Application of the CISG in Dutch Courts

Abstract

The CISG has been in force in The Netherlands and Aruba since January 1st, 1992. Since then, Dutch courts have made (and are still making) active use of the CISG, for several reasons: For one, The Netherlands is an important trading nation and hence in a large degree dependent on import and export. This commercial traffic admittedly also results in increased legal disputes. Alongside this economic reason, the great familiarity the Dutch have with international sale of goods law is of crucial significance. This is due on the one hand to the fact that The Netherlands was already a Contracting State in the forerunners to the CISG, the ULF (Uniform Law on the Formation of Contracts for the International Sale of Goods) and the ULIS (Uniform Law on the International Sale of Goods), which were very similar in content, but less successful for political reasons. This meant that the introduction of the CISG did not involve substantial revolution in the international goods trade. On the other hand, the similarity of content between the Burgerlijk Wetboek, the Dutch Civil Code, and the ULF, the ULIS and the CISG must be mentioned. In particular they were an important influence on the creation of the internal Dutch Sale of Goods law, which also came into force on January 1st 1992. Hence, in contrast to many other jurisdictions in Contracting States which only apply the CISG with much hesitation, Dutch courts cannot be said to have a general “fear” of the CISG.The frequency of application, however, provides no indication as to the quality of the decisions. The purpose of this paper is to examine to what extent Dutch case law conforms with the scholarship and case law of other states as well as to what extent it infringes upon the uniform interpretation postulated in accordance with Art. 7 (1) CISG. Knowledge of the “peculiarities” of a foreign - here the Dutch - jurisdiction is not just of great value academically, but also for practitioners concluding sales transactions with The Netherlands.