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INTERNATIONAL CONTRACT LAWCHOICEOF-LAW ANALYSIS APPLIES WHEN SIGNATORY

NATIONS ADOPT OPPOSING ORAL CONTRACT
PROVISIONS UNDER THE CISGFORESTAL
GUARANI S.A. V. DAROS INTL., INC., 613 F.3D 395
(3D CIR. 2010).
The United Nations Convention on Contracts for the
International Sale of Goods (CISG) governs contract formation
between parties of signatory nations and grants a right of action for
breach of contract.1 Article 11 of the CISG allows signatory nations
to create enforceable oral contracts.2 Signatory nations may opt out
of Article 11 obligations by making an Article 96 reservation or
declaration.3 In Forestal Guarani S.A. v. Daros Intl., Inc.,4 the
United States Court of Appeals for the Third Circuit considered the
enforceability of an oral contract created by parties of signatory
nations with divergent implementation of the CISG.5 The Third
Circuit held that when one partys country of incorporation has made
an Article 96 reservation and the other partys state has not, and
neither the text nor principles of the CISG apply, the court must
undertake a choice-of-law analysis to determine which forums law

1. United Nations Convention on Contracts for the International Sale of

Goods art. 45, Apr. 11, 1980, 52 Fed. Reg. 6262 (Mar. 2, 1987), 1489 U.N.T.S. 3
[hereinafter CISG]; see BP Oil Intl, Ltd. v. Empresa Estatal Petroleos de Ecuador,
332 F.3d 333, 336 (5th Cir. 2003) (citing Delchi Carrier v. Rotorex Corp., 71 F.3d
1024, 1027-1028 (2d Cir. 1995)).
2. CISG, supra note 1, art. 11. Under Article 11, [a] contract of sale need not
be concluded in or evidenced by writing and is not subject to any other
requirement as to form. It may be proved by any means, including witnesses. Id.
3. CISG, supra note 1, art.96.
A contracting State whose legislation requires contracts of sale to be
concluded in or evidenced by writing may at any time make a declaration . .
. that any provision of article 11 . . . of this Convention, that allows a
contract of sale or its modification or termination by agreement or any
offer, acceptance, or other indication of intention to be made in any form
other than in writing, does not apply where any party has his place of
business in that State.

Id.
4. 613 F.3d 395, (3d Cir. 2010).
5. Id. at 400 (determining CISGs text and provisions inapplicable concerning
writing requirements).

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applies.6 Only after such analysis would the court apply that forums
law to adjudicate issues of contract formation and breach.7
In 1999, Daros International, Inc., an export-import company
based in New Jersey, entered into a verbal contract with the
Argentinean manufacturing company Forestal Guarani S.A. for
wooden finger-joints.8 Daros paid Forestal $1,458,212.35 for fingerjoints which, according to Forestal, were valued at $1,857,766.06.9
Forestal filed a breach of contract claim in the Superior Court of
New Jersey in April 2002 for the remaining balance due because it
believed the oral contract specified the greater amount.10 Daros
subsequently removed to federal court, naming the CISG as the
international treaty on which the subject matter jurisdiction of the
federal court was based.11
The District Court denied Daros 2005 summary judgment
motion, determining that there were genuine issues of material fact
concerning the contracts existence.12 After briefing in 2008, the
District Court granted Daros motion for summary judgment, finding
the oral contract to be invalid.13 The Third Circuit disagreed,
6. Id. at 395.
7. Id. The court remanded the case to determine whether Argentinean or New
Jersey law governs, suggesting summary judgment, or some other pretrial
disposition, including a venue transfer, may be appropriate on a more developed
record. Id. at 403. Generally, courts may use choice-of-law provisions to settle
international sales contract disputes. See Henry Mather, Choice of Law for
International Sales Issues Not Resolved by the CISG, 20 J.L. & COM. 155, 167
(2001)(noting choice-of-law process may resolve some issues generally governed
by the CISG). Before a court applies a choice-of-law analysis, however, it must
first find the issue cannot be resolved by the CISGs general principles. Id. at 157158 (characterizing one CISG principle as facilitating international trade, through
adjudicative methods such as recognizing parties freedom to contract).
8. Forestal, 613 F.3d at 396. A finger joint is a woodworking joint with cut
notches in the shape of fingers, commonly used to create a strong connection
between two pieces of wood. GARY ROGOWSKI, THE COMPLETE ILLUSTRATED
GUIDE TO JOINERY 123 (2002).
9. Forestal, 613 F.3d at 396; see also Forestal Guarani S.A. v. Daros Intl,
Inc., No. 03-4821, 2008 WL 4560701, at *1 n.2 (D.N.J. Oct. 8, 2008) (noting
actual figure owed was $399,553.71).
10. Forestal, 613 F.3d at 396. Daros argued it had properly compensated
Forestal. Id.
11. Id. Daros filed for removal under 28 U.S.C. 1331(a), which grants
federal district courts subject matter jurisdiction for civil actions arising under a
treaty of the United States. Forestal, 2008 WL 4560701 at *1 (noting courts basis
for jurisdiction).
12. See Forestal, 2008 WL 4560701 at *3 (finding Forestal did not provide
evidence of a contract).
13. Forestal, 2008 WL 4560701, at *5. (holding plaintiffs breach of contract

