From Resource of Law to Source of Law: The Internet as a Source of Law in Unifying the Jurisprudence of the CISG

Camilla BaaschAndersen
Lecturer, Centre ForCommercial Law Studies, Queen Mary University
[email protected]

Abstract

Anyone working in research of any field of law will recognize the importance of the Internet in legal research. Through on-line searching and databases we have information available at our fingertips, making research easier and simpler than ever. [1] But in the field of international law, the internet is not only a convenient tool, but an essential one which renders information accessible which would not otherwise be within a researchers grasp. With a few mouse-clicks and a minimum of searching we can access the judgments of Courts and Tribunals whose cases were not otherwise accessible – for instance the Supreme Courts of many Countries have entered their cases onto websites on the internet , [2] and useful websites on specific areas of law to aid research abound. Legal research without the internet would be timely, costly, and sometimes impossible. As a resource, the internet is unparalleled. Recent years have seen the use of the internet increase drastically in the legal profession, from an occasional reference for some to an everyday resource for most – especially in the ivory tower of legal academics. These days, references in legal research to an internet resource is an everyday occurrence, whereas such references in peer review journals were rare in 1998. [3] The (r)evolution of the internet in research has been a very swift one.

There have been several articles on the subject of legal resources on the Internet, and numerous excessively helpful articles exist for navigating, utilising and citing these sources. Note, for instance, the ASIL Guide to Electronic Resources for International Law, published by the American Society of International Law since 1997 by Marci Hoffman & Jill McC. Watson, [4] and the State Bar of California, International Law Section website on Legal Research on International Law Issues Using the Internet, [5] both regularly updated and expanded. Articles on the topic have also been appearing in Germany since 1998. [6] Moreover, the scholarly use of the internet as a resource has prompted discussions on how to cite the internet. In 1996, the American Bar Association approved a resolution recommending that courts adopt a uniform public domain citation system 'equally effective for printed case reports and for case reports electronically published on computer disks or network services' and laying out several key elements of such a system. Based on this 16 ^th Ed “Bluebook' citation system, a recent updated version of Introduction to Basic Legal Citation contains information in § 2-100 on 'How to Cite Electronic Sources', [7] as does the Style Sheets for Citing Resources (Print & Electronic): Examples & General Rules for MLA, APA, & Chicago & Turabian Styles from Berkeley University. [8] See also the Longman English citation guide Citing Cyberspace: A Quick-Reference Guide to Citing Electronic Sources in MLA and APA Styles , by James D. Lester. [9]

However, this article will not dwell on the use of the internet as a resource for scholars, although the present author is happy to admit that the concept of conducting research without it is an entirely unfamiliar and unpleasant one. Where would we be without it? What this article will focus on, rather, is the emerging status of the internet as a source of law rather than a resource for information. In my research on trade law, I have noticed that one database in particular is actually shaping cases and directly influencing Courts. It is this phenomenon which I wish to dwell on.

There is a significant divide between the resources of the internet which scholars have utilised to an escalating degree for years, and the emergence of the internet as a source of law .  The difference between watching from the stands, and being part of the players in the field is an apt metaphor for the use of the internet as a case-finder and its use as an actual source of law in case law. When the judiciary refer directly to internet information and sources, and are swayed by what they find, then the status of the internet changes subtly from a resource to an actual source of law. Especially where they do this ex officio. This phenomenon is becoming more and more widespread in one particular field, namely that of international sales, my particular field of research. And it is no coincidence that this is an area for examining and developing this new frontier, as the Internet is a welcome solution to many problems. Allow me to illustrate the point.

Keywords : Internet research, citation, case law, sources of law. 

This is a refereed article published on: 15 December 2004.

Citation : Andersen, 'From Resource of Law to Source of Law – The Internet as a Source of Law in Unifying the Jurisprudence of the CISG’, 2004 (3) The Journal of Information, Law and Technology (JILT).< http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2004_3/andersen/>

1. Introduction: The Example of the CISG

The 1980 UN Convention on Contracts for the International Sale of Goods (the CISG) has been in force for over 15 years now, [10] and is constantly gaining more success as more countries chose to ratify it – it is now in force in 64 countries which account for over two thirds of all world trade. [11] As those familiar with the CISG will be well aware, the Convention is a uniform sales law. This goal of uniformity is presented in the pre-amble, wherein it is evident that the drafters intended the Convention to be an adoption of uniform rules governing contracts for the international sale of goods in the interest of removing 'legal barriers in international trade' and promoting 'the development of international trade'. Uniformity applies throughout the Convention by way of Article 7(1), which states: “In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.'

