Nama :
Caswita Dewi
Kelas : 02PFJ
Nim :
1601265183
UN Convention on contracts for the international sale of goods 1980
Ruang
lingkup CISG
jual beli consumer sales:
1.kebutuhan
perorangan, keluarga dan rumah tangga.
2.Jual
beli melalui lelang
3.Jual
beli melalui jaminan-jaminan
4.Jual
beli kapal, perahu, pesawat
5.Jual
beli listrik
6.Kontrak
untuk penyediaan barang guna diproduksi
7.jual
beli dimana sebagian besar bagian kewajiban pembeli adalah memberikan pelayanan
jasa atau tenaga kerja.
CISG
menentukan ketentuan kontrak dalam 6 bab
Bab1
(Ketentuan Umum)
Bab
2 (Kewajiban Membayar)
Bab
3 (Kewajiban Pembeli)
Bab
4 (Peralihan Resiko)
Bab
5 (Ketentuan Umum Terhadap Kewajiban Penjual Dan Pembeli)
Bab
6 (Ketentuan Akhir)
Syarat
formal kontrak CISG
· Konvensi CISG
tidak dengan tegas menyaratkan suatu bentuk formal dari suatu kontrak termasuk
tertulis atau tidak.
· A contract
sale need not concluded in or evidence by writing and is not subject to any
other requirments as to form, it may be proved by any means including
witnesses.
·
CISG CISG
menyerahkan formalitas kontrak pada kesepakatan para pihak [Pasal 11]
dan bukan kelamahan konvensi ini, karena hal ini adalah jalan tengah untuk
menghindari konflik yang mungkin terjadi apabila menyatakan secara tegas
formalitas tertentu yang ternyata dapat bertentangan dengan hukum nasional
suatu negara tertentu.
Pilihan
Hukum CISG
· Pasal 6 kebebasan
para pihak untuk memilih hokum
· Pengakuan
terhadap kebebasan para pihak dalam memilih hokum
· Pasal 9 CISG menyatakan
bahwa para pihak terikat pada
kebiasaan-kebiasaan dalam perdagangan yang telah disepakati mereka.
Siginfikansi
CISG 1980
- · merupakan instrumen hukum internasional. karena CSIG telah diratifikasi oleh banyak negara maju atau berkembang.
- · Sudargo Gautama : CSIG penting, hukum kontrak harus menyesuaikan diri dengan syarat-syarat kebutuhan lintas perdagangan internasional.
- · Hukum nasional harus menyesuaikan kontrak dengan ketentuan yang terdapat dalam CSIG.
Example :
Professor of Law, University of
Pittsburgh School of Law
|
introduction
United Nations (UN) Convention On Contracts For The
International Sale Of Goods 1980
The
United Nations Convention on Contracts for the International Sale of Goods
(CISG) has been recognized as the most successful attempt to unify a broad area
of commercial law at the international level. The self-executing treaty aims to
reduce obstacles to international trade, particularly those associated with
choice of law issues, by creating even-handed and modern substantive rules
governing the rights and obligations of parties to international sales
contracts. At the time this is written (February 2009), the CISG has attracted
more than 70 Contracting States that account for well over two thirds of
international trade in goods, and that represent extraordinary economic,
geographic and cultural diversity.
The
CISG is a project of the United Nations Commission on International Trade Law
(UNCITRAL), which in the early 1970s undertook to create a successor to two
substantive international sales treaties – Convention relating to a Uniform Law
on the Formation of Contracts for the International Sale of Goods (ULF) and the
Convention relating to a Uniform Law for the International Sale of Goods (ULIS)
– both of which were sponsored by the International Institute for the
Unification of Private Law (UNIDROIT). The goal of UNCITRAL was to create a
Convention that would attract increased participation in uniform international
sales rules. The text of the CISG was finalized and approved in the six
official languages of the United Nations at the United Nations Conference on
Contracts for the International Sale of Goods, held in 1980, in Vienna. The
CISG entered into force in eleven initial Contracting States on 1 January 1988,
and since that time has steadily and continuously attracted a diverse group of
adherents.
The
CISG governs international sales contracts if (1) both parties are located in
Contracting States, or (2) private international law leads to the application
of the law of a Contracting State (although, as permitted by the CISG (article
95), several Contracting States have declared that they are not bound by the
latter ground). The autonomy of the parties to international sales contracts is
a fundamental theme of the Convention: the parties can, by agreement, derogate
from virtually any CISG rule, or can exclude the applicability of the CISG
entirely in favor of other law. When the Convention applies, it does not govern
every issue that can arise from an international sales contract: for example,
issues concerning the validity of the contract or the effect of the contract on
the property in (ownership of) the goods sold are, as expressly provided in the
CISG, beyond the scope of the Convention, and are left to the law applicable by
virtue of the rules of private international law (article 4). Questions
concerning matters governed by the Convention but that are not expressly
addressed therein are to be settled in conformity with the general principles
of the CISG or, in the absence of such principles, by reference to the law
applicable under the rules of private international law.
