The significance of accession to the United Nations Convention on Contracts for the International Sale of Goods 1980 for Indonesia

• Author: M. Hum. Taufiqurrahman
• Position: Law Faculty of Wijaya Putra University of Surabaya, Indonesia
• Pages: 54-71

The significance of accession to the United Nations Convention

on Contracts for the International Sale

of Goods 1980 for Indonesia

Lecturer Ph.D. SH. M. Hum. TAUFIQURRAHMAN

1

Abstract

The United Nations Convention on Contracts for t he Inter nationa l Sale of Goods

1980 (The Convention) is one of monumental products to respond the need practically of

the business actor s in inter national trade tr affic. The Convention is not only containing

substantive rules, but also containing procedures in determining the l aw applicable to

disputes faced.

The ana lytical result indicates tha t the legal concept can be developed in

Indonesia for future governing choice of law in interna tional sales of goods tra nsactions is

by accession to the Convention. In that accession, it is recommended that Indonesia puts

aside the application of Article 1 (1) (b) of the Convention does not reflect valued the

apprecia tion of state sovereignty.

Keywords: Choice of Governing Law, International Char acter, Law Applicable.

JEL Classification: K12

Introduction

Responding to the needs of international business in an effort to actualize

the harmonization of international trade law, The United Nations Commission on

International Trade Law (hereinafter abbreviated UNCITRAL)2 issue of "The

United Nations Convention on Contracts for the Interna tional Sales of Good" (The

Convention) in 1980. The Convention is a comprehensive set of transactions of

goods is international3.

The presence of the Convention in international trade traffic created two

contradictory views. Those who accept the presence of the Convention view that it

will provide convenience and ease for business people to conduct international sale

1 Sh. M. Hum. Taufiqurrahman, Law Faculty of Wijaya Putra University of Surabaya, Indonesia,

taufiqurrahman@uwp.ac.id

2 UNCITRAL is the United Nations specialized agency in the field of international trade law that was

formed in 1966. The agency is tasked to promote the progressive harmonization and unification of

international trade law.

3 The Convention is actually a revision and also the integration of 2 (two) previous convention ever

produced by The International Institute for Unification of Private Law ( UNIDROIT) in 1964,

namely on: "Uniform Law on the Interna tional Sales of Goods" (Ulis) and "Uniform Law on the

Formation of Contra cts for the Inter national Sale of Goods" (Ulf). In addition, this convention as

well as an amendment to the "Convention on the Limitation Per iod in the Inter national Sale of

Goods 1974". UNIDROIT itself is an institution that aims to examine ways of harmonizing and

coordinating different legal regulations of the countries or groups of different countries, with a view

to improving the gradual adjustment towards a uniform civil law by this negara.Lembaga whose

establishment is located in Rome sponsored by the Volken Bond prior to World War II.

Juridical Tribune Volume 2, Issue 2, December 2012

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of goods. This is because the Convention in addition contain the unity of

procedural choice of law rules, it also contains the unity of substantive law

governing international sale of goods.

In contrast to the view of the above, those who care about the issue of

sovereignty of a country strongly condemned the globalization efforts of

international trade law. They believe that globalization efforts and unification of

international trade law is the death knell for the existence of national law or

domestic law (municipal law)

4.

Especially for Indonesia, entry into force of the Convention that contains a

unity of choice of law should get serious attention. It is based on objective

conditions in which most of the countries of Indonesia export markets has ratified

or acceded to the Convention.5 Some of them are the United States, China,

Australia, Germany, Netherlands and Singapore. This means that in all transactions

undertaken by the international freight business from Indonesia with its trading

partners from other countries for the current and the next will frequently meet with

the Convention.

Based on this phenomenon, re-assessment of Indonesia's positive law

governing international trade transactions is a necessity that can not be postponed.

This is understandable because of the positive law of Indonesia especially those

related to trade transactions, both domestically and internationally, largely a legacy

of the Dutch East Indies government that has been around 164 years old. Its

presence is considered to be not in accordance with the development and

advancement in the field of Information Technology. Especially with the

enactment of the unity of the Convention that contain choice of law rules in the

field of Contracts for the International Sale of Goods (CISG), the existence of

positive law in the field of CISG will be increasingly marginalized in international

trade traffic.

Based on these objective conditions, legal issues focused on the issue of

whether or not Indonesia committed themselves to the Convention as a national

law reform efforts in the field of CISG.

I. Choice of Law in the Convention

Black's Law Dictionary defines the choice of law as a legal question of

jurisdiction that should apply in a case at hand. This means the choice of law is a

rule relating to the question of law which should apply in a case at hand.

4 Rather harsh statement put forward by Erroll P. Mendes who think the various of national legal

systems as "the worst enemy for the international merchants and traders". See Franco Ferrari,

"Uniform Application and Interest Rates Under The 1980 Vienna Sales Convention" in the Cornell

International Law Journal (ed.). 1995. Review of The Convention on Contracts for the Internationa l

Sale of Goods (CISG), Kluwer Law International, pp. 3, quoted by Errol P. Mendes. 1998. The UN

Sales Convention & Canada U.S. Transa ction: Enticing the World's Largest Trading Bloc to Do

Business Under a Global Sales Law, 8 JL & Com, p. 109-112.

5 Until now, there are 72 countries that represent the diversity of pol itical systems, ideology, culture,

law, language and religion that have committed themselves to the Convention.