Unification, Disintegration or Optimization – Purposes of Modern Sales Law
in Research Handbook on International and Comparative Sale of Goods Law, Djakhongir Saidov (ed) (Edward Elgar, 2019)
27 Pages Posted: 8 Mar 2021
Date Written: September 27, 2019
This chapter focusses on purposes of modern sales law, the forces that influence utilization of uniform sales law, and challenges our perceptions about the suitability of domestic and uniform law in governing international sales. Part II examines the purposes and functions of modern sales law, and in particular, our expectations of it. To this end, the underlying aims behind sales law are briefly reviewed, especially that of international uniform sales law, including the CISG, the UNIDROIT Principles of International Commercial Contracts, and the INCOTERMS 2010. During this discussion, a contrast is drawn between the way in which domestic and uniform sales law express their aims, and how this alters expectations and the debate. Part II builds upon this to explain how each tends to be viewed by lawyers and business in practice. The final sections of Part II touch upon current rates of use of uniform sales law, as this is frequently overlooked by many engaged in the debate.
Parts III and IV then give shape to the theme of this book, that is, the forces behind uniformity and disintegration. The author posits that the pertinent question is not whether there is more or less uniformity in an absolute sense, but whether relevant forces tend to encourage optimal or inefficient choices of law. In other words, which factors might be influential improving decisions about whether to use uniform sales law, and which forces instead encourage poorly informed choices. Part III outlines a number of forces which promote uniformity in the sense of encouraging better informed decisions. It looks internally to the ability of businesses to take advantage of uniform sales laws to streamline their contract management costs, the flexibility inherent in uniform sales laws instruments to come together in different combinations to provide tailored solutions, the globalization of legal education, the establishment of a number of bodies whose aims are to assist in raising awareness of uniform law or promoting stability and development of uniform law, and the impact of Chinese economic influence.
Part IV then turns to forces which may exacerbate existing market distortions, including diversity of sources of uniform sales law, diverse interpretation of uniform sales law in national courts and tribunals, the dangers of uninformed debate in inflaming existing bias in decision making, and the potential effect of regionalism and nationalism. Part IV briefly revisits the benefits of diversity and uniformity in sales law, before the conclusion in Part V, in which the author challenges us to rethink how we evaluate the suitability of domestic law for international transactions.
Keywords: International sales law, CISG, UNIDROIT, comparative contract law, choice of law, party autonomy
JEL Classification: K12
Suggested Citation: Suggested Citation