Theory and Practice of Harmonisation
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Theory and Practice of Harmonisation

Edited by Mads Andenas and Camilla Baasch Andersen

Harmonised and uniform international laws are now being spread across different jurisdictions and fields of law, bringing with them an increasing body of scholarship on practical problems and theoretical dimensions. This comprehensive and insightful book focuses on the contributions to the development and understanding of the critical theory of harmonisation.
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Chapter 11: Methodological Challenges of Codifying or Consolidating National and International Sales Law Based on CISG Article 35

Rene Franz Henschel


Rene Franz Henschel1 1. INTRODUCTION This chapter centres on the impact the CISG Convention has had on the national and international development of law. It focuses on the rules in Article 35 CISG, as the content of the provision has gained wide recognition in a number of jurisdictions. However, this recognition has resulted in changes and alternative expressions of the legal contents of the provision. If the provision is used as a model for preparing national as well as international rules but is changed more or less extensively, the question is whether these rules have to be interpreted and applied in the same way as the Convention rules, or whether legislators intended the new rules to have different and separate contents and objectives. The following analysis will show that it is sometimes impossible to determine whether this was intended or not, and this leads to uncertainty as to the contents of the new rules. The thesis of this chapter is that these uncertainties can be avoided if the focus is shifted to the method used in preparing the new rules. This thesis should be seen against the background that doubts appear to arise because it is uncertain whether legislators intended consolidation with the rules in the CISG, or whether they intended proper codification based on the rules of the CISG – a difference that can explain the different interpretations of the contents of the new rules. Consequently, the focus should be on the method used in preparing the new rules based...

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