CISG 제7조의 일반원칙 및 제9조의 관행과 UNIDROIT 원칙의 적용 가능성

The CISG and the UNIDROIT Principles are the most applicable uniform laws for international sale of goods. The former forms a type of hard law, while the latter forms a type soft law. The CISG Article 7(2) provides that questions concerning matters governed by the CISG which are not expressly settled in it are to be settled by the general principles on which it is based. “Internal gaps” are filled in conformity with the CISG’s general principles without resorting to domestic law, while “external gaps” are to be solved by domestic law or other uniform law. Some CLOUT cases considered the UNIDROIT Principles to be the general principles for gap-filling in the sense of Article 7. The CISG Article 9(1) provides that the parties to an international sales contract governed by CISG are bound by usages, as well as by practices established between themselves. Article 9(2) provides for usages that the parties have impliedly made applicable to their contract. Under article 9(1), the parties are bound by any usage to which they have agreed. Article 9(1) required intent of the parties, but unlike article 9(2), does not require that a usage be internationally accepted in order to be binding. The practices could be extended to the UNIDROIT Principles. Some CLOUT cases held that the UNIDROIT Principles reflect international usages.