Recovering Attorneys'Fees Under the U.N. Sales Convention
Harry M. Fletcher 0
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Recommended Citation Harry M. Fletcher, Recovering Attorneys' Fees as Damages under the U.N. Sales Convention (CISG): The Role of Case Law in the New International Commercial Practice, with Comments on Zapata Hermanos v. Hearthside Baking, 22 Nw. J. Int'l L. & Bus. 121 (2001-2002)
Part of the Contracts Commons; International Law Commons; and the International Trade
Convention (CISG): The
Role of Case
Law in the
Practice, with Comments on Zapata
Harry M. Flechtner*
The challengefacing the CISG is no less than the manufacture of a legal culture
to envelope it before the centrifugalforces ofnationalisttendency take over.1
* Professor of Law, University of Pittsburgh School of Law. A.B. 1973, Harvard
College- A.M. 1975
, Harvard University; J.D. 1981, Harvard University School of Law. I wish
to thank Professor Dr. Thomas M.J. M611ers of the University of Augsburg, Germany,
Professor Vivian Curran of the University of Pittsburgh School of Law, and Mr. Sven Kill,
LL.M. 2001, University of Pittsburgh, without whose generous assistance the discussion of
German decisions herein would have been, in the most literal sense, impossible. Any errors
in that discussion, however, are certainly the author's responsibility. I also wish to thank the
faculty of Loyola University New Orleans School of Law, and Professor Henry Gabriel in
particular, whose patience and insightful comments at a faculty colloquium on the topic of
this article were enormously valuable. Finally, I wish to thank University of Pittsburgh law
students Jamie Hudson and Jason Logue for their intelligent and professional assistance in
preparing this article.
1Michael R. Bridge, The Bifocal World of InternationalSales: Vienna and Non-Vienna,
in MAKING COMMERCIAL LAW: ESSAYS IN HONOUR OF Roy GOODE 288 (Ross Cranston ed.,
The United Nations Convention on Contracts for the International Sale
of Goods ("CISG"),2 which has garnered an impressive array of
ratifications from a geographically, politically and economically diverse group of
countries, 3 is the presumptive law
worth billions of dollars.4
governing international transactions
Its proper interpretation, therefore, is a
significant concern for courts and arbitral panels around the world. Crucial for the
task of interpretation is CISG Article 7(1), which mandates that the
Convention be interpreted with regard for "its international character and ...the
need to promote uniformity in its application and the observance of good
faith in international trade," 5
Many commentators and several courts have
declared that Article 7(1) demands that those charged with construing the
Convention take into account decisions by tribunals from other legal
systems that have had occasion to interpret the CISG.6
Reference to decisions
2 United Nations Convention on Contracts for the International Sale of Goods, Apr. 11,
1980, S. TREATY DOC. NO. 98-9 (1983), 19 I.L.M. 668 (1980) [hereinafter "CISG" or
"Convention"] (entered into force on Jan. L.,1988), available in 15 U.S.C.A. app. at 49
(West Supp. 1996), 52 Fed. Reg. 6262-80, 7737 (1987), U.N. DOC. A/CONF. 97/18 (1980).
3At the time this is written, 57 countries have ratified the CISG. Status of Conventions
and Model Laws, Website of the United Nations Commission on International Trade Law
(UNCITRAL), at http://www.uncitral.org/en-index.htm (last visited Jan. 3, 2001)
[hereinafter Status of Conventions]. These 57 "Contracting States" include large developed
economies such as the United States and the largest economies of Western Europe (but notably
excluding Japan and the U.K.), developing economies such as Burundi and Mongolia, and
formerly-centralized economies such as China, the Russian Federation, and many
nowindependent former members of the Soviet Union and the Warsaw Pact. There are
Contracting States located in the Northern, Southern, Eastern and Western hemispheres - indeed, on
all six inhabited continents. As for political diversity, a trade-related convention that can
attract ratifications from Cuba, Iraq and the United States has accomplished something
4See Michael G. Davies, InternationalSale of Goods: Do Not Ignore United Nations
Convention, N.Y.L.J., Sept. 20, 1999, at S1 (noting the "billions of dollars of foreign trade
between the U.S. and the CISG's other signatory nations"). Under Article l(1)(a), the
Convention applies to international contracts for the sale of goods if both parties are located in
countries that have ratified the treaty ("Contracting States"). See Status of Conventions,
supra note 3. Under Article l(l)(b), it also applies to international sales contracts, regardless
of where the parties are located, if the rules of private international law (i.e., choice of law
rules) lead to the application of the law of a Contracting State - although five states (China,
the Czech Republic, Singapore, Slovakia and the U.S.) have made a declaration that they are
not bound by Article l(l)(b). See Harry M. Flechtner, The Several Texts of the CISG in a
DecentralizedSystem: Observationson Translations,Reservations and Other Challenges to
the Uniformity Principle in Article 7(1), 17 J.L. & COM. 187, 195-96 (1998) [hereinafter
"Several Texts "].Itis thus clear that the Convention governs a vast number of international
sales, unless (as permitted by Article 6) the parties opt out of the CISG in favor of other law.
5CISG, supra note 2, art. 7(1).
6 See, e.g., JOHN 0. HONNOLD, UNIFORM LAW FOR INTERNATIONAL SALES UNDER THE
by tribunals from outside the jurisdiction of the interpreter is a particularly
valuable tool to combat what is probably the most significant threat to the
values embraced in Article 7(1) - the temptation to project the familiar rules
of one's own national legal system onto the Convention's provisions, a
nomenon that a leading CISG scholar has termed the "homeward trend.",
Thus, for a commercial lawyer grounded in the domestic commercial
laws of his or her own country (like myself), the Convention creates a brave
new world in which one must discover and understand foreign decisions in
unfamiliar languages decided according to alien legal systems in order to
apply provisions that, through the treaty ratification process, are part of
one's own national commercial legal system. This represents a new
international commercial practice, arising out of treaties like the CISG that
attempt to bring uniformity to the rules governing international trade, and it
already confronts (and surely should terrify) practitioners, judges, and even
the unwary academic who wanders too close to the international business
This new and difficult type of practice raises many questions. How
does one obtain information on foreign cases that have interpreted the
Convention, particularly when such decisions are in unfamiliar languages?
How can one understand and account for the differences in procedural
context and background law that inevitably influence decisions? Perhaps the
most fundamental question concerns the precise role that foreign decisions
should play in CISG jurisprudence. It is easy to assert in the abstract that
giano, The Experience of Latin American States, in INTERNATIONAL UNIFORM LAW IN
PRACTICE/LE DROIT UNIFORM INTERNATIONAL DANS LA PRATIQUE [Acts and Proceedings of
the 3rd Congress on Private Law held by the International Institute for the Unification of
Private Law (Rome 7-10 September 1997)] 47 (1988) ("Uniform law requires ...a new
common law" in which "[floreign precedents would not be precedents of a foreign law but
of uniform law"). As Professor Honnold (among others) has noted, foreign scholarly
commentary is also an important tool for achieving uniformity. Id. Exploration of the role of
foreign scholarly commentary, however, is beyond the scope of this article.
' John 0. Honnold, General Introduction, in DOCUMENTARY HISTORY OF THE UNIFORM
LAW FOR INTERNATIONAL SALES: THE STUDIES, DELIBERATIONS AND DECISIONS THAT LED TO
THE 1908 UNITED NATIONS CONVENTION WITH INTRODUCTIONS AND EXPLANATIONS 1, 1
(John 0. Honnold ed., 1989) [hereinafter "DOCUMENTARY HISTORY"]. See also John 0.
Honnold, The Sales Convention in Action B Uniform InternationalWords: Uniform
Application?, 8 J.L. & CoM. 207, 208 (1988) (noting "the tendency to think that the words we see
[in the text of the CISG] are merely trying, in their awkward way, to state the domestic rule
we know so well"). One might argue that the more "foreign" a tribunal is, the more valuable
its decisions are in combating the homeward trend. Thus to a common lawyer, reference to
decisions from civil law tribunals would arguably be more useful in maintaining an
international perspective and promoting uniformity in interpreting the CISG than would be
reference to decisions from other common law jurisdictions.
the demands of uniformity require lawyers and judges to take into account
foreign decisions, but what does that mean in real cases?
One commentator has suggested that CISG decisions should bind the
courts of other jurisdictions as a matter of stare decisis.' This suggestion
has been criticized, mainly because of the untoward consequences it would
produce. 9 Certainly it could lead to undesirable consequences if an
unappealed decision by a country's lowest-level trial court became precedent
binding on tribunals throughout the world, simply because it happened to be
the first decision on a CISG question. Even a decision rendered by the
highest court of a jurisdiction could not be deemed authoritative
internationally without generating an unseemly (and potentially harmful) rush to
be the first to pronounce on an issue. Thus it seems clear that, although
CISG case law should have influence beyond the borders of the tribunal
making the decision, existing CISG decisions should not be binding on
courts of other jurisdictions. This answer, however, raises a very difficult
question: exactly what authority should foreign case law be deemed to
possess in CISG jurisprudence?
Several decisions by European tribunals confront U.S. courts and
attorneys with an interesting test case on this issue. These decisions,
originating mostly (but not exclusively) in German fora, appear to award a
prevailing litigant compensation for attorneys' fees incurred in the course of
the dispute, and they do so not on the basis of a "loser-pays" principle in the
tribunal's own domestic law, but rather on the authority of the damages
provisions of the CISG itself. The issue that these cases raise is whether
U.S. courts should also be awarding damages to cover a prevailing litigant's
attorneys' fees in disputes governed by the Convention.
The initial challenge in confronting this issue is to obtain a clear
understanding of those foreign decisions that have awarded CISG damages for
attorneys' fees - a step that turns out to be surprisingly difficult. Part II of
this article will recount my struggles with this challenge, drawing some
lessSee Larry A. DiMatteo, The CISG and the Presumption of Enforceability: Unintended
ContractualLiability in InternationalBusiness Dealings, 22 YALE J. INT'L L. 111, 136, 167
"The Convention envisioned the use of an informal system of stare decisis to help
ensure uniformity of interpretation .... The drafters envisioned that the national
trial courts called on to interpret the Convention would act as informal
international appellate courts.... The uniformity of decision mandated by the CISG
requires U.S. courts to apply foreign decisions over conflicting domestic decisions..
See also Larry A. DiMatteo, An InternationalContractLaw Formula: The Informality of
InternationalBusiness TransactionsPlus the Internationalizationof ContractLaw Equals
Unexpected ContractualLiability, L=(ii), 23 SYRACUSE J. INT'L L. & CoM. 67, 79 (1997)
(asserting that the CISG demands a system of "supranational stare decisis").
9See Ferrari, CISG Case Law, supra note 6, at 259; Flechtner, Several Texts, supra note
4, at 211.
RecoveringAttorneys' Fees Under the U.N. Sales Convention
sons for the emerging practice of transnational commercial law based on
uniform international law instruments.
The conclusion I ultimately draw is that, although the holdings of
individual cases are ambiguous, as a group the relevant foreign decisions
clearly sanction an award of CISG damages to cover attorneys' fees that
would not normally be compensable under U.S. national law.
As I discuss in Part III of the article, the firmly-established "American
rule" on recovery of attorneys' fees is that, in the absence of a statutory or
contractual provision to the contrary, each party to a dispute must bear his
or her own attorneys' fees. A line of U.S. cases construing Article 2 of the
U.C.C. strongly suggests that the provisions of the CISG would nut trigger
the statutory exception to the American rule under the usual approach
employed by U.S. courts. Thus if the damage provisions of the Convention
appeared verbatim in domestic U.S. legislation, it is quite unlikely that U.S.
courts would interpret them in the same way as have foreign tribunals.
The CISG, however, is not purely domestic U.S. legislation. It is,
instead, a multi-party international convention that creates treaty obligations
on the part of the U.S., including the obligation under Article 7(1) to
interpret the Convention in a fashion that reflects its "international character"
and that promotes "uniformity in its application."'10 In Part IV of the article
I turn to the ultimate question of how a U.S. court should comply with these
obligations when confronting a claim that the CISG authorizes damages to
cover an aggrieved party's attorneys' fees. A key issue is the extent to
which U.S. courts (and other tribunals, both U.S. and foreign) should be
influenced by the line of foreign decisions that interpret the damage
provisions of the CISG to require a losing party to pay attorney costs of the
prevailing party. Resolving this specific issue requires development of
more generalized criteria for determining the authority that particular
foreign decisions should have in CISG jurisprudence. I attempt to identify
factors relevant to this determination and apply them to existing decisions
awarding attorneys' fees as CISG damages. Demarcating the authoritative
force of foreign decisions awarding attorneys' fees as damages under the
CISG, however, does not provide a final answer to the question of how U.S.
courts should resolve the issue. The last part of Part IV of the paper is
devoted to that substantive question, concluding that the Convention should
not be interpreted to provide for recovery of attorneys' fees as damages.
10CISG,supra note 2, art. 7(1).
II. CISG DECISIONS ON THE RECOVERY OF ATTORNEYS' FEES
A. The Theory for Recovering Legal Expenses under the Convention
CISG Article 74 permits an aggrieved party to recover damages "equal
to the loss, including loss of profit, suffered ...as a consequence of the
breach," provided that the loss is one that "the party in breach foresaw or
ought to have foreseen at the time of the conclusion of the contract ..a.s a
possible consequence of the breach of contract."'" The damages provided
for in Article 74 include, inter alia, what U.S. law would label
consequential damages.1 2 Because the CISG is an internationalconvention, however,
Article 74 damages are not confined to consequential damages as defined
by U.S. law.1 3 One can, therefore, plausibly argue that legal expenses
incurred by a party who succeeds in proving that the other side has breached a
sales contract governed by the CISG are recoverable Article 74 damages
because they constitute "a loss ...suffered ...as a consequence of the
breach," and such a loss would have been foreseeable at the time the
contract was formed. This, in fact, is the reasoning of the foreign cases that
have awarded damages to cover attorney costs of an aggrieved party.
