The increased international trade has led to several problems for the domestic legal minds: both lawyers and judges. they have to be well acquainted with numerous legal systems to resolve the problems created and the issues raised in an international trade transaction. [1] This unnecessarily complicates the trade relations and increases the work burden. This is mostly tricky if the legal system in question has not come across situations dealing with certain concepts earlier. [2]

In this era of globalization, thanks to the faster modes of communications such as the internet, the world has been reduced to a global village, were every nation is in trade relations with other nations. With the lifting of the legal barriers and with an attempt to move on lines of the developed countries, businessmen of the developing countries are now involved in international sales transactions with traders from a wide group of jurisdiction whose laws are not uniform or familiar. Thus, it has resulted in many encountering legal issues associated with a foreign legal system. [3] In such a scenario, in case of any dispute, it leads to numerous problems for all its stakeholders such as businessmen, traders, lawyers, policy-makers, and legal systems. [4] Such a scenario can be dealt with or done away with if the trading nations have a similar or uniform legal system based on model international mechanism. [5] For a uniform sales law in general and CISG, in particular, is an attempt to lessen such risks in the area of sales of goods.

Traders are saved from being saddled with uncertainty and cross-border trade is facilitated if the differences in various national laws and legal systems are eliminated by harmonization of laws relating to any particular field is achieved. Laws dealing with commercial interests should keep in mind the interests of the commercial community as a whole. The commercial community requires certainty which is possible by a uniform set of rules and regulations which are applicable to international commercial transactions. Also, it is beyond dispute that exchange is facilitated by law. It is as necessary to a cross-border transaction as it is to a local domestic transaction. It is only under a set of clear and certain rules as positive law that the traders will be able to operate their freedom of contract efficiently. [6]

The need of having a uniform international sales law is furthered by the preamble of CISG which takes in to account the various social, economic and legal systems. This need thus leads to the promotion and development of international trade. [7] A uniform international sales law will remove substantial barriers to cross-border trade by providing a simplified and unified framework of law within which international sales can take place. The activity of international trade can itself provide basis for a friendly relation if it is structured by a common set of rules and regulations, informed by principles of equality and mutual respect. [8] Co-operation among nations in the field of international trade is an important factor not only in promotion of the friendly relations, but also consequently in maintenance of peace and security among countries. [9] There is progressive unification and harmonization of international sales law for removing or reducing legal obstacles in the flow of international trade, especially the obstacles which affect developing nations. This step has contributed significantly to the global economic co-operation among nations on basis of equity, equality, common interest and the elimination of discrimination in the arena of international trade. The ultimate result of this entire process will be the well-being of all people. [10] Thus adoption of a Uniform Sales Law is in the best interests of not only India but the entire world community.


The first attempt to unify international sales law can be dated back to 1920. Since then number efforts have been made in this regard which have been discussed in the previous chapter. This clearly highlights the need for a uniform international sales law which will exert great influence both at international at domestic level. [11] There has been certain attempts post-CISG in this arena. The first set of UNIDROIT Principles of International Commercial Contracts (PICC) was launched in the year 1994, which closely followed the CISG not only with respect to the mechanism of remedies but also in its systematic approach. [12] Same is in the case of Principles of European Contract Law (PECL) which was published in 1999. [13] Moreover, the EC Directive on ‘Certain Aspects of the Sale of Consumer Goods and Associated Guarantees’ must also be mentioned in this regard, [14] as it took its definition of conformity of goods from Article 35 of CISG and thus introduced this concept into domestic sales laws of EU member states. [15] In Africa, sixteen member states of the Organisation for Harmonisation of Business Law in Africa, or in French, l’Organisation pour l’harmonisation en Afrique du Droit des Affaires (OHADA) has adopted the Acte uniforme sur le droit commercial général (AUDCG) as uniform law for than region. [16] Lastly, the Draft Common Frame of Reference published in early 2008 is a continuation of these different harmonization efforts. [17] It includes general concepts relevant to sales contracts, i.e., the obligations of the parties and the remedies available.

