Autonomous Interpretation and its Limits : The Incorporation of the CISG into Domestic Sales Law

It is generally understood that the CISG is to be interpreted “autonomously” rather than through the lens of domestic law. Autonomous interpretation is required by the mandate of Article 7(1) that tribunals have regard for uniformity in the CISG’s application. There is, however, disagreement about the extent to which reference to domestic law can be consistent with autonomous interpretation. Some tribunals and commentators adopt a “weak” version that permits consideration of domestic law for limited purposes, while others adopt a “strong” version that rejects any use of domestic law to elucidate the meaning of the CISG’s provisions. In this article, we contend that reference to domestic law is consistent with autonomous interpretation to the extent that such reference enhances rather than detracts from uniform interpretation and thereby satisfies the objective of Article 7(1). We then illustrate the circumstances under which domestic law promotes uniform interpretation.We then address the issue of whether the CISG can be used to interpret domestic law. Using the Uniform Commercial Code as an example, we contend that, although there are numerous caveats that limit the utility of the CISG as a source for interpreting domestic law, there are typically no theoretical or doctrinal objections to the practice. We then explain the circumstances and conditions under which the CISG could clarify and improve interpretations of domestic law