Understanding Exclusion of the CISG: A New Paradigm of Determining Party Intent

The United Nations Convention on Contracts for the International Sale of Goods (CISG) is an international treaty governing cross-border merchandise transactions, yet U.S. courts have applied inconsistent and incorrect analyses when determining whether parties intended to exclude CISG coverage through choice-of-law clauses. Johnson argues that U.S. jurisprudence conflates the choice-of-law clause itself with CISG exclusion, when in fact these operate under distinct frameworks. The CISG requires courts to examine all relevant circumstances—including negotiating history, established practices, and subsequent conduct—to discern actual party intent, fundamentally departing from American contract law traditions emphasizing written agreement primacy and the parol evidence rule. The article analyzes the text of the CISG, its drafting history (travaux préparatoires), and American Biophysics Corp. v. Dubois Marine Specialties, demonstrating how courts have misapplied exclusion doctrine. Johnson advocates for a paradigm recognizing that written agreements may not reflect true intent under CISG standards, and that extrinsic evidence proving party intent must be permitted even when a written contract exists. This recalibration would bring American courts into compliance with CISG obligations while acknowledging fundamental differences between international commercial law philosophy and domestic contract doctrine.

Topics: Contracts · International Law

Keywords: CISG (Convention on Contracts for the International Sale of Goods) · choice-of-law clause · party intent · American Biophysics Corp. v. Dubois Marine Specialties · parol evidence rule · travaux préparatoires