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holding that the CISG does not expressly settle whether a party can
sustain a breach of contract claim for an oral contract when only one
partys country of incorporation has made an Article 96
Declaration.14 Further, the principles of the CISG do not facilitate
adjudication.15 Under these circumstances, the Third Circuit decided
that choice-of-law rules for the forum state must govern, given the
CISGs reference to the rules of private international law.16
The origins of the CISG lie in decades of international drafting

claim must fail because no written contract existed). The District Court held the
contract between Daros and Forestal was invalid for two reasons: first, having used
an Article 96 reservation to the CISG, Argentinean law required contracts to be in
writing and thus any international oral agreement was not binding; and second,
absent an oral agreement, Forestal failed to produce sufficient evidence of a
contract with Daros. Id. at 4.
14. Forestal, 613 F.3d at 400 (stating Argentinas choice to reject certain
CISG provisions renders CISG default rules inapplicable). In his dissenting
opinion, Judge Cowen writes that the Third Circuit should not have addressed the
issue of choice-of-law analysis because the issue had not been properly preserved
and the parties did not brief the applicability of a choice-of-law analysis. Id. at
403-04 (Cowen, J., dissenting). The dissent concludes that the courts
consideration of these complex and novel CISG and choice-of-law issues would
therefore be inappropriate. Id. at 404.
15. Forestal, 613 F.3d at 400. Under Article 7(2):
Questions concerning matters governed by this Convention which are not
expressly settled in it are to be settled in conformity with the general
principles on which it is based or, in the absence of such principles, in
conformity with the law applicable by virtue of the rules of private
international law.

CISG, supra note 1, art 7(2); see also COMMENTARY ON THE U.N. CONVENTION ON
THE INTERNATIONAL SALE OF GOODS (CISG) 102 (Peter Schlechtriem & Ingeborg
Schwenzer eds., 2d ed. 2005) [hereinafter COMMENTARY ON CISG] (clarifying
two-step process of gap-filling: using CISGs uniform rules and general
principles); BRUNO ZELLER, CISG AND THE UNIFICATION OF INTERNATIONAL
TRADE LAW, 64-65 (2007) (explaining where gap or exclusion of a matter within
the CISG exists, Article 7(2) provides guidance); CAMILLA BAASCH ANDERSEN,
UNIFORM APPLICATION OF THE INTERNATIONAL SALES LAW: UNDERSTANDING
UNIFORMITY, THE GLOBAL JURISCONSULTORIUM AND EXAMINATION AND
NOTIFICATION PROVISIONS OF THE CISG 127 (2007)(noting CISGs general
principles in Article 7(2) embody spirit of convention).
16. Forestal, 613 F.3d at 400 (determining American courts may utilize
choice-of-law process to determine law governing transactions with non-signatory
state). See Mather, supra note 6, at 157 (explaining when CISG general principles
cannot resolve issue, courts may utilize choice-of-law analysis); COMMENTARY ON
CISG, supra note 15, at 109 (stating if gap-filling fails, courts may apply domestic
law as a last resort); Zeller, supra note 15, at 65 (explaining if CISG principles
or text exclude matters, courts may use domestic law). [If] a matter is explicitly
excluded . . . a domestic law needs to be consulted to resolve the issue, hence
invoking conflict of law issues. Zeller, supra note 15, at 65.

