C6-1

C. The effect of the choice of law clauses [Buyer] next argues that, even if the Parties are from two nations that have adopted the CISG, the choice of law provisions in the “Terms and Conditions” set forth by both Parties reflect the Parties’ intent to “opt out” of application of the treaty. Article 6 of the CISG provides that “the parties may exclude the application of the Convention or, subject to Article 12, derogate from or vary the effect of any of its provisions.” [. . .] [Seller] asserts that merely choosing the law of a jurisdiction is insufficient to opt out of the CISG, absent express exclusion of the CISG. The Court finds that the particular choice of law provisions in the “Terms and Conditions” of both parties are inadequate to effectuate an opt out of the CISG. Although selection of a particular choice of law, such as “the California Commercial Code” or the “Uniform Commercial Code” could amount to implied exclusion of the CISG, the choice of law clauses at issue here do not evince a clear intent to opt out of the CISG. For example, [seller’s] choice of applicable law adopts the law of British Columbia, and it is undisputed that the CISG is the law of British Columbia. (International Sale of Goods Act ch. 236, 1996 S.B.C. 1 et seq. (B.C.).) Furthermore, even [buyer’s] choice of applicable law generally adopts the “laws of” the State of California, and California is bound by the Supremacy Clause to the treaties of the United States. [. . .] Thus, under general California law, the CISG is applicable to contracts where the contracting parties are from different countries that have adopted the CISG. In the absence of clear language indicating that both contracting parties intended to opt out of the CISG, and in view of [seller’s] Terms and Conditions which would apply the CISG, the Court rejects [buyer’s] contention that the choice of law provisions preclude the applicability of the CISG. [. . .]

The possibility to opt in to the CISG is not explicitly mentioned in the text of the Convention. The extent to which the CISG may be chosen as the applicable law in contracts which would otherwise not be governed by the CISG – be it because neither Art. 1(1)(a) nor 1(1)(b) leads to the application of the CISG, or because the Convention is inapplicable because of its Arts 2, 3 – is a matter governed by national law (see sub Article 1 CISG).