국제물품매매협약(CISG) 적용 하에서 매매계약 체결에 관한 실무적 고려사항

This article is written primarily for the practitioner and reviews some of the areas in which the Convention (or “CISG”) will require different contract drafting techniques. It (1) describes the Convention in a nutshell and the reasons why attorneys and their clients should know something about the Convention, (2) briefly analyzes when the Convention is applicable, and (3) suggests various ways to adjust contract forms and contracting practices to take into account the Convention's provisions. The Convention governs (1) contracts for the sale (2) of goods when (3) the transaction is international as defined by the Convention. The Convention defines only the third of these elements. As to the first two elements, the Convention provides some guidance by its articles that exclude certain issues and types of transaction from the Convention's coverage. Sellers and buyers are not bound to accept the “default settings” found in the Convention, Article 6 of the Convention explicitly endorses the principle of freedom of contract: “The parties may exclude the application of this Convention or, subject to article 12, derogate or vary the effect of any of its provisions.” Thus, parties to a sales contract are allowed to allocate obligations and risks between themselves without having to worry about whether the contract terms are consistent with the Convention. Even if the Convention is applicable to a particular contract, parties may want to exclude application of the Convention. Both parties should keep two general points in mind: (a) the exclusion should be explicit because some commentators question whether the Convention may be excluded by implication; and (b) the contract term should both exclude application of the Convention and state what law is to govern. With such complete exclusion of the application of the Convention, another designated law will govern the contract. Given the article 6 of the Convention, parties are free to enter into a sales contract with terms and conditions which are rather different from or contrary to languages of the Convention. If both parties are silent in their contract, the Convention will fill-in the gaps. This article provides various topics that need to be considered when negotiating and drafting a sales contract to be governed by the Convention. Each topic renders some alternative languages that can replace them in existing contract forms. Practitioners may want to compare their current contract forms with the suggested languages provided in this article. Some changes may be necessary.