If these cases have interpreted Article 74 correctly, U.S. courts hearing
disputes concerning transactions governed by the CISG should take the
same approach, despite the usual U.S. rule that each party to a dispute bears
the cost of its own attorneys. In other words, if those foreign cases are
correct, then the U.S., by ratifying the Convention, enacted new and different
rules on recovering attorneys' fees in international sales transactions subject
to the CISG, and its courts would be obligated by Article 7(1) to adopt the
proper uniform international interpretation of those rules. Similarly, arbitral
tribunals dealing with transactions governed by the Convention should
award damages to cover the attorneys' fees of a party who proves the other
side is in breach even if the tribunal would not have done so under its own
arbitration rules. Given the significant change such an approach would
make to the usual results under U.S. law and, in some cases, to the
consequences of arbitration, it is vital to determine whether the foreign cases
awarding CISG damages to cover attorneys' fees are correctly decided. It is
also vital to determine what deference these foreign decisions are due in
light of the mandate of Article 7(1) - in other words, should a court or
arbitral panel that disagrees with the construction of Article 74 in these cases
11CISG, supranote 2, art. 74.
12 See Harry M. Flechtner, Remedies under the New InternationalSales Convention: The
Perspectivefrom Article 2 of the U.C.C., 8 J.L. & CoMM. 53, 97, 106 (1988).
13See Franco Ferrari, CISG Case Law: A New Challengefor Interpreters?, 17 J.L. &
CoM. 245, 246 & nn.9-12 (1998) (pointing out a scholarly consensus that the CISG should
be interpreted "autonomously").
nevertheless follow it in order to promote uniformity and an international
perspective in the application of the Convention? Thus the question
whether a prevailing litigant's attorneys' fees are recoverable as damages
under the CISG plunges us into the general issue of the proper treatment of
foreign decisions interpreting the Convention.
The challenges that I faced in dealing with foreign decisions awarding
CISG damages for attorneys' fees are illustrative of the obstacles any U.S.
lawyer faces in working with foreign case law. Language differences are a
very significant difficulty. Despite the appearance of an impressive array of
tools designed to make CISG decisions accessible, in English, to lawyers
and judges around the globe, 14 foreign opinions present inevitable
ambiguities and complexities. These problems are compounded by the unfamiliar
legal systems in which the foreign tribunals work. Procedural context, of
course, is crucial to the meaning of a case. Attempting to understand an
opinion in a foreign language decided in a foreign procedural system can be
like trying to read in dim light while wearing sunglasses.
English translations or summaries of at least seven foreign decisions
that appear to award damages for the prevailing party's attorneys' fees have
appeared in widely-available sources of information on CISG case law.
Four of these decisions emanate from German courts, one from a German
arbitral tribunal, one from a Swiss court working in German, and one from
a French arbitration panel whose opinion was issued in English. In each
case, it is clear that the tribunal awarded or claimed authority to award
CISG damages to cover legal costs of the prevailing party, but it is not
always clear exactly what those costs included.
A July 11, 1996 opinion of the Oberlandesgericht of Duisseldorf,
Germany ("OLG Dtisseldorf'), a regional court of appeal, is illustrative.
English abstracts of this opinion are available from two sources - Unilex, a
commercial computer database of CISG materials containing a wide variety
of court and arbitral decisions with English summaries,"5 and Case Law on
14These resources include a commercial database of CISG materials ("Unilex"), world
wide websites devoted to the CISG (including a website maintained by the Pace University
Institute of International Commercial Law), and "Case Law on UNCITRAL Texts"
("CLOUT"), a service sponsored by the United Nations Commission on International Trade
Law (UNCITRAL) that collects CISG decisions from the various states that have ratified the
Convention. These resources are described in more detail below. For an ambitious program
to make full texts of CISG decisions available in English, see Taming the Dragons of
Uniform Law Case Law: Sharingthe Reasoning of Courts and Arbitral Tribunals,available at
15 INTERNATIONAL CASE LAW AND BIBLIOGRAPHY ON THE 1980 UN CONVENTION ON
CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS ("UNILEX") D1996-9 AT 355
(Michael J. Bonell ed., Transnational Juris 1997) [hereinafter "Unilex Database"].
UNCITRAL Texts ("CLOUT"), a service of the arm of the U.N. that
sponsored the Convention. 6 The CLOUT abstract appears on the website for
UNCITRAL"7 as well as on the CISG website of the Pace University
Institute of International Commercial Law.'8 According to the English abstracts
of the case, a German seller brought suit to recover the price of lawn mower
engines that it had delivered to an Italian buyer, and the buyer asserted a
set-off claim for damages based on the seller's failure to make further
deliveries of engines. The court rejected the buyer's argument and awarded
the seller the full purchase price of the delivered engines. The English
abstracts make it clear that the seller also recovered damages under CISG
Article 74 for attorney costs. The CLOUT abstract, however, describes the
damage award as limited to "attorney fees for a reminder [i.e., a formal
request to the buyer for payment] that was sent prior to the lawsuit," whereas
the Unilex summary indicates that the seller recovered the "full legal costs
[the seller] sustained, including [but apparently not limited to] the costs for
the non-judicial request of payment to the buyer."' 9 An abridged version of
the original German text of the opinion is available on Unilex (the original
version is also available, upon request, through CLOUT), but my one-year
of college German (used sporadically in the more than 25 years since) was
not sufficient to clarify the holding of the case.
Fortunately, I had access to several sources proficient in German,
including my University of Pittsburgh Law School colleague, Professor
Vivian Curran, an expert on foreign languages and the law, and Sven Kill, a
student from Augsburg, Germany in the LL.M. program at my home
institution. With their help, I determined that the CLOUT summary appears to
be more accurate - i.e., the court awarded damages under CISG Article 74
to cover only the aggrieved seller's expenses for a pre-litigation notice sent
to the buyer, and not the full legal expenses that the seller incurred in the
course of the litigation. It was not clear from the edited version of the
original German opinion available through Unilex whether the seller used
16As established by UNCITRAL, the CLOUT system involves "national correspondents"
who track judicial decisions construing the CISG (and other UNCITRAL-sponsored uniform
laws) by courts in their home states. The national correspondents send the full text of such
decisions to UNICTRAL, which then makes these decisions accessible by preparing and
publishing abstracts or full translations in official languages of the U.N. The CLOUT
abstracts are available in hard copy or at UNCITRAL's web site, available at
17United Nations, Commission on International Trade Law; Case Law on UNCITRAL
Texts, U.N. Doc. A/CN.9/SER.C/ABSTRACTS/12 (1997), available at
http://www.uncitral.org/english/clout/abstract/abstl2.htm [hereinafter "CLOUT Abstract of
July 11, 1996 Decision"]. The abstract appears as case number 169.
18Decision of July 11, 1996, Oberlandesgericht Diisseldorf (Germany), No. 6 U 152/95,
availableat http://cisgw3.law.pace.edu/cases/96071 gl .html.
19 See Unilex Database, supra note 15; CLOUT Abstract of July 11, 1996 Decision,
supra note 17.
other law (e.g., domestic German law) to recover the fees its lawyers
charged for the actual litigation. With the generous help and guidance of
Professor Dr. Thomas M.J. Mbllers of the University of Augsburg,
Germany - a colleague and friend who visited my home institution while I was
writing this paper - I wrote the OLG Dfisseldorf and obtained an
unabridged version of the decision. It revealed (to Mr. Kill, and through him,
to me) that, while the court awarded damages under CISG Article 74 for
attorneys' fees charged for the seller's pre-litigation notice, it also awarded
the seller compensation for the litigation fees of its attorneys under the
"loser-pays" rule of the German Code of Civil Procedure20 (as opposed to
the damage provisions of the CISG). Mr. Kill suggested that the court may
have been motivated to award CISG damages to cover the cost of the
prelitigation notice because such costs would be beyond the scope of the
recovery afforded by the domestic "loser pays" rule in Germany, and
prelitigation attorney expenses would be characterized as substantive damages
under German national sales law.
Thus, after considerable effort, I was able to determine that the July
1996 decision of the OLG Dfisseldorf stands for the proposition that
damages under CISG Article 74 encompass compensation for pre-litigation
attorney expenses of the aggrieved party, but it apparently does not hold that
attorneys' fees for the litigation itself are recoverable as CISG damages.
This holding, although narrower than I thought when I first read the English
abstracts of the case, nevertheless presents a challenge to U.S. courts,
because pre-litigation attorneys' fees of the type covered by the German
court's award are generally not compensable under the traditional American
Other German decisions appear to make a similar distinction between
pre-litigation lawyer costs, which (the cases hold) are recoverable as
damages under CISG Article 74, and attorneys' fees for conducting the
litigation itself. One such case is a 1993 decision of a German trial-level court,
the Landgericht Krefeld, which generated a 1994 opinion on appeal by the
OLG DUsseldorf.2 2 In this case, an Italian shoe seller declared a sales
contract avoided pursuant to CISG Article 72 after the German buyer failed to
pay for an earlier delivery of shoes under a different contract and then failed
20 Section 91(1) of the German Code of Civil Procedure ("ZPO") provides: "The losing
party bears the costs of the lawsuit ...." [English translation from the Award of March 21,
1996 and June 21, 1996, Schiedsgericht der Handelskammer, Hamburg (Germany)], 22 Y.B.
COM. ARB. 35, 44 n.35 (1997).
21 See the discussion of the American rule in Part III of this paper.
22 Decision of April 28, 1993, Landgericht Krefeld (Germany), No. 11 0 210/92, English
Abstract appearing in Unilex, affirmed in part and reversed in part in Decision of January 14,
1994, Oberlandesgericht Disseldorf (Germany), No. 17 U 146/93, English Abstracts
appearing in Unilex and CLOUT. The CLOUT Abstract No. 130, abstracting the Decision of
January 14, 1994, Oberlandesgericht Ddsseldorf (Germany), No. 17 U 146/93, available at
http://cisgw3.law.pace.edu/cases/9401 14g 1 html.
to respond to a request for assurance of payment under the second contract.
According to the Unilex abstract of the decision - the only English
language version available - the trial court awarded the seller damages under
CISG Article 74 to cover the seller's "legal fees in Germany arisen until the
avoidance of the contract." A check of the original text (interpreted, again,
with the aid of Mr. Kill) clarified that the court awarded Article 74 damages
only for attorneys' fees incurred in making a formal demand for payment to
the buyer, and in giving the buyer notice of avoidance.23 The seller was
compensated for attorney costs incurred during the course of litigation
under §§ 92 and 269 of the German Civil Procedure Code (ZPO). Thus the
trial court's award of Article 74 damages did not encompass the seller's
attorneys' fees in litigating the dispute, but only covered certain pre-litigation
lawyer costs. On appeal, the OLG Dtlsseldorf agreed that attorney costs
were theoretically recoverable as damages under CISG Article 74, but it
overruled the lower court's award of such damages because, according to
the CLOUT Abstract of the decision, "in the present case this would lead to
double compensation as the attorney had demanded his costs already in the
special procedure for fixing costs." In other words, the seller's lawyer had
availed himself of the regular procedure for recovering attorneys' fees
under the "loser pays" rule of German domestic procedure law, and the court
considered that any further compensation for lawyer expenses would
amount to a double recovery (apparently even if the pre-litigation expenses
for which the lower court awarded damages were not covered by the
domestic loser-pays rule).24
A 1995 decision by a German trial court, the Amtsgericht Alsfeld,25
also supports the distinction, for purposes of awarding CISG damages,
between pre-litigation lawyer costs and attorneys' fees incurred for the
litigation itself. In this case, a German buyer had contracted to purchase tiles
from an Italian seller. The contract was concluded at a "market fair" (an
exhibition?) with a "standhostess" who worked at the seller's exhibition booth
but who, apparently, was not an employee of the seller. The buyer paid the
contract price to the standhostess, but the standhostess did not forward the
money to the seller. The seller employed an Italian attorney to draft a
demand for payment from the buyer. When the buyer failed to respond, the
seller sued in Germany to recover the purchase price of the tiles (which the
court granted the seller) along with damages for attorneys' fees. Although
23 The relevant portion of the original opinion specifies that the court awarded Article 74
damages for "die Anwaltskosten im Zusammenhang mit der Androhung und Erkliarung der
24 1 am once again indebted to Professor Mbllers for help in obtaining the full text of the
original German opinion of the OLG, and to Mr. Kill for guidance in interpreting it.
25 Decision of May 12, 1995, Amtsgericht Alsfeld (Germany), No. 31 C 534/94, English
abstract and original German text on Unilex, available at
RecoveringAttorneys'Fees Under the U.N. Sales Convention
the Unilex abstract is somewhat ambiguous on this point, examination of
the original German opinion confirms that the seller sought CISG damages
only for the costs of the demand letter by the Italian attorney. The court
denied damages for this expense, holding that the seller violated the
mitigation of damages principle in Article 77 of the CISG because the seller
"should have done it through its German attorney who then filed the suit in
the German court." The court's reasoning, however, implies that the seller
would have recovered damages under the CISG for the Italian attorney's
fees had the mitigation principle not been violated. At any rate, because the
seller prevailed in its main argument for recovering the price of the goods,
the court ordered the buyer to pay the seller's litigation-related attorneys'
fees under § 91 of the German Code of Civil Procedure (ZPO).
