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Acknowledgements: The author would like to thank Prof. Dr Reiner Schulze for his helpful comments on an earlier draft of this Article. He would also like to thank Prof. Dr Ulrich Magnus and the participants at the CISG Conference: CISG vs Regional Sales Law Unification, Max-Planck Institut für Ausländisches und Internationales Privatrecht, Hamburg, Germany (12 May 2012) for sharing their insights on the CESL.
A Critical Analysis of the New European Sales Law
Edited by Larry A. Dimatteo
1 Introduction
The Proposed Common European Sales Law (CESL) is the latest entry into the area of supranational contract and sales law[1] . This provides an opportunity to assess the state of both hard and soft supranational private law. Does the current mix of hard - Convention on Contracts for the International Sale of Goods (CISG) and soft laws - UNIDROIT Principles of International Commercial Contracts ("Principles") and Principles of European Contract Law (PECL) provide sufficient avenues to structure international business transactions? Does the CESL fill a void in these established choices of law or does it add an unneeded level of complexity to an already crowded field? What is the likelihood of confusion over what may be interpreted as overlapping legal regimes? This Article will examine the legal nature, objectives, and functions the CESL is expected to serve. This examination will allow for a tentative assessment of a number of important issues including the influence of the CISG on the drafting of the CESL and any resulting redundancies; and whether autonomous interpretations of the CESL should diverge with the CISG? Will judges and arbitrators be tempted to use the CESL in applying the CISG, especially in areas where the CISG lacks sufficient clarity and certainty, such as the conflicting general terms and conditions, the remedy of specific performance, the scope of damages and interest, and the role of good faith in the interpretation, performance, and enforcement of contracts?
Article 1 of CESL restates the fundamental principle of contract law - the parties are "free to conclude a contract and to determine its contents". The principle of freedom of contract or private autonomy is the core rationale for all contract laws. In reviewing a new contract law instrument, the key analysis is how that core principle...