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and cooperation.17 Today, the CISG applies to contracts of sale of

goods between parties that are incorporated in different contracting
states.18 Under Article 7(1), contracting states should regard the
CISGs goals to promote uniformity and observe good faith in
international trade.19 Good faith includes a standard of
reasonableness.20 Finally, the CISG governs contract formation,
including the rights and obligations within that formation, and is
adopted into a countrys domestic law upon ratification.21
17. Camilla Baasch Andersen, The Uniform International Sales Law and the
Global Jurisconsultorium, 24 J. LAW & COM. 159, 160-161 (2005)(stating CISGs
predecessors are founded in 1964 Hague Conventions Uniform Law for
International Sale and Uniform Law of Formation). The result of thirteen years of
drafting, the current CISG provides a uniform method to govern international
sales. Id. at 160. See COMMENTARY ON CISG, supra note 15, at 1 (tracing roots of
international sales law to international committees and commissions beginning in
the 1930s); Michael A. Tessitore, The U.N. Convention on International Sales and
the Sellers Ineffective Right of Reclamation Under the U.S. Bankruptcy Code, 35
WILLAMETTE L. REV. 367, 367 (1999) (explaining CISG objective as providing
uniform international law concerning sales of goods).
18. CISG, supra note 1, art. 1(1)(a); see Standard Bent Glass Corp. v.
Glassrobots Oy, 333 F.3d 440, 444 n.7 (3d Cir. 2003) (noting CISGs applicability
to sale of goods between parties whose countries of incorporation are signatories);
Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., 313 F.3d 385, 387
(7th Cir. 2002) (discussing international contract law among CISG signatory
nations). The United States and Argentina are signatory states of the CISG. CISG:
Table of Contracting States,
http://www.cisg.law.pace.edu/cisg/countries/cntries.html (last visited Jan. 18,
2011); see JOHN HONNOLD, UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE
1980 UNITED NATIONS CONVENTION 57 (Kleuwer Deventer ed., 1982) (harkening
to Conventions history for its applicability to international sales).
19. CISG, supra note 1, art. 7(1). In the interpretation of this Convention,
regard is to be had to its international character and to the need to promote
uniformity in its application and the observance of good faith in international
trade. Id. See Alejandro M. Garro, Reconciliation of Legal Traditions in the U.N.
Convention on Contracts for the International Sale of Goods, 23 INTL LAW. 443,
465-68 (1989) (detailing divergent opinions concerning good faith language
while drafting Article 7); Asante Technologies, Inc. v. PMC-Sierra, Inc., 164 F.
Supp. 2d 1142, 1151 (N.D. Cal. 2001) (stating CISGs expressly stated goals to
promote international trade through uniform international contract law).
20. JOSEPH LOOKOFSKY, UNDERSTANDING THE CISG IN THE U.S.A.:
COMPACT GUIDE TO THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR
THE INTERNATIONAL SALE OF GOOD 19 (1995)(noting this general principle may
meet many needs); see Andersen, supra note 16, at 102-03 (characterizing
reasonableness as cornerstone of all legal systems despite subjectivity); Nathalie
Hoffman, Interpretation Rules and Good Faith as Obstacles to the U.K.s
Ratification of the CISG and the Harmonization of Contract Law in Europe, 22
PACE INT'L L. REV. 145, 168 (2010)(determining good faith important gap-filling
principle for matters governed by, but not expressly settled in the CISG).
21. CISG supra note 1, art. 4(a); see BP Oil Intl, 332 F.3d at 337

