This thesis aims at analyzing the benefits and perspectives of adoption of the CISG in Ethiopia and seeks to make a case for adoption of the CISG in Ethiopia. The thesis argues that adoption of the convention is important for countries like Ethiopia. After introducing the research paper and the research process in the first chapter, the thesis, in chapter two, discusses the need for harmonization of international sales law. In chapter three, benefits of adopting the CISG is explained. While chapter four examines the adoption of the convention from the Ethiopian perspectives, the concluding chapter draws overall conclusions and puts forward recommendations based on the research findings.
The United Nations Convention on Contracts for the International Sale of Goods (CISG) came in to force, having been adopted on 11th April 1980 at an international conference in Vienna, Austria. The convention was drafted with a view to create uniform rules to govern contracts for the international sale of goods by removing legal barriers in international business transaction. To date 83 states have adopted the Convention. However, Ethiopia did not ratify the Convention yet. The reasons for not adopting the convention is that Ethiopian government does not see commercial law reform as a priority, due to other more pressing needs and the relative importance of private sector in the national economy. Moreover, commercial law reform requires legal capacity that is seldom available locally.
Table of Content
CHAPTER ONE
INTRODUCTION
1.1. Background of the Research
1.2. Statements of the problem
1.3. Objective of the Research
1.4. Research Questios
1.4.1. Central Research Question
1.4.2. Specific Research Questions
1.5. Significance of the Research
1.6. Scope of the Research
1.7. Limitations of the Research
1.8. Critical Literature Review of the Research
1.9. Conceptual Framework of the Research
1.10. Methodology and Design of the Research
1.10.1. Research Approach
1.10.2. Research Methods and Techniques
1.10.3. Sources of Data
1.10.4. Data Collection Techniques
1.10.5. Data Presentation, Analysis, Interpretation and Reporting
1.11. The Chapters
CHAPTER TWO
THE NEED FOR HARMONIZATION OF INTERNATIONALSALES LAW
2.1. Justifications for Having Harmonized International Sales Law
2.1.1. Territorial nature of law
2.1.2. Inefficiencies of standard contracts and universally accepted usages to cover all the issues of international sales of goods
2.1.3. National laws may be inappropriate for international transactions
2.1.4. Reducing costs
2.1.5. Other Justifications
2.2. justifications againist harmonizations of international sales law
2.3. Development of Harmonized International sales Law
2.3.1. Historical Perspective
2.3.2. Signatories to the CISG
2.3.3. Sphere of Application of the CISG
2.3.3.1. Direct Application of the CISG
A) Internationality of the sales of goods contract
B) Two Contracting states
2.3.3.2. Indirect application
2.3.4. Exclusions of Applications of the CISG
2.3.5. Structure of the CISG
CHAPTER THREE
THE BENEFITS OF ADOPTION OF THE CISG IN ETHIOPIA
3.1. Simpler than Private International Law
3.1.1. Certainty as to applicable law in international trade
3.1.2. Reduction of Transaction Costs
3.1.3. Common Language and Checklists for International Negotiations
3.1.4 Acknowledgment of Party Autonomy
3.1.5. Bargaining Power
3.1.6. Assimilation of International Trade Usages and Practices
3.2. Ethiopia’s Involvment in International Business Transactions
3.2.1. Vision of Ethiopia
3.2.2. The Increase in International Trade
3.2.3. Ethiopia's Principal Trading Partners
3.3. Regional Integration and the Need for a regional harmonized sales lawon trade
3.4. Attracting Foreign Direct Investment
3.5. Benefits in relation to WTO Acession
CHAPTER FOUR
THE PERSPECTIVES OF ADOPTION OF THE CISG IN ETHIOPIA
4.1. Unreserved Adoption Vs Adoption with Reservation
4.1.1. Articles 92, 94 and 96 Reservations
4.1.2. Articles 93 Reservation
4.1.3. Articles 95 Reservation
4.2. Adopting only the full text of the convention (with or with out reservation) Vs adopting the complementary texts of the convention in addition to the full text of the convention
CHAPTER FIVE
CONCLUSIONS AND RECOMMENDATION
5.1. Conclusions
5.2. Recommendations
References
Annexes
ACKNOWLEDGMENTS
No task so monumental is done alone. I would not have been able to complete this journey without the aid and support of countless persons over the past two years. I must first express my extensive gratitude towards my advisor and instructor, Ermias Ayalew (Ass. Professor). His leadership, support, patience, advice, attention to detail, hard work and above all knowledge has set an example I hope to match some day in the future, if God wills.
My thanks also go to my instructors at the LLM program at Bahir Dar University, especially Doctor Zewudineh, he is my best instructor ever in law schools and he made me hungry for the course International Business Transactions. Besides I would like to thank Ato Mihret Alemayehu, the LLM program co-coordinator and Ato Alebachew, the research and development program co-ordinator of the school.
My thanks also go to persons who helped me in data collection, especially, Professor Tilahun Teshome Ato Lisanework, Destaw, Melaku, and Yohanns…Luca Castellani.
My thanks go to my family and friends for instilling confidence in me and for their all rounded support not only throughout this process but also over a life time, especially, Mr. Getachew Mekonnen (Talakie), Assefa Getnet, Deacon Mulugeta (Debalkie), Birhan Siru, Workineh Alemnewu, Manaye Jemberie (Kezih Zenda), Anmaw Demis, Beselam Wale, Doctor Wubet, Tesfalem, Hailie Friehiwot, Dereje BOLSA…..and Asrate Dingle, whose encouragement and patience through the most difficult and disheartening moments of this venture have been a constant source of inspiration.
Additionally, I owe thanks to those staff members of Bahir Dar Hotel # 2 and Asinuara Hotel, for creating conducive E-library environment, for my staff members at EHRC BDR Office and my classmates at BDU. The secretaries of ANRS BOLSA Public Relation deserves special thanks for their secretarial services.
Above all, Glory to God.
Lists of Tables
Table 1: 2013/14 Export destinations and top 20 principal trading partners of Ethiopia
Table 2: 2013/14 Import origins and top 20 principal trading partners of Ethiopia
List of Figure
Figure 1: Conceptual framework of the research
Figure 2: Share of Ethiopian imports by country of origin in total imports in %
Figure 3: Share of Ethiopian exports by country of destination in MUSD.
