Conformity of Goods and Documents by Djakhongir Saidov

Author:Djakhongir Saidov
Language: eng
Format: epub
Publisher: Bloomsburry
Published: 2015-08-15T00:00:00+00:00

D. Legal Nature of Public Law Regulations and the Reality of their Enforcement

In New Zealand Mussels, the regulations issued by the relevant authorities in the buyer’s country were not binding and were in the nature of a recommendation. It was not necessary to decide whether that would have had any bearing on allocating the responsibilities between the parties because the seller was found not to have had a duty to comply with those regulations. Nevertheless, the question, which is relevant not only under Article 35(2)(a) but also under Article 35(2)(b) and Article 35(1) is this: if the regulations in the country of use are in principle found to be applicable, should their legal nature and the question of how rigorously they are in fact enforced have any bearing on determining the content of the seller’s conformity obligations? Some domestic legal systems, for example, are sensitive to these matters and would give an affirmative answer.178 The Convention’s experience thus far is tentatively pointing in the opposite direction. Although the issue did not arise directly in New Zealand Mussels, this decision may be seen as implying that had the regulations been applicable, the seller would have been deemed to be liable notwithstanding their recommendatory nature. This issue arose more directly in another case ( Rynpoort Trading) 179 where the Dutch seller of flour containing potassium bromate, which was banned in the European Union and under the international standards adopted by both the Netherlands and the importing country, Mozambique, pointed to the fact that the import of the banned potassium bromate was de facto permitted by the authorities in Mozambique. This point was reinforced by the approval of the goods by a government appointed company after its pre-shipment inspection. That argument was dismissed, with the reality surrounding the application of the formal laws ignored for the purpose of a legal analysis.

The case where formal law is not strictly enforced is analogous to that where the regulations are recommendatory, since in both cases there may be a reasonable expectation that the relevant standards do not always have to materialise. A preferable view is that neither the regulations’ legal nature nor how they are actually applied in practice can be ignored in defining the seller’s obligations. The broad nature of the Convention’s rules on conformity and the Convention’s demand for identifying the parties’ reasonable expectations in the light of the circumstances dictate that these factors be taken into account.180 The nature of the regulations and how they are enforced in reality are part of the background against which parties operate and against which reasonable expectations should be inferred. That does not mean that a mere fact that regulations are advisory in nature will necessarily absolve the seller from what would otherwise be its duty to comply with those regulations. The issue depends on the circumstances. If, for example, it can be demonstrated that all respectable traders in the industry are expected to comply even with those regulations which are only recommendatory, and that their business

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