<p>The United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) seeks to provide a standard uniform law for international sales contracts. This research paper analyses the rationale behind South Africa&rsquo / s delay in deciding whether to ratify the CISG, and its possible effect on trade with other nations. The CISG drafters hoped that uniformity would&nbsp / remove barriers to international sales thereby facilitating international trade. Ratification of the convention is only the beginning of uniformity / uniformity must then be extended to its application&nbsp / and interpretation. Not all countries have ratified the Convention yet they engage in international trade in goods: this state of affairs presents challenges since traders have to choose a national&nbsp / law that applies to their contract where CISG does not apply. This takes traders back to the undesirable pre-CISG era. On the other hand, those States that have ratified the convention face&nbsp / different challenges, the biggest one being a lack of uniformity in its interpretation. The problem of differing interpretations arises because some CISG Articles are vague leading to varied&nbsp / interpretations by national courts. Further, the CISG is still largely misunderstood and some traders from States that have ratified CISG exclude it from application. South Africa can only ratify an&nbsp / international instrument such as the CISG, after it has been tabled before Parliament, and debated upon in accordance with the Constitution. CISG&rsquo / s shortcomings, particularly regarding&nbsp / interpretation, make it far from certain that CISG would pass the rigorous&nbsp / legislative process. Nonetheless, the Constitution of South Africa requires the South African courts and legislature to promote principles of international law. The paper, therefore, examines, whether the Legislature has a constitutional obligation to ratify CISG. South Africa&rsquo / s membership of the WTO requires&nbsp / that it promote international trade by removing trade barriers. It is, therefore, vital for South Africa to be seen to be actively facilitating international trade. Even though the trade benefits which&nbsp / flow from ratification are not always visible in States that have ratified the CISG, there is some doubt whether South Africa can sustain its trade relations without ratifying the CISG. The paper shows that the formation&nbsp / of contracts under the South African common law is very similar to formation as set out under Part II of the CISG and if the CISG were to be adopted in South Africa, no major changes would be&nbsp / needed in this regard. International commercial&nbsp / principles as an alternative to the CISG still require a domestic law to govern the contract and would, therefore, leave South African traders in the&nbsp / same position they are in currently, where their trading relations are often governed by foreign laws. Ratifying CISG would certainly simplify contract negotiations particularly with regard to&nbsp / governing law provisions. Overall the advantages of ratification for South Africa far outweigh the shortcomings of the CISG, and ratification will assist in ensuring that South African traders get an&nbsp / opportunity to enter the international trade arena on an equal platform with traders from other nations. </p>

University of Macau / Faculty of Law

<p>The United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) seeks to provide a standard uniform law for international sales contracts. This research paper analyses the rationale behind South Africa&rsquo / s delay in deciding whether to ratify the CISG, and its possible effect on trade with other nations. The CISG drafters hoped that uniformity would&nbsp / remove barriers to international sales thereby facilitating international trade. Ratification of the convention is only the beginning of uniformity / uniformity must then be extended to its application&nbsp / and interpretation. Not all countries have ratified the Convention yet they engage in international trade in goods: this state of affairs presents challenges since traders have to choose a national&nbsp / law that applies to their contract where CISG does not apply. This takes traders back to the undesirable pre-CISG era. On the other hand, those States that have ratified the convention face&nbsp / different challenges, the biggest one being a lack of uniformity in its interpretation. The problem of differing interpretations arises because some CISG Articles are vague leading to varied&nbsp / interpretations by national courts. Further, the CISG is still largely misunderstood and some traders from States that have ratified CISG exclude it from application. South Africa can only ratify an&nbsp / international instrument such as the CISG, after it has been tabled before Parliament, and debated upon in accordance with the Constitution. CISG&rsquo / s shortcomings, particularly regarding&nbsp / interpretation, make it far from certain that CISG would pass the rigorous&nbsp / legislative process. Nonetheless, the Constitution of South Africa requires the South African courts and legislature to promote principles of international law. The paper, therefore, examines, whether the Legislature has a constitutional obligation to ratify CISG. South Africa&rsquo / s membership of the WTO requires&nbsp / that it promote international trade by removing trade barriers. It is, therefore, vital for South Africa to be seen to be actively facilitating international trade. Even though the trade benefits which&nbsp / flow from ratification are not always visible in States that have ratified the CISG, there is some doubt whether South Africa can sustain its trade relations without ratifying the CISG. The paper shows that the formation&nbsp / of contracts under the South African common law is very similar to formation as set out under Part II of the CISG and if the CISG were to be adopted in South Africa, no major changes would be&nbsp / needed in this regard. International commercial&nbsp / principles as an alternative to the CISG still require a domestic law to govern the contract and would, therefore, leave South African traders in the&nbsp / same position they are in currently, where their trading relations are often governed by foreign laws. Ratifying CISG would certainly simplify contract negotiations particularly with regard to&nbsp / governing law provisions. Overall the advantages of ratification for South Africa far outweigh the shortcomings of the CISG, and ratification will assist in ensuring that South African traders get an&nbsp / opportunity to enter the international trade arena on an equal platform with traders from other nations. </p>