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A signatory nation may choose to comply with or opt out of

several provisions of the CISG.22 For instance, Article 11 governing
formation of a contract under the CISG does not require contracts to
be in writing, and Article 29 allows parties to prove modifications to
an oral contract.23 Signatory countries, however, may require parties
to memorialize contracts through writing by making an Article 96
declaration, thereby opting out of Part II and Articles 11 and 29.24
When two signatory countries have adopted opposing
provisions, the courts must apply CISGs underlying principles in
accordance with Article 7(2) to reconcile the discrepancy.25 The
(determining nations ratification of CISG necessarily incorporates treaty as part
of [that] nations domestic law); Lookofsky, supra note 19, at 6 (explaining
Article 1(1) mandates courts apply CISG when parties whose places of business lie
in different contracting states); Chateau Des Charmes Wines, Ltd. v. Sabate
U.S.A., Inc., 328 F.3d 528, 530 (9th Cir. 2003) (stating CISG governs question of
contract formation concerning forum selection clauses in breach of oral contract).
22. CISG, supra note 1, art. 7(1); see Garro, supra note 18, at 446 (declaring
states may declare ratification of CISG in full or in part); BP Oil Intl, 332 F.3d at
337 (asserting CISGs opt-out policies promote treatys goals of uniformity and
good faith in international trade).
23. CISG, supra note 1, art. 29. (1) A contract may be modified or
terminated by the mere agreement of the parties, and (2) A contract in writing
which contains a provision requiring any modification or termination by agreement
to be in writing may not be otherwise modified or terminated by agreement.
However, a party may be precluded by his conduct from asserting such a provision
to the extent that the other party has relied on that conduct. Id. See Garro, supra
note 19, at 461 (asserting contracting states may apply choice-of-law rules to
determine whether written contract is necessary).
24. CISG, supra note 1, art. 96.
A Contracting State whose legislation requires contracts of sale to be
concluded in or evidenced by writing may at any time make a declaration in
accordance with article 12 that any provision of article 11, article 29, or
Part II of this Convention, that allows a contract of sale or its modification
or termination by agreement or any offer, acceptance, or other indication of
intention to be made in any form other than in writing, does not apply
where any party has his place of business in that State.

Id. Further, Article 12 reinforces the principle that provisions in Part II and
Articles 11 and 29 do not apply when a party is incorporated in a contracting state
which has made an Article 96 declaration. Id. In the drafting process, the
reservation granted by Article 96 was a compromise between certain socialist
countries, which required written contracts, and those countries which honored oral
contracts. See Garro, supra note 19, at 461.
25. CISG, supra note 1, art. 7(2). Questions concerning matters governed by
this Convention which are not expressly settled in it are to be settled in conformity
with the general principles on which it is based or, in the absence of such
principles, in conformity with the law applicable by virtue of the rules of private
international law. Id. See supra note 13 and accompanying text (discussing
elusiveness of CISGs general principles).

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CISG controls in situations even when a reconciliation between

