RESEARCH STRATEGY
1) Does the United Nations Convention on Contracts for the
International Sale of
Goods (CISG) apply to construction agreements?
Visual search engines
In performing legal English research on
specific topics, clustering tools (see task 6) and meta-searches (see
task 8) can be very helpful. In addition, breaking down a broad research
topic such as the Convention on the International Sale of Goods
into smaller topics such as applicability, electronic agreements,
etc. may be made easier by using what are referred to as visual or graphical
search engines.
Like the clustering and meta strategies,
a visual guide can help you quickly identify the English vocabulary you
need in order to carry out further research and describe legal concepts.
Using the Mooter search engine (www.mooter.com),
enter the following search query:
convention on the international
sale of goods
Clicking the Search button returns
a visual display of the topics associated with the search query. This
allows you to get a quick overview of related topics. Up to three pages
of clusters will be returned.
Although the first page will often feature
the most relevant links, it is also useful to check the following pages.
Click on the next clusters image 
to see the next page of associated topics.
In the resulting visual display, click on
contracts. When choosing a point on the visual
display, the results are presented in text form with a cluster menu appearing
on the left-hand side of the page for easy reference.
Now use the documents returned by your search
query to answer question 1.
2) Does the CISG apply to agreements for the supply of electricity?
Let us refine our search to determine whether the
CISG applies to sales of electricity. Using the Mooter search engine,
enter the following search query:
electricity cisg
Click on the next clusters image
to see the next page of associated topics.
The resulting visual display includes electricity
as one of the points of reference. Click on this point.
Now use the documents returned by your search
query to answer question 2.
Answer
It is possible that the CISG may not
apply for two reasons:
Supply contracts
The CISG covers the sale of goods,
and may not apply to contracts that include services.
However, where a contract includes
both goods and services elements, the CISG will apply unless "the
preponderant part of the obligations of the party who furnishes
the goods consists in the supply of labour or other services".
Sales of electricity
Sales of electricity are expressly
excluded from the CISG. Although the CISG does not define contracts
of sale, it does provide that the seller must “deliver
the goods, hand over any documents relating to them and transfer
the property in the goods,” while the buyer must “pay
the price for the goods and take delivery of them”. The key
point is that the CISG covers the contractual aspects of a sale
and not the property aspects. Questions about distinctions between
a sale and other transactions (e.g. leases) will be similar to those
that arise under domestic law. In these transactions attorneys should
include explicit statements about whether the CISG is or is not
to govern.
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3) Does the fact that the contract for the supply of electricity
was electronic affect
the application of the CISG?
Using the Grokker search engine (www.grokker.com), enter
the following query:
"electronic agreements"
Click the GROK button. The resulting
page is presented in a clustering format. Clicking any of the clustered
menu items will display a summary of the links in a window on the right-hand
side of the screen.
It is possible to see how the clustered
menu items are grouped by clicking on the Map View tab at the
top of the cluster menu. Moving your cursor over the various circles will
display the name of the subject categories. Clicking on one of the categories
will zoom in to the sub-categories and display a summary of the links
in the right-hand window.
Choosing the Electronic Commerce
circle and clicking on it zooms in on that circle and makes it easier
to review. Clicking on the Electronic Signatures circle provides
links to a variety of online resources that will help you find the solution
to your research problem.
Now use the documents returned by your search
query to answer question 3.
Answer
As we have seen, it is uncertain whether
or not the CISG will govern the supply of electricity. If it can
be shown that the CISG does indeed cover this part of the contract,
the fact that it was in electronic form will probably not affect
its application.
The following summary details current
conditions for general e-commerce and electronic contract validity.
The UNCITRAL Model Law on Electronic
Commerce, approved in 1996, sets the general conditions for
e-commerce contract validity. UNCITRAL is the United Nations Commission
on International Trade Law, established to harmonize international
trade law by creating accessible, predictable and unified commercial
laws.
The Model Law provides that, unless
the parties agree otherwise, an offer or acceptance of an offer
can be expressed in electronic form.
It falls to each individual country
to enact the Model Law into its own national law. E-commerce statutes
throughout North and South America, Europe, Africa and Asia have
all followed the same standard.
Recent developments in the validity of electronic contracts
under the CISG
On September 26, 2003, the CISG-AC
(Advisory Council on the United Nations Convention on Contracts
for the International Sale of Goods (CISG)) announced its first
opinion, ‘Electronic Communications under the CISG’.
Its Secretary, Dr. Loukas Mistelis (Centre for Commercial Law Studies,
Queen Mary, University of London), has described the CISG-AC as
a private initiative to respond to the need to address some controversial,
unresolved issues relating to the CISG which merit interpretative
guidance, and to promote a uniform interpretation of the CISG. Dr.
Mistelis has said: "The primary purpose of the CISG-AC is to
issue opinions relating to the interpretation and application of
the Convention on request or on its own initiative. Requests may
be submitted to the CISG-AC, in particular, by international organizations,
professional associations and adjudication bodies. The first opinion
is a response to an informal request by the International Chamber
of Commerce for the Council to reflect on the issue of electronic
communications and the ability of the CISG to respond to such challenges."
Further Reading
For more details on the CISG, see
The Pace database on the CISG and International Commercial Law:
http://cisgw3.law.pace.edu/
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