Bringing Locus Into Focus: A Choice-of-Law Methodology for CISG-based Concurrent Contract and Product Liability Claims


The article discusses choice-of-law theories for both contractual and tort/product liability claims governed by the CISG. The underlying theme is that concurrent claims are not necessarily equivalent claims. While concurrent liability in contract and tort (namely, product liability) may be applicable or alternative remedies available, the focus of the CISG is the harmonization of rules governing international sale contracts. The article argues that factors such as the place of injury or where the damages are sustained are less relevant than the situs of the contract, based upon the view that, without privity of contract, the concurrent tort would not arise. Where the damages were sustained, in the absence of injustice, should not be determinative by resort to parochial, territorial or domestic policy-driven application of procedural rules affording jurisdiction. This paper coins a new conflict of laws phrase: the lex foci conventionis, or simply the lex foci, defined as the law of the place where CISG claims in contract and tort converge. Applying this new paradigm, a choice of law methodology is proposed for concurrent contract and product liability claims. Where gaps, exclusions or conflicts arise, dispositive factors are offered to delimit the core of the action.

REVIEW OF THE CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (CISG) 2004-2005, Pace International Law Review, ed., München: Sellier European Law Publishers, pp. 179-223, 2006

LOADING PDF: If there are any problems, click here to download the file.

Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Antonin Pribetic | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.