provisions may be needed; there is no consensus, however, among
the United States or international courts as to how the CISGs
principles may resolve disputes effectively.26
In Forestal Guarani S.A. v. Daros Intl., Inc., the United States
Court of Appeals for the Third Circuit determined a choice-of-law
analysis would apply when disputes between parties of signatory
states with different CISG provisions could not be resolved through
the CISGs text or general principles.27 Given the sparse
jurisprudence on this issue, the court relied on scholars expertise to
inform its decision.28 The court acknowledged that the CISG
governs this contract dispute generally, but could not resolve whether
a contract or the terms of the contract had been formed.29 After
applying the CISGs plain language, it found Articles 11 and 96 did
26. See 28 U.S.C. 1652 (2006); David Frish, Commercial Common Law, the
United Nations Convention on the International Sale of Goods, and the Inertia of
Habit, 74 TUL. L. REV. 495, 507 (1999) (asserting lack of reliable CISG gap-fillers
resulted from drafters regard for many legal systems); Mather, supra note 7
(highlighting gaps and choice-of-law provisions); Louis F. Del Duca,
Implementation of Contract Formation Statute of Frauds, Parol Evidence and
Battle of Forms CISG Provisions in Civil and Common Law Countries, 25 J.L. &
COM. 133, 146 (2005) (discussing one courts ruling that binding contract was
formed with oral agreement of kind, quantity, and price of goods); Zhejiang
Shaoxing Yongli Printing & Dyeing Co. v. Microflock Textile Group Corp., No.
06-22608, 2008 WL 2098062 at *2 (S.D.Fla. May 19, 2008) (holding invoices and
packing slips constitute an agreement between parties of contracting states with
divergent CISG provisions); see also Franco Ferrari, Writing Requirements: Article
11-13, in THE DRAFT UNCITRAL DIGEST AND BEYOND: CASES, ANALYSIS AND
UNRESOLVED ISSUES IN THE U.N. SALES CONVENTION 213-14 (Franco Ferrari et al.
eds., 2005) (explaining CISGs legislative history corroborates view that rules of
private international law should govern when one contracting state has made an
Article 96 declaration and one has not).
27. Forestal, 613 F.3d at 396.
28. See id. at 399. The court found there is [a]lmost no case law from U.S.
courts concerning this issue. Id. Likewise, courts in other signatory nations have
no single approach to this issue. Id. (citing to the UNICITRAL Digest of Case
Law on the CISG outlining conflicting approaches); see Lookofsky, supra note 20,
at 22 (referring to Article 7(2) as a method either to fill any CISG gap or to
resort to domestic law); Larry A. DiMatteo et al., The Interpretive Turn in
International Sales Law: An Analysis of Fifteen Years of CISG Jurisprudence, 24
NW J. INTL L. & BUS. 299, 315 (2004) (qualifying CISG as studied ambiguity or
compromise that leads to many textual gaps); COMMENTARY ON CISG, supra note
15, at 169 (rejecting view reservation states rules should prevail over nonreservation state).
29. Forestal, 613 F. 3d at 397; see Zapata Hermanos, 313 F.3d at 388 (stating
when issue not mentioned in CISGs text, by the terms of the Convention itself
the matter must be left to domestic law). But see Zhejiang Shaoxing, 2008 WL
2098062 at *3 (holding contract is valid at acceptance).

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not resolve the issue.30 Next, the court applied the first clause of
Article 7(2) which mandates applying general principles when the
CISG does not expressly settle a conflict.31 Finding no applicable
general principles, the court invoked the second half of Article 7(2)
and determined application of private international law the most
appropriate manner of adjudication.32
In its reasoning, the Third Circuit contemplated two possible
approaches: first, that courts might apply a choice-of-law analysis
based on principles of private international law; and second, that a
contract between Argentinean and American companies must be in
writing because Argentina, a signatory nation with an Article 96
declaration, requires international contracts governed by the CISG to
be in writing.33 Having established these two alternatives, the court
determined the first approach was proper because neither the plain
text nor the principles of the CISG expressly settled the issue.34 The
court concluded this approach was consistent with the CISG, given

30. Forestal, 613 F.3d at 397. The court further explained, [t]he United
States has not made an Article 96 declaration, so Article 11 governs contract
formation in cases involving a United States-based litigant and a litigant based in
another non-declaring signatory state. Argentina, however, has made a declaration
under Article 96. Id. at 399.
31. Id. at 400 (determining the CISGs principles inapplicable to its
provisions concerning writing requirements). The Court further stated, [w]e do
not believe that we can answer the question presented here based on a pure
application of those principles alone. Id.
32. Id. at 398-400 (asserting we fail to see how [CISGs principles] inform
question whether Forestals contract claim may proceed).
33. Id. The court designates the former school of thought the clear majority
view and the second the minority view. Id. at 399-400. The District Court had
reasoned that if the contract is silent as to choice of law, the CISG applies if both
parties are located in signatory nations. Forestal, 2008 WL 4560701 at *3. The
Third Circuit parted with the district court by holding that a countrys Article 96
declaration does not automatically translate into the necessity of a written contract.
Forestal, 613 F.3d at 400 n.9.
34. Forestal, 613 F.3d at 400. The court also discussed the potential
ramifications if the minority view were to prevail: all courts would encounter the
difficult question of what constitutes an adequate writing. Id. at 400 n.9 (asking
whether writing constitutes a professionally drafted document . . . [or] scribbling
on the back of a napkin). Explaining its reasoning for departing from the District
Courts analysis, the court stated,
[t]he District Court evidently presumed that a countrys Article 96
declaration automatically translates into a requirement that a contract be in
writing. But . . . the CISG does not say as much. It says only that its
freedom-from-form requirements do not apply where a country has made
an Article 96 declaration.