But uniformity does not follow automatically from proclaiming uniform rules. Uniformity is a difficult goal to achieve, as uniform words do not always ensure uniform results, [12] especially where a Convention is in effect throughout countries with completely differing social, economic and cultural backgrounds, which represents different legal systems. Differences in interpretation and application will arise, as they indeed have in the case of the CISG, in the form of, for example,  faux amis [13] or domestic influence on flexible terms, such as “reasonable time'. [14] It is also uncertain which degree of uniformity the Convention strives at. Absolute uniformity would seem to be a utopian goal due to the kaleidoscope of nations involved, but when considering the need for predictability in contracts and the goal of the Convention to remove barriers in international trade, then it would be safe to assume that the uniformity of the CISG requires international practice not to vary, and for the provisions of the Convention to be applied similarly, if not identically, throughout the States in which it is in force.So how may the Convention’s uniformity best be safeguarded?

As mentioned above, Article 7(1) requires consideration of the Conventions uniformity to be had when interpreting it. Scholars and practitioners agree that this provision represents a duty for the CISG practitioner to look to international practice in the interpretation or determination of the provisions of the Convention. [15] If a wide variety of practice from other countries is considered when a CISG issue is examined by a domestic practitioner, then that practitioner’s decision will be based on international precedents as well as his own evaluation, and will be in keeping with the spirit of international uniformity of the Convention. The practitioner need not necessarily follow the international precedent if he considers it incorrect or inapplicable to the case at hand, but there is a duty to take similar cases from international practice into consideration regardless. [16] Nevertheless, references to international practice in reported judgments concerning the CISG are, unfortunately, very rare.

2. Before 1998

A prominent CISG scholar, Prof. Ferrari, reported in 1998, [17] that of nearly 300 judgments examined by him, [18] only one took international practice into consideration when considering a CISG issue. [19] Indirectly, other practitioners had taken international case law into account by referring to scholars who have done so, [20] and while this was a step in the right direction, it does not fulfill the duty in Article 7(1) to look to international precedents; not only because it is the judgments itself which should form the precedents and not the scholarly interpretation and commentary, but also because scholars frequently have a greater opportunity to analyse case law from their own domestic legal system (both in terms of availability and linguistic problems) and cannot always present a well rounded picture of international precedents. In defense of those practitioners who have failed to consider international precedents, there are many problems connected with this duty, not only regarding the availability of international practice, but also regarding the language of the cases. The CISG is being practised in approx. 50 different languages with numerous completely different alphabets. The practitioners cannot be required to find all existing practice, let alone understand it. But the Internet presents a solution to this problem.

3. The MCC Marble Milestone – The First Case Law Reference to the Internet

Since 1998, there has been a trend for the more widespread use of international precedents. With the arrival of a US Circuit Court of Appeals decision on June 29 ^th 1998, [21] the problem of accessibility and language would seem well on its way to being at least partially solved. The case concerns the issue of whether a court must consider parole evidence in a contract dispute governed by the CISG. When comparing Article 8 of the CISG, the Court stated in an obiter dictum fashion that the parties had not referred to any international practice, but that the Court’s own research had uncovered a database at <http://www.cisg.law.pace.edu> [IS3]  which was very promising regarding international CISG precedents, but nonetheless contained no practice on parole evidence. [22] With this shining example of good research, this judgment represents a milestone in legal practice on two frontiers:

- Firstly, it cites an Internet database as an official reference to a source of law. This in itself is an exciting development, as well founded Internet databases should not be restricted for the use of scholars since they can be a convenient and in-depth research tool for practitioners as well.
-  Secondly, it complies most satisfactorily with the duty in Article 7 to look to international practice; it searches for international practice and possible precedents on its own accord, and does so by way of one of the most comprehensive sources of reported international CISG practice available. By doing so, the judgment has ensured that it is in accordance with reported practice, and that the CISG thus, on this issue, has a more uniform practice.

