Title:
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The conceptualisation of good faith in the CISG through a comparative study of the principle in French Law, the Shari'a,
English Law and the UCC
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This thesis carries out a conceptual analysis of good faith in the UN
Convention on Contracts for the International Sale of Goods (CISG)
through a comparative study of the principle in French law, the Shari'a,
English law and the US Uniform Commercial Code (UCC). The CISG was
developed with the aim of establishing a uniform law to be applied to
contracts for the international sale of goods. Nevertheless, one of the
fundamental issues affecting the successful application of the Convention
is the divergent interpretation and application of its provision on good faith
by national courts and arbitral tribunals. This is mainly due to the lack of a
harmonised conceptualisation of good faith at an international level under
the CISG. Therefore, this thesis addresses this particular issue of the
application of a harmonised application of good faith under the
Convention.
This issue was approached in this thesis through a conceptual study of
the principle by using a comparative analysis, as the CISG is the
construct of a comparative study. The chosen legal systems for this
comparative analysis have had an important impact on the drafting and
development of the CISG. In its comparative analysis, this thesis shows
that good faith is commonly understood as reasonableness and that its
main role across the studied legal systems is as an implied term used to
interpret the contract. Upon the application of the comparative results of
the study against the context of the CISG, this thesis identifies that a
harmonised application of good faith under the Convention is possible. In
this regard, it is shown in this thesis that good faith under the CISG
amounts to what is considered to be commercially reasonable conduct
and that it is measured against the standard of the reasonable person.
Also, based on the comparative analysis carried out, this thesis concludes
that the common approach towards good faith in the CISG would be to
apply it to the interpretation of the Convention. Therefore, this thesis
makes a conceptual contribution to the harmonisation of the principle of
good faith in the CISG and offers tools for other scholarly work that
relates to the concept of good faith and its harmonisation or uniformity.
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