Id. at 401 n.9.

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Article 7(2)s reference to the rules of private international law.35 In

so ruling, the Third Circuit established a standard that disregards the
CISGs principles, potentially undermining the creation of a uniform
international sales law.36
Faced with this unusual dispute, the Third Circuit properly ruled
the CISG applied to this contract.37 The CISG became part of
domestic law when the U.S. ratified it. 38 Additionally, the court
grounded its analysis of the case in the CISGs text, in accordance
with the prevailing analysis for interpreting international treaties.39
The Third Circuit should have looked to Article 7(2) and
conducted a more thorough analysis of the CISGs general
principles.40 Additionally, the court might have seized the
opportunity to read the CISGs principles of good faith and party
autonomy expansively, as had the District Court.41 A choice-of-law

35. See Forestal, 613 F.3d at 400 (stating court must consider choice-of-law
rules of the forum state).
36. See Anderson, supra note 14, at 3 (discussing importance of uniformity in
applying CISG, which spans six continents and . . . very different legal cultures).
The courts approach may likely apply only to this fact-specific case. Although
Forestal failed to pursue choice-of-law analysis in District Court, the majority
considered it unfair to apply the waiver doctrine to a party that did not participate
in the appeal. Forestal, 613 F.3d at 403 n.11.
37. See CISG supra note 1, art. I(1)(a)(declaring CISG applies to contracts for
sale of goods between contracting states with places of business in different states);
Forestal, 613 F.3d at 400 (discussing treatment of issues governed by CISG but
not specifically addressed).
38. Zeller, supra note 14, at 41 (explaining domestic choice of laws rule will
still decide which municipal law . . . fills gaps left by CISG in absence of general
principles).
39. Forestal, 613 F.3d at 398; see e.g. Abbott v. Abbott, 130 S.Ct. 1983, 1990
(2010) (directing court to treatys text to resolve the dispute); Medellin v. Texas,
552 U.S. 491, 506 (2008)(holding interpretation of a treaty begins with the text).
40. See Ferrari, supra note 26, at 161 (declaring the most important general
CISG principle as party autonomy); COMMENTARY ON CISG, supra note 15 at 104
(listing numerous general principles commonly referenced, including autonomy of
parties and freedom of form); Andersen, supra note 15, at 128 (listing general
principles as cooperation, duty to disclose, reasonableness, and respect for
international traders); Zeller, supra note 15, at 86 (arguing that a personal choice
must be made to either embrace a uniform international law or remain firmly
planted in domestic law.).
41. See Lookofsky, supra note 20, at 22 (stating courts following restrained
approach utilize domestic law but activist courts use Article 7(2) to fill textual
gaps); Zeller, supra note 15, at 43 (maintaining courts and arbitrators should apply
private international law only as a last resort); COMMENTARY ON CISG, supra note
15, at 96 (arguing that liberal interpretation of Article 7 will adjust the Convention
to new developments in international sales).

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analysis may frustrate the goals of the CISG.42 Uniformity in