In a 1996 decision, a German trial court, the Amtsgericht Augsburg,
awarded a Swiss seller interest on the German buyer's late installment
payment for a delivery of shoes. 26 According to the Unilex abstract of the
case, "[t]he Court further awarded damages for the legal costs incurred by
the seller., 2' The edited version of the original German text available in the
Unilex report on the case is equally non-specific, although it does clearly
refer not just to general legal costs but also specifically to attorneys' fees
("Anwaltskosten"). 2' The full version of the original decision reveals,
however, that the damage award was limited to pre-litigation attorneys' fees,
whereas compensation for attorneys' fees incurred during the course of
litigation was awarded under the domestic German loser-pay's provision (§§
92(1) and 344) of the Civil Procedure Code (ZPO).
On the other hand, several foreign decisions appear to award CISG
damages to cover the prevailing party's attorneys' fees incurred during the
course of the litigation. The clearest of these decisions was rendered by an
arbitral tribunal in Hamburg, the Schiedsgericht der Handelskammer. The
tribunal found in favor of a Hong Kong seller seeking to collect the price of
delivered goods from a German buyer in a transaction governed by the
CISG.29 In a separate opinion on costs, the tribunal held that, under Article
74 of the CISG, the buyer was liable to the seller in damages for the seller's
legal expenses.3 ° Although the English abstracts of the opinion from both
26 Decision of January 29, 1996, Amtsgericht Augsburg (Germany), no. 11 C 4004/95,
English abstract and original text on Unilex, available at
27 The Unilex abstract is the only English-language source on this aspect of the case.
28 "DarUber hinaus hat nach den genannten Bestimmungen der Beklagte der Klagerin die
Anwaltskosten als Verzugsschaden zu ersetzen."
29 Decision of March 21, 1996, Schiedsgericht der Handelskammer Hamburg (Germany),
abstracted in English as part of CLOUT Abstract no. 166, available at
http://cisgw3.law.pace.edu/cases/960321g1.html; English abstract and original text in
Unilex; full English translation available at 22 Y.B. COMM. ARB. 35, 35-43 (1997).
30 Decision of June 21, 1996, Schiedsgericht der Handelskammer Hamburg (Germany),
abstracted in English as part of CLOUT Abstract no. 166, available at
CLOUT and Unilex are rather vague on this point, a full English translation
of the opinion published in the Yearbook CommercialArbitration makes it
clear that the tribunal awarded the prevailing seller compensation for
attorneys' fees incurred in the course of arbitrating the dispute.31 The tribunal's
reasoning is not fully captured in the case abstracts, and can be gathered
only from the translation of the full opinion. The tribunal's award of
damages under CISG Article 74 to cover the prevailing seller's legal expenses
was an alternative holding. The primary grounds for granting an award to
cover the seller's legal fees - grounds discussed at far greater length than
the holding based on CISG Article 74 - was an interpretation of the parties'
contract as including an implied term requiring a breaching party to pay
such compensation. The tribunal's willingness to imply such a term, in
turn, was based on the fact that domestic procedural law in the home
jurisdictions of the respondent and the tribunal (Germany) and of the claimant
(Hong Kong, still a British colony at the time the transaction was entered
into) adopted a "loser pays" approach.3 2 Presumably, those loser-pays rules
did not directly apply to arbitration proceedings, necessitating the tribunal's
resort to an implied contractual loser-pays provision or, alternatively, CISG
damages to cover the prevailing party's legal costs.
http://cisgw3.Iaw.pace.edu/cases/960621gl.html; English abstract and original text in
Unilex; full English translation available at 22 Y.B. COMM. ARB.35, 43-50 (1997)
[hereinafter "CLOUT Abstract no. 166"].
31According to the CLOUT abstract, the panel "held that the [seller] could claim its
attorney's fees for the arbitration proceedings as damages, according to Articles 61 and 74
CISG." CLOUT Abstract no. 166, supra note 30. The Unilex abstract of the opinion states,
"The Arbitral Tribunal had to decide on reimbursement by the buyer of the costs for legal
assistance sustained by the seller. The Tribunal held that the parties were entitled to
reimbursement of extrajudicial costs incurred for legal assistance." The reference to
"extrajudicial costs" in the Unilex abstract is somewhat confusing. That is also the phrase used in the
full English translation of the decision, 22 Y.B.. COMM. ARB. 35, 43-50 (1997). Fortunately,
the discussion appearing in the complete translation makes it clear that the tribunal was
referring to the fees of the seller's lawyers for conducting the arbitration. "Extrajudicial costs"
may refer to all costs other than direct costs of the arbitration proceeding itself, such as the
compensation of the neutral arbitrator, or it may refer to costs incurred in connection with an
arbitration as opposed to a court case.
32 The tribunal even went so far to raise the possibility (without deciding) that an
arbitration award that failed to compensate the prevailing party for its attorney costs might be
unenforceable in Germany on public policy grounds, as being in conflict with the loser pays
provision of the German Code of Procedure. Decision of June 21, 1996, Schiedsgericht der
Handelskammer Hamburg (Germany), 22 Y.B. COMM. ARB. 35, 44 (1997). The tribunal
rejected an argument that liability for the prevailing party's legal costs could be based on trade
usage, relying on the results of a contemporaneous survey that found only 55% of
respondents expected compensation for legal costs in arbitration if the arbitration agreement did not
expressly so provide.
From the viewpoint of a pure Anglophone, a 1997 decision from a
court in the Swiss Canton of Aargau3 3 is another opinion unambiguously
awarding CISG damages for attorneys' fees incurred during litigation. The
readily available information on the case, however, is sketchy. There is no
Unilex abstract of the decision, nor is the original German text of the
decision available through CLOUT or any other source easily accessible to me.
The CLOUT abstract reports that the German seller, who received a default
judgment for the purchase price of goods plus interest, also received "as
damages the legal expenses of its lawyers in Germany and Switzerland."
According to the abstract, "[t]he court stated that all costs incurred in the
reasonable pursuit of a claim are refundable, which included retaining a
lawyer in the country of each party (article 74 CISG)." Perhaps because
there is only one English abstract of the case (thus eliminating the threat of
inconsistent versions) and the original text was unavailable to me, the
decision of the Handelsgericht Aargau seems unambiguous in granting damages
under Article 74 of the CISG for all attorney costs of the prevailing party,
including the fees incurred during the actual litigation.
Finally, a 1992 opinion of the Court of Arbitration (Paris) of the
International Chamber of Commerce involving a transaction between an Italian
seller and a Finnish buyer awarded the seller damages under CISG Article
74 to cover "costs and expenses (legal costs, arbitration)., 34 Although the
language of the decision is English, it is not entirely clear what is included
within the damage award. The damages probably covered the seller's
attorneys' fees incurred in connection with the arbitration, even though the
phrase "legal costs" might conceivably be limited to filing fees and the like
and damages for the expenses of "arbitration" might cover only the
arbitrators' fees and similar items.
Reaching an accurate understanding of foreign cases dealing with
damages for attorneys' fees required a quite considerable effort, even
though I came to the task with a head start in background information and
resources. Before beginning I was already familiar with not only the CISG,
but also the English-language resources on foreign CISG cases. My school
library subscribes to the Unilex database, making it readily available to me.
Although my foreign language skills are rudimentary, I had access to
colleagues and students who were fluent in the languages of the decisions with
which I was dealing. The typical practitioner, even one with an
international practice, might well lack at least some of these advantages. The
difficulties and potential additional expense created by the fact that foreign
33Decision of December 19, 1997, Handelsgericht des Kantons Aargau (Switzerland),
No. OR.97.00056, English abstract available as CLOUT Abstract no. 254, available at
34ICC Arbitration Case No. 7585 of 1992, ICC International Court of Arbitration
Bulletin 60 (1995), full text and abstract available on Unilex, abstract available as CLOUT
Abstract no. 301, available at http://cisgw3.law.pace.edu/cases/927585il.html.
cases construing the CISG are relevant, even critical, to a proper
interpretation of the Convention is undoubtedly one reason that U.S. practitioners
continue to advise clients engaged in international sales transaction to avoid
the application of the CISG in favor of U.S. domestic sales law.35 In short,
the various resources that have developed to permit access to CISG case
law from around the world have made it possible but by no means easy to
find and understand foreign case law on a given topic.
Despite the difficulties of attempting to understand foreign case law,
and the inherent ambiguities in the opinions themselves, it is clear that a
number of non-U.S. decisions interpret Article 74 of the CISG to permit
recovery of damages for attorneys' fees that would not be compensable under
the traditional American rule on attorneys' fees. Furthermore, there is no
case, foreign or domestic, that expressly rejects this reading of Article 74.
These facts raise a crucial question: should U.S. courts grant damages under
CISG Article 74 to cover an aggrieved party's attorneys' fees even though
this would be a departure from the usual domestic U.S. law rule? To
answer this question, I will first describe the U.S. domestic rule and (despite
my lack of credentials as a comparitivist) compare it to the approach in
some civil law jurisdictions. I will then explore whether, in disputes
governed by the CISG, the existing foreign case law mandates that U.S. courts
grant damages for a prevailing litigant's attorneys' fees in order to achieve
the uniformity of interpretation required by Article 7(1) of the Convention.
In this discussion, I will attempt to identify factors that courts and
arbitration panels should use to evaluate the deference due CISG decisions from
other jurisdictions. Finally, I will inquire whether, irrespective of foreign
precedent, Article 74 should be interpreted to provide for damages to cover
a prevailing party's attorneys' fees.
III. RECOVERY OF ATTORNEYS' FEES UNDER NATIONAL LAW
The general rule in the United States is that each party to a lawsuit
bears his or her own expenses of litigation, including the costs of attorneys,
no matter who prevails in the dispute.3 6 The rule, whose origins are
some35 See V. Susanne Cook, CISGfrom the Perspective of the Practitioner,17 J.L. & CoM.
343, 349-52 (1998). Ms. Cooke notes that "[m]ost U.S. practitioners.. elect, without
hesitation and little reflection, to apply the familiar and trusted U.C.C." Id. at 349. One reason for
this attitude, she argues, is that "[a]ny case arising under CISG involves increased research
time to understand the international context of CISG ... and research prior U.S. and foreign
decisions and scholarly writing that address the issues in the case." Id. at 351 (footnotes
36 See, e.g., In re Fried Group, Inc., 218 Bankr. 247, 252 (Bkrtcy. M.D. Ga. 1998)
("Attorney's fees are generally not recoverable absent an express contractual provision or a
statutory mandate"); Indiana Glass Co. v. Indiana Mich. Power Co., 692 N.E.2d 886, 887 (Ind.
Ct. App. 1998) ("We begin with our well-settled rule that each party to litigation is
responsible for his or her own attorney's fees absent statutory authority, agreement, or rule to the
contrary"); Modine Mfg. Co. v. North East Indep. Sch. Dist., 503 S.W.2d 833, 844 (Tex.
what unclear,37 was adopted by the United States Supreme Court in 179638
and has repeatedly (and recently) been reaffirmed by the same court.3 9
Indeed, this method of dealing with attorneys' fees is known (at least in the
United States) as the "American rule., 40 , It stands in contrast to the
approach in much of the rest of the world, including most European
jurisdictions, where the general rule is that a party who prevails in litigation can
recover some or all of the costs it incurred for legal representation (as well
as other litigation costs) from the losing party - a "loser pays" or "costs
follow the events" approach. 41 The United States, however, is not alone in
requiring that each party generalX2 bear its own litigation costs. Japan has
such a system for contract cases. Thus, the two largest economies in the
world have adopted this approach for domestic sales transactions. Although
the "loser-pays" principle apparently dominates the civil law jurisdictions
of continental Europe, it is worth noting that the two different approaches
to the attorney-fees issue do not represent a common law/civil law split:
Civ. App. 1973) ("the rule previously recognized as settled law ... that attorney's fees are
not recoverable either in an action in tort or a suit upon a contract unless provided by statute
or by contract between the parties"); Devore v. Bostrom, 632 P.2d 832, 835 (Utah 1981)
("The general rule is that attorneys' fees are not recoverable unless provided by stature or
contract"). The rule is applicable to attorneys' fees incurred by one party to a contract in
litigating a dispute with the other party, and should be distinguished from the
generallyaccepted position in the U.S. that attorney costs incurred in disputes with third parties are
recoverable in a suit for breach of contract if the breach caused the aggrieved party to incur
such costs. See, e.g., Bossier Bank & Trust Co. v. Union Planters Nat'l Bank, 550 F.2d
1077, 1084 (6th Cir. 1977) (magistrate's opinion appearing as Appendix B); Devore, 632
P.2d 832, 835 (Utah, 1981). In this article, I will not deal with the issue of recovering
attorneys' fees incurred in disputes with third parties. All references in the text are to the
recovery of attorneys' fees incurred in the dispute with the party allegedly liable for such fees.
3 See John Y. Gotanda, Awarding Costs and Attorneys= Fees in
InternationalCommercialArbitrations,21 MICH. J. INT=L L. 1, 10 n.
38Id. at 11 (citing Arcambel v. Wiseman, 3 U.S. 306 (1796)).
39See Key Tronic Corp. v. U.S., 511 U.S. 809, 814-15 (1994); Alyeska Pipeline Service
lows the American rule which requires each party to litigation to pay his or her own
attorney's fees absent statutory authority, agreement, or rule to the contrary"); Gotanda, supra
note 37, at 10-11.
41 See Gotanda, supra note 37, 6-10. "Most jurisdictions allocate costs and fees in
litigation according to the principle that costs follow the event." Id. at 6. Of course there are
significant variations in the "loser pays" rules of these jurisdictions, as Professor Gotanda's
discussion points out.
