b) Promoting uniformity aa) The lack of a ‘ﬁnal instance CISG court’ Many problems arise from the fact that, unlike in the European Union, there is no court of ultimate resort to promote uniformity in interpretation of the law. Another method must therefore be found in order to ensure the uniform interpretation of the CISG. It seems to be clear that foreign decisions or awards, as well as foreign literature, must be considered. If there is consensus in literature and case law as to how a speciﬁc question is to be dealt with, later decisions should follow this. In particular, where a court of last resort of a Contracting State has decided a question in a certain manner, the ratio of this decision has persuasive authority for other courts. With respect to the consultation of foreign CISG case law, there are consider-able diﬀerences. Some Italian court decisions have recently taken to an almost excessive comparative law approach, whereas, for example, US courts were traditionally hesitant to consider foreign CISG case law. In the meantime, however, courts and tribunals now quote foreign CISG decisions quite regu-larly. See, for example, this recent US decision. C7-2 : US Dist Ct (N D IL) (USA), 21 May 2004, CISG-online 851 (For a summary of the facts see C 7-1 above.)

doi:10.4324/9780203945445-48

Chapter

b) Promoting uniformity aa) The lack of a ‘ﬁnal instance CISG court’ Many problems arise from the fact that, unlike in the European Union, there is no court of ultimate resort to promote uniformity in interpretation of the law. Another method must therefore be found in order to ensure the uniform interpretation of the CISG. It seems to be clear that foreign decisions or awards, as well as foreign literature, must be considered. If there is consensus in literature and case law as to how a speciﬁc question is to be dealt with, later decisions should follow this. In particular, where a court of last resort of a Contracting State has decided a question in a certain manner, the ratio of this decision has persuasive authority for other courts. With respect to the consultation of foreign CISG case law, there are consider-able diﬀerences. Some Italian court decisions have recently taken to an almost excessive comparative law approach, whereas, for example, US courts were traditionally hesitant to consider foreign CISG case law. In the meantime, however, courts and tribunals now quote foreign CISG decisions quite regu-larly. See, for example, this recent US decision. C7-2

Chapter

b) Promoting uniformity aa) The lack of a ‘ﬁnal instance CISG court’ Many problems arise from the fact that, unlike in the European Union, there is no court of ultimate resort to promote uniformity in interpretation of the law. Another method must therefore be found in order to ensure the uniform interpretation of the CISG. It seems to be clear that foreign decisions or awards, as well as foreign literature, must be considered. If there is consensus in literature and case law as to how a speciﬁc question is to be dealt with, later decisions should follow this. In particular, where a court of last resort of a Contracting State has decided a question in a certain manner, the ratio of this decision has persuasive authority for other courts. With respect to the consultation of foreign CISG case law, there are consider-able diﬀerences. Some Italian court decisions have recently taken to an almost excessive comparative law approach, whereas, for example, US courts were traditionally hesitant to consider foreign CISG case law. In the meantime, however, courts and tribunals now quote foreign CISG decisions quite regu-larly. See, for example, this recent US decision. C7-2

ABSTRACT

Chicago Prime therefore received notice within a reasonable time after Northam discovered the problem; however, the question here is whether Chicago Prime was notiﬁed within a reasonable time after Northam should have discovered the problem. A court in Italy found that the reasonableness of the time for a notice of non-conformity provided in Article 39 is strictly related to the duty to examine the goods within as short a period as is practicable in the circumstances set forth in Article 38. See [. . .] Tribunale Civile di Cuneo, Sez. I, Italy (Jan. 31, 1996) [. . .]. The court further noted that when defects are easy to discover by a prompt examination of the goods, the time of notice must be reduced. [. . .]

bb) The Draft UNCITRAL Digest and the CISG-AC The diﬃculties arising from the absence of a CISG court of ﬁnal appeal are appeased by two factors. The ﬁrst is the publication of a Digest in 2004 by UNCITRAL. The Digest constitutes a synopsis of the relevant case law on each article of the CISG. By highlighting common views and reporting any divergent approaches, the Digest is intended to portray the evolution of case law. The second factor is the creation of the Advisory Council of the CISG (CISG-AC). This Council was established in 2001 in order to respond to the need to address some controversial, unresolved issues relating to the CISG. The primary purpose of the CISG-AC is to issue opinions relating to the interpretation and application of the Convention. Several CISG-AC opinions have already been published.24 The members of the CISG-AC are scholars from all over the world who are not bound to any mandate of UNCITRAL, but take an independent, critical, and innovative approach and also address new issues not previously dealt with by judicial or arbitral decisions.