What is the role of "good faith" in the CISG?
The term “good faith”
can be interpreted in several manner and it is important to understand
precisely what is meant in an international business context to avoid confusion
and uncertainty.
Article 7(1) of the
Vienna Convention (the United National Convention on Contracts for the
International Sale of Goods) incorporates the requirement of good faith as
follows:
In the interpretation of this Convention, regard is to be
had to its international character and to the need to promote uniformity in its
application and the observance of good faith in international trade.
However, this above
stipulation in Article 7(1) does not absolve uncertainty. Some have considered
that the requirement of good faith only applies in relation to the
interpretation of the Convention – an interpretation of such a requirement is
understandable on first reading.[1]
However, this is a very narrow interpretation and not one that some scholars
say was intended by the drafters. It has been argued to this end that the
requirement of good faith “cannot exist in a vacuum” and the related
signatories must be required to adopt the requirement of good faith in a wider
context in relation to their related actions.[2]
It has been argued that
the requirement of good faith is an inherent and underlying principle of the
Convention. Despite there being no express reference as to the requirement of
good faith within some of the other conventions, the reading of Article 7(1)
would suggest that it applies to many of the other Articles. However, some
disagree with this interpretation and are against this subtle and slightly
covert incorporation of the requirement of good faith a little perverse.[3]
To the contrary, iit
has been argues that Article 7(1) introduced a general positive obligation of
good faith to govern the conduct of parties within a contract. It has been
argued by some (post-Convention) that the requirement of good faith is now a
general requirement which has permeated into contracts governed by the
Convention.[4]
Equally, there is case law evidence that reliance has been placed on Article
7(1) beyond the application of good faith to merely interpret the Convention.
The case of SARL BRI Production
"Bonaventure" v. Société Pan African Export[5] is indicative of this. Here, the Court
held that buyer in this particular case has conducted itself in a way that
breaches its general obligation of good faith.
In summary, it would
seem that there are conflicting interpretations of the role of good faith, some
arguing for a wider, whilst others prefer a narrower interpretation. The
courts, it would seem, have opted for the former.
[1] ICC
Court of Arbitration Case No 8611 of 1997.
[2]
Phanesh Koneru, ;The international interpretation of the UN Convention on
Contracts for the International Sale of Goods: an approach based on general
principles’ (1997) 6 Minnesota Journal of
Global Trade 105.
[3] E
Allen Farnsworth, “The Eason-Weinmann Colloquim on International and
Comparative Law: Duties of good faith and fair dealing under the UNIDROIT
Principles, relevant international conventions, and national laws” (1995) 3 Tul. J. Int'l & Comp. L. 47, 56.
[4] Bonell
M.J. in Bianca CM & Bonell MJ et al, Commentary on the International Sales
Law: The 1980 Vienna Sales Convention (Giuffré 1987), 87.
[5] Cour
d'Appel Grenoble, 93/3275, 22 February 1995.
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