42 See id. at 10 n.39 ("The practice in Japan is for the parties to bear their own expenses,
including attorneys' fees. There is an exception in tort cases, in which a prevailing plaintiff
can recover attorneys' fees and expenses as additional damage").
43European states that follow a loser-pays approach include Austria, Denmark, England,
England, the homeland of the common law, has a loser-pays system."
Indeed, in the U45nited States, the loser-pays approach is usually called "the
There are several exceptions to the American rule that parties to
litigation bear their own attorneys' fees. Under U.S. law, a successful litigant
can recover its attorneys' fees from the losing party if that result is provided
either by statute or by an enforceable contract provision between the
parties.4 The issue raised by foreign decisions permitting a prevailing litigant
to recover attorneys' fees as damages under the CISG is whether the
damage provisions of the Convention trigger the statutory exception to the
American rule. This exception has been narrowly construed. 4 In
particular, courts have generally required that a statute explicitly and specifically
authorize recovery of attorneys' fees before it will trigger the statutory
exception to the American rule. 48
The American rule on recovery of attorneys' fees, including the
statutory exception, has been applied in litigation governed by domestic U.S.
sales law. Several litigants have argued that the incidental and/or
consequential damages provisions of Article 2 of the Uniform Commercial Code
("UCC") 49 authorized recovery of damages to cover a successful claimant's
attorneys' fees. 50 None of the relevant UCC provisions specifically mention
attorneys' fees or other litigation expenses, but all include general language
44See id. at 5. Other common law jurisdictions with a loser-pays approach include
Australia and Canada. Id. at 6 n.20.
45See id. at 5 ("The practice of requiring the losing party to pay the winning party's
costs... is known as the principle that costs follow the event or the English rule").
46 See, e.g., New Amsterdam Cas. Co. v. Texas Industries, Inc., 414 S.W.2d 914, 915
(Tex. 1967) ("Attorney's fees are not recoverable either in an action in tort or a suit upon a
contract unless provided by statute or by contract between the parties."). U.S. courts have
also recognized an exception to the American rule permitting a prevailing party to recover its
attorneys' fees if the other party has engaged in bad faith behavior or other misconduct.
Gotanda, supra note 37, at 13.
47See, e.g., New Amsterdam Cas. Co., supra note 46, at 915. "Statutory provisions for
the recovery of attorney's fees are in derogation of the common law, are penal in nature and
must be strictly construed." Id.
48E.g. Olbrys v. Peterson Boat Works, Inc., 1996 U.S.App.Lexis 10100 1, 12 (1996).
(unpublished opinion noted at 81 F.3d 161). "Several Michigan Court of Appeals decisions
have found that attorney fees as an element of costs or damages are authorized only when the
language of a statute explicitly provides for them." Id. Hughes v. Bembry, 470 P.2d 151,
153 (Or. 1970). "We have adopted a narrow policy on the allowance of attorney fees and
held that they will not be allowed unless expressly authorized by a statute or a contract." Id.
41UCC §§ 2-710, 2-715(l) & 2-715(2). These and all other references to the UCC in this
article are to the 2000 Official Text promulgated by the American Law Institute and the
National Conference of Commissioners on Uniform State Laws.
50Specific litigation involving sales governed by domestic U.S. law may be subject to
special rules that authorize a prevailing party to recover attorneys' fees. For example, in
certain consumer sales actions a prevailing buyer can recover attorneys' fees under § 1 0(d)(2)
of the Magnuson Moss Warranty Act, § II0(d)(2), 15 U.S.C. § 2072.
stating that recoverable damages include expenses or losses "resulting from
the breach."5 1 Two cases decided by Michigan Courts of Appeal accepted
the argument that a prevailing buyer's incidental damages under UCC §
2715(1) encompass compensation for the buyer's attorneys' fees.5 2 These
cases, however, appear to be isolated frolics. A federal appeals court
applying Michigan law and charged with divining how the Michigan Supreme
Court would rule on the issue strongly criticized these cases, and refused to
follow them. 53 This federal decision and at least 18 other decisions
applying the law of 14 different states have rejected the argument that the
damage provisions of UCC Article 2 authorize recovery of attorneys' fees
incurred in the litigation between the parties to a sale.54
51UCC § 2-710 (seller's incidental damages include "any commercially reasonable
charges, expenses or commissions ... otherwise resulting from the breach"); UCC §
2715(1) ("Incidental damages resulting from the seller's breach include ... any other
reasonable expense incident to the delay or other breach"); UCC § 2-715(2) ("Consequential
damages resulting from the seller's breach include (a) any loss resulting from general or
particular requirements and needs of which the seller at the time of contracting had reason to
know and which could not reasonably be prevented by cover or otherwise...").
52 See Cady v. Dick Loehr's Inc., 299 N.W.2d 69, 71 (Mich. Ct. App. 1980) (holding that
UCC § 2-715(1) "confers on the trial court discretion to award attorneys' fees as an element
of the damages incurred as a result of a breach of warranty," and affirming the trial court's
award of attorneys' fees); Kelynack v. Yamaha Motor Corp., 394 N.W. 2d 17, 21-22 (Mich.
Ct. App. (1986) (following Cady). A Utah Supreme Court case holding that an aggrieved
buyer's damages under UCC § 2-715 do not encompass attorneys' fees produced a vigorous
dissent arguing that such expenses came within a buyer's incidental damages under UCC §
2-715(1). See Devore v. Bostrom, 632 P.2d 832, 836-37 (Utah 1981) (Stewart, J.,
concurring and dissenting). Lower courts have also awarded incidental damages for attorneys' fees
under the UCC only to be reversed on appeal. See Olbrys, supra note 48 (applying Michigan
law and reversing district court's award of attorneys' fees to aggrieved buyer under UCC §
2-715(1)); East Girard Savings Assoc. v. Citizens Nat'l Bank & Tr. Co., 593 F.2d 598, 604
(5th Cir. 1979) (applying Texas law and reversing district court's award of attorneys' fees to
aggrieved seller under UCC § 2-710); Brownie's Army & Navy Store, Inc. v. E.J. Burke, Jr.,
Inc., 424 N.Y.S. 2d 800, 803-04 (App. Div., 1980) (reversing lower courts' awards of
attorneys' fees to aggrieved seller under UCC § 2-710); King's Aircraft Sales, Inc. v. Lane, 846
P.2d 550, 558 (Wash. App. Div. 1993) (reversing trial court's award of attorneys' fees).
53See Olbrys, supra note 48 (holding that the Michigan Supreme Court would reject the
statutory construction of the Michigan Court of Appeals decisions that allow UCC damages
for attorneys' fees).
54See East Girard Savings Assoc. v. Citizens Nat'l Bank & Tr. Co., 593 F.2d 598, 604
(5th Cir. 1979) (applying Texas law); Bossier Bank & Trust Co. v. Union Planters Nat'l
Bank, 550 F.2d 1077, 1078 (affirming magistrate's opinion appearing as Appendix B at
1083-84) (6th Cir. 1977) (applying Tennessee law); In re Fried Group, Inc., 218 Bankr. 247,
252-53 (Bkrtcy M.D. Ga.) (applying Georgia law); Great Western Sugar Co. v. Mrs.
Allison's Cookie Co., 563 F. Supp. 430, 433 (D.C.Mo.,1983) (applying Missouri law); Jelen v.
Bandimere, 801 P.2d 1182, 1185 (Co. 1990); Florida Nat'l Bank v. Alfred and Ann
Goldstein Found., Inc., 327 So.2d 110, 111 (Ct. App. Fla. 1976); Indiana Glass Co. v. Indiana
Michigan Power Co., 692 N.E.2d 886, passim (Ct. App. Ind. 1998); Landmark Motors, Inc.
v. Chrysler Credit Corp., 662 N.E.2d 971, 977 (Ind. Ct. App.,1996); Nick's Auto Sales, Inc.
v. Radcliff Auto Sales, Inc., 591 S.W.2d 709, passim (Ky. App., 1979); Jacobs v. Rosemount
Dodge-Winnebago South, 310 N.W.2d 71, 79 (Minn. 1981) (rejects argument that UCC §
The primary reason that the vast majority of U.S. courts refuse to
award UCC Article 2 damages to cover a prevailing litigant's attorneys'
fees is that the statutory provisions in question do not provide for that result
with sufficient explicitness and particularity. 55 As one court succinctly
concluded with respect to § 2-710 of the UCC, "[t]o change the long-standin g
law in respect of attorneys fees, the statute must be much more explicit."
Another court noted that, "[h]ad the drafters of the Uniform Commercial
Code intended attorneys' fees to be included as incidental damages, they
could easily have mentioned them and no doubt would have, since the
exclusion of attorneys' fees is such a well known exception to the general rule
of damages.57 ' In short, under the usual approach of U.S. courts, statutory
damage provisions will not be construed to authorize recovery of a
successful litigant's attorneys' fees absent a specific reference to such recovery in
the express language of the statute.
715 authorizes recovery of attorneys' fees as incidental damages, but awards attorneys' fees
on basis of Minnesota Consumer Protection Act); Neri v. Retail Marine Corp., 285 N.E. 2d
311, 315 (N.Y. 1972); Brownie's Army & Navy Store, Inc. v. E.J. Burke, Jr., Inc., 424
N.Y.S. 2d 800, 803-04 (App. Div., 1980); Hardwick v. Dravo Equip. Co., 569 P.2d 588, 592
(Or. 1977); Modine Mfg. Co. v. North East Indep. Sch. Dist., 503 S.W.2d 833, 844 (Ct. Civ.
App. Tex. 1974); Devore v. Bostrom, 632 P.2d 832, 835-36 (Utah 1981); Johnson Tire
Service, Inc. v. Thorn, Inc., 613 P.2d 521, 524 (Utah, 1980); King's Aircraft Sales, Inc. v. Lane,
846 P.2d 550, 558 (Wash. App. Div. 1993); Murray v. Holiday Rambler, Inc., 265 N.W.2d
513, 527-28 (Wis. 1978).
55 See, e.g., Olbrys v. Peterson Boat Works, Inc., noted at 91 F.3d 161, opinion available
at 1996 WL 143466 at **4 -**5 (6th Cir. 1996); East Girard Savings Assoc. v. Citizens Nat'l
Bank & Tr. Co., 593 F.2d 598, 604 (5th Cir. 1979); Bossier Bank & Trust Co. v. Union
Planters Nat'l Bank, 550 F.2d 1077, 1078 (affirming magistrate's opinion appearing as
Appendix B at 1083-84) (6th Cir. 1977); Indiana Glass Co. v. Indiana Michigan Power Co., 692
N.E.2d 886, 889 (Ct. App. Ind. 1998); Hardwick v. Dravo Equip. Co., 569 P.2d 588, 592
(Or. 1977); Modine Mfg. Co. v. North East Indep. Sch. Dist., 503 S.W.2d 833, 844 (Ct. Civ.
App. Tex. 1974). The other primary argument for denying UCC Article 2 damages to cover
attorneys' fees is based on precedent. See, e.g., Olbrys v. Peterson Boat Works, Inc., noted at
91 F.3d 161, opinion availableat 1996 WL 143466 at **4 - **5 (6th Cir. 1996); In re Fried
Group, Inc., 218 Bankr. 247, 252-53 (Bkrtcy M.D. Ga.); Indiana Glass Co. v. Indiana
Michigan Power Co., 692 N.E.2d 886, 888 (Ct. App. Ind. 1998); Jacobs v. Rosemount
DodgeWinnebago South, 310 N.W.2d 71, 79 (Minn. 1981); Devore v. Bostrom, 632 P.2d 832,
835-36 (Utah 1981). One opinion, involving a claim by an aggrieved seller for damages to
cover its attorneys' fees, argued that such expenses are in the nature of consequential
damages rather than incidental damages, and that under UCC Article 2 sellers are not entitled to
recover consequential damages. See Johnson Tire Service, Inc. v. Thorn, Inc., 613 P.2d 521,
524 (Utah 1980).
56 Brownie's Army & Navy Store, Inc. v. E.J. Burke, Jr., Inc., 424 N.Y.S. 2d 800, 804
(App. Div., 1980).
57 Magistrate's opinion in Bossier Bank & Trust Co. v. Union Planters Nat'l Bank,
reprinted as Appendix B in Bossier Bank & Trust Co. v. Union Planters Nat'l Bank, 550 F.2d
1077 at 1083, 1083 (6 h Cir. 1977).
IV. DOES THE CISG, PROPERLY INTERPRETED IN ACCORDANCE
WITH ARTICLE 7(1), AUTHORIZE THE RECOVERY OF
ATTORNEYS' FEES AS DAMAGES?
The question whether the damage provisions of UCC Article 2 permit
an aggrieved party to recover its attorneys' fees as damages offers an
interesting domestic-law parallel to the issue of recovering attorneys' fees under
the CISG. It is now time, however, to return to the question that is the
focus of this paper: should a U.S. court interpret the CISG to authorize a
prevailing litigant to recover attorneys' fees as damages? Under the usual
approach employed in American law the answer clearly would be no,
because the damage provisions of the Convention do not provide for such a
recovery with sufficient specificity: Article 74 of the CISG is no more
explicit on the recovery of damages for attorneys' fees than are the incidental
and consequential damages provisions of Article 2 of the UCC (§§ 2-710
and 2-715) which have been overwhelmingly (although not quite
unanimously) interpreted not to authorize the aggrieved party to recover damages
for lawyer costs. The first question, therefore, is whether the approach that
U.S. courts have taken to resolving the attorneys' fee issue under domestic
legislation is properly applicable to the CISG, which is not purely U.S.
domestic legislation, but is a multilateral treaty intended to create uniform
international law and to be interpreted, according to CISG Article 7(1), with
regard for its "international character."
