Abstract
This chapter argues that there is a group of treaties for private matters, the interpretation of which should be subject to different rules. It is because such treaties are concluded to directly and indirectly govern private relations. The factors to be considered when interpreting such treaties include the international character of the matter, the promotion of uniformity and consistency, the good faith requirement, and the general principles based by such treaties.
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Notes
- 1.
The main contents of this chapter are basically revised from Lo C (2015) Should Domestic Court’s and Commercial Arbitral Tribunal’s Interpretation of “Treaties for Private Matters” Be Based on the VCLT or Other Rules? Contemp Asia Arbitration J 9:1–32.
- 2.
The text of the CISG is available at http://www.uncitral.org/pdf/english/texts/sales/cisg/V1056997-CISG-e-book.pdf . Accessed 8 Aug 2017.
- 3.
The text of the Convention on the Choice of Court can be found at https://www.hcch.net/en/instruments/conventions/full-text/?cid=77. Accessed 8 Aug 2017.
- 4.
The text of the Convention on Choice of Court Agreements can be found at https://www.hcch.net/en/instruments/conventions/full-text/?cid=98. Accessed 8 Aug 2017.
- 5.
The text of the New York Convention can be found at http://www.newyorkconvention.org/english. Accessed 8 Aug 2017.
- 6.
Article I:3 of the New York Convention provides in part that: any State “may also declare that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of the State making such declaration.” But it must be noted that if a Contracting State to the New York Convention does not make such “commercial reservation”, it is possible that the New York Convention can be applied to the enforcement of an “investor-to-State arbitration” which is not subject to the International Centre for Settlement of Investment Disputes (ICSID) Convention. The text of the ICSID Convention can be found at https://icsid.worldbank.org/en/Documents/icsiddocs/ICSID%20Convention%20English.pdf. Accessed 8 Aug 2017. The main difference between the New York Convention and the ICSID Convention concerning the enforcement of an “investor-to-State” arbitral award is in that the New York Convention allows the domestic courts to refuse enforcement of an arbitral award based on, for instance, the award being contrary to the public policy of the enforcing country, the subject matter being not capable of settlement by arbitration under the law of the enforcing country, or the arbitration agreement being invalid. See Article V of the New York Convention. But The ICSID Convention does not allow such non-enforcement of an arbitral award.
- 7.
The text of the Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters can be found at https://www.hcch.net/en/instruments/conventions/full-text/?cid=78. Accessed 8 Aug 2017.
- 8.
The text of the Convention on the Law Applicable to Contracts for the International Sale of Goods can be found at https://www.hcch.net/en/instruments/conventions/full-text/?cid=61. Accessed 8 Aug 2017.
- 9.
Abbott v. Abbott, 130 S. Ct. 1983 (2010).
- 10.
Hague Conference on Private International Law case law search website at http://www.incadat.com/index.cfm/themas/cluster/index.cfm?act=search.detail&cid=1029&lng=1&sl=2. Accessed 8 Aug 2017.
- 11.
See the definition of treaty in VCLT Article 2(a): “‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation”. (Emphasis added).
- 12.
Hollis (2012), pp. 25–26.
- 13.
Bailey (1999), p. 280.
- 14.
The text of the Explanatory Note is available at http://www.uncitral.org/pdf/english/texts/sales/cisg/V1056997-CISG-e-book.pdf. Accessed 8 Aug 2017.
- 15.
U.N. Secretariat, Commentary on the Draft Convention on Contracts for the International Sale of Goods, art. 6, cmt. 1. 7, U.N. Doc. A/CONF.97/5 (1979 (1978 Draft)) (cited from Bailey, supra note 3, at p. 293).
- 16.
CISG Article 7(1) provides in part that: “In the interpretation of this Convention, regard is to be had to its international character …” (Emphasis added).
- 17.
Bailey, supra note 3, at p. 291.
- 18.
Id. at p. 289.
- 19.
CISG Article 7(1) provides in part that: “In the interpretation of this Convention, regard is to be had… to the need to promote uniformity in its application…” (Emphasis added).
- 20.
CISG Article 7(1) states in part that: “In the interpretation of this Convention, regard is to be had … to … the observance of good faith in international trade.” (Emphasis added).
- 21.
CISG Article 7(2) provides in part that: “Questions … not expressly settled in it are to be settled in conformity with the general principles on which it is based…” (Emphasis added) Although this provision was not drafted in a way to indicate that this is to decide CISG’s interpretation, in practice, this is also for CISG’s interpretation to fill the gap when the Convention fails to address a disputed issue.
References
Bailey JE (1999) Facing the truth: seeing the convention on contracts for the international sale of goods as an obstacle to a uniform law of international sales. Cornell Int Law J 32(2):273–317
Hollis DB (2012) Defining Treaties. In: Hollis DB (ed) The oxford guide to treaties. Oxford University Press, Oxford, pp 11–45
http://www.incadat.com/index.cfm/themas/cluster/index.cfm?act=search.detail&cid=1029&lng=1&sl=2. Accessed 8 Aug 2017
http://www.newyorkconvention.org/english. Accessed 8 Aug 2017
http://www.uncitral.org/pdf/english/texts/sales/cisg/V1056997-CISG-e-book.pdf. Accessed 8 Aug 2017
http://www.uncitral.org/pdf/english/texts/sales/cisg/V1056997-CISG-e-book.pdf. Accessed 8 Aug 2017
https://icsid.worldbank.org/en/Documents/icsiddocs/ICSID%20Convention%20English.pdf. Accessed 8 Aug 2017
https://www.hcch.net/en/instruments/conventions/full-text/?cid=61. Accessed 8 Aug 2017
https://www.hcch.net/en/instruments/conventions/full-text/?cid=77. Accessed 8 Aug 2017
https://www.hcch.net/en/instruments/conventions/full-text/?cid=78. Accessed 8 Aug 2017
https://www.hcch.net/en/instruments/conventions/full-text/?cid=98. Accessed 8 Aug 2017
U.N. Secretariat (1979) Commentary on the draft convention on contracts for the international sale of goods. U.N. Doc. A/CONF.97/5 (1978 Draft)
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Lo, Cf. (2017). Interpreting Treaties for Private Matters and the Possible Codification. In: Treaty Interpretation Under the Vienna Convention on the Law of Treaties. Springer, Singapore. https://doi.org/10.1007/978-981-10-6866-9_9
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