국제거래에서 CISG의 적용여부에 대해 다툼이 되는 몇 가지 사항에 대한 고찰

The United Nations Convention on Contracts for the International Sale of Goods (“CISG”) applies to contracts of sale of goods between parties whose places of business are in different states and either both of those states are contracting states or the rules of private international law lead to the laws of a contracting state. CISG expressly lists several examples of issues with which it is not concerned. In addition, there are many other issues not covered by CISG. CISG, however, does not have any provision defining “goods” nor “sale”, which causes some disputes as to the scope of its application. There are some disputes as to whether barter trade is governed by CISG. The Ukrainian Tribunal of International Commercial Arbitration applied CISG to barter trade. Software is the one of the most ambiguous issues. Software in disk and standard software are generally considered goods within the meaning of goods in CISG, but there is a conflict over custom-made software or over a contract to develop software. Some courts have concluded that burden of proof come within the scope of CISG, but a German court concluded validity of settlement agreement is beyond the scope of CISG, but is governed by German domestic laws.