The Proposed Regulation on a Common European Sales Law (CESL) as an Alternative to the Convention on the International Sale of Goods (CISG) in Transnational Business-to-Business Transactions?

Abstract: The Commission has put forth a proposal for a Regulation on a Common European Law of Sales (CESL). It is envisaged – as of now – as an optional second regime within each member state‘s law, electable for transnational consumer contracts and contracts among traders, as long as one of them is a small or medium-sized enterprise. The intention is to provide contractors with a level playground of one legal order (to reduce transaction costs) and to cover (almost) all aspects, which may arise in transnational sales of goods, digital content or related services. In this regard, it is a direct competitor to the United Nations Convention on Contracts for the International Sale of Goods (CISG). This paper researches the opt-in into the CESL and analyses its provision with the exception of those covering consumer matters. They are directly compared to their counterparts in the CISG, provided that such provisions exist. The paper aims to clarify which rules are more apt for business transactions and to provide entrepreneurs with an overview what different outcomes they might expect when opting into the CESL instead of (not opting out of) the CISG. The conclusion is that the CESL in its current form does not meet the requirements of businesses, mainly for two reasons. Like the CISG, it does not cover every aspect of contract law and leaves vital matters to the applicable national law. Moreover, many of its terms and principles remain uncertain and broad, its focus on fairness and protecting ―the weaker‖ party are unfit for businesses, especially with regard to the unpredictability of liabilities. The CESL would need either a substantial amount of adaptation by the contract parties as far as its rules are not mandatory, a considerable quantity of clarifying case law or an in-depth revision by the legislator – it therefore does not constitute an advantage to the CISG in its current form, rather the opposite.