However, some problems may arise from the interaction between the two conventions due to their different formal requirements. Indeed, the NYC imposes stricter formal requirements for an arbitration agreement than the CISG for an international sales contract. In accordance with Article II of the NYC, an arbitration agreement must be made in writing, either in a contract or in an arbitration agreement, signed by the parties, or in an exchange of letters or telegram (or by e-mail, in accordance with the 2006 recommendation, non-binding but relevant, of unCLOSD, which does not contain the means of communication listed in Article II(2) as exhaustive. Instead, Article 11 cisg commits itself to freedom of form for the conclusion of an international sales contract that does not need to be written. Under United Nations sales law, the parties may effectively enter into a contract orally or by reason of their mutual conduct in accordance with article 18. This means that while it is perhaps undeniable that a seller and a buyer have entered into an international sales contract, this cannot be said every time the parties have perfected the underlying sales contract by their conclusive conduct.1)For an in-depth study on this topic, please read the very fascinating article by Professor Morten Midtgaard Fogt, The Interaction and Distinction between the Sales and Arbitration Regimes, ARIA Columbia, Vol. 26, No. 3 (2015), 365 et seq., 14th Netherlands Arbitration Institute Award 2319, 15 October 2002, CISG-online No. 740; ICC Award 8644, 1 April 1997, CISG-online No. 904; Arbitral Award 226/1999 of the International Arbitral Tribunal for Commerce to the Chamber of Commerce and Industry of the Russian Federation, 11 February 2000, cisg-online No. 1345.
There is a consensus that the law of sale of the United Nations can be chosen either as a “non-governmental right” at the level of conflict-of-laws law (provided that the applicable arbitration rules allow such a choice) or as a “set of substantive rules” at the level of substantive law. In the latter case, the rights and obligations set forth in the United Nations sales law are part of the contract of the parties, but the arbitrators shall continue to determine the law applicable to this contract. One of the answers is that UN sales law is generally enforced by courts rather than national courts and that, conversely, arbitration disputes are often settled by UN sales law. 22. R. Koch, “The CISG as the Law Applicable to Arbitration Agreements,” Sharing International Commercial Law Across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday (é.C.B d. Schroeter), Wildy, Simmonds & Hill Publishing, London 2008, 267-286; == Schroeter, “Intro to Articles 14-24”, Commentary on the UN Convention on the International Sale of Goods (CISG) (ed. I. Schwenzer), Oxford University Press, Oxford 20103, 18; U.
Magnus, Staudinger`s commentary on the Burger Code with Import Act and Related Laws — UN Sales Law, Sellier European Law Publishers, Munich 2005, Articles 11, 7; U.G. Schroeter, United Nations Sales Law and European Community Law: Ownership and Interactions, Sellier European Law Publishers, Munich 2005, § 6, 37; KG Train, December 11, 2003, CISG-online No. 958. Auto Tribunal Supremo, 17 February 1998, CISG-online No. 1333 and Chateau des Charmes Wines Ltd v Sabate USA Inc., Sabate S.A., U.S. Court of Appeals, 9th Circuit, 5 May 2003, CISGonline No. 767 and J. .