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The dispute leading to the present appellate decision by the Swiss Supreme Court arose from the termination of a distribution agreement for medicinal products between a company from the United Arab Emirates (which formed part of a group of companies that included the medicinal products' manufacturer) and a Swiss company acting as distributor of the products in certain African countries (Burundi, the Democratic Republic of the Congo and Rwanda).

After it had declared the distribution agreement terminated, the UAE company (Claimant-Appellee) sued the Swiss company (Respondent-Appellant) for outstanding payments for medicinal products delivered. The Swiss buyer declared set-off with damages claims for non-delivery or late delivery of products.

The Swiss Supreme Court addressees the CISG in para. 14 of the present decision, which reads in its relevant parts (in translation):

"In view of the fact that both parties have their seat in different States countries and have declared Swiss law to be applicable, it is at least doubtful whether the United Nations Convention on Contracts for the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG, SR 0.221.211.1) would not apply to the claims asserted by the appellant [the Swiss buyer/distributor] by way of set-off (compare Art. 1(1)(b) CISG). However, both parties as well as the lower court unanimously assume (albeit without mentioning the CISG) the applicability of the Swiss Law of Obligations (Obligationenrecht). In addition, neither party has complained upon appeal that the CISG was incorrectly not applied. In absence of such a complaint, the Supreme Court will not further examine the application of the CISG (see no. 2 above)" (the Supreme Court thereby refers to its earlier summary of the procedural rules governing appeals to the Swiss Supreme Court, which limit the Supreme Court's scrutiny to points of law that the parties have specifically and with sufficient reasoning complained about in their appeals).

And indeed: Given that the parties had agreed on Swiss law as the law governing their contract and that the Swiss rules of private international law respect such a party choice (see Art. 116(1) of the Federal Act on Private International Law (IPRG)), it appears that Art. 1(1)(b) CISG should have resulted in the parties' choice-of-law triggering an application of the CISG.