The United Nations Convention on Contracts for the International Sale of Goods (the "CISG") is a set of rules created with the aim of being "a modern, uniform and fair regime for contracts"1 for the international sale of goods. The CISG entered into force on 1 January 1988 with eleven signatories and since that time, the number of member states has continuously increased. As of 1 August 2011, there are 77 states from different levels of economic development and legal traditions that have adopted the CISG. Since the majority of the states with which Turkey has commercial relations are members of the CISG, the convention is quite signifi cant for Turkey. Finally, Turkey accessed the CISG on 7 July 20102 and it entered into force on 1 August 2011.
After two previous conventions3 failed to achieve high participation rate, the CISG is widely accepted as the rule book for the international sale of goods. Today, the CISG is the uniform international sales law of countries that account for over three-quarters of all world trade. There are various reasons for the wide acceptance of the CISG. There is no doubt that one of these reasons is the contractual balance it provides. The balance established between the interests of the seller and the buyer is structured so that the weaker party is protected from disadvantages it may experience under the applicable law. This balance is important in the motivation for the accession of, in particular, developing countries. It was also argued that another reason for the wide acceptance of the CISG is its fl exibility4. With respect to the CISG's goal of unifi cation of the international sale of goods, its terminology has been created in such a way that it comprises differing legal concepts. Hence, you will fi nd terminology such as "exemptions" (CISG, Article 79) instead of "force majeure," "hardship," or "act of God." Similarly, "avoidance of contract" has been used, implicating different domestic legal concepts and interpretations.
The CISG is comprised of four parts. Part I covers the sphere of application and general provisions. Part II is concerned with the formation of international sale contracts. Part III provides for the sale of goods, and it includes provisions regarding the obligations of the seller and the buyer, remedies for breach of contract, passing of risk, exemptions and the effects of avoidance. In addition, Part IV sets out fi nal provisions with respect to accession to the Convention and declarations and reservations that a contracting state may make under the Convention.
It should be noted that the CISG only applies to contracts for the international sale of goods between parties whose places of business are in different states. In addition, in order to apply the CISG, both parties' places of business must be in contracting states, or the rules of private international law must lead to the application of the law of a contracting state5. The autonomy of the parties is fundamental under the CISG. In this respect, the parties may both determine the CISG to be the applicable law by choosing the law of a contracting state as the applicable law,6 or they may opt out from using the CISG in the contract by choosing the law of a noncontracting state as the applicable law or, the parties may choose the law of a contracting state and at the same time agree to derogate from the CISG7.
Before the CISG entered into force in Turkey, in the event of an application to the Turkish courts for the resolution of disputes arising out of a contract for the international sale of goods, confl ict rules were applied in order to determine the applicable law. However, as of 1 August 2011, the CISG became a part of the national law. In this respect, in the case of a contract between parties with a place of business in contracting states, the CISG will apply directly, and without the necessity of recourse to the rules of private international law. Furthermore, if Turkish law is determined as the applicable law in the contract, or if the rules of private international law lead to Turkish law, the CISG will prevail over the rules of the Code of Obligations or any other related legislation. Notwithstanding that the CISG is a set of substantive rules that aims to reduce obstacles, especially those associated with choice of law issues, the CISG still does not cover every issue that may arise from an international sale contract, such as validity of the contract, the effect of the contract on title to (the ownership of) the goods sold, error, mistake, fraud, and duress. These types of issues are left to be resolved by the applicable law determined by the rules of private international law. Therefore, the parties should bear in mind that a choice of law clause must be included in their contracts. The parties of an international sale contract must also take into consideration the fact that there are no special tribunals created for the CISG. National courts or arbitration panels will apply the CISG when a dispute arises from an international sales contract.
In taking into consideration the fact that merchants in Turkey have many contracts for the international sale of goods, and also remembering the wide acceptance of the CISG, it was desirable for Turkey to access the Convention. Finally, as the CISG becomes a part of the national law, it is inevitable that Turkey will further benefi t from the predictability of the CISG, together with the advantages of being subject to the same law with parties coming from different countries.
Footnotes
1 UNCITRAL. "United Nations Convention on Contracts for the International Sale of Goods (the CISG)." http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG.html
2 Turkey accepted the CISG on 7 April 2010 under decision numbered 2010/247, and Turkey submitted the Certifi cate of Accession to the United Nations on 7 July 2010.
3 The Uniform Law on the Formation of Contracts for the International Sale of Goods and Uniform Law for the International Sale of Goods
4 Introduction to the Digest of Case Law on the United Nations Sales Convention Note by the Secretariat. United Nations Commission on International Trade Law Thirty-Seventh Session New York, 14-25 June 2004.
5 The CISG, Article 1.
6 Hergüner, Ümit. "Applicability of the UN Convention on Contracts for the International Sale of Goods to Sales Contracts Concluded by Turkish Companies and their Affi liates Abroad;" Mistelis, Loukas. "CISG'nin Uygulama Alanı: Yer, Zaman ve Kişi Bakımından." p.15.
7 Schlectriem, Peter. "Requirements of Application and Sphere of Applicability." http://www.cisg.law.pace.edu/cisg/biblio/ schlechtriem9.html.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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