The CISG is probably the most important example of unification of substantive private law in the world, creating a uniform set of substantive rules. Unlike a civil code, the CISG does not claim comprehensive scope. The Convention applies to one type of legal relations – sale of goods. However, in real life, sale contracts are often accompanied by additional clauses that require specific regulation. In particular, it is common practice for parties to insert arbitration clauses in their international sale contracts. The close connection between sale contracts and arbitration clauses poses a question of their unified or separated regulation.
Taking into account the role of arbitration as a natural forum for international merchants, it could have been expected that the CISG would clearly delimit its material scope regarding arbitration agreements. Unfortunately, the text of the CISG is surprisingly cryptic in this regard. The ambiguity of the Convention has supplied arguments both to those supporting its application to arbitration clauses inserted in sale contracts and those favoring application of international or domestic arbitration law to arbitration clauses. The practice of courts and tribunals is also inconclusive, although the majority seems to prefer separation of legal regimes.
The author of the article agrees that the text of the CISG can be construed in different ways. However, certain constructions are too complicated to be applied in practice. For that reason, it is difficult to accept the idea that arbitration clauses fall entirely outside the scope of the CISG. At the same time, the legislative history does not provide support for an assumption that the CISG was meant to apply to all aspects of arbitration agreements, in particularly, their formal validity. Therefore, the analysis of scholarly works and practice leads to the conclusion that while formal validity of arbitration agreements is not covered by the CISG, formation of a sale contract, including an arbitration clause, does fall within the scope of the CISG. While this solution will not satisfy purists in both camps, it attempts to solve the ambiguity in the most realistic manner.European Business Law Review