Search for cases

In this decision dealing with a sales contract between a Dutch seller and a Kenyan buyer, the District Court Gelderland (in para. 39 of the decision) states that when queried, the parties stated that there is agreement between them that Dutch law applies. The Court continues to point out that "[a]s Kenya is not a party to the Vienna Sales Convention, it does not apply." The latter remark is arguably misleading, because the Convention can also apply to sales contracts with a contracting party from a CISG-non-Contracting State (as Kenya) under Art. 1(1)(b) CISG, namely when the rules of private international law of the forum (here: the conflict of laws rules applicable in Dutch courts) point to the law of a CISG Contracting State. This could have presently been the case because Art. 4(1)(a) of the EU's Rome I Regulation points to the law of the seller in absence of a contractual choice-of-law clause, and the seller concerned here had his place of business in the Netherlands (a CISG Contracting State).

However, the parties' agreement identified by the District Court arguably could be read as a choice of domestic Dutch law combined with an implicit exclusion of the CISG's application in accordance with Art. 6 CISG. Accordingly, the District Court applied Dutch domestic law to the remainder of the case.