The Cross-Border Freedom of Form Principle Under Reservation: The Role of Articles 12 and 96 CISG in Theory and Practice

The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) incorporates the freedom of form principle, allowing the conclusion of international sales contracts as well as their later modification to be made without regard to any form. The Convention does provide, however, for the possibility of individual Contracting States declaring a reservation against this principle, the scope and effect of which are described in Articles 12 and 96 CISG. Eleven among the current Contracting States to the Convention have made such a declaration, making the reservation to the freedom of form principle the most popular among the reservations permitted under the CISG.
This article addresses a number of questions and difficulties in interpretation that have arisen under Articles 12 and 96 CISG, and proposes answers and solutions. It covers inter alia the reservation's drafting history, the current reservation states including recent signs for upcoming withdrawals of reservations, the prerequisites for making a declaration under Article 96 CISG and the consequences of such prerequisites lacking in certain reservation States. In its central part, it focusses on the effects of an Article 96 CISG reservation for the Convention's practical application, introducing the distinction between the reservation's 'negative' effect (i.e. the removal of Contracting States' public international law obligation to apply the freedom of form principle) and its disputed 'positive' effect (i.e. the question whether the reservation in itself leads to the applicability of the form requirements of the reservation State - a question that should be denied). It furthermore elaborates on the determination of the law governing the formal validity of CISG contracts in accordance with rules of private international law, and on the inadmissibility of the parties excluding the 'negative' effect through party agreement (Article 12 second sentence CISG).