IV. Applicable law 153
Chapter 8: The international contract in international legal instruments 153 However, contracting states whose legislation require a writing can opt out of this provision by declaring that written form requirements imposed by national law cannot be fulfilled by using another type of form (Article 96). According to Article 12 the freedom of forms principle does not apply when a contracting state has made a declaration under Article 96.481 In these cases, the form of the contract is not covered by CISG; thus, the law that will govern the form has to be determined. However, CISG does not address how the determination of the applicable law is made. On the one hand, it is sustained that the law governing the form is the law of the state that made the reservation.482 On the other hand, it is considered that the rules of private international law of the forum judge shall determine the law governing the form.483 If the law of the contracting state making an Article 96 reservation is determined as the one governing the form – either based on the first position or on the forum judge´s private international law – the law of that country governs the formal requirements of the contract. Nevertheless, it does not mean that the contract necessarily has to comply with a form requirement. Several legal systems follow the rules of the principle of freedom of forms and it may be that under the national law governing the form, the sale contract at stake does not...
You are not authenticated to view the full text of this chapter or article.
This site requires a subscription or purchase to access the full text of books or journals.
Do you have any questions? Contact us.Or login to access all content.