Among
the many significant provisions of the CISG are those addressing the following
matters:
–
Interpretation of the parties’ agreement;
– The
role of practices established between the parties, and of international usages;
– The
features, duration and revocability of offers;
– The
manner, timing and effectiveness of acceptances of offers;
– The
effect of attempts to add or change terms in an acceptance;
–
Modifications to international sales contracts;
– The
seller’s obligations with respect to the quality of the goods as well as the
time and place for delivery;
– The
place and date for payment;
– The
buyer’s obligations to take delivery, to examine delivered goods, and to give
notice of any claimed lack of conformity;
– The
buyer’s remedies for breach of contract by the seller, including rights to
demand delivery, to require repair or replacement of non-conforming goods, to
avoid the contract, to recover damages, and to reduce the price for
non-conforming goods;
– The
seller’s remedies for breach of contract by the buyer, including rights to
require the buyer to take delivery and/or pay the price, to avoid the contract,
and to recover damages;
–
Passing of risk in the goods sold;
–
Anticipatory breach of contract;
–
Recovery of interest on sums in arrears;
–
Exemption from liability for failure to perform, including force majeure;
–
Obligations to preserve goods that are to be sent or returned to the other
party.
The
CISG also includes a provision eliminating written-form requirements for
international sales contracts within its scope – although the Convention
authorizes Contracting States to reserve out of this provision, and a number
have done so. The CISG also includes “Final Provisions” addressing such matters
as ratification, acceptance, approval and accession; the interplay between the
CISG and other overlapping international agreements; declarations and
reservations; entry-into-force dates; and denunciation of the Convention.
Several
other UNCITRAL projects are designed to work in tandem with the CISG. For
example, the United Nations Convention on the Limitation Period in the
International Sale of Goods contains rules governing the limitation period for
claims arising under international sales contracts. The Limitations Convention
was originally promulgated in 1974, but was amended in 1980 by a Protocol
adopted by the Diplomatic Conference that approved the CISG in order to
harmonize the two Conventions. At the time this is written, the amended
Limitations Convention is in force in 20 Contracting States. In 2005, the
General Assembly adopted the United Nations Convention on the Use of Electronic
Communications in International Contracts to address various issues arising
when electronic communications methods are employed in connection with
international contracts, including international sales contracts. Issues
addressed in the Electronic Communications Convention include contract
formation by automated communications, the time and place that electronic
communications are deemed dispatched and received, determination of the
location of parties employing electronic communications, and criteria for
establishing functional equivalence between electronic and hard copy
communication and authentication. At the time this is written, 18 States have
signed the Electronic Communications Convention, although it has not yet been
ratified or acceded to by any State and it has not yet entered into force.
No
special tribunals were created for the CISG; it is applied and interpreted by
the national courts and arbitration panels that have jurisdiction in disputes
over transactions governed by the Convention. To achieve its fundamental
purpose of providing uniform rules for international sales, the Convention
itself requires that it be interpreted with a view to maintaining its
international character and uniformity. To that end, special research
resources, often consisting of databases available free of charge through the
Internet, provide access to materials designed to foster uniform international
understanding of the rules of the CISG. These resources, including several
developed and maintained by UNCITRAL in the six official languages of the
United Nations, allow access to court and arbitral decisions applying the CISG
from around the world, the travaux préparatoires of the CISG, and commentary on
the Convention by a global community of scholars.
Related
Materials
A.
Legal Instruments
Convention
relating to a Uniform Law on the International Sale of Goods, The Hague, 1
July 1964, United Nations, Treaty Series, vol. 834, p. 107.
Convention
relating to a Uniform Law on the Formation of Contracts for the International
Sale of Goods, The Hague, 1 July 1964, United Nations, Treaty Series,
vol. 834, p. 169.
Convention on the Limitation Period in the International Sale
of Goods, New York, 14 June 1974, United Nations, Treaty Series,
vol. 1511, p. 3.
Protocol amending the Convention on the Limitation Period in
the International Sale of Goods, Vienna, 11 April 1980, United Nations,
Treaty Series, vol. 1511, p. 77.
Convention on the Limitation Period in the International Sale
of Goods, as amended by the Protocol of 11 April 1980, United Nations,
Treaty Series, vol. 1511, p. 99.
United Nations
Convention on the Use of Electronic Communications in International Contracts,
New York, 23 November 2005 (General Assembly resolution 60/21 of 23 November 2005).
B. Documents
Final Act of the United Nations Conference on Contracts for the International Sale of Goods, 10 March – 11 April l980 (A/CONF.97/18).
