무역거래에서 국제물품매매계약에 관한 유엔협약(CISG)의 적용범위로서 당사자자치의 원칙 및 그 한계에 대한 고찰

The United Nations Convention on Contracts for the International Sale of Goods("CISG") allows the parties to exclude its application (totally or partially) or to derogate from its provisions under article 6. The parties can expressly exclude application of CISG in two ways; exclusion with and exclusion without indication by the parties of the applicable law. CISG does not have any provision which clearly states implicit exclusion. Many courts, however, admit the possibility of an implicit exclusion. The parties can implicitly exclude CISG by choosing the law of a Non-contracting State as the applicable law. There are some restrictions to the party autonomy with regard to CISG. Where one party to a contract governed by the Convention has its place of business in a State that has made a reservation under article 96, the parties may not derogate from or vary the effect of article 12. And the parties cannot derogate from the public international law provisions of the Convention (i.e. articles 89-101). CISG does not state whether the parties choose CISG when it would not otherwise apply. It is understood that the principle of party autonomy is sufficient to allow the parties to choose CISG as the applicable law.