List of Appendices
Annex I Research interview questions for the concerned acadamicia.
Annex II Research interview questions for concerned government officials.
Annex III Research interview questions for the concerned business community.
Annex IV Visual illustration breakdown, Ethiopia’s ratification level according to Various categories and compares it to the world average.
Annex V A Table showing status of the CISG, as of June 08, 2015
ABSTRACT
The United Nations Convention on Contracts for the International Sale of Goods (CISG) came in to force, having been adopted on 11th April 1980 at an international conference in Vienna, Austria. The convention was drafted with a view to create uniform rules to govern contracts for the international sale of goods by removing legal barriers in international business transaction. To date 83 states have adopted the Convention. However, Ethiopia did not ratify the Convention yet. The reasons for not adopting the convention is that Ethiopian government does not see commercial law reform as a priority, due to other more pressing needs and the relative importance of private sector in the national economy. Moreover, commercial law reform requires legal capacity that is seldom available locally
This thesis aims at analyzing the benefits and perspectives of adoption of the CISG in Ethiopia and seeks to make a case for adoption of the CISG in Ethiopia. The thesis argues that adoption of the convention is important for countries like Ethiopia in the following points. Firstly, it is simpler than private international law, secondly, it will be an answer for the problems created in the course of Ethiopia’s IBTs, thirdly, it is significant to establish a minimum standard for the Eastern and Southern African Regional Integration in the aspects of regional and global IBTs, fourthly, it will serve as a baseline for preparing a regional harmonized sales law for the Eastern and Southern African Community, fifthly, it benefits Ethiopia in attracting Foreign direct investment, lastly, it is beneficial both for acceleration of its WTO accession and realization of its intention to be an active player in the global economy.
After introducing the research paper and the research process in the first chapter, the thesis, in chapter two, discusses the need for harmonization of international sales law. In chapter three, benefits of adopting the CISG is explained. While chapter four examines the adoption of the convention from the Ethiopian perspectives, the concluding chapter draws overall conclusions and puts forward recommendations based on the research findings.
ACRONYMS
ADLI….Agricultural Development-Led Industrialization
CISG …. United Nations Convention on Contracts for the International Sale of Goods
COMESA…..Common Markets for Eastern and Southern Africa
FDI.Foreign Direct Investment
FDRE ….Federal Democratic Republic of Ethiopia
GATT… General Agreements on Trade and Tariffs
HISL.Harmonized International Sales Law
IBTs..International business transactions
INCOTERMS..Keys designed for Interpretation of Trade Terms
ITC..International Trade Center
LLM.Licensed Law Masters
MFNMost Favored Nation
MUSD Million United States Dollar (American Dollar in Millions)
NBE.National Bank of Ethiopia
TFTA…....Tripartite Free Trade Area
UCP..Uniform Customs and Practice on payments in International Trade
ULFC Uniform Law on the Formation of Contracts for the International Sale of Goods
ULIS Uniform Law on the International Sale of Goods
UN United Nations
UNICITRAL United Nations Commission on International Trade Law
UNIDROIT International Institute for the Unification of Private Law
USA....United States of America
USAID….United States Agency for International Development
USD....United State Dollar (American Dollar)
WTO World Trade Organization
CHAPTER ONE
INTRODUCTION
1.1. Background of the Research
The dramatic growth of international trade has generated corresponding calls for an increase in harmonized international sales law (HISL) to govern these transactions1. The implicit assumption underlying these efforts is that lack of uniformity will increase the costs of writing contracts for parties to International Business Transactions (IBTs). Parties can have to bargain over the legal regime (and the default terms) that will govern their transactions, and the regime that is ultimately selected will be relatively unfamiliar to at least one of them. HISL purports to cure this situation by creating a legal regime with which commercial parties in different jurisdictions will be familiar and accept without additional negotiations2.
Theoretically, HISL provides significant benefits to parties. This is especially true in relation to its default rules that embody solutions to contracting problems that parties would otherwise choose3. Due to the finite nature of contracting costs and infinity of states of the world (and probably trading partners), sales contracts in the aspects of IBTs contain gaps4. HISL rules are intended to fill many of those gaps; each rule becomes a default term in the contracts that the rule regulates5. To serve this function appropriately, however, the default rules must specify the contract term that the broadest number of affected parties would choose for themselves6.
Throughout modern history the world has experienced a tremendous increase in the volume of trade among nations7. In a legal perspective, this development has created a need for uniform rules governing the rights and obligations of the actors on the global market. With respect to international sale of goods, this need was accommodated in 1980 when the United Nations Convention on Contracts for the International Sale of Goods (CISG) was adopted at a diplomatic conference in Vienna8. The CISG is a legally binding piece of legislation, which applies to sale of goods between parties whose places of business are in different states provided that the states are contracting states or that the rules of private international law lead to the application of the law of a contracting state9.
According to the preamble of the convention its overall purpose is to reduce the legal barriers in international trade by laying down uniform rules for the exchange of goods. There are many benefits associated with such rules. First and foremost, a uniform set of rules, which is applied fairly consistently, enables the parties to more accurately predict and allocate the legal and economic risks connected with the international sale of goods. Prior to the coming into force of the CISG, the parties had to rely on the rules of private international law to determine the applicable substantive law (lex causae) . This almost invariably led to uncertainty since many rules of private international law are rather elusive10.
Moreover, the rules of private international law would often enable the parties to shop between forums with different choice of law rules. In some cases this enabled a party to choose which substantive law should apply11. This was and still is a great weakness of the rules of private international law as a tool for determining the choice of law in international disputes.
Prior to the entering into force of the CISG, the parties were obviously able to diminish above problems pertaining to the rules of private international law by including choice of law clauses in the contracts. However, it is a matter of fact that such clauses are often not included in commercial contracts due to either carelessness or the fact that the parties are not able to agree on them. Secondly, such choice of law clauses does not rule out the problem of legal uncertainty and unpredictability entirely. Thus, if the domestic law of party “A” is chosen as the governing law, party “B” will have to familiarize himself with the domestic law of party “A” in order to assess his legal rights and obligations in the event of a dispute12. Undoubtedly, the CISG has brought along many benefits for parties involved in international exchange of goods.
