|
[slovenske znenie] CISG was created in order to integrate (unify) rules on international sales contracts in order to create a single legal regulation effective in all contracting states and thereby to replace different rules in various legal systems. The drafters of the Convention intended to facilitate conducting of business in foreign markets by creating a uniform basis for regulation of international sale of goods in all contracting states. This uniform basis can support creation of uniform rules and usages in international sale of goods and thereby increase legal certainty of merchants conducting international business. With regards to application of law, this means that similar factual situations should be qualified by courts in all contracting states under the same uniform rules in the same manner and thereby the courts should reach the identical legal conclusion in such situations. The reality is nevertheless different. Disputes emerging from international sale of goods are rarely qualified solely under CISG.
Impact of domestic procedural law When deciding about a particular dispute, a court has to apply procedural rules which govern the course of proceedings and it applies exclusively its own procedural rules, the rules of lex fori.These rules, although they do not have direct impact on qualifying subject-matter of a dispute, can influence final outcome of a case, as they prescribe position of a judge and parties to a dispute, course of proceedings, admissibility of certain types of evidence etc. All these legal questions have impact on the final decision of a judge. Since courts in each CISG contracting state have their own procedural rules, it is clear that completely identical solutions are only a matter of theory.
Impact of domestic substantive law Furthermore, it is necessary to mention that CISG, although aiming to unify the substantive rules on international sale of goods, does not contain complete and exhaustive legal regulation of all matters related to these issues. Although the Convention prescribes general rights and obligations of parties to an international sales contract, its regulation is often not enough precise to resolve all particular issues and the court must therefore supplement gaps in its provisions. This procedure is expressly prescribed in the Convention itself, in its article 7, but it promotes uniform solutions only partially. As a first step, article 7 part 1 CISG refers to usage of general principles upon which the Convention is based, but the text of the Convention does not enumerate these principles and thereby leaves their determination on judge separately in each case. It is clear from the case law, particularly in Slovakia, that judge tends to turn directly to usage of precise domestic law rules (as it is prescribed by article 7 part 2 CISG, though only as a last resort), rather than to search for uniform solutions derived from abstract legal principles. This practise nevertheless prevents from achieving uniform solutions, since solutions are based on application of different national legal provisions. Furthermore, the Convention itself excludes several legal issues which are therefore not regulated by the Convention but are left to regulation of particular domestic law found to be applicable under rules of private international law. The outcome of such manner of regulation is that the Convention is rather a regulation of specific type of contract (sales contract) rather than uniform source of regulation of relationships emerging from international sale of goods. Therefore, it is almost inevitable that applicable domestic law will interfere into legal regulation of such relationships and thereby will limit any possibility of uniform legal solutions in various states.
Conclusion – a need to be familiar with domestic legal environment The effect of the abovementioned impact of internal law is that the application of CISG is never exclusive and isolated when regulating relationships from international sale of goods, but its application is simultaneous with application of domestic procedural rules and substantive rules of applicable internal law, most commonly the domestic substantive rules. For this reason a foreign merchant or lawyer forced to claim its rights from international sales contract cannot rely solely on its knowledge (though excellent) of the Convention, but has to be informed about the legal environment where its rights should be asserted.
Who is this section for? This section can be a valuable aid for - foreign and Slovak merchants who try to predict the procedure of asserting their claims from international sale of goods before Slovak courts and arbitrators - foreign lawyers who search for general information about legal environment in the Slovak Republic in order to represent their clients when asserting their claims under CISG - foreign courts and courts of arbitration and also parties to disputes, in cases where the rules of private international law prescribe the Slovak law as an applicable law to the relationship in question
Organisation of this section This section, respecting the abovementioned division of legal issues deals separately with procedural issues concerned when asserting rights under CISG in Slovakia and separately withsubstantive issues related to qualification of subject-matter of a case, which are not expressly regulated by CISG. |
|
|
||
|
|
||