CISG의 적용에 관한 CIETAC 중재사례 연구- 중국과 홍콩 당사자간 분쟁을 중심으로 -

The amount of international trade conducted through Hong Kong (HK) is increasing, thus rendering the legal framework governing contracts of sale between Mainland China (China)and HK is of particular importance. The status of HK under the CISG is currently unclear,however. First, the CISG entered into force in China in 1988. This important development had no legal effect for HK though as China lacked the power to enter into international conventions for HK. Second, the “Letter of Notification" deposited to the Secretary-General of the UN referred a list of treaties to be applied to HK, taking effect from July 1, 1997. This list, however,made no mention of the CISG. Third, China made a reservation in Article 95 of the CISG. Pursuant to Article 1(1)(b)of the CISG , the CISG cannot apply to HK. As a result, the Chinese Arbitral Tribunal apply the Chinese law according to the closest connection principle with the contract. In this case, attention must be given to the different result to which the CISG is applied. Liability for damages pursuant to the Chinese Contract Law (CCL) is just the same as Article 74 CISG, but CCL does not govern the case with substitute transaction and without substitute transaction when the contract is avoided. Therefore, the contract should be governed by the CISG from a business perspective when a contract is concluded between China and HK; otherwise, a promisee could not be fully compensated for all loss incurred.