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Henschel, Rene Franz --- "Methodological Challenges of Codifying or Consolidating National and International Sales Law Based on CISG Article 35" [2012] ELECD 355; in Andenas, Mads; Andersen, Baasch Camilla (eds), "Theory and Practice of Harmonisation" (Edward Elgar Publishing, 2012)

Book Title: Theory and Practice of Harmonisation

Editor(s): Andenas, Mads; Andersen, Baasch Camilla

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800013

Section: Chapter 11

Section Title: Methodological Challenges of Codifying or Consolidating National and International Sales Law Based on CISG Article 35

Author(s): Henschel, Rene Franz

Number of pages: 22

Extract:

11. Methodological challenges of
codifying or consolidating national
and international sales law based on
CISG Article 35
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 ju-
risdictions. 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 ...