The CISG and the process by which it was created have widely been perceived as a benchmark for the successful harmonization of commercial law in the post-war era. As of June 06, 2015, eighty-three countries had signed and adopted the CISG (these are called “Contracting States”)13. These include Countries from all around the world, with various economies, and different languages, cultures, legal structures, and stages of economic development14. The CISG was set out as one that would create uniform rules to govern contracts for the international sale of goods thus removing legal barriers in international trade. The Convention is in force with respect to most of Ethiopia’s principal trading partners15. However, Ethiopia did not adopt the Convention yet16. This thesis aims at analyzing the benefits and perspectives of adoption of the CISG in Ethiopia and seeks to make a case for adoption of the CISG in Ethiopia.
1.2. Statements of the Problem
The following are some of the problem statements that initiated me to conduct a research on the title the benefits of adoption of United Nations Convention on Contracts for the International Sale of Goods in Ethiopia.
As I stated above the United Nations Convention on Contracts for International Sale of Goods has been adopted by contracting states since it was signed and entered in to force. The need for a unified law of international sales arises in the first place from the fact that law is territorial in its nature. It only has the force of law within specified national boundaries, and in principle no other state is bound to be abide by or apply it. This has been the reason for the emergence of choice-of-law or conflict of law rule. This developed to facilitate the acknowledgment and enforcement of the law of a certain jurisdiction by the courts of another jurisdiction. This invariably leads to the situation where at least one of the contracting parties is faced with the application of a foreign legal system of which it may have no knowledge, and it may even be uncertain which legal regime will apply to the relationship of the parties because of uncertainties in the conflicts rules. This fact, coupled with the possibility that each international contract of sale of a party was potentially subject to a different or more than one national legal system, caused a great deal of legal uncertainty and difficulty for the parties involved. Literally speaking, Ethiopian businesses trading internationally are potentially faced with as many applicable legal systems as they have trading partners, unless they are able to stipulate Ethiopian law as the applicable legal system. The requirements and quirks of a foreign legal system may harbour unexpected surprises for the unsuspecting business.
In accordance with Article 1(1) (b) of CISG, the Convention will be applicable to the contract where the rules of private international law lead to the application of the law of the state which is a signatory to the CISG. This applies even in the case that the other party is a non-signatory unless stated otherwise. Thus, the convention can possibly apply to Ethiopia regardless of adoption. This can put Ethiopian businessmen in somewhat awkward situation where they are bound by a convention that their country has not ratified and with which they may be hardly familiar.
As I indicated above, most of Ethiopia’s principal trading partners have already adopted the convention. Ethiopia’s non-ratification of the CISG appears to create a problem for Ethiopian traders: they appear to be at a disadvantage when entering into contracts with traders from countries that have ratified the CISG, due to lack of confidence or uncertainty and unpredictability about the content of Ethiopian law of sale, foreign traders will neither want to be governed by Ethiopian law nor litigate or arbitrate in Ethiopia. Parties to the international law of sale have freedom of contract to choose which law to apply in case of dispute but freedom of contract is not enough as a sufficient protection to Ethiopian traders and businesses trading internationally. Hence, Ethiopian businesses need to be assured of the law to which they may be subjected in this regard.
The United Nations was on a mission to ensure coherence uniformity in trade laws. It established General Agreements on Trade and Tariffs (GATT) and United Nations Commission on International Trade Law (UNCITRAL) with the purpose of facilitation of international trade and uniformity in trade laws as a common denominator. Bilateral and multilateral trade agreements provide suitable conditions for international trade to take place; they govern what goods can be traded, with what documents, paying what duties and similar maters. They do not deal with private aspects of each transaction. Unlike trade aggrements, the CISG provides a default legal framework for the contract of sale of goods, which exactly is the private aspect of the transaction. The CISG answer questions such as: when was the contract concluded; what can be done in case of non-delivery of goods, etc. Trade agreements and international trade law instruments are therefore considered as distinct but complementary. Ethiopia‘s intention to be an active player in the global economy has been evidenced through its bid to accede to the World Trade Organization (WTO). Accession to WTO needs, therefore, comprehensive reform measures and ratifications of all United Nations Conventions. Strengthening the commercial law framework, among a host of other measures, would contribute profoundly for the realization of such intention. The adoption of pertinent conventions geared towards the reinforcement of the commercial law of the country forms part of this reform process. In this regard, CISG deserves special attention since it plays crucial role in facilitating international commerce.
Ethiopia is a member of the Common Market for East and Southern Africa (COMESA) with in the Region. COMESA aims to strengthen trading partnership between member states. Bearing this in mind and that each of the member states has its own domestic law on sales; one harmonized sales law is required. CISG can adequately serve as a unified sales law for the COMESA and would create the necessary legal framework to facilitate regional trade and is significant as a base line for preparing a regional harmonized sales law.
Countries which failed to adopt the CISG are in a more disadvantageous position in terms of the gain they could have earned from IBTs and investment. True, as Celia Malahlela says:
“The CISG seems to be the answer to each and every international trader’s daily problems. Drafting terms and conditions and hoping they fit in with the legal system applicable can be very frustrating. One will never be assured that the contract is watertight. This is a situation no businessman would like to see himself in. The reality is, without uniform law, this is the true state of affairs. Furthermore, the CISG addresses one of the significant international trade problems that most African states are currently facing. The continent is currently viewed as a “Dark Continent”. Africa is seen as a jungle where no real laws exist; inexperienced and underdeveloped. Practically speaking, looking at all the advantages above, it makes no sense for an African state not to become part of the CISG. African states would most likely transact with big developed strong parties who would most likely try to dictate conditions to them. With the CISG as their basis, they would at least have something to fall back on and negotiate their terms accordingly17.”
Similarly, Sieg Eiseln18 and Mona Ahadi19 underlined on the fact that a certain country who is not adopting CISG is in a disadvantageous position concerning IBTs.
Given the fact that different companies across the world are creating trading relationships and investing in mining and other related sectors, should Ethiopia continue to resist or ignore CISG or adopt the CISG is an issue that needs to be settled in line with the benefits of adoption.
Even though the trade benefits which flow from ratification are not always visible in States that have ratified the CISG, there is some doubt whether Ethiopia can sustain its trade relations without ratifying the CISG.
