论《联合国国际货物销售合同公约》第九十六条保留的法律效果

On the Legal Effect of Reservation of CISG Article 96

《维也纳条约法公约》所述条约保留的效力在《关于对条约保留的实践指南》中得以进一步明晰,包括排除适用和变更适用两种不同的法律效果,应用于《联合国国际货物销售合同公约》(以下简称《公约》)第九十六条是指,保留将排除《公约》相关条款的适用,进而推之于司法实践中,要求法院或仲裁庭根据管辖地的冲突规则确定合同形式的准据法。这一法律效果适用于任何一方当事人的营业地位于保留国的情况,而不论案件审理地。冲突规则指引的准据法具有国内法属性,即便指向非保留国的法律,也不导致公约的适用。在中国现行国内法已经与《公约》一致但未正式撤回保留的特殊情景下,如果中国法律作为准据法,应适用《合同法》。鉴于这种保留的有效性难以评估,并且保留的维持增加了法律适用中的风险,建议撤回。

The legal effect of reservations has been illustrated more clearly in the Guide to Practice on Reservations to Treaties than in the Vienna Convention,which includes two distinct consequences,one to exclude certain provisions,and the other to modify them when applying a treaty.The reservation according to article 96 of CISG should mean exclusion and consequently a conflict-of-law analysis of the forum should be employed by the courts and tribunals to solve the issue of requirements as to form,no matter whether the jurisdiction is located in a declaring state or not.The governing law led by the rules of conflict is the domestic law,instead of CISG,even when the law of the non-declaring state is referred to.With respect to China whose provisions of formal requirements have paralleled CISG while the previous reservation has not yet been withdrawn,the applicable law should be Contract Law if the conflict rules refer to Chinese law.It suggests the reservation should be withdrawn as it would increase the difficulty of determining its validity as well as the risks of uncertainty as a result of choice of law.