4. The Pace Database

The database at <http://[23] co-operation of case law exchange can be reciprocal and not just benefit English-speaking practitioners or scholars and it is also possible to access the original language text of many judgments. But, perhaps even more significantly, the ongoing Queen Mary case translation programme, run in cooperation with the Centre for Commercial Law Studies here in London, provides full text translations of judgments into English, eliminating the language barrier to the use of foreign case law. And astonishingly, this service is free of charge, open to all scholars and practitioners alike. The database has been well received everywhere, and it is not surprising that it is this Website which earns the “feather in the cap' of being the first to be cited in a US international commercial law judgment. [24] Much more praise has been earned and reaped. In late 1998, the Executive Secretary of the Pace Institute, Albert Kritzer, received the New York State Bar Association Award for Distinction in International Affairs for his work on the database. Joel B. Harris, Chair of the International Law & Practice Section of the New York State Bar Association stated: 'The value of this resource to attorneys, judges, arbitrators, traders and scholars around the world and its potential for contributing to the development of a truly uniform international law of contracts is self-evident.'. Moreover, The International Association of Law Libraries has recognized the website as: ' A great project - containing nearly all information about CISG gathered in one site. They show us the way to get a successful partnership worldwide, through this innovative site .', and has awarded the website the first annual website award for non-commercial site in 2002. [25]

5. Other Databases of International Sales Law


There are also other databases for CISG practice and information. The UNCITRAL has its own case law database called C ase L aw O f U NCITRAL T exts (CLOUT) which can be found on the Internet on the UNCITRAL Homepage ([26] On trade law in general, one of the primary internet resources for information for the legal profession is the “Lex Mercatoria' site run by Ralph Amissah, originally hosted by University of Tromsoe in Norway (lexmercatoria.org or lexmercatoria.com).  It functions as an “umbrella site' with spokes which refer to a wealth of other databases and information on trade law. It also figures prominently on the very useful tool for practitioners, the State Bar of California, International Law Section website on Legal Research on International Law Issues Using the Internet [27] on their list of legal resources. It is precisely this reciprocal linking of information which has made the internet such a valuable resource.

6. Other CISG Cases Quoting or Using the Internet

Since the ground-breaking case in 1998, there have been a handful of other cases complying with this duty to look to international case law. Some of these utilise an internet source either directly by looking to it themselves as the 5 ^th Circuit Court did in MCC Marble, see for instance St. Paul Insurance v. Neuromed Medical Systems , 2002 U.S. Dist. LEXIS 5096 (Southern Dist. New York:March 26, 2002) contains half a dozen citations to this website. Also mentioning Pace in its URL citation, in Impuls v. Psion-Teklogix , 2002 U.S. Dist. LEXIS 22977, n. 1 (November 22, 2002), the District Court for the Southern District of Florida advises that:'[h]elpful information regarding the CISG can be found at th[is] website.' In the recent US case of Chicago Prime Packers , [28] the US District Court relied heavily on foreign law in the determination of the examination and notification duty under the CISG, and in doing so utilised the Internet. In the words of Annabel Teiling: '...the Internet has truly revolutionized the spread of information about the CISG. In Chicago Prime Packers, Inc., the District Court used Internet references throughout, ultimately to render a well researched and truly international decision thus paving the way for other courts in the United States to use one of the most efficient and effective tools to ensure decisions that give due weight to international precedent.' [29]

A recent example is an Italian case from Tribunale di Rimini 26.11.2002, [30] wherein the Court stated that it relied for each issue on a number of decisions on CISG already rendered by foreign courts and arbitral tribunals. In so doing the Court declared that, though precedents in international case law cannot be considered legally binding, they have to be taken into account by judges and arbitrators in order to promote uniformity in the interpretation and application of CISG (Art. 7(1) CISG). In this respect the Court stressed the importance of existing databases and of specialised law journals as a tool for the dissemination of international case law and made an express reference to the UNILEX Database on the Internet and the PACE database and its mirror-sites.

