Application of Art. 8 CISG to arbitration agreements

Although an arbitration agreement is not a sales contract, Art. 8 CISG has been applied by courts to interpret such agreements.

A different, albeit connected question is the relevance of the CISG regarding the conclusion of dispute settlement agreements (especially if the dispute settlement clause forms part of general terms) and is to be found here.

Moist towelettes production machine case
Oberlandesgericht Stuttgart (Court of Appeal Stuttgart)
Germany, 15 May 2006 – 5 U 21/06, CISG-online 1414

Art. 8 CISG was applied to interpret whether the arbitration agreement, which was drafted in the Russian language, excluded national courts if the parties could not resolve the dispute amicably

Organic spelt kernels case
Oberlandesgericht München (Court of Appeal Munich)
Germany, 16 August 2017 – 34 SchH 14/16, CISG-online 2900

Art. 8 CISG was applied to interpret whether the designation of "arbitration of seller" as the competent authority to decide the dispute was sufficiently clear to constitute a suitable arbitration agreement

Transmar Commodity Group Ltd. v. Cooperativa Agraria Industrial Naranjillo Ltda.
U.S. Court of Appeals (2nd Circuit)
USA, 09 May 2018 – 16-3532-cv, CISG-online 3060

The lower court's judgment was vacated, because when it found that no arbitration agreement existed between the parties, it primarily relied on the face of the contract (and New York law) but should have instead considered extrinsic evidence under to Art. 8(3) CISG

Production line for the production of cellulose products case
Østre Landsret (Court of Appeal for the Eastern Circuit)
Denmark, 27 June 2018 – B-424-17 / UfR 2018.3045 Ø, CISG-online 4581

Art. 8 CISG was applied to interpret whether the arbitration clause provided for arbitration at the Danish Institute of Arbitration in Copenhagen (DIA) or the International Commercial Arbitration Court at the Chamber of Commerce of the Russian Federation

Yet, other Courts have been reluctant to apply Article 8 CISG in this regard or at least have not directly cited the provision when interpreting arbitration clauses in CISG-contracts.

Imprecise designation of arbitral institution case
Высший суд Республики Беларусь (Supreme Court of the Republic of Belarus)
Belarus, 07 April 2020 – 189-6/2019/64A/336K, CISG-online 5254

The Court applied Art. II(3) New York Convention 1958 in deciding that the clause did not specify the competent arbitral institution / tribunal unequivocally and left Art. 8 CISG unaddressed

Bibliography:

Dmytro V. Vorobey, 'CISG and Arbitration Clauses: Issues of Intent and Validity', 31 Journal of Law & Commerce (J.L. & Com.) (2012), 135–161 [– in English]