1.3. Objectives of the Research
The main objective of the thesis is to analyze the benefits and risks for Ethiopia to adopt the CISG. In order to address the main objectives of the study, the thesis will seek to attain three equally important specific objectives. Accordingly, the following are the specific objectives of the study:
- To examine the “for and against” debate of having harmonized international law of sale.
- To contribute knowledge about the benefits of adopting CISG by Ethiopia, in light of the impact of its status quo on international trade.
- To indicate the need for further action, concerning adoption of CISG, by Ethiopia and suggest solutions for those problems and uncertainties that arises from non-adoption of the convention.
1.4. Research Questions
The research, based on the research background, problem and objectives discussed above, focuses on the following interconnected research questions.
1.4.1. Central Research Question.
The central research question of the study is what are the potential benefits and risks, if any, if Ethiopia adopts CISG?
1.4.2. Specific Research Questions.
The following are the specific research questions of the study.
- Is there a need for harmonization of international sales law?
- How far adopting the CISG by Ethiopia is a solution to the choice of law problems in Ethiopia’s IBTs?
- Among the perspectives in adopting CISG which should be chosen by Ethiopia if the country decides to adopt the convention?
1.5. Significance of the Research
The research is significant both for the pursuit of knowledge and the identification of further action by Ethiopia concerning the adoption of the CISG. With regard to knowledge, the research contributes a piece of body of knowledge to literature on the historical development of HILS, the need and justifications for having HILS, the benefits of adopting the CISG, the perspectives of adopting CISG. To this end the final thesis may also be used as a reference material for interested researchers who may focus on similar or related topics.
With regard to further action, the given research will serve as a background document to make a case for adoption of the convention by Ethiopia. Besides, the final thesis will serve as a discussion paper for creating an extensive awareness campaign among all interested stakeholders.
Finally it is requirement to me, for the partial fulfillment of Masters of Business and Corporate Law (LLM) at Bahir Dar University.
1.6. Scope of the Research
The research focuses on the benefits of adoption of the United Nations Convention on Contracts for the International Sales of Goods in Ethiopia. It does not include study of the overall contents of the convention though the contents of certain provisions of CISG are to be discussed in connection with the main study. The thesis is not a comparative study among global, regional and domestic law of sales. Besides, the benefits of adoption of CISG are to be discussed only on the area of economic and trade benefits. As a result, the political, social and other benefits of adoption of CISG, if any are not the focus of the thesis.
1.7. Limitation of the Research
The given research has the following limitations. Firstly, due to the existence of financial and time constraints the researcher faced a problem in data collection, especially actual cases that Ethiopian businesses are at a disadvantaged position due to choice of law problems, and preparing an excellent research. But, I tackled the problem by using my whole time, day and night, money and energy and produce an excellent paper. Secondly, since the area of the research is new, there was a constraint of domestic sources as to the benefits of adoption of CISG by Ethiopia. But, I filled the gap by consulting relevant foreign sources in the area of the study as the case may be.
1.8. Critical Literature Review of the Research
There are various foreign literatures written by scholars on the issue “the benefits of adoption of CISG by states around the world”. Among the wealth of literatures on the given case the following were chosen to be critically reviewed.
Eunice Gichangi20 in Section four and five of his writing dealing with “a case for adoption of the CISG by Kenya” and “conclusions” respectively, justifies his conclusion that Kenya should adopt the CISG on the following grounds. For one thing, Kenya’s participation in the International business arena has continued to grow tremendously in recent years. Besides, he argued that Kenya’s traders have highly relied on International instruments that regulate certain aspects of International sales such as Incoterms and UCP. For the other thing, adoption of CISG will provide the following benefits:
- It ensures greater degree of certainty and predictability to Kenyan traders in matters of international trade;
- It avoids the application of rules of private international law in case there exists a dispute in IBTs among their foreign counterparts;
- Harmony with trading partners;
- It avoids the possibility of application of the convention to Kenyan traders in the absence of ratification by Kenya;
- adopting the convention by Kenya is not unduly prejudicial to Kenyan traders for reasons that there is no great variance between the CISG and Kenyan law of sale; and
- It will act as a harmonized sales law for trades between member states of EAC and COMESA.
Having this in mind, the author suggests careful consideration of the provisions of the CISG through relevant stakeholders and conducting an extensive awareness campaign amongst all interested stakeholders.
Patience Matinyenya21 in his thesis argued that though the trade benefits which directly flow from ratification are not immediately apparent, the contracting process under the CISG is likely to be more streamlined and there are more benefits for South African business community than disadvantages to ratifying the CISG. By ways of conclusion he argued that ratifying the CISG is beneficial to South Africa and recommends ratification of the Convention.
Luca G. Castellani, legal officer, UNCITRAL secretariat22 argued that adoption of CISG by Portugal would support Portuguese economic development and integration in the global economy at reduced or no cost; it would also allow for closer interaction between the Portuguese legal community and foreign ones. Based on this, he recommends that adopting the CISG is beneficial to Portuguese.
Silvia E. Nikolova23 highly recommended that the CISG be ratified by the UK, since it is much more efficient and beneficial for the businesses in UK than a choice of law clause in an international contract for the sale of goods.
William P. Johnson24 argued that adoption of the CISG by Turkey is beneficial as it helps to harmonize Turkey’s laws relating to International Trade and its integration to the international system of trade and commerce. It also helps for removal of legal barriers to trade and promotion of the ongoing development of trade. Additionally, the writer argues that the adoption of the CISG by Turkey increases the predictability in the context of Turkey’s sales of goods and decreases transaction costs.
There is only one project studied by USAID on the benefits of adopting the United Nations Conventions on Contracts for the International Sale of Goods by Ethiopia. In this project work, Booz Allen Hamilton25 argued that Ethiopia will benefit if it adopts the convention. For one thing, it avoids recourse to rules of private International law to determine the law applicable to the contract and for the other thing it makes the sales contract certain and predictable and eliminates unnecessary disputes on procedural matters. But the argument that the CISG can improve legal certainty and predictability by avoiding recourse to conflict of law rules in the event of a dispute needs to be supported by far more evidence than what the writer provides, the above stated benefits of CISG is at least questionable.
