CISG Article 6 and Issues of Formation: The Problem of Circularity

CISG Article 6 broadly allows parties to exclude the application of the CISG or derogate from its provisions. The application of Article 6 is relatively straightforward when addressing the rights and obligations of the parties, but encounters a challenge of circularity when addressing issues of contract formation. How can the parties agree to exclude or derogate from the application of the CISG if it is not yet clear whether they have agreed to anything at all? This article explores this narrow, but important question. Can the parties effectively exclude the application of the CISG or derogate from its provisions (i.e., “opt out”) on contract formation within the agreement for which contract formation is at issue? The article begins with a brief elaboration on the nature of the problem, suggests a means of resolving this issue by looking to the general principles underlying the CISG, and then applies those principles to a series of hypothetical formation problems.