This research analyses the impact and materiality of South Africa’s choice not to ratify the CISG on its trade as well as relations with other states. As the point of departure, the broader events leading up to the creation of the CISG will be examined as well as UNCITRAL’s mandate and the development of trade in the local and global context. At present, the CISG has been ratified by 85 states. The decisions by common law jurisdictions such as the UK and India not to ratify the CISG as well as the delay by Brazil and Japan will be discussed. The legal, business and political or policy reasons for and against the ratification of the CISG are investigated which focuses on aspects such as legal certainty, uniformity of laws and the reduction of legal costs. An investigation is carried out regarding the historical foundations of the South African law of contract to this framework sets the tone for a comparison between the South African law and the provisions of the CISG. Lastly, a comparison is drawn between the provisions of the CISG and the South African law with specific emphasis on the remedies of specific performance and the right to claim damages which culminates in an overall conclusion that the South African law is compatible with the CISG insofar as remedies for breach of contract are concerned. / Mercantile Law / LL. M. (International Economic Law)

Magister Legum - LLM / The United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) seeks to provide a standard uniform law for international sales contracts. This research paper analyses the rationale behind South Africa’s delay in deciding whether to ratify the CISG, and its possible effect on trade with other nations. The CISG drafters hoped that uniformity would remove barriers to international sales thereby facilitating international trade. Ratification of the convention is only the beginning of uniformity; uniformity must then be extended to its application and interpretation. Not all countries have ratified the Convention yet they engage in international trade in goods: this state of affairs presents challenges since traders have to choose a national law that applies to their contract where CISG does not apply. This takes traders back to the undesirable pre-CISG era. On the other hand, those States that have ratified the convention face different challenges, the biggest one being a lack of uniformity in its interpretation. The problem of differing interpretations arises because some CISG Articles are vague leading to varied interpretations by national courts. Further, the CISG is still largely misunderstood and some traders from States that have ratified CISG exclude it from application. South Africa can only ratify an international instrument such as the CISG, after it has been tabled before Parliament, and debated upon in accordance with the Constitution. CISG’s shortcomings, particularly regarding interpretation, make it far from certain that CISG would pass the rigorous legislative process. Nonetheless, the Constitution of South Africa requires the South African courts and legislature to promote principles of international law. The paper, therefore, examines, whether the Legislature has a constitutional obligation to ratify CISG. South Africa’s membership of the WTO requires that it promote international trade by removing trade barriers. It is, therefore, vital for South Africa to be seen to be actively facilitating international trade. Even though the trade benefits which flow from ratification are not always visible in States that have ratified the CISG, there is some doubt whether South Africa can sustain its trade relations without ratifying the CISG. The paper shows that the formation of contracts under the South African common law is very similar to formation as set out under Part II of the CISG and if the CISG were to be adopted in South Africa, no major changes would be needed in this regard. International commercial principles as an alternative to the CISG still require a domestic law to govern the contract and would, therefore, leave South African traders in the same position they are in currently, where their trading relations are often governed by foreign laws. Ratifying CISG would certainly simplify contract negotiations particularly with regard to governing law provisions. Overall the advantages of ratification for South Africa far outweigh the shortcomings of the CISG, and ratification will assist in ensuring that South African traders get an opportunity to enter the international trade arena on an equal platform with traders from other nations. / South Africa

Due to important differences and risks in international trade, firms pay due attention to the legal background of their contractual relationships. To do this, they use a variety of contracts, the most important of which is the contract of sale. In this paper I will analyse two requisites of a contract of sale: the price and the terms of payment. The first part of the paper deals with the examination of the regulation of these requisites in the law of five selected countries and in the international law (the United Nations Convention on Contracts for the International Sale of Goods). In the second part I will compare two concrete contracts of sale and assess their quality. The last part is then devoted to the definition of the main problems of the examined regulation and to the search of their possible solutions.

Electronic commerce from a private international law perspective The objective of this thesis is to study how the United Nations Convention on Contracts for the International Sale of Goods (CISG) is applied in the field of electronic commerce and compare it to the United Nations Convention on the Use of Electronic Communications in International Contracts in regard to the prevailing tendency to remove legal barriers to electronic commerce. The comparison is made in terms of geographic and material scope, forms of contract and how contracts are formed. An analysis of conditions and obstacles to the application of the CISG within the field of electronic commerce represents the core of the work. The thesis is based on the assumption that the Convention on the Use of Electronic Communications in International Contracts is an instrument which helps to overcome identified obstacles. The thesis formulates a conclusion on overcoming just one of the obstacles on the basis of the principle of technological neutrality, and it further demonstrates that the requirement of being in written form may remain an obstacle. As such, the thesis is a response to the question of why the Convention is signed and ratified by a relatively small number of states.

