Incorporation of standard terms according to the CISG and the CESL: Will these Competing Instruments Enhance Legal Certainty in Cross-Border Sales Transactions?

Abstract

This article compares the regulation of standard terms in the UN Convention on Contracts for the International Sale of Goods (CISG) and the Draft Regulation on a Common European Sales Law (CESL). Even though the CISG does not contain any express provisions concerning standard terms, this issue is governed by the Convention. The CESL contains an express provision concerning the incorporation of standard terms, but one may wonder what to conclude from this provision concerning B2B transactions. Concerning the battle of the forms, there is legal uncertainty in the application of the CISG as it is not clear from the text of the CISG and from the legal literature which approach should be followed. The provision in the CESL on this topic is rather clear as it provides which theory should be followed. However how, in practice, cases should be solved is not yet fully clear.