In Germany and Italy, other recent cases have linked the internet URL directly to the case law the Court refers to in the actual judgments, enabling a quicker reference when researching an area. See Tribunale di Vigevano 12 July 2000, [31] Tribunal di Padova 25 February 2004, [32] Tribunal di Padova 31 March 2004, [33] and OLG Duesseldorf 28 May 2004. [34] Other cases, however, do not quote ex officio examinations by the Court of cases on the internet, but it is obvious from counsel's briefs, the nature of the court's opinion, etc., that the courts have drawn on this website, e.g., Medical Marketing v. Internazionale Medico Scientifica , 1999 U.S. Dist. LEXIS 7380 (Eastern Dist. Louisiana: May 17, 1999), Zapata Hermanos v. Hearthside Baking , 2001 U.S. Dist. LEXIS 15191 (Northern Dist. Illinois).  The latter case, which concerns the issue of whether attorneys fees are recoverable as damages under article 74 CISG, submitted a certiorari to the Supreme Court, which was ultimately denied - interestingly the brief from the Solicitor General makes no direct use of internet sources despite the richness of such sources in the original certiorari.

Another category of CISG cases hide their use of the Internet more thoroughly, but to the trained eye it is discernible.  Courts look at, and are sometimes swayed by, case law referred to them from the legal counsel of the parties even if they do not refer to it expressly – these will often be cases which the legal counsel would not have been able to locate or translate without the aid of the database. An example of the latter is found in a Danish decision from the Maritime Commercial Court of Copenhagen, where the Court is clearly paraphrasing criteria from a Dutch CISG precedent on frozen cheese in a case on frozen fish. They do not expressly refer to the case in the judgment, but since it is clear in the exchange of documents that Counsel for the seller quoted this case using the English words of the translated text as available on the Internet at the PACE database, we know that the Court are indeed using this source, albeit indirectly, when finding for the seller using the exact same wording. [35]

In the realm of the European Court of Justice, reference was made to Internet sources by an agent for the European Commission. The reference was to the Pace database in the 'written observations' lodged by the Commission, and was – in the words of to the Agent who wrote the observations - made 'to show that according to up to date information, a vast proportion of international trade was covered by it and that articles 36, 38 and 60 could serve as a source of inspiration to answer the question posed by the French court.' [36]

All in all, the use of electronic databases and Internet Websites as extensive resources of law is a giant step towards being able to find the latest and the most comprehensive CISG practice. Unfortunately, there are still certain limits to the practice the databases can provide. The practice of some CISG states is not reported to any accessible authorities; practice from China or Arab Republic, for instance, is still relatively limited, however, international scholarly co-operation is opening up the borders for transnational practice insight and as it opens cases are pouring in. However, as we see original Internet material directly influencing Courts, the resources are changing their nature.

7. Status of the Internet: A Source of Law?

The question is: With all this use of the Internet directly in practice, can we deem it a source of law in itself, instead of categorising it solely as a resource of information or a source of sources? The answer to this lies, naturally, in the definition of a “source of law'. Central to the understanding of any legal issue is the understanding of terminology – we lawyers work only with words: “blunt unreliable tool…mushy ambiguous things even for ordinary communications', as the great John Honnold writes. [37] And with the attempt to unify any definition of a “source of law' we open an altogether jumpy kettle of fish. It is a curious point of comparative law that the weight which different jurisdictions place on the science of sources of law differs so much. Speaking in broad strokes, the Civil Law jurisdictions have a strong tradition for theoretic legal distinctions and thinking, whereas the Common Law regimes typically have a more practical approach. In some jurisdiction, like my native Denmark, the knowledge and philosophy of this area of law is a science in its own right (“retskildelaeren') similar to that of the German doctrines. But in the very practical English legal training, this is not a major point of study, if indeed one at all. While mention is made in legal text books that there are sources of law, very little emphasis is placed on defining them or classifying them. The study of precedent and statutory interpretation is an essential element of legal training in England, but not the classification of other sources. [38] In essence, a source of law can either be a source of legal learning or inspiration (mostly relevant for scholars, whose role for the judiciary is very limited) but a source of law can also be described more limited as that which influences the law directly.
 If we retain the practical English approach to sources of law, then there are three arguments in support of why the internet is advancing to become a source of law rather than merely a resource of legal information in selected fields such as that of the CISG:

A)    The Internet is now such a significant legal tool, that many databases contain research, articles and commentaries that are not published in paper-form and not available elsewhere. Where such original material is quoted, is the Internet not a direct source of law in the way a law journal is? It is certainly more than a fact-finding tool. The original edited case translation available at the CISGW3 database from the Queen Mary Case Translation Programme. Another is the integrated case annotations at http://cisgw3.law.pace.edu/cisg/text/cisg-toc.html .

