Chilean high courts evidence a lack of familiarity with the CISG by neglecting its application in an international sale of goods case

Abstract

Chile is well known for its openness to international trade and has been a contracting State to the Convention on Contracts for the International Sale of Goods (CISG) since 1991. However, extremely few Chilean decisions applying the CISG have been reported, and all of them have received negative commentaries. On June 2015, the Chilean Supreme Court upheld a second instance ruling rendered in a case involving a seller of goods with a seat in Argentina and a buyer with a seat in Chile. This case offers a good chance to evaluate whether there has been any progress in the application of the CISG in this jurisdiction and compare such development with a similar and relevant country (Argentina). The three different holdings issued in this case evidence that Chilean domestic courts still have an extremely unfamiliar relationship with the CISG. The first instance ruling has important problems justifying its applicability to the case and evidences a poor understating of its substantive content. The Court of Appeal and the Supreme Court completely have neglected the CISG, despite not reversing the references made by the first instance holding to it, evidencing a clear homeward trend in favour of the application of domestic law. This homeward trend seems to be a result of a general lack of familiarity with the Convention in the Chilean legal community. Hence, it seems that parties involved in international trade can hardly rely on a sound application of the CISG in Chile. This contrasts with the situation in Argentina, a country less favourable to economic integration but with a legal community apparently more interested in uniform law. This stresses the necessity that legal enactments in the field of uniform law should be accompanied by a correlative change in the relevant legal culture and hints that this could still remain a pending issue in many contracting States, especially among developing countries.