Functional Analysis: Proceedings of a Conference Held at Dubrovnik, Yugoslavia, November 2–14, 1981


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Both self-executing and non-self-executing treaties are to be found in the fields of private international law and international commercial law. Very often, legal rules arising from treaties may be partly self-executing and partly non-self-executing.


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The various ILO Conventions dealing with labor law or questions of social security are classical examples of non-self-executing treaties. The rules of the Vienna Convention are clearly self-executing. In this respect they differ from the Hague Conventions of 1 July which, in fact, did not contain any rules on contracts. A similar technique has been applied by the drafters of the Geneva Conventions on bills of exchange and on checks However, an important caveat has to be added to all that has been said thus far about the immediate applicability of the self-executing rules of a treaty.

According to the generally accepted principles of public international law, all States are free to decide how they wish to comply with their international legal duties. Whereas some States expressly permit treaty-made rules to be immediately enforceable before their national courts, other States provide that all international texts -- whether self-executing or not -- must first be transformed into national statutory law.

This often seems to be the case in Great Britain and the same is true in the Scandinavian countries. Such a difference might be of particular importance when it comes to questions concerning interpretation or gap-filling. It is not sure whether the same can be said of the court of a State where transformation is required, for in such States the national judges will only refer to the national statute and national case law.

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Sphere of Application, in general As indicated in its title, the Vienna Convention deals with contracts for the international sale of goods. It does not, however, apply to all types of international contracts of sale; the Convention restricts its sphere of application to a certain group of sales: First, the Convention covers only those contracts which have been concluded between a given group of persons; second, the rules of the Convention are limited to contracts which, on the one hand, fall within a particular territorial sphere, and, on the other hand, are concluded within a given period of time; and third, application of the rules of the Convention is limited to a specific category of sales.

The Convention's field of application is restricted by several rules, the most important of which are found in Articles 1 to 6. Four aspects have to be taken into account when defining the Convention's sphere of application, i. Personal Aspect of Applicability The Convention refers to a positive and a negative criterion for determining the parties [page 23] whose contracts of sale fall under the Vienna rules.

According to Art. Some of the terms contained in Art. As to the notion "State," Art. In the first case, we have a substantive definition of the Convention's sphere of application whereas the second subparagraph is known as the so-called conflictual way of defining the Convention's scope. We will return to this definition.

In regard to the term "place of business," Art. In other words, the parties must consciously have entered into an international contract. If there is no such awareness, the Convention does not apply, and national rules, including the rules on private international law, will govern the contract. In international trade, parties often create business places in different States since a locally based office tends to help promote business in the particular country. If a party has more than one place of business, the place which has the closest relationship to the contract and its performance is to be taken into consideration.

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Sometimes the representative of a local business place is only entitled to prepare the conclusion of a contract, while the contract itself is accepted and signed by a member of the headquarters abroad. Such proceedings make the contract international only in cases where the other party knew or ought to have known of the real partner to the contract. Territorial Aspect of Applicability The personal and territorial aspects of applicability are closely related to each other, both aspects being dealt with mainly in Art.

As a basic rule, the Convention applies to sales contracts if both parties have their places of business in different States. The Convention adds two alternative restrictions to this basic criterion. The first restriction requires that both or all the States in which the business places are located be Contracting States Art.

The way in which the Vienna Convention defines its territorial sphere of application gives rise to a series of questions related to both the basic criterion and the two restrictions. The basic criterion The basic criterion, according to which a sale is considered international if the parties to the contract have their places of business in different States, is too broad, yet at the same time, too restrictive. The criterion is too broad in the sense that it considers even those sales as international in which the goods, from their fabrication to consumption, have never left the original country.

Let us assume that a New York company owns pre-fabricated construction elements stored in Geneva. Since the parties have their places of business in different States, the Convention applies, even though the construction materials have never left Switzerland and, moreover, not even Geneva.

