International contracts and choice of law—Dutch courts will not apply the CISG on their own motion on appeal (Willemen v Jura)

Article summary

Arbitration analysis: It is not often that the Dutch Supreme Court renders a principled decision on the application of the UN Convention on Contracts for the International Sale of Goods (CISG). The Dutch Supreme Court did so in a judgment issued on 24 February 2023, in which it held that the CISG may not be applied by Dutch courts of appeal on their own motion (ex officio). This is an instructive ruling that gives guidance to parties invoking the CISG before the Dutch courts on the basis of a contractual choice of the law of a contracting state to the CISG. The judgment also reminds parties invoking the CISG to be very explicit on appeal about the failure of a lower court to apply the CISG. In addition, the Dutch Supreme Court took the opportunity to clarify the scope of the doctrine of mistake by ruling that a party can also...