评中国对CISG非书面形式规定保留的理论和实践——以中国撤回该项保留为契机

Comment on the Theory and Practice of China's Reservation on the Provisions Related to Non-written Form in CISG——Based on China's Withdrawing the Reservation

中国在核准CISG时对该公约关于合同非书面形式的规定予以保留。现行《合同法》规定合同可以非书面形式订立。为此,理论界对于中国当事方是否仍应以书面形式订立国际货物买卖合同,以及中国应否撤回该项保留有激烈的讨论。中国的法院和仲裁机构对理论论争保持不予回应的态度,并发展出两种立场:其一为依最密切联系原则适用中国法,其二为径自适用CISG第11条等合同形式条款,该两种做法都存在缺陷。中国对CISG的此项保留,发生该公约关于合同非书面形式的规定被排除适用的效果,具体准据法应依据冲突规范予以确定。近期中国已经撤回该项保留,中国当事方将毫无争议地以非书面形式订立国际货物买卖合同。据此,该项撤回必将促进中国的实践部门积极适用CISG,中国有望成为研究CISG的中心。

China has made a reservation on the provisions related to non-written form in CISG when approving the convention. Chinese uniform contract law provides：parties may conclude contracts with non-written form. Consequently, the reservation has raised the argument whether Chinese parties should still conclude contracts of international sale of goods with written form, and whether it is time to withdraw it. Chinese courts and arbitra- tion tribunals don＇t respond to such heated academic debates, but with two standpoints developed one states that Chinese law should be applied according to the most significant relationship principle in private interna- tional law;the other holds that CISG, including article 11, should be applied. Both have serious defects. Chinese reservation has the effect of excluding the provisions related to non-written form from being applied in Sino-for- eign sale of goods contracts. The applicable law shall be determined according to the conflict rules. Recently China has withdrawn the reservation,which has come into effect. Chinese parties may conclude contract of in- ternational sale of goods with non-written form with certainty. The withdrawal will promote Chinese practice branch to apply CISG actively. China is expected to become the research center of CISG.