Besides, the writer uses doctrinal research methodology whereas my research work is purely qualitative. It is my belief that the benefits of adopting the CISG in Ethiopia be studied by qualitative research methods as opposed to the doctrinal method.
In addition, the writer automatically recommended the ratification of the Convention without lodging any reservation and declaration and adopting the UNCITRAL Model Laws on Electronic Commerce and Electronic Signature and the Limitation Convention in conjunction with the CISG. But, is automatic ratifications of the conventions, including the CISG, before careful consideration and discussion of the stated conventions by the government of Ethiopia through its relevant departments, with the business community, the acadamicia and other relevant stakeholders advisable to the Ethiopian government or not is an issue that needs to be evaluated in the eyes of the benefits of adoption of the CISG. Settling this issue is important to make a right decision about the perspectives of ratification that Ethiopia should adopt thereto.
1.9. Conceptual Framework of the Research.
As far as my knowledge is concerned, there is no renowned theory in the field of my research, the benefits of adoption of CISG in Ethiopia. Hence, my research does not have a theoretical framework. Having this in mind, I am designing a conceptual framework thereto as follows.
Abbildung in dieser Leseprobe nicht enthalten
Figure 1: Conceptual Framework of the Research
1.10. Methodology and Design of the Research
1.10.1. Research Approach
The researcher employed pure qualitative research methodology in the sense that the primary and secondary data to be collected are presented, analyzed and interpreted. There are various trade and economic related conventions of the United Nations. Among these groups of UN Conventions, I choose CISG to be my case study. The research method chosen in this regard is case study method in the qualitative approach aiming at systematically gathering enough information about the benefits of adopting CISG by Ethiopia.
1.10.2. Research Methods and Techniques
The research used descriptive method to meet the objective of the study. The techniques employed are: data were obtained through semi-structured interviews from concerned Government officials, the business community, and the academicians in the legal discipline. Review of documents and laws (including conventions), both foreign and domestic, as the case may be, was conducted.
1.10.3. Sources of Data
The research is a synthesis of both primary and secondary sources. Data collected through interview and review of the CISG, the FDRE Constitution and policy documents of Ethiopian Government make up the primary sources. Previous works on this topic in the form of journal articles, textbooks and Internet based literature are used as secondary sources.
1.10.4. Data collection techniques
The researcher uses semi-structured interview and document review methods.
1.10.5. Data Presentation, Analysis and Interpretation and reporting
The raw data and secondary data collected from interviews and documents are encoded, presented and interpreted in systematic way by using case description strategy and pattern matching analytic technique of analyzing case study evidence. The study also uses linear- analytic structure of case study reporting, starting at the issue/problem being studied in the thesis review of literatures the methods used findings from the data collected and analyzed conclusions and implications of the finding.
1.11. The Chapters
All the chapters are structured in a way that they will address the benefits of adoption of the CISG by Ethiopia. The first chapter deals with the introductory parts of the paper i.e. research process. The second chapter focuses on the need for having harmonized international sales law. The third chapter discusses the benefits of adoption of CISG in Ethiopia. The fourth chapter deals with the perspectives of Ethiopia’s adoption of CISG. The fifth chapter concludes the study and recommends the measures that need to be taken by the country. Having this in mind, the next chapter will analyze the development of harmonized international sales law.
CHAPTER TWO
THE NEED FOR HARMONIZATION OF INTERNATIONAL SALES LAW
International contracts inevitably raise the question as to which of the various national laws will govern the transaction. The uncertainties and inconveniences that stem from this are manifest; because of the different national rules of private international law, parties risk remaining uncertain of the law applicable to the contract until the competent forum is established. This is a heavy price to pay in international commerce where the allocation of risk is predicated on certainty. Thus, there is some virtue in evolving an international legal regime that avoids solutions that have not been bargained for26. The principal motivations for harmonization endeavors can be briefly discussed as follows:
2.1. Justifications for having harmonized International sales law.
Although it may seem that harmonization has innate intuitive virtues, it is important to understand the justifications advanced by its proponents. There is no consensus that indicates overwhelming appeal, and each justification must be individually examined and evaluated27. The principal justifications for harmonization of international sales law among other things include the following.
2.1.1. Territorial nature of law.
The need for having a harmonized international sales law emanates in the first place from the fact that law is territorial in its nature. It only has a force of law within specified national boundaries and in principle no other state is bound to acknowledge or apply it28. In order to enforce the laws of one sovereign state by the courts/arbitral tribunals of other sovereign state/s, there is a need for developing rules of private international law. Because of the uncertainties in private international law rules, at least one of the parties to the international contract of sale is faced with the application of a foreign legal system of which it may have no knowledge and it may even be uncertain as to which legal system will apply to the given contractual relationship29. This fact coupled with the possibility that each international contract of sale of a party was potentially subject to a different or more than one national legal system caused a great deal of legal uncertainty and difficulty for the parties to the given contract. Even if a contracting party is aware of the problems of rules of private international law, its negotiating strength may preclude it from ensuring that its own legal system is applied. Businesses with a multitude of import/export partners are therefore faced with the application of a multitude of different legal systems to their legal relationships. This increases the risks for such businesses and the attendant costs involved in such transaction30. Hence, harmonizing international sales law simplifies this situation by providing one set of applicable law for all international sales.
2.1.2. Inefficiencies of standard contracts and universally accepted usages to cover all the issues of international sale of goods.
Though standard contracts and usages made national law of sale inapplicable in many ways, the standard contracts were developed within certain sectors of international trade and in no way covered all of the issues of international sales of goods. The same held true for usages. As a result, harmonization of international sales law would be a valuable and practically useful instrument to close the gaps still left by the standard contracts and usages by excluding national laws of sale31.
2.1.3. National laws may be inappropriate for international transactions.
There are situations in which national laws do not meet the demands of international commerce. National laws are developed for internal trade only. There are various intricacies of international trade which are out of the ambit of national laws of sale that require special rules to be applied to sales across national boundaries. A harmonized global sales law could also serve to improve on internal laws of sale, since it would be more modern and fashioned for the needs of the commercial markets of today whereas many domestic rules of sales unsuitable for current conditions. Hence, harmonization of global sales law could adequately take these issues in to consideration32.