B)     Through search-engines which are unique, Internet databases collate and gather material, cases, and commentaries and presents them in a manner unique to that website, which, because of the way is it presented can spark unique and original impressions, ideas and – for practitioners – results. Even though this material COULD be found elsewhere, its individual way of presenting findings can shape legal thinking. For instance, a search on the PACE database for cases on “reasonable time', will not only bring to the searchers attention to cases on Article 39.1 and notification of non-conformity, but also to the fact that 37 provisions contain the word “reasonable' and that one of these is Article 8.2 which applies the right to “reasonably' interpret actions to the entire convention. This is significant for a number of reasons, which I will not go into here. A search on commentaries to this will also reveal information that might not be found in the same context elsewhere. Through the vastness of information contained therein, and a good search engine, the Internet can heighten awareness of certain aspects.

C)    The main argument, however, for why the Internet is a source of law is the fact that it is seen, in the cases where it is referred to, to actually influence the law by influencing the judges applying the law. At the root of all definitions of what constitutes a source of law is the practical fact that where something is directly influencing the outcome of a legal dispute, it IS a source of law, whether or not it satisfies theoretical requirements as they may be found in Civil law jurisdictions.

It might be argued that the CISG internet references do not move any barriers of legal sources, that references to cases available on the internet does not differ from the reference to LEXIS or WESTLAW cases which has occurred in the US and UK – the argument here is that this is nothing more than a reproduction of an existing source of law in a different (electronic) presentation. But for the CISG cases, this is not true. The case translations which are drawn on to pierce the barrier of language in international case reporting are original and exclusive to the CISG W3. They exist nowhere else. And the case presentations are unique with abstracts and references to material and case history etc. A reference by the judiciary to a CISG case from another jurisdiction invokes all of the arguments in A) – C) above. So, if we accept that the judiciary in some jurisdictions are turning to the internet in this fashion, and we accept that this means a direct influence on the shaping of the law, then the internet IS a source of law. However, it is only in selected fields and with selected resources that the transition from resource to source is evidenced. The main problem is, of course, that the Internet itself, with no check and balances, is too vast and uncontrolled to be, in itself, a source of anything but confusion and occasional information. It overflows with information, the key to using it is a good search engine, no matter which field it is employed in. And because of this wealth of information and – occasional – lack of selectiveness, too much incorrect or badly written information or disinformation finds its way onto the web. The need for a selective editing and effective search engine prompts the success of databases such as the PACE or UNILEX both of which have high standards of scholarship and editors who work hard to keep the material up to date and correct. The challenge is in the sifting of information, the good from the bad.

8. Questioning the Validity of Internet Sources and Their Suitability as Sources of Law

With the transgression from resource to source, concerns of the nature of the integrity of internet material are naturally exasperated. The Internet is constantly changing; sites and materials are constantly added or removed. But more importantly, how is the validity of the information on the internet assured? While concerns of the validity of sources was previously a purely scholarly dilemma, it is now elevated to a much more practical point which can shape/misshape actual case law. If the judiciary rely on information/resources on the internet and transform them into legal sources then this will only be a positive step in legal evolution if the resource being advanced is an accurate one.  The general problem of information-pollution on the internet should be considered seriously where it is relied upon as a serious and correct source of information – even more so if it is having a direct effect on the judiciary.