international sales, though still not the norm, would increase
certainty in the CISGs interpretation.43 Likewise, the court could
have provided clear guidance to other signatory states by strictly
adhering to Argentinas Article 96 declaration and finding no legal
contract was formed by the two companies agreement.44
Ultimately, the courts delineation of two modes of analysis
seems to unduly strain their plain reading of the text of the CISG.45
The ruling contradicts the CISG principles stated in its preamble,
which declares the drafters of the CISG wished to adopt a uniform
sale of goods to contribute to the removal of legal barriers in
international trade.46 Notwithstanding the courts
42. Forestal, 613 F.3d at 404 (Cowen, J., dissenting). Judge Cowen writes
that although the court should not reach the merits of the case at this time, he does
not agree that the choice-of-law analysis is required because such an approach
appears to be at odds with the CISG itself. Id. Courts have held that the CISG
automatically applies to international sales contracts between parties from different
contracting states unless the parties agree to exclude the application of the CISG,
as stated in Article 6. See Zhejiang Shaoxing, 2008 WL 2098062 at *2 (stating the
applicability of the CISG under Article 6).
43. CISG supra note 1, Art. 7(1). Article 7(1) states a court should interpret
the CISG in accordance with its international character and . . . the need to
promote uniformity in its application and the observance of good faith in
international trade. Id.; see Hofmann, supra note 20, at 154 (maintaining
importance of courts application of similar interpretations of CISG to avoid
varying results).
44. Forestal, 613 F.3d at 400 n.9. The Court designates this view as the
minority and states the District relied upon it in its determination. Id. The court
rejects this minority view, stating [w]e have concluded, however, that such a
position is wrong as a matter of law. Id. at 402. The court considered resolving
the issue at hand, but declined without full briefing from the parties. Id. Rather,
the court considered applying both New Jersey and Argentinean law to Forestals
claim to test its viability, but decided it unwise . . . to venture into this choice-oflaw thicket. Id.
45. See Forestal, 613 F.3d 395 (delineating analysis to apply CISG to narrow
group of cases); see CISG supra note 1 (outlining rules plainly to simplify uniform
application internationally).
46. CISG supra note 1, preamble. The CISGs preamble offers the policies of
creating this international agreement, stating the adoption of uniform rules which
govern contracts for the international sale of goods and take into account the
different social, economic and legal systems would contribute to the removal of
legal barriers in international trade and promote the development of international
trade. Id. Because Forestal has told the court of an existing legal barrier, being
unable to remove business documents from Argentina, the court might have
considered applying the minority analysis, or could have found a valid contract
based on evidence of acceptance and delivery. See Forestal, 613 F.3d at 404
(Cowen, J., dissenting). One reason Judge Cowens views differ from the
majoritys is that given the plain language of this international treaty, its structure,

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acknowledgement that the posture of the case drove their judgment,

the court could have relied less heavily on scholarship and more
directly on the CISGs text and extensive drafting history.47 Their
ruling provides a standard to other courts to utilize a choice-of-law
analysis, where domestic law, rather than international sales law,
dominates.48
In Forestal Guarani S.A. v. Daros Intl., Inc., the United States
Court of Appeals for the Third Circuit considered whether the CISG
governed a contract dispute between signatory nations which adopted
conflicting CISG provisions. In deciding to apply choice-of-law
analysis because the CISGs text and principles were determined
inapplicable, the court narrowed the scope of the CISGs
applicability and frustrated its objective to create a body of uniform
international sales law.

Jeannette Sedgwick

and its purposes, a written contract is required where, as here, one of the relevant
countries has exercised its right to make an Article 96 declaration. Id.
47. Forestal, 613 F.3d at 402 (stating [o]ur conclusion that remand is
appropriate is also driven by the [cases] posture); see Zhejiang Shaoxing, 2008
WL 2098062 at *3 (finding changes to written contract not evidenced by writing
and therefore unenforceable). But see Zapata Hermanos, 313 F.3d at 388 (holding
choice-of-law analysis governs issue of attorneys fees because issue not
mentioned in CISG). The CISGs legislative history could have resulted in a more
expansive reading. See COMMENTARY ON CISG, supra note 15 at 169-70
(discussing history, significance, and scope of Article 12); Lookofsky, supra note
20 (analyzing CISG from variety of angles). Moreover, the court may have found
it reasonable that a contract was formed: Daros paid Forestal in exchange for
finger-joints, and Forestal has submitted invoices and an accountants certification
to support its claim. Forestal, 613 F.3d at 402.
48. Andersen, supra note 15, at 130 (decrying the second prong of Article
7(2) as outside the scope . . . of uniformity [because allows] any law . . . to solve
an issue); see also Honnold, supra note 18, at 61 (explaining adaptation and
development [of the Convention] are encouraged by good faith in international
trade). Courts should utilize CISG general provisions to minimize the confusion
inherent in conflicts rules and avoid the uncritical and wooden application of
domestic law. Id. at 133. See Zeller, supra note 15, at 106 (concluding the
Conventions character demands its interpretation is done without recourse to
national laws); Hofmann, supra note 20, at 146 (attributing harmonization of
European sales law due to CISGs application in most countries).