Furthermore, several foreign decisions have held that damages for a
variety of attorney costs incurred by an aggrieved party are recoverable
under Article 74 of the CISG. In keeping with the mandate of CISG Article
7(1) to interpret the Convention with regard for "the need to promote
uniformity in its application," a U.S. court must take these decisions into
account and must be careful to resist the "homeward trend" that pulls it
toward interpreting the CISG to reproduce the results under American
national law. Part IV of this article explores how these strands should be
A. The Methodology of Analysis
As has been demonstrated, U.S. courts will not interpret domestic
legislation to authorize recovery of attorneys' fees unless the law expressly and
specifically refers to such recovery. Only a statute that satisfies this special
specificity requirement 8 will trigger the statutory exception to the usual
58This specificity requirement is "special" in the sense that it is not applied to recovery of
damages for other losses caused by breach. For example, courts routinely interpret § 2-715
of the U.C.C. to permit recovery of damages for labor costs even though this item is not
specifically mentioned in the provision. See, e.g., Latex Equipment Sales & Service, Inc. v.
Apache Mills, Inc., 484 S.E.2d 274,.276 (Ga. App. 1997) ("While we have found no Georgia
cases addressing the issue, increased labor costs have been held to qualify as incidental
damAmerican rule that each party bears the expenses of his or her own lawyers.
It is also clear that the language of the relevant CISG damages provision,
Article 74, would not satisfy the specificity requirement so that, if subjected
to the usual interpretational methodology employed by U.S. courts, the
Convention would not be construed to authorize recovery of attorneys' fees.
It is equally clear, however, that the foreign decisions permitting recovery
of damages for attorneys' fees under the CISG impose no requirement that
a provision specifically refer to such recovery. The foreign cases find the
general language of Article 74 - "[d]amages for breach of contract by one
party consist of a sum equal to the loss ... suffered by the other party as a
consequence of the breach" - quite sufficient to authorize recovery of
damages for the aggrieved party's attorney costs.
When a U.S. court confronts the question whether CISG Article 74
authorizes an aggrieved party to recover its attorneys' fees, should the court
apply the specificity requirement usually imposed under U.S. domestic law?
The answer, clearly, is no. The requirement that legislation must expressly
refer to recovery of attorneys' fees is a matter of the interpretational
methodology of U.S. national law, and it is grounded in the domestic law
background of the American rule. Application of this requirement would violate
the mandate of CISG Article 7(1) that the Convention be interpreted with
regard for its "international character," as well as the resulting principle
widely recognized in scholarly writing - that the CISG be interpreted
"autonomously" 59 rather than simply as part of a State's domestic legal
system. The fact that the specificity requirement of U.S. law is not followed
internationally (as demonstrated by the foreign cases interpreting CISG
Article 74 to permit recovery of damages for attorneys' fees) shows that it has
no place in interpreting the international text of the CISG. A U.S. court
trying to decide whether CISG Article 74 encompasses damages for an
aggrieved party's lawyer costs should approach the question without the
baggage of special specificity requirements for this item of damages.
B. A Method for Determining the Precedential Authority of Foreign
What influence should foreign cases authorizing the recovery of
damages for lawyer costs under CISG Article 74 have on a U.S. court facing the
attorneys' fee issue? As was noted earlier, courts and commentators agree
ages under the UCC and other states' versions thereof. See Ohline Corp. v. Granite Mill, 849
P.2d 602, 605(11) (Utah App.1993); see generally Jay V. Zimmerman Co. v. General Mills,
327 F.Supp. 1198, 1205(11) (E.D.Mo. 1971)").
59 See e.g., Michael J. Bonell, Article 7, in COMMENTARY ON THE INTERNATIONAL SALES
LAW: THE 1980 VIENNA SALES CONVENTION 65, 74 (C.M. Bianca & M.J. Bonell eds., 1987)
("(T]o have regard to the 'international character' of the Convention also implies the
necessity of interpreting its terms and concepts autonomously").
that decisions from beyond one's national borders have force and authority
in interpreting the Convention.60 In discussing this authority, it is important
to distinguish between the persuasive value of a foreign court's reasoning
and the influence that a foreign decision has purely as precedent for a
proposition. The influence to be accorded the former is clear: to the extent
that a foreign opinion has analyzed an issue in a fashion that a U.S. court
finds persuasive, the U.S. court obviously should take it into account, just
as it would take into account persuasive arguments of the parties'
advocates. 61 The court, furthermore, should strive to assess the persuasive force
of a foreign court's reasoning from an international perspective, and avoid
measuring the arguments by the parochial standards of its domestic law
methodology. Consulting foreign opinions in order to benefit from their
reasoning is an important technique for complying with the mandate of
CISG Article 7(1) to interpret the Convention with regard for its
But foreign judicial decisions should have a precedential influence
beyond the persuasive force of their analyses. This additional influence
derives from the mandate of CISG Article 7(1) to interpret the Convention
with regard for uniformity in its application. To obey this mandate, actual
practice and concrete results in other jurisdictions must be taken into
account independently of the persuasive force of the analyses that produced
these results. In other words, for the sake of uniformity in the application
of the Convention, a U.S. court may be obliged to follow the results in
foreign decisions simply as a matter of precedent, even if the U.S. court does
not find the reasoning of those decisions persuasive.
A U.S. court, however, clearly is not bound to follow the results of
foreign CISG cases in all circumstances. 62 The CISG did not create a defacto
international court system in which foreign decisions must be treated as
binding precedent as a matter of stare decisis. Courts remain free to
disagree with positions taken by sister-tribunals from beyond their national
borders. Article 7(1) itself does not require that those interpreting the CISG
achieve strict uniformity in its application, but only that they have "regard"
for uniformity along with several other values - the Convention's
interna60 See authorities cited supra note 6.
61See JUrgen Schwarze, The Role of the European Court ofJustice (ECJ) in the
Interpretation of Uniform Law among the Member States of the European Communities, in
INTERNATIONAL UNIFORM LAW IN PRACTICE, supra note 6, at 221, cited in Commentary on
CISG Case Law, Pace University Databaseon the CISG and InternationalCommercial Law
[website of the Pace University Institute for International Commercial Law], at
http://www.cisg.law.pace.edu/cisg/text/caseschedule.html#guides (visited July 6, 2001)
(asserting that, for uniform law questions, foreign judgments have "integrative force ... based
on the persuasive reasoning which the decisions of the Court bring to bear on the problem at
62See supra text accompanying notes 8-9.
tional character and the promotion of good faith in international trade.63
The result is that, while foreign decisions do not have the authority of
binding precedent, "[i]nterpretations of an international convention by sister
signatories are entitled to considerable weight,, 64 and are to be taken into
account "in a comparative and critical manner." 65 I have suggested an
analogy to the authority that courts in one state accord decisions from another
state in construing the UCC. 66
If tribunals in one country are not bound by decisions from another
country, and uniformity is only one of several considerations for a court
construing the CISG, how does one determine the precedential authority
that a particular foreign decision should have? I find it helpful to think of
the question in terms of a spectrum of authority. At one end of the
spectrum would be a foreign case that should be followed only if the deciding
court found that all other arguments and considerations (including other
foreign cases that reached a contrary result)67 left it in absolute equipoise, with
no preference for one position over another. In such a case, the uniformity
consideration identified in CISG Article 7(1) suggests following the result
in the foreign case, even though the arguments in favor of the foreign
tribunal's position are no more persuasive than the reasoning supporting the
alternative position. This is the theoretical minimum precedential authority
that a foreign case could possess - enough to tip the balance only where all
other factors cancelled each other out. At the opposite extreme of the
spectrum would be a foreign decision that should be followed even if the
deciding court disagreed with the approach in the foreign case and found all
analyses supporting that position unpersuasive. This is the theoretical
maximum authority that a foreign case could have, equivalent to the
author63 See Flechtner, The Several Texts ofthe CISG, supra note 4, at 205-06. As I observed
in that earlier piece, it is even possible that the various considerations mentioned in Article
7(1) -- uniformity in the application of the Convention, its international character, good faith
in international trade -- could be in conflict, pointing to different resolutions of a particular
issue. Id. at 205, 213.
64 Commentary on CISG Case Law, Pace University Databaseon the CISG, supra note
61, (citing Air France v. Saks, 470 U.S. 392, 404 (1985)).
65 Commentary on CISG Case Law, Pace University Databaseon the CISG, supra note
61, citing Antonio Boggiano, The Experience ofLatin American States, in INTERNATIONAL
UNIFORM LAW IN PRACTICE/LE DROIT UNIFORM INTERNATIONAL DANS LA PRATIQUE [Acts and
Proceedings of the 3 rd Congress on Private Law held by the International Institute for the
Unification of Private Law (Rome 7-10 September 1997)], Oceana: New York (1988) 47.
66See Flechtner, The Several Texts ofthe CISG, supranote 4, at 214-16.
67 The uniformity consideration in Article 7(1) supports according precedential authority
to a foreign decision only if there is a consensus -- or at least a clear favored position
-among foreign cases dealing with an issue. In other words, it would not promote uniformity
in the application of the CISG to follow one line of foreign cases if there is an equally
authoritative line of cases that reach a different result. I account for the possibility of contrary
foreign cases in the methodology I propose for determining the precedential authority of a
foreign case. See infra, text accompanying note 69.
ity (in a common law system) of a decision of a higher appeals court in the
deciding court's own system. The authority of a foreign decision, of
course, could easily fall somewhere between these two extremes.
The task, then, is to devise a methodology for determining where a
foreign case falls on this spectrum of authority. The idea of locating a given
decision's place on a spectrum, however, can be misleading, for it suggests
a precise quantitative assessment of a foreign decision's precedential
authority. At least in my hands, such precision is not possible. The
"spectrum" concept is merely a metaphor suggesting that a case may possess
gradations of authority. The metaphor also facilitates expressing what I
mean by "authority" in the way that the extremes of the spectrum are
defined. The best method I can devise to analyze the authority of foreign
decisions is to identify factors that a jurist should consider, and to leave the
process of weighing and comparing the factors to the mysterious black box
that is the judgment of a tribunal. And I do not claim to be up to even this
modest task, for I only purport to identify some of the factors that should be
considered. Others commentators may, and I hope will, add to, refine, and
correct the preliminary list of factors that I suggest.
I will describe four factors that I believe should be considered in
determining the precedential authority of a foreign case. In defining these
factors I have maintained the distinction I made earlier between the persuasive
value of a decision's reasoning, and its authority as precedent for purposes
of promoting uniformity in the application of the CISG. The factors I
identify go to the latter aspect of a decision's authority, although the two aspects
inevitably overlap. It is important to keep in mind that the precedential
authority of relevant foreign decisions is only one of several factors that a
tribunal charged with deciding a CISG issue must weigh, and even foreign
cases with quite strong precedential authority may be overcome by other
considerations. The four factors follow.
1. The Authority of the TribunalRendering the Decision within Its Own
The higher the authority of the tribunal, the more deference the case is
due. Thus a decision of the Bundesgerichtshof- the highest German court
with jurisdiction over CISG issues - is due more deference than a decision
of a lower tribunal such as an Oberlandesgericht(court of appeal), and a
decision of an Oberlandesgerichtis due more deference than a decision of a
Landgericht (trial court) or Amtsgericht (petty trial court). 6' This factor
seems fairly self-evident, if only because a decision of a higher court will
68 For foreign courts attempting to assess the deference due a decision of an American
federal court, a decision of the Supreme Court is due more deference than a decision of a
Court of Appeals, and a Circuit Court decision is due more deference than a decision of a
District Court. Where the decisions of state courts would fit within this hierarchy is an
interesting question (i.e., I am ducking that one).
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bind a larger group of transactions and thus refusing to follow it will have a
greater impact on uniformity. The higher the tribunal that renders a
decision, furthermore, the less likely it is to be changed by subsequent appeals
or later decisions of a higher tribunal. This factor tends to work against
deference for decisions of arbitral tribunals, which bind only the parties to
2. The Extent to Which Decisions of Other TribunalsAre or Are Not in
Accord with the Decision at Issue
The more support that a decision has from other tribunals considering
an issue, the more deference it is due. On the other hand, the more that
other decisions disagree with the decision at issue, the less deference it is
due. If there is an even split of foreign authority on an issue, it does not
advance uniformity to choose one position over another. In that situation, the
precedential forces of the various foreign decisions cancel each other out,
and a tribunal facing a CISG issue must resolve it simply by reference to
the arguments and analyses it finds more persuasive. A decision supported
by the clear majority of foreign tribunals that have considered an issue, in
contrast, is certainly due more deference, and the larger the number of cases
that have taken the same position the more deference that position is due.69
In conformity with the mandate in CISG Article 7(1) to have regard for the
international character of the Convention, a stance taken by tribunals from a
variety of states with diverse legal traditions, economic circumstances and
political systems is due particular deference. Thus a German decision
supported by decisions of non-German tribunals - particularly tribunals from
LDC's or from outside the Civil Law tradition - is due more deference than
a German decision supported only by other German cases.
3. The Amount ofInternationalTrade in the Tribunal's Jurisdiction
The more international trading activity connected to the jurisdiction of
a foreign tribunal, the more deference its CISG decisions are due. This
factor is a controversial one (I myself have doubts) because it tends to devalue
decisions from developing and/or smaller countries. Note, however, that
the importance of consulting the views of such states is emphasized in
factors two and four. I include factor three not because tribunals in
jurisdictions with a large volume of international trade are likely to have more
experience and expertise in handling international commercial issues - that
consideration goes more to the persuasiveness of a foreign tribunal's
rea69 The more authority the other supporting decisions would have under the other factors I
have identified (e.g., the higher the authority of the courts rendering those supporting
decisions), the more their support should count in favor of the precedential authority of the
decision in question.
soning than to its precedential authority for purposes of uniformity7. 0
Rather, I include this factor because taking a position contrary to that of a
tribunal in an active international trading jurisdiction is likely to cause a
more serious breach of uniformity in the application of the CISG, due to the
number of transactions likely to be governed by the foreign tribunal's
contrary position. This factor is therefore similar to factor one (the level of
authority of the court rendering a decision), and like factor one it tends to
work against the precedential authority of arbitral decisions that bind only
the immediate parties.
