INTRODUCTION

Article 13 of the CISG, defining a writing, raises particular questions of interpretation given the technological advances that have occurred since its drafting in 1980. CISG Article 13 states that

From both a common-sense and a syntactical approach, this provision must be interpreted flexibly because of the use of “includes” and the omission of paper and ink.

Because of this demand for flexibility, there are many reasons for looking at the application of the UNIDROIT Principles of International Commercial Contracts to the interpretation of Article 13 CISG. Principles Article 1.10 uses a functional approach to define writing:

These stark differences in definitional style reflect not a different philosophy of drafting, but different technological environments at the time of drafting. The Principles, after all, define “court” not as an organization that “means” something, but as it “includes an arbitral tribunal.” By 1994, however, electronic commerce had grown in types of media and significance and was becoming a growth area in the law. Thus, listing examples of “writing” or even of electronic commerce could only have been doomed to obsolescence by the time of drafting of the Principles. Not only had facsimile, electronic data interchange, the Internet, and e-mail come into common use but also combinations of services were appearing; the development of new products was inevitable.