THE ROLE OF GOOD FAITH IN INTERNATIONAL LAW - Particularly under the United Nations Convention on Contracts for the International Sale of Goods

Sammanfattning: The principle of good faith has been described as one of the most debated concepts of the CISG and is also the main subject of this thesis. Since Article 7 is the only article of the CISG expressly mentioning good faith it has served as the base for this study. An examination of four different countries confirms that the dilemma of good faith originates from the fact that it is a concept known and applied differently in different countries. For example the concept of good faith is well-established in Germany, but has no general recognition in English law. Therefore, it is no surprise that it was only after pro-longed negotiations that the drafters of the CISG managed to agree on the role of good faith. The critics long opposed its inclusion and argued that the concept was too vague, too uncertain and even superfluous. Finally however, good faith was included in CISG Article 7.1, but only as a tool for interpretation of the CISG itself. Said article also states that when interpreting the Convention, uniformity and the international character of the CISG shall be observed and promoted. The underlying idea of the latter element is that the interpreter at all times must refrain from applying any domestic standards. Whether courts have managed to comply with this for the purpose of good faith under the CISG, will be particularly addressed in this thesis. Even though Article 7.1 establishes the importance of uniformity and that good faith only is to be observed in the interpretation of the Convention, at least three different understandings of good faith’s role under the CISG exist. All three of these are represented in both the jurisprudence of the CISG as well as in international doctrine on the subject. Under the first interpretation, CISG Article 7.1 is read literally and only allows the decision maker to observe good faith in the interpretation of the Convention. According to the second alternative, good faith in Article 7.1 is addressed to the parties of the contract as well, and therefore imposes positive duties upon the parties. The third understanding is that good faith is a general principle that underlies the Convention by virtue of Article 7.2. From a party perspective the existing non-coherent jurisprudence on good faith might cause problems. Will parties be held to a positive duty of good faith or not? Clearly, there are arguments for all three understandings. However, this thesis will advocate that extending CISG Article 7.1 to include a party-oriented duty of good faith would frustrate the intention and the compromise reached by the drafters. Establishing a general principle of good faith by virtue of Article 7.2 on the other hand, will not. The final conclusion is therefore that the drafters of the CISG indeed opened up for a duty of good faith, but not as a hidden positive duty in Article 7.1, but rather as an underlying general principle for the purpose of Article 7.2.