The Significance of the Vienna Convention on the International Sale of Goods for the Harmonisation and Transplantation of International Commercial Law

• Jurisdiction: South Africa
• Author: Bruno Zeller
• Pages: 466-481
• Citation: (2006) 17 Stell LR 466
• Published date: 27 May 2019
• Date: 27 May 2019

THE SIGNIFICANCE OF THE VIENNA

CONVENTION ON THE INTERNATIONAL SALE

OF GOODS FOR THE HARMONISATION AND

TRANSPLANTATION OF INTERNATIONAL

COMMERCIAL LAW*

Bruno Zeller

Dip Bus Mg BComm BEd M Int’l Law PhD FAICA

Senior Lecturer, School of Law, Victoria University, Melbourne

1 Introduction

It is often said that one of the aims of comparative law is to help in the

harmonisation of law, but the intellectual worlds of the comparatist and

the harmonisation scholar rarely coincide. This is not surprising.

‘‘When law is internationalised it changes. It is denationalised, modernised and liberalised,

sometimes intentionally, sometimes inadvertently.’’

1

The aim of this article is to act as a modest bridge between the two

worlds by exploring the landscape in which harmonisation of interna-

tional commercial law takes place and, in particular, one of the most

successful attempts, the Vienna Convention on the International Sale of

Goods (CISG).

The CISG is more than merely an example of a harmonised

international law. It is also a product of comparative studies. It is useful

to remember that the whole process of drafting and refining the CISG

spanned a period of 30 years. Furthermore, the CISG was not only

‘‘about the law’’ but also about what was politically acceptable. In

essence, comparative legal studies were the foundation of any suggestion

as to what was acceptable to diverse groupings such as the civil law

countries, the common law countries, the communist or eastern block

countries and the developing or underdeveloped countries.

In a commercial world, however, the success of an international

instrument or any other law for that matter is measured by the degree of

its acceptance by those who apply and use the law. One could ask: Why is

the CISG important? Is it because of harmonisation or transplantation

issues? The answer is neither. It is important because the drafters were

acutely aware that nations would sign the convention only if it reflects

* I would like to thank Gerry Box of Victoria University, Melbourne for reading anearlier draft which

was much appreciated.

1

Karrer ‘‘Internationalisation of Civil Procedure — Beyond the IBA Rules of Evidence’’ 2004 4 Uniform

Law Review 893.

466

(2006) 17 Stell LR 466

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their aspirations and expectations. Hence the comparatist supplies the

answer as to what the shared fundamental expectations or general

principles are on which everybody can agree. This suggestion leads to the

conclusion that harmonisation and transplantation are merely the

practical applications of a product which has its origin in comparative

studies. This article attempts to ‘‘map the territory’’ and it is hoped that it

will encourage further comparative work in the area of private

international law.

2

This observation makes the adoption of a unified or harmonised law to

solve problems associated with international sales quite important.

Eiselen, in an important article,

3

explained why South Africa should

adopt the CISG and it is useful to repeat in part his excellent treatment

on this matter. He specifically noted:

‘‘In the process of creating a new economic order, it is extremely important to remove any

unnecessary bafflers impeding trade that might exist. Although most of the countries in

southern Africa share a common legal background in regards to contract — Roman-Dutch law

— there is no unified law of sale and, as far as the rest of Africa is concerned, even a common

legal heritage is lacking.’’

4

Broadly speaking, harmonisation of commercial law takes place either

by an internationally agreed instrument or transplantation of foreign law.

A third method, which might be regarded as a hybrid of the above two, is

by adoption of an internationally agreed model law. Therefore, a State

can simply ratify an international instrument in order to harmonise the

international aspect of its commercial law; adopt a model law in order to

achieve the same object; transplant foreign law as a substitute for its

domestic law;

5

or combine ratification of an international instrument

with transplantation.

Numerous harmonisation attempts have taken place, which have been

driven by bodies such as UNCITRAL, UNIDROIT and the European

Commission, to mention but a few. The CISG is arguably the first

successful international instrument dealing with the international sale of

goods. The CISG is significant for the harmonisation of international

commercial law through comparative studies. For the first time vastly

different legal systems could agree on a ‘‘common denominator’’.

Furthermore, the CISG has been the source or inspiration for many

transplants. Important aspects of the CISG have not only been adopted

into domestic law but also into other conventions. Hence the CISG is not

only an example of harmonisation but transplantation as well. It is for

these reasons that the CISG must be considered to be an important

development in the harmonisation of commercial law worldwide.

2

Of special interest should be the newly adopted ALI/UNIDROIT Principles and Rules of

Transnational Civil Procedure; see par 3 infra.

3

‘‘Adoption of the Vienna Convention for the International Sale of Goods (the CISG) in South Africa’’

1999 SALJ part II 323 324.

4

1999 SALJ part II 323 324

5

It is not the purpose of this article to discuss whether legal transplant in one form or another will

function as planned.

THE SIGNIFICANCE OF THE VIENNA CONVENTION467

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