4. The Extent to Which the ForeignDecisionItselfComports with the
Mandates of CISG Article 7(1) to Have Regardfor the International
Characterof the CISG, the Need to PromoteIts Uniform Application and
the Need to Promote the Observance of Good Faithin InternationalTrade
This factor strikes me as the most important of the four. Why should a
decision that itself ignores or violates the requirements of CISG Article 7(1)
be deferred to in the name of that same article? How can it promote
uniformity to follow the lead of a decision that does not itself attempt to
promote uniformity and the other values articulated in Article 7(1)? The
decision of a tribunal that has not met its Article 7(1) obligations is due
very little deference as precedent no matter how high the ranking of the
court, no matter how many other decisions agree with it, and no matter how
important the foreign tribunal's jurisdiction is in international trade. On the
other hand, a foreign decision that genuinely attempts to cultivate an
international perspective on the Convention, to promote uniformity in its
application, and to promote good faith in performance under its terms, should
possess considerable precedential authority independent of the other factors
listed above.71 From this perspective, decisions that have taken into account
case law and commentary from outside the legal system of the deciding
tribunal will often be due more deference because they are likely to reflect an
70 Just because a tribunal is located in an important trading nation, furthermore, does not
guarantee that it hears a large volume of international commercial disputes. This point may
suggest that the experience a foreign tribunal has in hearing international commercial
disputes should be listed as a separate, additional factor to consider in assessing the precedential
authority of its CISG decisions. To me, however, this consideration goes more to the
persuasiveness of the foreign court's opinion than to its precedential authority, and I have
therefore not included such a factor.
71One could argue that factor four goes to the persuasiveness of a foreign opinion and
thus should not be considered in assessing the authority of a foreign decision as precedent.
Factor four certainly straddles (or breaches) the distinction I have maintained between
persuasiveness and precedential authority, for the reasoning of a foreign tribunal that has
fulfilled its obligation under Article 7(1) should indeed thereby be more persuasive. The
increased persuasiveness of such an opinion, however, is an indirect effect of complying
with Article 7(1). It seems to me that direct recognition of the soundness of a foreign
tribunal's approach under Article 7(1) (in the form of increased precedential authority) is due.
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international perspective on the Convention. Similarly, a foreign decision
that interprets the CISG to provide for a result contrary to the domestic
sales law of the tribunal's jurisdiction (or, in the case of an arbitration,
contrary to the domestic sales law of the legal systems in which a majority of
panel members usually work) is more likely to have escaped the
gravitational pull of the "homeward trend" and thus may deserve to be accorded
more authority as precedent. In some instances, factor four may give
decisions of arbitral panels - which frequently encompass an international
perspective in their make-up and which are less bound by the residual national
law of any particular country - an advantage in claiming precedential
C. Assessing the Precedential Authority of Foreign Cases on Recovering
Applying the approach just outlined, I conclude that the foreign cases
that have granted an aggrieved party CISG damages to cover attorneys' fees
are due little deference as precedent. None of those decisions were
rendered by the highest ranking court in the country of origin, and most were
from low-ranking trial-level tribunals - although two decisions of
intermediate German appellate courts (the Oberlandesgerichten)are among those
sanctioning the recovery of attorneys' fees under the CISG. Thus the
decisions fare neither particularly well nor particularly badly under factor one.
The decisions originate from jurisdictions that are important players in
international trade (particularly Germany, which accounts for five the seven
cases), and they thus rank fairly high under factor three. Application of the
remaining two factors, however, suggests that the decisions deserve only
very modest deference as precedent for other tribunals facing the attorneys'
Factor two - the extent to which there is agreement among foreign
decision that have addressed an issue - plays out in an interesting fashion
when applied to the decisions granting CISG damages for attorneys' fees.
In one sense there is unanimity in the foreign cases on the attorneys' fees
issue: the seven cases discussed above all authorize recovery of such
damages, and no case of which I am aware has affirmatively held that CISG
Article 74 excludes damages for attorneys' fees. While seven is not a
particularly large number of cases in light of the many hundreds of CISG
decisions that have been reported 2 and the fact that the attorneys' fee issue
72 In his latest compilation, Professor Michael R. Will has catalogued over 600 decisions
applying the CISG. See TWENTY YEARS OF INTERNATIONAL SALES LAW UNDER THE CISG (THE
UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS): INTERNATIONAL
BIBLIOGRAPHY AND CASE LAW DIGEST, Part II at 5, 9-249 (1980-2000) (Michael R. Will ed.,
2000). As of this writing, the CISG web site maintained by the Pace University School of
Law catalogues over 900 cases that apply or discuss the CISG. See
could arise in any of them, neither is the number trivial. Several
considerations, however, suggest that factor two cuts against giving deference to the
decisions awarding CISG damages for attorneys' fees.
First, there is little evidence that the cases granting CISG damages for
attorneys' fees represent a genuinely international consensus. Of the seven
cases that authorize such recovery, five are from a single jurisdiction
Germany - and another is from a German-speaking Swiss court. The only
other decision was by an arbitration panel sitting in France, another civil
law jurisdiction with a loser-pays approach to attorneys' fees in its domestic
law. In short, there is little diversity in geography or legal background
among the tribunals that have authorized recovering CISG damages for
The unanimity on the attorneys' fee issue among foreign cases,
furthermore, may be more apparent than real. It is interesting to ask what
happened with respect to lawyer expenses in the hundreds of decisions in
which the courts do not mention awarding CISG damages to cover
attorneys' fees. Did the prevailing party stoically bear its own lawyer costs
despite the fact that many of these cases come from jurisdictions with a
loserpays rule? The answer, almost certainly, is no. The prevailing litigant quite
likely recovered its litigation expenses under the loser-pays rule of the
jurisdiction's domestic law of procedure, although mention of this recovery is
frequently omitted from the English summaries and even the original
opinions (which are often edited to exclude non-CISG material) available from
CISG research resources. At least some of the available CISG opinions do
make it clear that there was an award of attorneys' fees based on national
procedural law.74 Indeed, there is evidence for this practice even among the
73 There is, however, an important caveat to this conclusion. The sources of information
on foreign CISG cases accessible to me -- i.e., those that give English language summaries
of foreign cases (CLOUT, Unilex, the website maintained by the Pace University Institute of
International Commercial Law) -- depend on individuals located in the states that have
ratified the CISG for information about CISG decisions. [In the case of CLOUT, the
individuals are appointed national reporters; in the case of the other services, information comes
from an informal network of volunteers.] As a result, uneven reporting of decisions is a
distinct possibility. In fact, the decisions reported in these sources come overwhelmingly from
Europe and the United States, and there are few reported decisions from elsewhere.
Thus it is quite possible that there are other decisions on the attorneys' fee issues that I
have not discovered.
74 See, e.g., decision of July 12, 2000, Tribunale (Regional Court) di Vigevano (Italy),
Docket No. 405, English abstract and commentary by Charles Sant'Elia available at
http://cisgw3.law.pace.edu/cases/000712i3.html. According to the English abstract by Mr.
Sant'Elia, one party in this case was ordered to pay the prevailing party's "court costs and
attorney's fees." According to a translation of this opinion prepared by Francesco Mazzotta
(LL.M., University of Pittsburgh School of Law, 2000), the court ordered payment of
6,600,000 lire for "the expenses of trial" based upon the Italian "loser pays" rule. This
amount was broken down into 2,200,000 lire for "court expenses," 3,200,000 lire for
"lawyer's fee," and the balance for other items required by law.
decisions that have granted CISG damages for an aggrieved party's attorney
costs. Several of the German court decisions granted such damages only as
a supplement to an award of litigation costs under the loser-pays rule of
German national law - i.e., to cover certain pre-litigation lawyer expenses
that could not be recovered under the domestic law. 75 The 1996 opinion of
the Schiedsgericht der Handelskammer (Hamburg arbitration panel) that
awarded compensation for the prevailing party's attorney costs invoked
CISG Article 74 only as an alternative justification for the award. The main
rationale for the award was the panel's interpretation of the arbitration
clause in the parties' contract as providing for recovery of the prevailing
party's lawyer costs - an interpretation that was expressly founded on the
loser-pays policies of German and British national law.76
Thus while no cases affirmatively reject the idea of awarding CISG
damages to cover attorney costs, the prevailing practice in countries with a
domestic loser-pays rule apparently is to compensate for attorneys' fees
under the procedural rules of national law. One might argue that this approach
could co-exist with recovering CISG damages for attorneys' fees, but
ultimately the two approaches conflict. If compensation for attorney costs
incurred as a consequence of a breach is governed by the CISG, the
Convention should preempt domestic rules on this matter. In other words,
if recovering attorneys' fees is a matter within the scope of the Convention,
that should mandate uniform international results rather than a variety of
approaches based upon different national laws. The standards for
recovering attorney costs under the CISG, furthermore, likely differ from the
standards imposed by the loser-pays rules of the various Contracting States:
recovery of damages under the CISG is limited by the mitigation principle
in Article 77 and the foreseeability requirement in Article 74, whereas
recovery of attorneys' fees under domestic loser-pays rules undoubtedly are
subject to different limitations and principles. Thus the cases that award
attorneys' fees under domestic loser-pays rules in disputes governed by the
CISG (probably the vast majority of European cases, although that can be
difficult to ascertain) could well be viewed as counter-precedents to the
cases that have awarded CISG damages to cover the aggrieved party's
In light of these considerations, I conclude that the cases awarding
CISG damages to cover the aggrieved party's attorney costs fare poorly
with respect to factor two of my scheme for analyzing precedential
Factor four of my scheme also suggests that the cases awarding CISG
damages for attorneys' fees are due little deference as precedent. Factor
75 See supra text accompanying notes 15-28.
76 See decision of June 21, 1996, Schiedsgericht der Handelskammer Hamburg
(Germany), 22 Y.B. COMM. ARB. 35, 48-49 (1997).
Recovering Attorneys'Fees Underthe UN. Sales Convention
four focuses on the extent to which a foreign decision conforms to the
mandate of Article 7(1) to interpret the CISG with regard for three
considerations: the international character of the Convention, the need to promote its
uniform application, and the need to promote good faith in international
trade. None of the foreign cases awarding CISG damages for attorneys'
fees display any particular concern for these values. In fact, they are
notably deficient with respect to viewing the CISG from an international
perspective. In discussing recovery of CISG damages for attorneys' fees, none
of the decisions cite any authority from outside their own jurisdictions. 7
Indeed, with only one exception, the cases do not even display awareness
that legal systems elsewhere in the world (such as the U.S.) do not routinely
allow prevailing litigants to recover attorney costs. 78 Instead, the tribunals
are content to interpret the Convention in a way that reproduces the results
under the rules of national law with which they are familiar - the loser-pays
approach of their own domestic law - blithely ignoring alternative
approaches. In short, the decisions granting damages for attorney costs under
CISG Article 74, far from regarding the Convention as an international
document meant to apply in states without a domestic loser-pays tradition,
appear to be in thrall to the homeward trend. While this lack of
international perspective does not establish that the results of these cases are
wrong, it does suggest that the decisions are due little deference as
precedent for other tribunals facing the attorneys' fee issue.
The lack of an international perspective displayed by the foreign
decisions awarding attorneys' fees as CISG damages spills over into a lack of
77 Two of the German decisions cite commentary on the CISG by German authorities.
See decision of July 11, 1996, Oberlandesgericht Dtisseldorf (Germany), Number 6 U
152/95, original opinion available on Unilex database, supra note 15 (citing the CISG
commentary by von Caemmerer, Schlechtriem & Stoll, as well as the CISG commentary of
Piltz); decision of June 21, 1996, Schiedsgericht der Handelskammer Hamburg (Germany),
22 Y.B. COMM. ARB. 35, 50 (1997), (citing CISG commentaries by von Caemmerer &
Schlechtriem; Herber & Czerwenka; Reinhardt; and Rudolph). For the decision of
December 19, 1997 of the Handelsgericht des Kantons Aargau (Switzerland) I had access only to an
English abstract and not to the original opinion. The English abstract does not indicate that
the court cited any authority in connection with its discussion of recovering attorney costs as
78 The exception is the opinion by the Hamburg arbitration panel, decision of June 21,
1996, Schiedsgericht der Handelskammer Hamburg (Germany), 22 Y.B. COMM. ARB. 35,
(1997). In discussing the primary grounds for its holding -- that the arbitration clause of the
parties' agreement, properly interpreted, provided for recovery of attorneys' fees incurred in
connection with the arbitration -- the court noted that the loser-pays approach does not apply
in the U.S. and the former socialist countries of the COMECON. See 22 Y.B. COMM. ARB.
at 48-49. It is significant, however, that the court does not allude to this contrary
transnational practice when it discusses the alternative grounds for its award -- treating attorney
costs as damages recoverable under CISG Article 74. In that discussion, the court mentions
only a German domestic law rule treating lawyer costs incurred by an unpaid seller as
recoverable consequential damages caused by the buyer's delay in payment. See 22 Y.B. COMM.
ARB. at 49-50.
