The article employs the method of the economic analysis of law (EAL) in a comparative context. In particular, it assesses the efficiency of select provisions of the United Nations Convention on Contracts for the International Sale of Goods (CISG). The CISG is the law of the United States and over 70 other countries. It reflects a culmination of a century-old process of failed attempts to achieve an international sales law. The drafting process involved intense negotiation and compromise between representatives of the common and civil law legal traditions. As a result, the CISG provides in an interesting amalgam of civil and common law rules. This article analyzes whether the more efficient rules were chosen from the civil and common law alternatives.
The article begins by surveying the policy choices incumbent in drafting the CISG and by reviewing the basic tenets of EAL. These tenets are then used as a metric for measuring the efficiency of specific CISG rules. The article examines both the efficiency of rules taken in isolation and the global efficiency of the CISG as an international sales law generally. The rules selected for analysis come from two categories (1) instances where the common and civil laws conflicted and one of the conflicting rules was adopted and (2) instances where the drafters created a new rule unique to the CISG. Specific rules analyzed include writing and evidentiary rules, contract formation rules, contract interpretation rules, and the law of liquidated damages.
The article concludes by offering a practical scheme limiting the role of contract interpretation, as well as assessing the value of Comparative EAL. In the area of contract ambiguity and interpretation, the article articulates a theory of particularized consent to narrow the gap between subjective and objective consent. The article also illustrates that Comparative EAL in relation to the CISG can be used at three levels of analysis—two descriptive and one normative. The first level of analysis asks given the choices that the drafters were presented did they adopt the efficient options? The second level of analysis asks whether jurisprudential developments in the application of CISG rules have made the rules more or less efficient. The normative analysis involves taking the findings of the comparative efficiency analysis to ask what changes should be considered to make international sales law more efficient?
Larry A. DiMatteo & Daniel Ostas, Comparative Efficiency in International Sales Law, 26 Am. U. Int’l L. Rev. 371 (2011), available at http://scholarship.law.ufl.edu/facultypub/525