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A Practical Guide to the CISG: Negotiations Through Litigation.

A Practical Guide to the CISG: Negotiations Through Litigation. By A.E. Butler

When a practitioner first encounters the United Nations Convention on Contracts for the International Sale of Goods ("the CISG"), he or she quickly will realize that there is a paucity of American treatises on the topic. While Pace University has a comprehensive Web site on the CISG, with a country-by-country listing of decisions and scholarship, that Web site, as with most Web sites providing such content, can be daunting.

Many of us do not even know what the CISG is, let alone when it applies to a particular contract. (For the record, the CISG is an international "gap filler" treaty that provides for terms in international sales contracts, similar to the Chapter 2 of the Uniform Commercial Code).

Enter A.E. Butler, an in-house counsel for several corporations, who came to the realization years ago that practitioners needed a practical, easy-to-use volume on the CISG. The result is an extremely comprehensive, loose-leaf volume on the topic, A Practical Guide to the CISG: Negotiations Through Litigation, which is a must-own for any lawyer who encounters or may encounter CISG issues.

Butler's treatise, just published by Aspen Publishers, is an exhaustively researched volume. As the name suggests, it takes a practical approach to this complex area of the law. For example, Butler has provided easy-to-use forms section in her volume, including sample complaints, a sample contract governed by the CISG, and sample notices. Each chapter includes helpful "Practical Application" explanations throughout. Of course, she provides the text of the Convention itself.

Butler does take time, however, to indulge in some historical perspective. Recognizing that the approaches taken by the various countries' courts to the CISG is dictated by their past, Butler has provided a brief history of commercial commerce from both Eastern and Western perspectives.

The real benefits of Butler's book, though, and what distinguishes it from other material such as the Pace Web site, are the clear chapters on the application of the CISG, especially helpful for the newcomer.

After explaining the basic mechanics of the CISGs operation and when it applies, Butler provides separate chapters on the fundamentals: contract formation, performance obligations under the CISG, risk allocation, buyer's remedies, seller's remedies, and damages and defenses issues.

Each chapter is heavily footnoted with extensive citations to foreign cases, which can be vital. While there is little U.S. case law on the CISG, cases interpreting the CISG from foreign countries can be persuasive under the terms of the CISG.

It should be noted, however, that the reader might find Butler's chapter on jurisdiction and procedure to be lacking in comparison to the rest of her treatise.

While she does provide some helpful details--for example, that a case involving the CISG can be removed to federal district court pursuant to 28 U.S.C. [section] 1331 for federal question jurisdiction--many of the other topics, such as venue and forum non conveniens, are given brief treatment. Of course, there is much more scholarship on these issues available, and a thorough analysis of those issues is beyond the scope of her work and it is probably not necessary.

This raises the issue as to what direction Butler will take her treatise in the future. The treatise, set in a loose-leaf volume ready for easy updates, is clearly a work in progress. Her review of the CISG fundamentals can assist any practitioner, while her chapter on U.S. procedure seems more geared as a survey to foreign counsel.

Yet, if she really does want to focus on the needs of the American practitioner, a country-by-country summary from key nations might be helpful. Also, as a learning tool, Butler might want to explain some of the differences between the CISG and the UCC.

These are nits. As it stands now, Butler's treatise provides a much-needed, article-by-article analysis of the CISG that is useful to any practitioner who is or may deal with international disputes involving the sale of goods.

A Practice Guide to the CISG is available at www.aspenpublishers. com for $225.

Edward M. Mullins is a shareholder at the international litigation and arbitration boutique, Astigarraga Davis. He serves as publications chair for the International Law Section.
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Author:Mullins, Edward M.
Publication:Florida Bar Journal
Article Type:Book review
Date:Oct 1, 2006
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