Why should such a sale be exempted from the rules of the Swiss Code of Obligations? Do we really need to take recourse to Art. On the other hand, the basic criterion is also too restrictive in that it excludes all sales from the Convention between two parties which import or export goods but have their places of business in the same State. If a Baltimore firm that owns furniture stocked in Italy sells the furniture to a Boston firm, which, on its part, needs that type of furniture for a new sales office in Paris , the Convention will not apply.

In fact, a sales contract concluded between the two US companies will not fall under the scope of the Convention even if the sales transaction includes an international shipment because the parties' places of business are located in the same country. For the sake of clarity it should be emphasized that a choice between subparagraphs a and b of Art. In fact, even before the option between subparagraphs a and b can produce its effects, the Convention presupposes in both situations that the parties to the sales transaction have their places of business in different States.

However, even though the Vienna Convention does not apply to our second example, most businessmen will agree that selling goods which are stored in Italy and have to be shipped to France cannot be considered a purely domestic transaction. Thus, the case would be solved by referring to the traditional conflict-of-laws rules. In international transactions in nine out of ten cases the transnational character of a contract is determined by the place where either the parties to the transaction or the goods themselves are located.

Nevertheless, in defining the international character of a sales transaction, the Vienna Convention refers only to the contracting parties without any reference whatsoever to the goods to be purchased. The solution provided by the Vienna Convention can be understood only if it is regarded as an overreaction provoked by Article 1 of ULIS. In addition to the requirement that the parties' places of business be located in different States, the Convention should have at least added, either as a variation or cumulative element, that the goods be shipped across a national border.

The two restrictions The Vienna Convention applies only if and insofar as, in addition to the basic criterion Art. And it goes without saying that, in case of litigation, the forum must also be [page 28] situated in a Contracting State; otherwise, the Court would not be bound to apply the rules of the Convention.

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Thus, in States that ratify, it appears that under such restrictive conditions the Vienna Convention will have but a very poor chance of being applied for a long time. Under the criterion of subpara. In fact, the State of the Forum need not be a Contracting State nor do both places of business need to be situated in such States. It will be sufficient if the sales transaction is international in character places of business in different States, Art. In sales contracts this will usually be the law of the State in which the seller has his place of business, for he is the one who carries out the most characteristic performance of the transaction.

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For this reason the Vienna Diplomatic Conference of accepted a reservation under Art. Federal clause and regional cooperation Two final remarks, one on federal States and the other on regional cooperation, should serve to close this section on the territorial sphere of application. There are two groups of federal Statutes to be distinguished. In the first group, the law of contracts is unified on the federal level. This is the case, e.

In the second group, the law of contracts falls within the legislative power of each federal unit. In this second group, ratification of the Vienna Convention presupposes implementory legislation not only on the federal level but also in each state, province or territory of the federation. Since such a procedure is rather time-consuming, Art. This enables the Convention to be applied in those units sooner. The Vienna Convention aims at worldwide unification of the sales law.

Such an undertaking cannot be realized without accepting numerous compromises. On the other hand, economic and legal cooperation often find a more favorable climate if they take place merely on a regional level. Since the Vienna Convention intends to strengthen, not to paralyze closer legal cooperation, Art. Temporal Aspect of Applicability Two questions are of particular interest in regard to the time factor: First, at which moment does the Convention become binding and when does it cease to be effective?

This is the side of the problem dealing with public international law. The second question is connected much closer with the law of contracts: Which contracts and which legal questions of contract law are governed by the rules of the Convention and from what moment on do the rules apply? Contrary, to the other three aspects of applicability, the rules governing the application ratione temporis are not contained in the first chapter but in the final clauses of the Convention. As to its international entry into force, the Convention draws a distinction between the time it initially enters into force and the time it enters into force for States whose adherence follows this date.

