In which I get a question wrong by applying the right law

[ouij]

So it's a run of the mill practice MBE question: Tulip-seller in Holland offers by telephone to sell tulip bulbs, in $QUANTITY at $PRICE to American flower retailer. Retailer responds by letter, confirming the deal. The letter contained both the price and quantity terms. Because of a calamity in Holland, the tulip-seller does not perform. In

Comments

Re: I hear ya

[ouij]

Part of the problem has to do with the structure of federalism. The law of sales is a product of state law--the UCC. But the CISG is a treaty, which is supreme federal law, preempting the UCC where the treaty applies.

It's really not that complicated. Ask: Is it a sale of goods? If yes, then: are the buyer and the seller located in different countries? If yes, then: Is one of those countries a CISG state? If yes, then: do conflict-of-laws rules demand the application of the laws of the CISG sate? If yes, then you must apply the CISG.

In practice, any lawyer worth his salt advising a client on an international sale of goods would include choice of law and arbitration clauses in the contract--that would insulate the parties from this kind of judicial idiocy.

I wouldn't be so upset if the United States were not so active in the drafting and adoption of the CISG. For instance, the U.S. is not a party to the United Nations Convention on Contracts for the Carriage of Goods Wholly or Partly By Sea Rotterdam Rules, so I don't blame American lawyers or judges for being ignorant of that treaty--even if a number of the major maritime nations are already signatories to the Convention. But the CISG was as much a product of American desires for legal certainty as it was a project of global trade law unification.

Re: I hear ya

[cptjohnc]

I absolutely agree with your conclusion. Your analysis is spot on. But the courts in which these cases are tried are largely state courts, and will fall back on the law they know, and no one is likely to complain loudly enough to make a big deal of it, I suspect. Of course, logically, these cases should be in federal court, and federal courts should apply the appropriate treaty/convention. But I think federal courts are every bit as much stuck in their ruts as state courts.

Oh, and of course you're right about including a choice of laws provision, which would, in most cases, put you right back in a state law regime (presuming that the parties are happy with that). And arbitration as well, generally :)

Re: I hear ya

[ouij]

Well, yeah, the defendant could (should) remove to federal court where possible, but even there, the level of judicial expertise with the CISG is pretty poor. The Zapata case came up through the federal system, and look how wrong they got it!

The CISG has been in effect for about 23 years now. I don't think that's quite long enough for students trained in the CISG to have entered the judiciary in any great numbers, so I suppose that's part of the problem, too.

Another part of the problem: American lawyers--and, indeed, Americans in general--don't have a very good grasp of public international law. This is unfortunate. They are crippled when it comes to understanding one of the sources of federal law.

The anti-internationalist hostility gets trotted out whenever new appellate judges are up for confirmation. The right gets all riled up whenever it is suggested that perhaps a United States judge may look to authorities outside the United States--forgetting that a judge is compelled to do so if the controlling law emanates from those sources. This says nothing of the fact that federal judges have often alluded to, relied upon, and interpreted the law of nations in a number of cases going back to the very dawn of the republic..

Re: I hear ya

[cptjohnc]

I don't think one needs look farther than the prior administration to understand where Americans might get the idea that international law is irrelevant.

Perhaps this is something that can be changed for the better too.