CONFLICT OF LAWS: A BARRIER TO UNIFORMITY IN INTERNATIONAL SALES LAW?

摘要

Despite the range of problems associated with conflict of law (or private international law) rules in an international sales context in times gone by, it is neither possible nor desirable to eliminate them altogether. A combination of treaties, standard terms and soft law principles has created a certain level of uniformity internationally and has focused conflict of law rules on those residual areas not governed by any such instruments. This article will firstly outline the difficulties posed by conflict of law rules generally, before going on to discuss, in the second part, the United Nations Convention on Contracts for the International Sale of Goods (CISG or convention). The article will seek to demonstrate that whilst the widely-adopted CISG has reduced the need for conflict of law rules, they remain built into the convention and are a necessary element of it. The article will then examine two soft law instruments and their relationship with private international law. It will become clear that a combination of these international legislative and soft law instruments have reduced the necessity for the regular application of conflict of law rules in an international sales law context. However, it will also be seen that it is these conflict of law rules and international respect for party autonomy that allow parties to international sales contracts to nominate international instruments as their "neutral choice of law", which in turn leads to their increased use and the promotion of international uniformity. Moreover, the important role played by conflict of law rules in gap-filling and dealing with matters in the original jurisdiction of domestic law, means that it is neither possible, nor desirable, to eliminate them from international sales law.