The international entry into force is to be distinguished from the date when the Convention becomes applicable to an individual sales transaction. The general rule can be stated as follows: There is no retroactivity. In particular, the Convention distinguishes between the formation and the execution of a given sales contract. As to the formation of contracts, the rules of the Convention Art. International entry means the date when the Convention enters into force with respect to the Contracting States where the parties to the sales transaction have their places of business.

The same rule applies to the execution of a sales contract Art. The effects of a denunciation of the Convention are subject to the same twelve-month period as its entry into force Art.


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The Convention does not differentiate between the denunciation effects under public international law [30] and those with respect to a [page 32] particular sales contract. Will contracts which have been concluded under the auspices of the Convention continue to be governed by the Convention or do the individual and the international effects cease on the same date?

And what about a contract under litigation? Does the judge have to continue the lawsuit as if the Convention were still in force, or does he have to change the applicable rules of law? These questions constitute part of the general problems of inter-temporal law. But a legal text that consists of more than a hundred articles and, in view of its international bearing, needs uniform application, could easily have dedicated a small paragraph to this problem as well.

In the absence of such a rule, the courts will probably take recourse to their national principles of inter-temporal law. Material Aspects of Applicability 1. In general As to the material scope of application, the Vienna Convention is to apply to sales contracts as far as goods are concerned. The terms "sales contract" and "goods" were not defined in ULIS, and there is no explicit definition under the Vienna Convention either.

In regard to the term "contract," implicit reference can be made to Articles 30 and 53 of the Convention. And under Art.

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As a rule, the Convention is not restricted to so-called commercial sales. On the other hand, in Art. Restrictions The exclusion of consumer sales is not the only restriction provided by the Convention. In order to systematically cover all the types of restrictions, five different groups have to be singled out: There are restrictions relating to the type of sale, others to the category of goods falling under the Convention, and still others to the category of transactions; a fourth group relates to the binding effect of the Convention itself and a fifth concerns the extent to which legal questions are covered by the Convention.

After making some general remarks on groups three to five, we shall focus our comments on the restrictions relating to the type of sales and the category of goods. Articles 3 and 5 contain restrictions or limitations relating to a series of transactions that are excluded from the Convention. The situation differs, however, when the party ordering the goods furnishes [page 34] a substantial part of the work materials himself.

In the latter case, the manufacturer reduces his activity to the mere lending of his personal skills or labor, and thus the element of a labor or service contract prevails Art. Accordingly, the Convention applies to all aspects of the formation of contracts Art. On the other hand, Art. In regard to the binding effect of the Vienna Convention and its limits, we refer to Art. Under this article, which makes the Convention optional, the parties can agree that the rules of the Convention shall be excluded. Proposition 1. Pontrjagin spaces are named after Lev Semenovich Pontryagin.

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Functional Analysis: Proceedings of a Conference Held at Dubrovnik, Yugoslavia, November 2–14, 1981 Functional Analysis: Proceedings of a Conference Held at Dubrovnik, Yugoslavia, November 2–14, 1981
Functional Analysis: Proceedings of a Conference Held at Dubrovnik, Yugoslavia, November 2–14, 1981 Functional Analysis: Proceedings of a Conference Held at Dubrovnik, Yugoslavia, November 2–14, 1981
Functional Analysis: Proceedings of a Conference Held at Dubrovnik, Yugoslavia, November 2–14, 1981 Functional Analysis: Proceedings of a Conference Held at Dubrovnik, Yugoslavia, November 2–14, 1981
Functional Analysis: Proceedings of a Conference Held at Dubrovnik, Yugoslavia, November 2–14, 1981 Functional Analysis: Proceedings of a Conference Held at Dubrovnik, Yugoslavia, November 2–14, 1981
Functional Analysis: Proceedings of a Conference Held at Dubrovnik, Yugoslavia, November 2–14, 1981 Functional Analysis: Proceedings of a Conference Held at Dubrovnik, Yugoslavia, November 2–14, 1981

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