The Vienna Sales Convention (VSC) contains rules for international sales agreements for movable goods between professional parties/B2B from different countries. The VSC automatically applies if the parties are established in different countries that are parties to the VSC or if, according to the rules of private international law, the law of a contracting state applies. It is common for parties from two different countries to include in the agreement that, for example, Dutch law applies. The point is that national law (in this case Dutch law) is automatically set aside by the CISG if the CISG is not (expressly) excluded in the agreement. It also happens that a company’s general terms and conditions include a choice of law or exclude the Vienna Sales Convention. The preliminary question is whether these general terms and conditions have been legally agreed, and this is still answered by the Vienna Sales Convention. The Vienna Sales Convention imposes stricter requirements than national law, so there is a chance that the CISG will still apply. In short: the CISG automatically and quickly comes into play in international sales agreements for movable goods if this is not explicitly excluded.

So what are the differences between the CISG and Dutch law? The CISG can be more favorable to sellers than national (Dutch) law. For example, the CISG has short limitation periods and imposes stricter requirements on the right to replacement of the delivered goods and also on the right to termination. In short, the CIS must always involve a material defect (whereas under Dutch law, any defect may entitle the buyer to terminate the contract). It is important to make the right choice as to whether or not the CIS should apply.

In practice, therefore, the following points should be taken into account as a minimum:

1. be aware that the WKV automatically applies to international B2B sales agreements for movable goods;
2. make a careful choice between national law/Dutch law and the WKV;
3. if the WKV is excluded, a specific exclusion must be included in the agreement itself and not in the general terms and conditions.

If you have any questions, please feel free to contact Philip Nijbakker (p.nijbakker@paulussen.nl).