Commentary
on the Draft Convention on Contracts for the International Sales of Goods,
prepared by the Secretariat (A/CONF.97/5).
[For
other documents relating to the travaux préparatoire of the CISG, see the UNICTRAL
website.]
C. Doctrine
C. Doctrine
Commentary on the UN Convention on the International Sale of Goods (CISG) (Peter Schlechtriem & Ingeborg Schwenzer, eds.) 2nd (English) ed., Oxford: Oxford University Press, 2005 (English-version of the 4th edition of Kommentar zum Einheitlichen UN-Kaufrecht).
J. O. Honnold, Uniform Law for International Sales under the 1980 United Nations Convention, 3rd ed., The Hague: Kluwer Law International, 1999 (4th ed. forthcoming in 2009).
[For other recommended sources, see the “Related Material” accompanying the lectures on the United Nations Convention on Contracts for the International Sale of Goods in the Lecture Series portion of the United Nations Audiovisual Library of International Law.]
Procedural
History
The
United Nations Convention on Contracts for the International Sale of Goods was
the outcome of a long process of unification the origin of which goes back to
the very early days of the movement for the unification of international trade
law. The Convention is rooted in two earlier conventions sponsored by the
International Institute for the Unification of Private Law (Unidroit). In 1930,
Unidroit decided to undertake the preparation of a uniform law on the
international sale of goods, which resulted in two separate conventions: the
Convention relating to a Uniform Law on the Formation of Contracts for the
International Sale of Goods (ULF) and the Convention relating to a Uniform Law
on the International Sale of Goods (ULIS). Developed over the course of three
decades by leading commercial law experts of Western Europe, the two
Conventions were finalized in 1964 by a diplomatic conference at The Hague and
entered into force in 1972 among nine states. Despite their fundamental
importance, they failed to receive substantial acceptance outside Western
Europe.
At the
first session of the United Nations Commission on International Trade Law
(UNCITRAL) held in 1968, it was decided that the Commission should first
determine the position of States in respect of the ULF and ULIS which were not
yet in force. Accordingly, the Commission requested the Secretary-General to
send a questionnaire to Member States of the United Nations or any of its
specialized agencies. Upon receiving the replies and an analysis of the replies,
the Commission decided, at its second session in 1969, to create a Working
Group on the International Sale of Goods, composed of representatives of
fourteen Member States, which was instructed to ascertain “which modifications
of the existing texts might render them capable of wider acceptance by
countries of different legal, social and economic systems, or whether it will
be necessary to elaborate a new text for the same purpose”.
The
Working Group, which was subsequently enlarged to fifteen members, held a total
of nine sessions from 1970 to 1977 (New York, January 1970; Geneva, December
1970; Geneva, January 1972; New York, January-February 1973; Geneva,
January-February 1974; New York, January-February 1975; Geneva, January 1976;
New York, January 1977; Geneva, September 1977). At its first seven sessions,
the Working Group considered ULIS and, at its eighth and ninth sessions, it
considered ULF. In both cases, the Working Group recommended that the
Commission adopt new texts, which would be more acceptable to countries of
different legal, economic or social systems. It further produced two draft
Conventions, namely the draft Convention on the International Sale of Goods,
setting forth the rights and obligations of the seller and buyer under the sales
contract, and the draft Convention on the Formation of Contracts for the
International Sale of Goods, which the Working Group completed respectively in
1976 and 1977. During the period of 1970 to 1977, the Secretary-General was
often requested by the Commission and the Working Group to prepare reports on
certain matters pertaining to international sale of goods.
The
Commission, at its tenth session in 1977, approved the draft Convention on the
International Sale of Goods based upon the text proposed by the Working Group.
At its eleventh session in 1978, the Commission approved the draft Convention
on the Formation of Contracts for the International Sale of Goods and decided
to combine the two draft Conventions into the draft Convention on Contracts for
the International Sale of Goods, which it approved at the same session. Based
on the recommendation from the Commission, the General Assembly submitted the
draft Convention to the United Nations Conference on the International Sale of
Goods (Conference of Plenipotentiaries), convened in 1980, for its
consideration.
The
draft Convention was laid before the 1980 Conference, together with a
commentary thereon prepared by the UNCITRAL Secretariat. The Conference, held
in Vienna from 10 March to 11 April 1980, unanimously approved the United
Nations Convention on Contracts for the International Sale of Goods. The
Convention opened for signature on 11 April 1980 during the Conference in
Vienna. In accordance with its article 99, it entered into force on 1 January 1988.
Status
The
Convention entered into force on 1 January 1988. For the current participation
status of the Convention, as well as information and relevant texts of related
treaty actions, such as reservations, declarations, objections, denunciations
and notifications.
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