2.1.4. Reducing costs.
Requirements imposed by various national legal systems can be extremely costly to business. These can range from the bare cost of legal advice to costs imposed by the law’s inadequacy for international commerce. The existence of a single instrument that governs all aspects of the transaction can play a major role in reducing risk, and thereby reducing costs, thus leading to a better use of resources. Because the harmonized law subjects a transnational commercial transaction to a single set of rules, it reduces the legal costs associated with the transaction33.
2.1.5. Other Justifications.
Besides the above mentioned justifications, harmonization of international sales law is justified on the following points34:
- The fact that the harmonizing instrument provides another choice that is neutral, for both parties, when neither entity is willing to surrender reliance on their own law;
- National laws may be written in languages that are not internationally understood;
- The harmonizing instrument is drafted in several languages and is more accessible;
- Proving foreign laws in courts is both expensive and time consuming;
- Harmonization promotes international trade and economic development by eliminating barriers.
2.2. Justifications against harmonization of International sales law.
Not everyone is convinced that harmonization is desirable. In recent years, there has been criticism both on the need for and the methods employed by harmonizing agencies. It has been argued that many of the products of harmonization of international law of sales endeavors were unnecessary, and in fact are detrimental to international commerce35. There are various justifications given by opponents of harmonization of international law of sales. Accordingly, these justifications include36:
- International conventions are inevitably drafted as multicultural compromises between different legal orders and will hence be enervated, inconsistent, and incoherent;
- The systemic faults in international drafting deprive the instrument of the force that is required for it to be an effective tool to tackle the problems of international commerce;
- The pursuit of uniformity is an idealistic notion, since national laws are premised on different traditions and assumptions;
- Any uniformity that is achieved is born with an inherent hollowness caused by the realization that national courts will interpret the instrument in the backdrop of their own legal systems with the resultant divergences of interpretation;
- To expect that judgments from other jurisdictions would be easily available or accessible is to be overly optimistic;
- This quest for uniformity uncovers the reality that where uniformity is not achieved, a "diplomatic uniformity" is sought to be hammered out, very often in clever guises. “One widely adopted tactic is that of a rule immediately emasculated by an equally broad exception”. This results in the production of an inadequate legal tool without any commensurate gain;
- International Conventions have an extremely prolonged gestation period, are very difficult to amend, and the signatories are prisoners to it until a new convention is created;
- National laws are easier to amend and can respond more effectively to the demands of changed circumstances;
- Diversity in itself is a great virtue. It affords the opportunity to choose the best amongst a host of competing legal regimes, and the market determines the best law;
- Several legal concepts cannot be expressed in other languages without losing their essential genius, and they are lost in translation into an international instrument.
The author of this paper is of the opinion that in a world where trade is increasingly international, none of the above criticisms of the harmonization process can outweigh the benefits of having a truly international regime based on traditions and principles that are commercial, rather than nationalistic. Commercial people demand certainty and predictability more than nationally determined notions of justice or fairness, and a legally average sameness is often preferable to disparately brilliant national formulations.
2.3. Development of Harmonized International Sales Law.
2.3.1. Historical Perspective.
The origins of the CISG can be traced to the late 1920s. During this period, scholars, lawyers and traders (primarily from Western Europe) began to explore the possibility of creating a uniform law to govern international trade37. Draft uniform sales laws were presented and debated from 1926 through 1939 under the auspices of the International Institute for the Unification of private Law (UNIDROIT). Due to the outbreak of World War II, UNIDROIT was unable to present the final drafts of the uniform law on sales and on the formation of contracts until the Hague Conference of 196438.
Based on earlier drafts on uniform sales law created by UNIDROIT from 1951 through 1964, a discussion was held under the auspices of the Hague Conference on Private International Law39. The conference generally approved the drafts of the UNIDROIT, but added various amendments that formed a new draft to be considered in the following years. A second diplomatic conference was held at the Hague, Netherlands in 1964, which resulted in the creation of two International Conventions: the Convention Relating to a Uniform Law on the International Sale of Goods (“ULIS”), consisting of fifteen articles, and the Convention Relating to a Uniform Law on the Formation of Contracts for the International Sale of Goods (“ULF”), consisting of thirteen articles40.
Although the Hague Conference efforts had been partially successful, Though these Conventions were considered the central pillars of a new international commercial system of law, they had many imperfections, however, and were a compromise with which most countries were unsatisfied ; they were criticized for their primarily Eurocentric approach and failure to address the needs of the United States, the developing countries, and Eastern Europe. That is why only seven states ratified the 1964 Conventions, some also making additional reservations on their application41.
The failures of the UNIDROIT and the Hague Conventions led to the establishment of UNCITRAL in 196642. The main objective of UNCITRAL was to draft an international treaty for the sale of goods that would be more universally accepted "by countries of different legal, social and economic systems"43. With the view to avoid further complaints about misrepresentation UNCITRAL and the Working Group that took over the drafting were carefully composed of members from different countries.
UNCITRL, in its first session, established a fifteen member working group in order to decide on whether the ULIS and ULF should be modified to increase their acceptability or draft completely new texts. After conducting an initial study, the Working Group opted for the second alternative. By taking in to account the comments and criticisms made about ULIS and ULF, it prepared two draft conventions, one for formation of contract and the other for rights and duties emanating from the contract and breach of contract44. In 1978 UNCITRAL consolidated these two drafts in to one forming the New York draft and unanimously approved the consolidated draft thereto and reffered it to the United Nations General Assembly45. This draft was then presented to all UN members for deliberation, and afterwards, it together with the forwarded comments, was presented at the Vienna Conference for discussion46. This draft was considered and revised for the next two years until March 1980, when representatives from sixty-two states gathered together in Vienna, Austria to complete the final version of the convention. The Convention was finalized at a diplomatic conference in Vienna in 1980, where it was agreed by 62 states47. After receiving its 10th ratification, it came in to force on January 1st 198848. The CISG is officially plurilingual in six languages; Arabic, Chinese, English, French, Russian and Spanish49.
Looking back at the historical accounts, therefore, one can observe that each attempt, whether successful or not, of harmonizing international law throughout history has been provoked by some issue relevant to the particular period.
[...]
