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Annals OF THE FACULTY OF LAW IN BELGRADE Belgrade Law Review AНАЛИ ПРАВНОГ ФАКУЛТЕТА У БЕОГРАДУ ЧАСОПИС ЗА ПРАВНЕ И ДРУШТВЕНЕ НАУКЕ Journal of Legal and Social Sciences University of Belgrade Year LIX, 2011, No. 3 ISSN 0003-2565 : UDC 34/35 The Annals of the Faculty of Law in Belgrade – Belgrade Law Review Year LIX, 2011, No. 3, pp. 1–300 UDC 34/35 ISSN 0003-2565 TABLE OF CONTENTS Editorial Note– – – – – – – – – – – – – – – – – – – – – – – – – – – 5 ARTICLES UNIFORM SALES LAW Petra Butler, The Use of the CISG in Domestic Law – – – – – – 7 Luca G. Castellani, The Contribution of UNCITRAL to the Harmonization of International Sale of Goods Law besides the CISG – – – – – – – – – – – – – – – – – – – – – 28 Martin Davies, Documents that Satisfy the Requirements of CISG Art. 58 – – – – – – – – – – – – – – – – – – – – – – – 39 Larry A. DiMatteo, Critical Issues in the Formation of Contracts under the CISG – – – – – – – – – – – – – – – – – – – – – – 67 Harry M. Flechtner, The Exemption Provisions of the Sales Convention, including Comments on “Hardship” Doctrine and the 19 June 2009 Decision of the Belgian Cassation Court – – – – – – – – – – – – – – – – – – – – – – 84 Leonardo Graffi , Remarks on Trade Usages and Business Practices in International Sales Law – – – – – – – – – – – 102 Jack Graves, CISG Article 6 and Issues of Formation: the Problem of Circularity – – – – – – – – – – – – – – – – – – 124 Pascal Hachem, Agreed Sums in CISG Contracts – – – – – – – – 140 2 Peter Huber, Typically German? – Two Contentious German Contributions to the CISG – – – – – – – – – – – – – – – – 150 Stefan Kröll, The Burden of Proof for the Non-conformity of Goods Under Art. 35 CISG – – – – – – – – – – – – – – – – 162 Jelena Perović, Selected Critical Issues Regarding the Sphere of Application of the CISG – – – – – – – – – – – – – – – – – 181 Sandra Fišer-Šobot, Duty to Examine the Goods in International Law of Sales – – – – – – – – – – – – – – – – – – – – – – – 196 Nils Schmidt-Ahrendts, CISG and Arbitration – – – – – – – – – – 211 OTHER ISSUES Lidija R. Basta Fleiner, Nation Building: Favouring Multiculturalism Through Federalism? – – – – – – – – – – 224 CONTRIBUTIONS Srđan Šarkić, Some Remarks Concerning the Reception of Byzantine Law in Mediaeval Serbia – – – – – – – – – – – 243 Nina Kršljanin, “On the Scientifi c Elaboration of the History of Slavic Law” – Now and Then– – – – – – – – – – – – – – – 249 INTERNATIONAL ACADEMIC EVENTS Miloš Živković, The First Regional Conference of The Civil Law Forum for South East Europe – – – – – – – – – – – – 272 Zoran Mirković, Vienna Workshop on Legal Systems in the South-Eastern European Countries after the End of the Ottoman Reign – – – – – – – – – – – – – – – – – – – – 277 BOOK REVIEWS Dragoljub Popović, Protecting Property in European Human Rights Law, Eleven International Publishing, Utrecht 2009, p. 158 (Tanasije Marinković)– – – – – – – – – – – – – – – – – – – 281 3 Slobodan Milacic, De l’âge idéologique à l’âge politique – l’Europe post communiste vers la démocratie pluraliste, Bruylant, Bruxelles 2010, p. 475. (Vladan Petrov) – – – – – – – – – – – – – – – – – – – – – – 285 Sima Avramović, Dušan Rakitić, Mirjana Menković, Vojislav Vasić, Aleksandra Fulgosi, Branko Jokić, The Predicament of Serbian Orthodox Holy Places in Kosovo and Metohia – Elements for a Historical, Legal and Conservational Understanding, University of Belgrade Faculty of Law, Belgrade 2010, p. 112. (Maja Lukić) – – – – – – – – – – – – – – – – – – – – – – – 290 Dušan Popović, Le droit communautaire de la concurrence et les communications électroniques, L.G.D.J., Paris 2009, p. 330. (Marko Jovanović) – – – – – – – – – – – – – – – – – – – – 293 Instructions to Authors – – – – – – – – – – – – – – – – – – – – – – – 296 4 EDITORIAL NOTE More than 30 years have passed since the UN Convention on Con- tracts for the International Sale of Goods (CISG) was drafted and adopt- ed, and 23 years since it entered into force. With 76 signatory states the CISG is the most widely accepted uniform law regulating the transactions in the area of international sales of goods to date and covers over two thirds of the world trade. It establishes a comprehensive code of legal rules governing the formation of contracts for the international sale of goods, the obligations of the buyer and seller, remedies for breach of contract and other aspects of the contract. The Republic of Serbia (as a part of former Yugoslavia) was one of the first countries to ratify the CISG and incorporate it as its law for in- ternational sales. With dissolution of Yugoslavia the importance of the CISG for the region did not decrease. To the contrary, all former republics of Yugoslavia filed notifications of succession to the CISG and its impor- tance further grew as it