The aim of the thesis was to critically compare termination of contracts in South Africa, England and the CISG. It was found out that South Africa prefers to use the term cancellation because it is a remedy of last resort. The problem with cancellation is that is a drastic step of bringing the transaction to an abrupt and premature end, which is only used when a material breach occurs. English law uses the term discharge as it refers to the ending of the obligations under the contract when a breach occurred and represents the point at which one party is no longer bound by its’ contractual obligations and claims damages. Chapter 3 argued that though discharge goes beyond cancellation it does not cater for diverse domestic rules which need uniform international laws. Chapter 4 discussed and argued that avoidance is a term that was chosen by the CISG to end a contract when a fundamental breach occurs. There were problems on interpretation of terms and use of diverse domestic rules. The advantage of the term avoidance is that it is a technical term adopted and given a uniform meaning in the CISG where interpretation of terms and diverse domestic rules did not apply. Avoidance furthermore comprised concepts of rescission and termination. From the above it was argued that South Africa needs to develop new terms for termination of a contract and create new laws along the lines of the CISG. / Private Law / LL. M.

La comparaison des principes directeurs du droit des contrats dans les ordres internes (français et libanais), européen et international permet de déceler, d’une part, une convergence sur le plan de l’identification des principes directeurs du droit des contrats et, d’autre part, une divergence sur le plan de la mise en oeuvre de ces principes. La convergence se manifeste par le fait que les mêmes principes - à savoir les principes de liberté contractuelle, de loyauté contractuelle et de sécurité contractuelle - sous-tendent la théorie générale des contrats dans les trois ordres. Cette convergence s’explique par deux principaux facteurs : d’une part, un facteur logique à savoir le raisonnement par induction qui permet de dégager les principes directeurs du droit des contrats, et, d’autre part, un facteur politique en l’occurrence la concordance des objectifs généraux du droit des contrats dans les trois ordres. Quant à la divergence sur le plan de la mise en oeuvre des principes directeurs,elle se manifeste pratiquement par le renforcement, en droits européen et international,des principes directeurs de la liberté contractuelle et de la loyauté contractuelle ainsi que par l’aménagement du principe directeur de la sécurité contractuelle. Cette divergence a pu être expliquée par l’existence de besoins propres du commerce international. Toutefois, elle devrait plutôt être rattachée à l’influence de droits nationaux étrangers aux droits français et libanais. / The comparison of the guiding principles of contract law in French, Lebanese, European and international laws reveals on one hand a convergence in terms of identifying the guiding principles of contract law and on the other hand a divergence interms of implementing these principles.The convergence arises from the same principles - namely the principles of contractual freedom, contractual security and contractual “loyalty”2 - underlying the general theory of contracts in all three laws. This convergence is due to two mainfactors: firstly, a logical factor that is the inductive reasoning that allows extracting the guiding principles of contract law, and, secondly, a political factor based on the similarity of the general objectives of contract law in the three laws. As for the divergence in terms of guiding principles implementation, it is revealed through reinforcing in European and international laws, the guiding principles of contractual freedom and contractual “loyalty” as well as the adjustment of the guiding principle of contractual security. This divergence could be explained by the existence of specific needs of international trade. However, it should rather be related to the influence of foreign national laws different from French and Lebanese laws.

It is universally acknowledged that international trade and cooperation have become key drivers of SMEs. Indeed, the success of SMEs in the sales sector depends upon their capacity to conquer the foreign market and compete with larger companies. Many SMEs today, in particular those in Central and West Africa, are very much aware of this reality. However, because of differences between domestic laws and their maladjustment, many African SMEs still struggle to enter the international market and compete with larger companies. It is therefore obvious that any SMEs that want to succeed in international commerce today will be called upon to confront different regulations, whether domestic, regional or international, which are often shaped according to the realities and expectations of a particular environment. The challenge today is to regulate and harmonise these different legal systems, in order to render the law identical in numerous jurisdictions. This process of unifying the law internationally, in particular the law of sale, started in 1920 and culminated in 1988, with the implementation of the CISG. This Convention, which has become the primary law for international sales contracts, endeavours to deal with this problem of differences in law between states on a global scale, by attempting to achieve a synthesis between different legislations, such as civil law, common law, socialist law, and the law regarding industrialised and Third World countries. Even though the CISG appears to be a compromise between different legal systems, the fact remains that it is not yet applicable in many countries, especially those in Central and West Africa, which are mostly still ruled by domestic and regional law, namely the OHADA. The purpose of this study is to attempt to analyse and compare the OHADA’s Uniform Act Relating to Commercial Law to the CISG, in order to identify similarities and differences between the two, and to determine, with regard to the operating mode and structure of SMEs in West and Central Africa, which one of the two legislations is more appropriate. / Private Law / LL. M.