Another interesting aspect of uniform international sales law is that it can act a role model not only at an international level but also for the national law makers. Example can be take of Sweden, Norway and Finland which utilised the introduction of CISG as an opportunity and enacted new domestic laws on sale of goods based on it. [18] Moreover, at the end of the cold war and the disintegration of the Soviet Union, the resultant new European nations formulated their civil codes based on the uniform law prevalent then, i.e. the CISG. This is true with regard to the Commonwealth of Independent States (CIS) [19] and for the Baltic states among which the most pertinent example is Estonia. The domestic contract law of the trading giant China (the People’s Republic of China) whose dominance in the international trade arena cannot be questioned is also based on harmonised international sales law. Lastly, the renewal of the German Law of Obligations is also influenced from uniform international sales law from the very beginning. [20]

Uniform law in Practice: The choice of law

The existence of uniform sales law is generally known to the lawyers and traders involved in international trade. Nevertheless, there seems to be a affinity to suggest the exclusion of uniform sales law, especially in the commodities trade. There are three main reasons which are usually given for this approach. First, even though any uniform law would be commonly known, the degree of acquaintance with its functioning and application in practice is normally very low. Lawyers generally prefer their own national law and tend to prove to the saying “you can’t teach an old dog new tricks” true. The second reason arises from the first one: whenever the position of the party to a contract allows that party to retain its own national law in a contract, they prefer to do so. Thirdly, most parties are not fully convinced of the benefits of the uniform international sales law as compared to national sales laws. Lastly, most international conventions have their texts in more than one language, with draft in one language having authority over the others. However, in certain conventions, this is not the case and all official languages are considered equally authoritative which gives rise to criticism. However, these arguments are unconvincing for several reasons. [21]

Even though it is now generally accepted in the western developed nations that at least the business parties are free to choose the applicable law to a contract, this is not true for all the parts of the world. The apprehension of giving western countries too many advantages leads many transitions and developing countries to refuse the recognition of the choice of law clause. One prominent example is Brazil where validity of choice of law clause is highly controversial and regulated. Thus, an English buyer procuring goods from a Brazilian seller and having contracted on basis of Uniform Commercial Code, will find itself in a very insecure position while trying to sue the seller in a Brazilian court applying domestic Brazilian law to the contract. This will lead to a situation where the party is confronted with a law that is hardly foreseeable and is not understandable or truly accessible.

Even if choice of law clauses are recognized, any party insisting on its own national law will still encounter serious problems when litigating in the courts of a foreign nation. First of all, respective law has to be proven in the court. This not only implies the need to translate statutes and other legal texts, like scholarly writings and court decisions, into the official language of the domestic court but also usually requires the presentation of an expert opinion. In some nations the experts may also be appointed by the court while in other nations each party has to present its own expert, and often several experts are needed. Needless to say that all this proves to be very expensive and time consuming. The consequences are particularly harsh in procedural systems where each party has to bear its own cost regardless of the final result of the litigation, as is the case specifically under the purported “American Rule”. To make things worse, even if the party is willing to bear all the above mentioned costs to prove the foreign law in the court, it still faces a high degree of unpredictability regarding the application and interpretation of this law by foreign courts and a very high margin of error. [22]

It is true that today, a large number of cross-border sales disputes are not litigated before the national courts but are rather amicably resolved by the international commercial arbitration. Still, problem of proving the domestic law remains and the translations are still very necessary where this law is not available in English language. Moreover, it often remains uncertain, how the arbitrators, who more than often come from very different legal backgrounds, will apply the domestic law.

In most cases, the parties seek to resolve these problems by resorting to what is believed to be a “neutral law,” although political neutrality is often confused with the suitability of chosen law for the international transactions. This particularly seems to be true for the Swiss law. If parties choose such a neutral (third) law, they may even be worse off than they would have been if they had chosen one of their own home laws. To start with, they will have to investigate the foreign law. Moreover, the costs and trouble in proving it are more burdensome. Last, but not least, laws like the Swiss domestic sales law can be uncertain and not suitable for international contracts in certain core regards.

All the above mentioned shortcomings of the domestic laws are avoidable by applying uniform international sales law.