became the main source of law for hundreds of sales contracts concluded between trade partners from different countries established on this territory. Furthermore, the growing importance of the CISG for Serbia is marked by the fact that Serbian foreign trade is pre- dominantly oriented to partners coming from the countries of the CEFTA region and the EU, the vast majority of them being signatories to the Convention. Consequently, Serbian courts and the Foreign Trade Court of Arbitration often have a chance to apply the CISG. However, as the expe- rience in many other countries shows, its application is not always con- sistent. This is why it is particularly important to enable, not only schol- ars, but also judges and arbitrators to be informed of the current trends in application and interpretation of the CISG. The process of unification of law does not require just the adoption of common rules – it must be followed by the uniform application of in- ternational legal instruments. In order to make the unification of interna- tional sales law a true success, we must constantly share our experiences in application of the Convention and other sources of international trade law. With this goal in mind, the University of Belgrade Faculty of Law hosted a large international conference on unification of sales law in No- 5 Annals FLB Belgrade Law Review, Year LIX, 2011, No. 3 vember 2010 which gathered more than two hundreds of lawyers from Serbia and abroad who examined the most controversial issues under the Convention. The Editorial board would like to use this opportunity to thank all the organizers, sponsors and participants of this successful event as it represented a fruitful source for many contributions contained in this volume. Editors-in-Chief 6 ARTICLES UNIFORM SALES LAW Dr. Petra Butler Senior Lecturer Victoria University of Wellington Associate Director of New Zealand Centre for Public Law [email protected] THE USE OF THE CISG IN DOMESTIC LAW* The article gives an overview of the use of the CISG to aid the development of contract law in the major common law jurisdictions. The aim of the article is to explore whether there is cross fertilisation in regard to the use of the CISG the idea being that the more the CISG is used in the domestic context to give content to do mestic law the more familiar and comfortable courts and counsel get with it and might, therefore, ultimately apply the CISG more regularly in international sales. Key words: CISG. Interpretation. Development of domestic contract law ju risprudence. Generally, when the relationship between the CISG and domestic law is discussed, the principal focus is on stressing that domestic case law and doctrine may not be used to interpret CISG terms and that an autono- mous international interpretation applied by all courts and tribunals is the ultimate aim.1 Put another way, the fear expressed is that interpretation of the CISG by reference to domestic law concepts will taint the task of the * This article started out as a contribution to the Uniform Sales Law Conference “The CISG at Its 30th Anniversary” in Belgrade in November 2010. In Belgrade, the paper specifically addressed the concepts of good faith and pre and post contractual conduct in contract interpretation from the common law perspective in particular how domestic common law courts, and in particular New Zealand courts, have used those concepts to develop their own jurisprudence. This paper, incorporating the conference paper, takes a wider view. 1 See I. Schwenzer, P. Hachem, “Art. 7”, Commentary on the UN Convention on the International Sale of Goods (CISG), (eds. P. Schlechtriem, I. Schwenzer), Oxford University Press, Oxford 20103, paras 9 et seq; B. Zeller “The Challenge of a Uniform 7 Annals FLB Belgrade Law Review, Year LIX, 2011, No. 3 domestic court in a CISG case, which is to search for and give effect to the universal, autonomous meaning of the particular CISG provision in issue. This paper looks at the relationship between the CISG and domes- tic law in a completely different way. It seeks to explore the extent to which (if any) the CISG has influenced domestic contract law develop- ments. The author has chosen to focus on four common law2 countries –– the United Kingdom,3 New Zealand,4 Canada,5 and Australia6 –– in order to explore the hypotheses that the use of the CISG in interpreting and developing domestic law can result in a greater awareness and use of the CISG itself in the courts, and in turn thereby enable judges and counsel to become more familiar with and comfortable in working with the CISG. A databases search revealed that the domestic case law in which the application of the CISG (either as the applicable law or the comparator) was a significant factor is sparse.

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