It is, of course, a question for the judiciary to decide for themselves how they choose to authenticate and ultimately trust the internet resources and rely on them to make them sources of law. But guidance should be available for those who seek it. The awareness of the internet as a provider of misinformation as well as information is not a novel one. There are books written on the subject, [39] and numerous guides to website evaluation available. Among them are “How to Evaluate a Website' by LaJean Humphries, [40] which contains an extensive list of link to articles and websites which evaluate information or resources on the internet. The excellent ASIL guide for using the internet as a resource for international law, by Marci Hoffmann and Jill Watson, also – amongst many other things - emphasises many practical points on evaluating what you find on the web. [41]  Unsurprisingly, it is amongst the publications for librarians that most of this information is shared. Just as law librarians have been monitoring and assessing our legal resources in paper form since Gutenberg’s invention of the printing press, so they are now creating criteria for assessing the electronic resources. One article, by D. Scott Brandt, a librarian at PurdueUniversity, [42] takes a very rational approach, advocating common sense in evaluations and stressing the importance of the context in which the information is found. This context is central to the question of using the internet as a source of law. The most rational solution to monitoring the internet lies in an application of the “functional equivalence' doctrine. This doctrine, which is used to draw parallels between dematerialised versions of papers, contracts, form etc. to their original tangible form in the understanding of their use, is also applicable to the resources of law. The distinction between the Internet as a whole, and selected Internet resources which can safely be elevated to sources of law is helped if we draw an illustrative parallel to the “paper-world'. If we draw parallels between paper resources of law, the published journals, and the resources on the internet, the most key qualifier of a Journal – its level of editorship – can be equated in the world of electronic resources. Edited databases, which ensure the quality of the material at hand, can be relied upon to a certain extent, depending upon the quality of the editorship.
If we see these edited databases as representatives of dematerialised law journals with the added advantage of accessibility and navigation due to their electronic form and digitalisation, then we can better grasp the importance of editorship and quality of sources, in much the same way as we qualify the paper journals.  In other words, the key to ensuring the quality of an internet source is in essence the same as that used to ensure the quality of any source: referees and editing where available.

Alastair Smith, VUW Department of Library and Information Studies, New Zealand, “provides a ‘toolbox’ of other criteria that enable Internet information sources to be evaluated. [43] Amongst his very valuable criteria are format, audience, and quality of writing, as well as the question of authority and whether there is a valuable organisation behind the resource. Moreover, the importance of reviews of databases is significant. All of these criteria are familiar in the “paper-world'.  We need to make them familiar in the electronic world for faith in internet resources to extend to faith in sources for shaping the law. Edited databases with reliable peer-review do present a solution, although the main “dollars-and-sense' concern is that thorough editing will drive up the cost. Happily, the CISG database which has shaped the law in international trade is such a database, although it still manages to be non-commercial despite the wealth of edited material (including the full text of the leading commentaries by scholars). It is a gem for legal researchers and – if the trend continues – for practitioners and Courts/Arbitrators as well. It is no wonder that the database was awarded the first ever web site award by the International Association of Law Libraries as winner in the non-commercial category, as mentioned above. More information on the database, as well as on evaluation criteria for law-oriented Internet sites and quality control procedures to ensure accuracy and reliability, is available in an award wining paper by the database manager, Prof Marie Newman. [44]

In the deliberation of the internet as a source or a resource, the conclusion would seem to be that the internet is a resources with original sources. Instead of rushing to deem the Internet as a whole a source of law, we should simply acknowledge that selected Internet resources, such as these edited databases, are sources of law.

9. Conclusion: On the CISG and Internet Databases as Sources of Law

Before the CISG entered into force, the Convention was debated at a conference in Freiburg, Germany in 1987, where Prof. Honnold - in anticipation of the problems of uniformity that would arise - stated that he presumed most countries would condition their ratification of the Convention on the establishment of an International Sales Law Centre to monitor the international practice of the convention, as proposed by Prof. Rajski of Poland. [45] Such a centre was never created, although the establishment of an expert committee such as the CISG Advisory Council, does provide a certain framework for the interpretation of the convention. [46] However, with the arrival of extensive databases with international networks on the internet, such as the database at the Institute of International Commercial Law at Pace, it is possible for practitioners to comply with their duty in Article 7 to consider international practice in the interest of the uniformity of the Convention. When doing so, they ensure that the Convention is a giant leap closer to its goal of uniformity.  It seems almost a certainty that the cases which elevate some internet resources to sources of law by allowing them into the cases to shape the law will become more common. Changes in the judiciary follow the changing of the people who occupy the benches – as a generation familiar with the internet approaches the age of occupying the legal benches the occurrences will be much more commonplace. And hopefully, at that time, the checks and balances for sifting the information to ensure its quality will be securely in place – through editorship, reviews, reputation, organisations etc. the resources which are suitable as sources will stand out from those that do not.

Notes and References

[1] See, generally, Carol M. Blast & Ransford C. Pyle, Legal Research in the Computer Age: A Paradigm Shift , 93 L. Lib. Journal 285 (2001).