1 Arthur Rosett, Critical Reflections on the United Nations Conventions on Contracts for the International Sale of Goods, 45 Ohio State Law Journal 226(1984), pp.265-67 , accessed at www. cisg. law.pace.edu/ cisg /biblio/ rossett.html on March 12, 2015
2 Paul B. Stephan, The Futility of Unification and Harmonization in International Commercial Law, 39 Va.J.Int’l.L (1999), pp. 743-750 accessed at www.jus.unitn.it/dsg/ricerche/dottorati/allegati/ 1999 _ stephan.pdf on March 14, 2015
3 Ibid
4 Charles J. Goetz and Robert E. Scott, The Limits of Expanded Choice: An Analysis of the Interactions Between Express and Implied Contract Terms, Cal.L.Rev, (1985), pp. 261-278 , accessed at http://digitool.library.mcgill.ca/webclient/StreamGate?folder_id=0&dvs=1430495725410~574 on April 13, 2015
5 Ibid
6 Ibid
7 Baasch Andersen, Camilla, “The Uniform International Sales Law and the Global Jurisconsultorium” Journal of Law and Commerce 24 (2005), pp. 159-179, accessed at www.cisg.law.pace.edu/cisg/biblio/andersen3.html, on June 06, 2015
8 The CISG entered into force in 11 states on 1 January 1988. Todate, a total of 83 states have adopted the convention, see http://www.cisg.law.pace.edu/cisg/countries/cntries.html
9 See Article 1(1) of the convention. According to Article 6 the parties may choose to opt out of the convention and choose another set of rules to govern the contract, e.g. the rules of the forum.
10 Bell, Andrew S. “Forum Shopping and Venue in Transnational Litigation” Oxford University Press 2003, pp. 5-18, 23-49, accessed at https://www.google.com.et/search?q=Bell%2C+Andrew+S.+%E2%80%9CForum+Shopping+and+Venue+in+Transnational+Litigation%E2%80%9D+Oxford+University+Press+2003.%5D&oq=Bell%2C+Andrew+S.+%E2%80%9CForum+Shopping+and+Venue+in+Transnational+Litigation%E2%80%9D+Oxford+University+Press+2003.%5D&aqs=chrome..69i57.3246j0j8&sourceid=chrome&es_sm=93&ie=UTF-8 , on June 06, 2015. If a party can sue another party in more than one state, he will be able to choose between different substantive laws (lex causae) if the rules of private international law of the relevant states lead to different lex causae. The possibility of a party choosing a certain lex causae is problematic because it may cause the dispute to be settled by rules not contemplated by the parties when entering into the contract.
11 Ibid, the parties may, of course, choose the rules of a neutral jurisdiction to govern the contract but this means that both parties will have to familiarize themselves with foreign rules
12 Bruno Zeller, The Development of Uniform Laws- A Historical Perspective, Pa. Int’l. L. Rev (2000) , pp.163-168, accessed at http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1193&context=pilr on March 23, 2015.
13 UNCITRAL, CISG: Tables of Contracting States, UNCITRAL 2015 report, accessed at http://www.uncitral.org/uncitral/en/uncitral_texts/sale_goods/1980CISG_status.html accessed on March 7, 2015
14 Luca G. Castellani, Promoting the Adoption of the United Nations Convention on Contracts for the International Sale of Goods (CISG), 13 VINDOBONA J. INT’L COM. L. & ARB, (2009), pp.241-246 accessed at http://www.cisg.law.pace.edu/cisg/biblio/castellani.html , accessed on March 02, 2015
15 The principal trading partners includes: China, Italy, Germany, Japan, UK, United States of America, Belgium, Netherlands, Switzerland, India, South Korea, Russia, Turkey, Pakistan, Indonesia, Kuwait, Thailand, Ukraine, Spain, France, Egypt, Saudi Arabia, South Africa, Sudan, Somalia, Israel, and Others accessed at http://ethiopia.konema.com and https://treaties.un.org/pages/view on April 23, 2015 and Yakob Y, FDRE State Minister Ministry of Trade, Export Sector in Ethiopia: Performance and Challenges, ppts. Presented to the 16th GOE-DAC high level forum, June 2014 (Unpublished)
16, Legislative History 1980 Vienna Diplomatic Conference, Summary Records of Meetings of the First Committee, 6th meeting, accessed at http://cisgw3.law.pace.edu/cisg/1st committee/summaries 78, 84. html accessed on April 02, 2015and , Legacarta of International Trade Center by Country Report 2014-Ethiopia accessed at http://legacarta.net/?scw=13&set_lang_id=1#p[homepage on 2015/04/04, Interviews held with Ato Lisanework Gorfu, Director of Multilateral Trade Negotiation at FDRE Ministry of Trade, Ato Melaku Juhar, Director of Trade and Investment affairs at Ethiopian Chamber of Commerce and Sectorial Association, Ato Yohanes Wolde Gebrel, Director of Arbitration Institute at Addis Ababa Chamber of Commerce and Sectorial Association
17 Celia Malahlela, Should South Africa Ratify the United Nations Conventions on Contracts for the International Sale of Goods? LLM Thesis University of Pretoria, 2013, pp.35. accessed on April 30, 2015 at http://repository.up.ac.za/bitstream/handle/2263/41579/Malahlela_Should_2014.pdf?sequence=1
18 Sieg Eiselen, adoption of the Vienna Convention for the International Sale of Goods (CISG) in South Africa, South African Law Journal, part II (1996) 323-370, pp 1-8 accessed at http://www.cisg.law.pace.edu/cisg/biblio/eiselen8.html, on March 24, 2015
19 Ahadi, M. The United Nations Convention on Contracts for the International Sale of Goods: should developing nations such as Iran adopt the CISG? Durham, U.K., Durham University, 2013, pp. 231 Thesis (Doctor of Philosophy) - School of Law, University of Durham (2013).Available online at http://etheses.dur.ac.uk/16
20 Eunice Gichangi, The United Nations Convention on Contracts for the International Sale Of Goods: A Case for Ratification by Kenya, Kenyan Law Review Vol.1 2007 accessed on March 05, 2015 at http://www.kenyalaw.org/Downloads_Other/gichangi_UN_convention.pdf
