Date of Award
Doctor of Juridical Science (SJD)
This thesis emphasizes a core concept of the preemptive effect that uniform law may have on other domestic norms. It exemplifies the situation in which the laws and principles of contracts, particularly the uniform laws and principles formulated for transnational sales, can exclude or limit tort liability. This study does not object to the recognition of concurrency of claims under contract and tort law. On the contrary, it accepts that the contracting party’s right to both contract and tort actions is commonly recognized in many legal systems, especially the common law system. Tort liability could be actionable insofar as the actions or words, or even their omission, trigger the requirements of tort claims developed in many legal systems. However, when the uniform law of contracts interacts with tort laws in disputes arising from cross-border transactions, the rules and principles provided under the uniform law, as well as its purposes, justifiably give priority to such a unified law, which is considered a part of binding contract law. In particular, the doctrine of party autonomy legitimately and considerably influences the extent to which the uniform law of contracts affects or modifies liability available under tort law.
Using the relationship between the CISG and US tort law, this thesis illustrates both the situation where uniform contract law and domestic tort law govern the matters in question concurrently, as well as the circumstances in which the uniform law can be said to be dominant.
The principal goal of this thesis is to minimize undermining the CISG’s fundamental objectives, while reducing the risk of excessive encroachment on the domain of tort law. On one hand, this thesis recognizes the importance of the elements of extra-contractual obligation and non-contractual interests under tort law, and thus supports the right to parallel tort claims. On the other hand, subject to policy concerns under tort law, the CISG’s rules and principles, as well as the contractual terms in a particular case, may have a preemptive force that excludes or modifies tortious liability under domestic tort law. In other words, there may be a situation where, because of the CISG’s doctrine or policy concerns, tort liability could be excluded or limited by the application of the CISG, even without an express CISG exclusivity provision.
Based on doctrinal perspective and policy concerns, this study adopts the existing approach of acknowledging the substantive scope and aims of the CISG in determining whether and to what extent the CISG has a preemptive effect on domestic tort claims, or whether there is a concurrence of a domestic tort claim based on domestic law and a contractual claim based on the CISG. The chosen approach recommends that tribunals consider the actual scope of the CISG and its purposes to see whether the alleged matter of the tort claim, in essence, falls under its scope. If it does, the CISG has a preemptive effect on the alleged matter. As compared to other emerging approaches to the CISG’s preemption of a tort remedy, this thesis believes that the chosen approach is the most appropriate and convincing solution, which requires careful analysis. This is because such a solution accords with both the general obligation to give effect to the binding uniform law for international sales, as well as the functions of national tort law in regulating extra-contractual conduct and compensating for the loss of extra-contractual interests, thereby establishing a proper division of functions between the CISG and tort law. Further, this thesis offers opinions on the essential aspects of this approach of acknowledging the substantive scope and aims of the CISG to make the renewed approach more convincing. Rules and opinions given by this thesis are primarily offered to assist tribunals with uniform application of the proposed solution when dealing with the CISG’s preemption and concurrency issues. That is, the principle of acknowledging the CISG’s substantive scope and the policy of attaining its aims are the primary notions underlying the preemptive effect of the CISG on tort remedy. From the doctrinal perspective of acknowledging the CISG’s substantive scope, its preemption issue is essentially the problem of the scope of its application, which could be dealt with through the use of the mechanisms provided by the CISG. To this effect, it is recommended that tribunals adhere to a dynamic method of interpreting the CISG’s provisions, as well as take sales contracts into consideration when finding the scope of the CISG’s application to a situation that fully overlaps with tort law. Considering the CISG’s goals and adhering to its substantive scope, this thesis suggests that the alleged tort claim should be subsumed under the CISG when a fully overlapping situation is established in a particular case. Accordingly, the party to a contract dispute is barred from relying on tort remedy. Further, in solving the issue of the CISG’s preemption of tort remedy, it is important to note that domestic laws play a secondary role, either as part of the forum law on characterization or as part of the applicable tort law. In other words, the rules on doctrinal characterization and the domestic rules and principles on the right to concurrent claims do not have a considerable influence on determining how the CISG interacts with tort law.
Additionally, whenever it appears that the application of the CISG does not preclude the alleged tort claim, this thesis suggests modifying the ancillary rules that govern parallel tort claims to adhere with the CISG’s protective regulations. Such a modification is suggested as a policy concern to prevent circumvention of the CISG’s goals or purposes. Therefore, the modification is limited to occasions when concurrent tort claims are closely connected to the claim under the CISG. Importantly, such equitable adjustments to tort law may be prohibited, depending on the existence of a more highly valued policy underlying tort law, or the recognition of tort law’s mandatory character under the relevant tort law system.
All in all, although there have been attempts by some jurists and judicial bodies to suggest various approaches to solving the problem of the CISG’s preemption of tort claims, this study performs in-depth analysis and provides critiques of those existing solutions. This thesis also put forth a renewed approach, which facilitates international trade, preserves international comity, and justifiably places value on both the CISG’s functions and those of the competing tort laws.
Numngern, Phutchaya, "The Preemptive Effect of the CISG on Tort Claims Under US Law" (2020). Maurer Theses and Dissertations. 81.