evidence reverse or confirm the above inference.This paper believes that the uniform rules to determine implied exclusion of the CISG when there is a choice-of-law clause can improve the certainty of application of law,and realize the uniformity application of the CISG. |
