The CISG's Expansion Bias: A Comment on Franco Ferrari

Commentators frequently urge the production of uniform commercial law and judge the United Nations Convention on Contracts for the International Sale of Goods (CISG) a successful effort at producing a uniform sales law. Franco Ferrari's paper makes two claims: (1) that the CISG is a “success” when its scope is properly understood; and (2) that properly understanding the CISG's scope requires recognizing its limited application and therefore the continuing need to resort to non-CISG law. My evaluation of the CISG is less favorable than Ferrari's. I identify an “expansion bias” in the CISG' s interpretation that might operate generally: the tendency among courts, arbitral tribunals and commentators to apply the CISG to transactions or aspects of transactions not clearly within its scope by relying on a ill-defined and questionable presumption of coverage. Even if uniform sale law is desirable, this expansion bias suggests that the CISG may be less successful in optimally promoting it.