21 Patience Matinyenya, South Africa’s non-ratification of the United Nations Convention on Contracts for the International Sale of Goods (CISG), wisdom or folly, considering the effect of the status quo on international trade, LLM Thesis, Faculty of Law, University of Western Cape, 2011 accessed on March 05, 2015 at https://www.google.com.et
22 Luca G. Castellani, Promoting the Adoption of the United Nations Convention on Contracts for the International Sale of Goods (CISG), 13 VINDOBONA J. INT’L COM. L. & ARB, 241, 246 (2009) accessed on March 26, 2015 at http://www.cisg.law.pace.edu/cisg/biblio/castellani.html
23 Silvia E. Nikolova , UK’s Ratification of the CISG – An Old Debate or a New Hope for the Economy of the UK on Its Way Out of the Recession: The Potential Impact of the CISG on the UK’s SME, 3 Pace Int’l L. Rev. Online Companion 69 (2012), Accessed on March 20, 2015 at http://digitalcommons.pace.edu/pilronline
24 William P. Johnson, Turkey’s accession to the CISG: The significance for Turkey and for sales transactions With U.S. contracting parties, Ankara Law Review Vol.8 No. 1, 2011 Accessed on March 12, 2015 on https://www.google.com.et
25 Booz Allen Hamilton, Reinforcing Ethiopia’s international trade law Framework for a stronger business environment: a case For the ratifications of the New York convention and the CISG, USAID WTO accession plus project2008 pp. 3-4, accessed on March 13, 2015at http://www.dagethiopia.org/index.php?option=com_docman& task=doc_download&gid=22&Itemid=120
26 Quintana Adriano, E.A., The evolution of the global trade over the last thirty years: international academy of commercial and consumer law, Mexico, D.F., Universidad Nacional Autónoma de México, 2014. 403 p. Selected contents: The evolution of the global trade over the last thirty years = Evolución del derecho comercial, del sistema financiero y del sistema económico global: análisis de tres décadas / E. A. Quintana Adriano, p. 1-30 – Developments in commercial law: paradoxes and challenges: a new era / R. A. Etcheverry, pp. 205-214 Available online at http://biblio.juridicas.unam.mx/libros/libro.htm?l=3581 accessed on March 30, 2015.
27 Ibid
28 Ibid
29 Supra note at 45
30 Ibid
31 Ibid
32 Ibid
33 Ibid
34 San Deep, From Cape Town to the Hague: harmonization has Taken Wing, Journal-of-Constitutional- Law-Contact-x2022, pp. 25-34accessed at https://www.law.upenn.edu/journals/jil/jilp/articles/1-1_Gopalan_Sandeep.pdf on April 20, 2015
35 Ibid
36 Ibid
37 Farnsworth, Formation of International Sales Contracts: Three Attempts at Unification, 110 U. Pa. L Rev. 305 (1962), accessed at http://scholarship.law.upenn.edu/penn_law_review/vol110/iss3/1 on March 30, 2015
38 Silvia. E. Nikolova, UK’s Ratification of CISG- An Old Debate or A New Hope for the Economy of the Uk on Its Way Out of the Recession: The Potential Impact of the CISG on the UK’s SME, 3 Pace Int’l L. Rev. Online Companion 69, Vol. 3, 80-84, accessed at https://www.google.com.et on April 25, 2015.
39 Ingeborg Schwenzer and pascal Hachem, The CISG-Success and Pitfalls, 57 Am. J. Com. L. 457-458 (2009), accessed at www. cisg.law.pace.edu/ cisg /biblio/ schwenzer - hachem.htm , on April 11, 2015.
40 AndreTunc, Commentary on the Hague Conventions of the 1st of July 1964 on International Sale of Goods and the Formation of the Contracts of Sale, Pace L. Sch. Inst. of Int’l. Com. L., accessed at http://cisgw3.law.pace.edu/cisg/biblio/tunc.html accessed on April 23, 2015.
41 Eunice Gichangi, The United Nations Conventions on Contracts for the International Sale of Goods: A Case for Ratification by Kenya, Ken. L. Rev. Vol.1 306 (2007), accessed at http://www.kenyalaw.org/Downloads_Other/gichangi_UN_convention.pdf on March 05, 2015
42 , United Nations Commission on International Trade Law, Year book Volume I:1968- 1970,A/CN.9/SER.A /1970, Part One, Ch II, Sec E, accessed at http://www.uncitral.org/pdf/english/yearbooks/yb- 1968-1970, accessed on April 18, 2015
43 Ibid
44, Legislative History 1980 Vienna Diplomatic Conference, Summary Records of Meetings of the First Committee, 6th meeting, accessed at http://cisgw3.law.pace.edu/cisg/1st committee/summaries 78, 84, html accessed on April 02, 2015.
45 Ibid
46 Ibid
47 Argentina, Australia, Austria, Belgium, Bolivia, Brazil, Bulgaria, Burma, Byelorussian Soviet Socialist Republic, Canada, Chile, China, Colombia, Costa Rica, Cyprus, Czechoslovakia, Denmark, Ecuador, Egypt, Finland, France, German Democratic Republic, Federal Republic of Germany, Ghana, Greece, Hungary, India, Iran, Iraq, Ireland, Israel, Italy, Japan, Kenya, Libyan Arab Jamahiriya, Luxembourg, Mexico, the Netherlands, Nigeria, Norway, Pakistan, Panama, Peru, the Philippines, Poland, Portugal, the Republic of Korea, Romania, Singapore, Spain, Sweden, Switzerland, Thailand, Tunisia, Turkey, Ukrainian Soviet Socialist Republic, the Union of Soviet Socialist Republics, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Uruguay, Yugoslavia and Zaire. Venezuela sent an observer, in Alejandro M. Garro, Reconciliation of Legal Traditions in the United Nations Convention on Contracts for the International Sale of Goods, 23 J. Int’l. L. 443 (1989), accessed at http://www.cisg.law.pace.edu/cisg/plenarycommittee/summary11.html on March 28, 2015.
48 According to Article 99 of the CISG, the Convention was to enter in to force on the first day of the ratification, acceptance, approval or accession. China, Italy, and the United State were the 9th, 10th and 11th contracting states on December 1986
49 Thor Thingbo, The United Nations Convention on Contracts for the International Sale of Goods (1980) And Norway’s Ratification Process, Lex Mundi World Reports 32 (1983), accessed at www.cisg.law.pace.edu/cisg/biblio/ thingbo.html, on March 21, 2015
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