Northwestern Journal of
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regard for the uniform application of the Convention. The decisions fail to
display any concern for the difficulty that tribunals in states without a
domestic loser-pays tradition might have in following their holdings. Such
tribunals might include fora in states that have not ratified the Convention
but who have jurisdiction over disputes governed by the CISG. The
decisions granting damages for lawyer costs also ignore the alternative
approach, apparently adopted in a great many other CISG decisions, of
awarding attorney costs under the procedural rules of the forum rather than
as damages under the CISG. Again, these failures do not necessarily mean
that the decisions granting CISG damages for attorneys' fees are wrong
but they do suggest that the decisions should command little authority as
precedent for other tribunals seeking to interpret the CISG in a fashion that
promotes its uniform application.
Thus application of the four factors leads me to conclude that the
decisions interpreting Article 74 of the CISG to allow recovery of damages for
an aggrieved party's attorneys' fees are due minimal deference as
precedents. U.S. courts facing this issue should be swayed to follow these
foreign decisions in the name of a uniform application of the Convention only
if the substantive arguments on both sides of the issue are equally
persuasive and leave the court undecided about the proper outcome. I believe,
however, that the arguments against awarding Article 74 damages for an
aggrieved party's attorneys' fees are in fact considerably stronger than those
favoring the position, and strong enough to overcome the precedent of the
seven decisions I have discussed. There is an alternative approach to the
attorneys' fee issue that is superior when judged by international concepts
and practices, the drafting history of the Convention, policy considerations,
and even the majority of cases that have applied the CISG. It is to these
substantive arguments concerning the proper interpretation of Article 74
with respect to the recovery of attorneys' fees that I now turn.
D. Resolving the Issue: Should CISG Article 74 Be Interpreted to Provide
for Damages to Cover an Aggrieved Party's Attorneys' Fees?
Having determined that the decisions awarding CISG damages for a
prevailing claimant's attorneys' fees are due little deference, the way is
clear to take a fresh look at the issue of recovering lawyer costs as damages
under the Convention. There is a strong argument that Article 74 of the
Convention should not be construed to permit such recovery.
First, the text of Article 74 is ambiguous on the issue. Although the
general language of Article 74 ("[d]amages ... consist of a sum equal to the
loss ... suffered by the other party as a consequence of the breach") is broad
enough to encompass damages for attorneys' fees, we have seen that
equivalent language in U.S. domestic sales law has not been so
interpreted.7 9 Although simply applying U.S. domestic interpretative
methodology to CISG Article 74 would violate the mandate of Article 7(1) of the
Convention requiring that the CISG be interpreted with regard for "its
international character,"8 the U.S. experience nevertheless demonstrates that
the text of Article 74 is at least ambiguous on the question of recovering
attorneys' fees. Thus the plain language of the provision does not mandate
Regard for the international character of the Convention, in fact,
suggests a substantial argument against construing the ambiguous text of
Article 74 to permit recovery of damages for a prevailing litigant's attorneys'
fees. Referring to the travauxpr~paratoiresof the CISG, as commentators
agree one must to maintain an international perspective on the text,81 it
appears that those who drafted and approved the final text of the Convention
never indicated that Article 74 encompassed damages for the prevailing
party's attorney costs - a significant omission given the lack of an
international consensus on the recovery of such costs.82 Indeed, from the formal
records of the history of the CISG it appears that the subject of recovering
attorneys' fees never arose during the drafting and negotiation of the
treaty." This strongly suggests that the United States and other countries
that generally require litigants to bear their own attorneys' fees did not
expect or intend that the CISG would change such a significant aspect of the
litigation process. Of course parties to a treaty need not specifically refer to
a particular result during the drafting process, and countries may well be
bound to a treaty obligation even though their representatives did not
consciously intend or even become aware of the obligation before ratifying.
Nevertheless, in resolving the ambiguity in the text of Article 74 it is telling
that nothing in the legislative history of the Convention suggests that those
79See supra discussion accompanying notes 49-57.
8oSee supra discussion accompanying notes 58-59.
81See, e.g., HONNOLD, UNIFORM LAW FOR INTERNATIONAL SALES, supra note 6, at 88-91;
Ferrari, supra note 6, at 247 & n.19.
82Professor John Honnold has gathered the formal documents relating to the drafting and
approval of the text of the Convention, including the records of drafting committees and of
the 1980 diplomatic conference at which the text of the Convention was approved, into an
extraordinarily useful and convenient DOCUMENTARY HISTORY, supra note 7. Innone of the
discussions of what became Article 74 of the CISG, nor in discussions of any other damages
provision, is recovery of attorneys' fees even mentioned. The most elaborate discussion in
the travauxpriparatoiresof what became Article 74 is found in the commentary by the
secretariat of UNCITRAL on the 1978 draft of the Convention, which is reprinted in the
DOCUMENTARY HISTORY, supra note 7, at 404 ff. In the commentary to Article 70 of the
1978 draft (the verbatim predecessor to current Article 74), the Secretariat Commentary
gives several detailed and rather elaborate examples of how damages would be calculated
under the provision. Id. at 448-450. None of the examples mention recovery of damages for
the aggrieved party's lawyer's fees.
83 An index-guided search through the documents collected in the DOCUMENTARY
HISTORY, supra note 7, failed to turn up any discussion of attorneys' fees.
involved in producing the text ever consciously contemplated that the CISG
might provide for damages to compensate for attorneys' fees.
In addition, Article 74 does not yield sensible or desirable results if
construed to encompass recovery of lawyer costs. For one thing, Article 74
provides for damages only if there has been a breach of the sales agreement.
Only those who successfully claim that the other side breached could
recover their attorneys' fees. Suppose a seller or buyer successfully defends
against a claim of breach brought by the other party. If the defense does not
involve a counter-claim that the other side has breached, on what basis
could a forum award damages for the prevailing party's attorneys' fees?
Claimants who themselves had not breached could sue without concern
over liability for the defendant's lawyer costs because even a successful
defendant would have no breach on which to base a damage claim. Perhaps a
tribunal could avoid this one-sided result by holding that unsuccessful
claimants breach an implied obligation by suing when (it is ultimately
determined) their claims lack merit. An approach that requires such a
resultoriented jurisprudential stretch (with collateral consequences that are hard
to predict) in order to avoid egregious partiality, however, does not
Even in those jurisdictions with a loser-pays approach, furthermore,
construing CISG Article 74 to provide for damages to cover attorneys' fees
would undoubtedly work substantial changes that have not been carefully
considered. The domestic rules governing recovery of attorneys' fees in
these jurisdictions undoubtedly regulate such recoveries with some care,
whereas the CISG damage provisions contain nothing specifically directed
to this issue. Of course CISG Article 74 provides that only losses
foreseeable at the time the contract is concluded are recoverable, and Article 77
requires that those claiming damages "take such measures as are reasonable
in the circumstances to mitigate the loss." In combination, these provisions
would allow courts to police in a general fashion the reasonableness of
claimed attorneys' fees. Other more specific safeguards against abuse,
however, would be lost. For example, loser-pays regimes may set a
schedule of legally recoverable fees, or provide only for recovery of a percentage
of legal costs. Such domestic law limitations would be unavailable if the
CISG damages provisions (which contain no such regulations) were
construed to provide for damages to cover a prevailing claimant's attorneys'
fees. Even courts that have been willing to permit recovery of lawyer costs
as CISG damages seem to sense that the Convention is not well designed
for this purpose. Thus several of the German decisions that awarded CISG
damages for attorneys' fees limited them to pre-litigation lawyer costs,
whereas compensation for fees incurred during the litigation itself was
awarded under domestic law loser-pays rules.84 On what basis these courts
84 See supradiscussion accompanying notes 15-28.
made the distinction between pre-and post-litigation attorneys' fees is
entirely unclear: if the CISG provides damages to cover pre-litigation lawyer
costs, why should the successful party not recover Article 74 damages for
attorneys' fees incurred during the course of the litigation as well?
Despite the strong argument against awarding CISG damages for
lawyer costs, if failure to construe the CISG damage provisions as
encompassing compensation for attorneys' fees meant that a successful litigant could
not recover such expenses from the losing party in transactions governed by
the CISG, it would certainly present a very difficult issue. Much of the
world follows a loser-pays principle, and there is nothing in the travaux
prparatoiresof the Convention to suggest that these countries
contemplated changing to the American rule for attorneys' fees in litigation
involving international sales. Indeed, the idea that the Convention must be
construed to incorporate either the American rule or a loser-pays approach
is unsatisfactory. Legal systems are divided into those that follow the
loserpays approach and those that decree each party should bear its own lawyer
costs, and there is nothing in the history of the Convention to suggest that
States in either group intended to change this important aspect of their
litigation systems. It seems improper to interpret the CISG to mandate that
either group change their usual approach to attorneys' fees in international
Fortunately, and despite the strong claims of uniformity in interpreting
the CISG, there need not be a single, global answer to the issue of
recovering attorneys' fees in transactions Igoverned by the Convention. Those
cases - apparently the vast majority' - in which tribunals from loser-pays
jurisdictions have awarded attorney costs in CISG transactions on the basis
of their domestic law rules rather than as CISG damages point the way to
escape the dilemma. These cases in effect treat the question of recovering
attorneys' fees as a matter beyond the scope of the CISG, governed instead
by domestic law. The best explanation is that these courts are, sub silentio,
viewing recovery of attorneys' fees as a procedural matter governed by the
law of the forum. A U.S. court has explicitly recognized that the CISG
governs substantive sales law and that procedural rules are beyond its
scope. 86 This procedural/substantive limitation on the reach of the CISG
offers the proper resolution of the attorneys' fees issue: recovery of attorneys'
85 See supra discussion accompanying notes 74-77.
86 See MCC-Marble Ceramic Center, Inc. v. Ceramica Nuova D'Agostino, S.P.A., 144
fees should be treated as a procedural question beyond the scope of the
CISG and governed by the domestic law of the forum.
This solution appears to be consistent with international practice
regarding the rules governing recovery of attorneys' fees. For example, the
domestic loser-pays rules of European countries generally appear in their
procedural codes. In addition, treating the recovery of attorneys' fees as a
procedural issue beyond the scope of the Convention provides the most
sensible resolution because it allows the question to be handled consistently
with the litigation system of the deciding forum. The various tribunals that
hear disputes involving the CISG have domestic rules governing procedural
aspects of litigation before that tribunal, such as rules of evidence, the
qualifications of those who can appear before the tribunal, the timing and
formality of documents, etc. These domestic procedural rules apply in CISG
litigation, and it makes most sense to apply the local rules on recovery of
attorneys' fees that were developed to fit with the particular litigation
system of the forum. Thus in jurisdictions where the litigation system is
geared to a loser-pays rule, the domestic loser-pays rule would continue to
apply. Recovery of attorney costs in arbitration proceedings would be
governed by applicable arbitration rules. Similarly, the American Rule on
recovering attorneys' fees would apply before U.S. courts. In the United
States, therefore, such recovery would generally be denied absent a contract
clause providing otherwise - not because CISG Article 74 fails expressly to
87For example, the German loser-pays provision is found in § 91(1) of the German Code
of Civil Procedure ("ZPO"), which provides, "[t]he losing party bears the costs of the lawsuit
.... [Engl.ish translation from the Award of March 21, 1996 and June 21, 1996,
Schiedsgericht der Handelskammer, Hamburg (Germany)], 22 Y.B. COM. ARB. 35, 44 n. 35 (1997).
For a discussion of this aspect of German procedure, see NORBERT HORN, HEIN KOTZ &
HANS G. LESER, GERMAN PRIVATE AND COMMERCIAL LAW: AN INTRODUCTION 48-50 (Tony
Weir trans., 1982). The Swedish loser-pays provisions are found in Chapter 18:1 and 18:8 of
the Swedish Code of Judicial Procedures (the Rattegangsbalk), which includes the
procedural rules for the courts. See RUTH BADER-GINSBURG & ANDERS BRUZELIUS, CIVIL
PROCEDURE INSWEDEN 33, 367-75 (1965). In France, the loser-pays provision is found in
the new Code of Civil Procedure, Articles 696 ("The losing party is ordered to pay costs
unless the judge, by a reasoned decision, requires another party to pay the whole or part of
the costs") and 695(7) (defining costs to include "Remuneration of avocats in accordance
with regulations, including fees for oral argument") [English translations from FRENCH LAW:
CONSTITUTION AND SELECTIVE LEGISLATION 7-85 (Henry P. de Vries and Nina M. Galston,
eds., Nina M. Galston and Regina B. Loening, trans., 1987)]. Article 91 of the Codice di
ProcedureCivile provides the loser-pays rule in Italian law ("Il giudice, con la sentenze che
chiude il processo davanti a lui, condanna la parte soccombente al rimborso delle spese a
favore dell 'alraparte e ne liquida I 'ammontare insieme con gli onorari di difesa"). For
other examples of European domestic laws that treat fee shifting provisions as procedural
rules, see Joseph Lookofsky, Case Commentary on ZapataHermanos v. HearthsideBaking,
6 VINDOBONA J. INT. COM. L. & ARB. n. 10 (forthcoming, 2002), available at
Recovering Attorneys Fees Under the U.N. Sales Convention
pscroovpiedeof ftohre sCuIcShGaanrdeciosvgeorvye,rnbeudt rbaythUe.rS.bdecoamuesseticthelawis.8s8ue is beyond the
In short, treating the recovery of attorneys' fees not as a substantive
matter governed by the damage provisions of the CISG, but rather as a
procedural issue beyond the scope of the Convention and governed by
domestic law, offers the best solution to the issue addressed in this article. This
solution is most consistent with regard for the international character of the
CISG, with the evidence of the drafters' intent from the travaux
preparatoires of the Convention, and with a sensible approach to the attorneys' fees
issue. Although the approach runs counter to several cases that have
granted CISG damages to cover a prevailing party's attorneys' fees, and
thus would appear to undermine the principle of uniform interpretation of
the CISG, there are good reasons for questioning the international influence
those cases should enjoy. Indeed, following the lead of these cases would
run counter to the apparently much larger group of cases from around the
world that have, sub silentio, treated the recovery of attorneys' fees as a
matter governed by the forum's domestic law rather than by the damage
provisions of the CISG.
The specific legal issue addressed in this article is whether Article 74
of the UN Sales Convention provides for the recovery of the attorneys' fees
incurred by a litigant who succeeds in establishing that the other party
breached a contract governed by the CISG. Treating the issue as a
procedural question beyond the scope of the Convention provides a satisfactory
and convincing resolution consistent with the purposes and underlying
principles of the CISG.
The larger point of this article is to provide a case study of an attempt
to practice what might be termed the "new international commercial law"
growing out of uniform international law initiatives like the CISG. The
practice of the new international commercial law requires lawyers to
disg8Treating the recovery of lawyer costs as a procedural question governed by local law
also provides sufficient flexibility to deal with complicated situations. Thus, for example, it
appears that the loser pays rule in the German Procedural Code governs only the recovery of
attorneys' fees incurred after litigation is begun, and relegates the recovery of pre-litigation
lawyer expenses to applicable substantive law. The approach I propose dictates that the
question of recovering damages for pre-litigation attorneys' fees in transactions otherwise
governed by the CISG would be referred to the substantive domestic contract law of
Germany, which presumably has rules that fit well with the German procedural rules. In other
words, in Germany the recovery of pre-litigation attorneys' fees would be treated as a
question not expressly provided for in the CISG, to be settled (according to Article 7(2)) first by
reference to "the general principles on which [the Convention] is based or, in the absence of
such principles, in conformity with the law applicable by virtue of the rules of private
international law." For this question, the "general principle" of the CISG appears to be that such
procedural questions are left to local law.
cover, understand, evaluate and apply foreign legal authority (including
foreign court decisions and commentary) in an attempt to achieve a genuine
international perspective on international legal texts. As a case study in this
practice, the article provides lessons that may be less satisfactory - or at any
rate, less hopeful - than I expected when I began. It turns out that resolving
the focused and easily-stated question of whether Article 74 of the .CISG
should be interpreted to permit recovery of damages for the attorney costs
incurred by a successful litigant plunges one into a forest of challenges,
such as determining the proper interpretative standards to apply to an
international document like the Convention, ascertaining the meaning of
decisions by foreign courts construing the CISG, fixing the proper deference to
be accorded such decisions, and a host of other difficulties. I brought to the
task many advantages: an extensive in-house law library with virtually all
available resources for CISG research; information and expertise developed
over more than ten years devoted largely to researching and writing on the
Convention; access to colleagues and students with extensive language
skills and familiarity with foreign legal systems; and the extraordinary boon
of being free to devote the very substantial time necessary to the task. I
needed all these advantages (some will undoubtedly feel I needed more) to
get an accurate grasp of the attorneys' fees issue and reach a satisfactory
I emerged from the adventure with a new appreciation of the immense
difficulties of practicing in a genuinely international commercial law
system, and even with some pessimism over whether the legal profession is
truly ready for such practice. In the "real world," few if any practicing
lawyers advising on or litigating CISG issues would have the resources and
advantages I enjoyed. Without them, the chances that one can properly
interpret and apply the Convention in a manner that promotes a uniform
global commercial system are diminished significantly. Although great
strides have been made in developing what might be termed the
"infrastructure" of the practice of the new international commercial law - resources
that make it feasible (if not yet easy) to discover relevant foreign legal
materials - I have my doubts whether it is yet practicable for the average
practitioner, with limited resources and time, to achieve the international
perspective needed to implement a truly global international commercial
After the foregoing article had been completed, but before it was
printed, the United States District Court for the Northern District of Illinois
issued its opinion in Zapata Hermanos Sucesores, S.A. v.
HearthsideBakRecovering Attorneys'Fees Under the U.N. Sales Convention
ing Co.89 The decision awarded damages under Article 74 of the CISG for
the attorney fees incurred by the plaintiff, a seller located in Mexico, in
successfully litigating a claim for breach against the U.S. buyer. 90 In holding
that CISG Article 74 should be interpreted to provide for recovery of a
party's attorney costs incurred in pursuing a claim under the Convention,
the decision takes a position opposed to the one urged in this article. The
court reasoned that the plain meaning of Article 74 encompassed recovery
of attorney costs as damages if they were foreseeable consequences of the
breach, and it emphasized the parties' stipulation that the plaintiff's attorney
Article 74 mandated an award of damages covering the seller's lawyer
I remain convinced that the position advocated in this article - which
would treat the issue of a prevailing litigant's right to recover attorney fees
as a procedural question beyond the scope of the CISG, and subject to the
rules of the forum91 - is correct. If applied in Zapata, this approach would
89Zapata Hermanos Sucesores v. Hearthside Baking Co., No. 99 C 4040, 2001 U.S. Dist.
LEXIS 15191 (N.D. III. Mar. 18, 2002).
90The court awarded Article 74 damages for the prevailing claimant's attorney fees and
also decided, as an alternative ground for its ruling, that the defendant had acted in bad faith
and thus was liable for the plaintiff's attorney fees under the "bad faith" exception to the
American rule on attorney fees. For a description of the American rule and its exceptions,
see supra,. text accompanying notes 36-57. The seller also sought to hold the defendant's
litigation counsel liable for attorney fees under 28 U.S.C. § 1927 which applies when an
attorney "multiplies the proceedings in any case unreasonably and vexatiously." In Zapata
Hermanos Sucesores, S.A. v. Hearthside Baking Co., 155 F. Supp.2d 969 (N.D.Ill.); the
court held that defendant's counsel was liable under the statute.
91At one point the Zapata court seems to be rejecting the idea that rules on the recovery
of attorney fees are procedural matters separate from the substantive law governing a claim.
The court states that "the existence or nonexistence of a fee-shifting rule is one of
substantive policy," citing in support note 31 from the Supreme Court's decision in Alyeska
Pipeline Serv. Co., v. Wilderness Soc'y, 421 U.S. 240, 259 (1975). The cited note from Alyeska,
however, merely asserts that a U.S. federal court exercising diversity jurisdiction over a state
law claim should apply the state law rules on recovering attorney fees. This point has no
particular relevance to the question whether the recovery of attorney fees is beyond the scope
of the CISG. The notion that procedural matters are outside the province of the CISG has
already accepted by the Eleventh Circuit Court of Appeals. MCC-Marble Ceramic Ctr, Inc.
v. Ceramica Nuova D'Agostino, S.P.A., 144 F.3d 1384, 1388-89 (1 1th Cir. 1998), cert.
denied Ceramica Nuova D'Agostino, S.p.A. v. MCCMarble Ceramic Ctr, Inc., 526 U.S.1087
(1999). For a discussion of the procedural/substantive distinction made by this case, see
Harry M. Flechtner, The UN Sales Convention (CISG) and MCC-Marble Ceramic Center,
Inc. v. Ceramica Nuova D'Agostino, S.P.A.: The Eleventh Circuit Weighs in on
Interpretation, Subjective Intent, ProceduralLimits to the Convention'sScope, and the ParolEvidence
Rule, 18 J.L. & COM. 259, 284-86 (1999).
Northwestern Journal of
International Law & Business
preclude damages for the plaintiff's attorney costs based on Article 74.92
The court's argument that the plain meaning of Article 74 mandates an
award of damages to recover attorney fees is undercut by the fact that
equivalent general language in damage provisions of the UCC have
repeatedly been interpreted not to authorize recovery of damages for attorney
fees.93 These cases, which apparently were not brought to the court's
attention, rebut the notion that the extremely general language of Article 74 is
unambiguous with respect to the recovery of attorney fees.94 The ambiguity
of Article 74 is reinforced by the complete absence in the travaux
preparatoires for the CISG of any indication that the drafters or the delegates to the
diplomatic conference at which the text of the Convention was adopted
even considered the recovery of attorney fees in connection
7495 - another matter that the Zapata court apparently did not consider.
Thus the main reasoning behind the Zapata opinion - that the plain
meaning of Article 74 mandates an award of damages for a claimant's attorney
fees - is clearly wrong.
As is demonstrated in this article's discussion of the foreign decisions
awarding Article 74 damages to cover attorney fees, 96 the unspecified
foreign precedents upon which the court relies to bolster its position almost
certainly do not stand for anything like a clear consensus that Article 74
requires compensation for the attorney costs a claimant incurs in litigation.
92In his discussion of Zapata in the forthcoming second edition of his book
UNDERSTANDING THE CISG IN EUROPE (2d ed., forthcoming 2002), Professor Joseph
Lookofsky of the University of Copenhagen also takes the view that the award of Article 74
damages for the seller's attorney fees in that case was incorrect, and that the recovery of attorney
fees in CISG litigation should be treated as a procedural matter beyond the scope of the
Convention. A preview of this discussion can be found in Joseph Lookofsky, Case
Commentary on Zapata Hermanosv. HearthsideBaking, 6 VINDOBONA J. INT. COM. L. & ARB.
(forthcoming, 2002), available at http://cisgw3.Iaw.pace.edu/cases/010828ul.html.
Although Professor Lookofsky graciously cites the pre-Zapata draft of my article in his
discussion, he reached his position on the holding in Zapata before he had read the article or
discussed the question with its author. Professor Lookofsky insightfully notes that, if
recovery of attorney fees is treated as a procedural question beyond the scope of the Convention
(as both of us advocate), the award of lawyer costs in Zapata might still be proper on the
alternative grounds advanced by the court - the "bad faith" exception to the American rule on
attorney fees. For a contrary view, see John Felemegas, The Award of Counsel's Fees under
Article 74 CISG, in Zapata Hermanos Sucesores v. Hearthside Baking Co. (2001), 6
VINDOBONA J. INT. COM. L. & AR-B. (forthcoming 2002), a draft of which was generously
mad9e3Saeveasiluapbrlea ttoexmt eacbcyomthpeaanuytihnogr.notes 49-57.
94Although the methodology used in these cases represents a peculiarly American
domestic law approach to statutory construction which should not be applied to the international
sales rules of the CISG, see supra,.text accompanying notes 58-59, that does not undercut
their significance in establishing that the very general language of CISG Article 74 is at least
ambiguous with respect to recovering attorney fees.
95See supra text accompanying notes 81-83.
96See supra text accompanying notes 14-35.
The court's understanding of those cases may well reflect inaccurate or
incomplete English summaries of the decisions. Indeed, the vast majority of
decisions by foreign tribunals, which are silent on the question of
recovering Article 74 damages for attorney fees and which apparently award
compensation for attorney costs based on the domestic loser-pays rules of the
tribunal's jurisdiction, suggest a strong consensus that the right to claim
reimbursement for lawyer costs is a procedural matter governed by the rules
of the forum.9 7 The decision of the Northern District of Illinois,
furthermore, never addresses the extremely thorny practical issues that awarding
Article74 damages for attorney fees would create - issues such as whether,
in the United States, recovery of attorney fees would be limited to those
who successfully pursue a breach of contract claim (and thus are entitled to
damages), leaving those who successfully defend against a breach of
contract claim (but who themselves have no claim of breach upon which to
base damages) to bear their own attorney costs. 98
In short, the Zapata decision appears clearly incorrect. Although the
court is to be congratulated for pursuing an international perspective that
permitted it to construe the CISG in a fashion that departs from the
domestic law rules with which it is familiar, and for attempting to take into
account foreign case law interpreting the Convention, it is important that its
misconstruction of Article 74 be corrected quickly. Litigants in U.S. courts
are sure to notice an opportunity to include claims for attorney fees under
the CISG, and the Zapata court's error could spread rapidly. The
misconstruction could also infect practice outside the United States, where claims
for Article 74 damages to cover attorney fees could undermine domestic
loser-pays schemes and their principles for determining (and limiting)
compensation for attorney costs.9 9 Indeed, unless courts around the world
unanimously accepted the Zapata approach and abandoned their apparent
current practice of awarding attorney fees in CISG litigation on the basis of
their domestic loser-pays rules, the Zapata error could generate substantial
non-uniformity in the application of the Convention - exactly the opposite
of the result that the Zapata court indicated it was trying to achieve.'0 It is
hoped that the foregoing article, which discusses a variety of arguments and
considerations apparently not presented to the Zapata court, will aid in
establishing a better-reasoned approach to the attorney fee issue.
97 See supra text accompanying notes 85-86.
98See supra,text accompanying notes 83-84.
99See supra,text accompanying note 84.
'°The fact that a leading European CISG scholar also disapproves of the decision in
Zapata (see the discussion of Professor Joseph Lookofsky's views, supra note 92)
demonstrates the opinion's potential for creating non-uniformity in the interpretation of the
Co. v. Wilderness Society , 421 U.S. 240 , 247 ( 1975 ).
40 See, e.g., Crowl v . Berryhill , 678 N.E.2d 828 , 831 (Ind. Ct. App. 1997 ). ("Indiana folF.3d 1384 ( 1 1th Cir . 1998 ), cert. denied Ceramica Nuova D'Agostino , S.p.A. v. MCC-Marble Ceramic Center , Inc., 526 U.S. 1087 ( 1999 ). For a discussion of the procedural/substantive distinction made by this case, see Harry M. Flechtner, The UN Sales Convention (CISG) and MCC-Marble Ceramic Center, Inc . v. Ceramica Nuova D'Agostino , S.P.A. : The Eleventh Circuit Weighs in on Interpretation,Subjective Intent, ProceduralLimits to the Convention's Scope, and the ParolEvidence Rule, 18 J.L. & CoM . 259 , 284 - 86 ( 1999 ).