CISG lawyer in the Netherlands

MAAK Advocaten advises buyers and sellers on international sale of goods contracts governed by the CISG, the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980). The Netherlands is a CISG-contracting state, and the CISG automatically governs the majority of cross-border B2B sales of goods between a Dutch party and a party in another contracting state. For international clients, understanding how the CISG applies, how to opt out, and what its practical differences from Dutch domestic sale of goods law are, is usually the difference between a workable contract and an avoidable dispute.

The CISG has been in force for the Netherlands since 1 January 1992 and has been ratified by more than ninety states, including almost all of the Netherlands' major trading partners. It provides a uniform substantive law for international sales that sits above the national contract law of the parties, and it is directly applicable as Dutch law whenever its scope conditions are met. That last point is the one that trips up most international parties: a clause saying "Dutch law applies" brings the CISG in, not out.

This page explains when the CISG applies, how to draft around it, what the practical differences from Dutch domestic sale of goods law are, and how MAAK Advocaten handles CISG matters for international clients.

When the CISG applies in the Netherlands

Article 1 of the CISG sets two alternative routes to application. The Convention applies to contracts for the sale of goods between parties whose places of business are in different states, when those states are both contracting states (article 1(1)(a)), or when the rules of private international law lead to the application of the law of a contracting state (article 1(1)(b)). For transactions involving a Dutch party, the first route is almost always available because the Netherlands is a contracting state.

The CISG covers sale of goods between businesses and excludes several categories: sales to consumers for personal, family or household use (article 2(a)), sales by auction, on execution or by authority of law, sales of stocks, shares, investment securities, negotiable instruments or money, sales of ships, vessels, hovercraft or aircraft, and sales of electricity. It also does not apply to contracts in which the preponderant part of the obligations is the supply of labour or other services (article 3(2)), which is a line frequently litigated in mixed service-and-goods contracts.

The Convention does not govern validity of the contract (mistake, fraud, illegality, capacity), the effect of the contract on the property in the goods sold, or the liability of the seller for death or personal injury caused by the goods (article 4 and 5). On those points, national law continues to apply in parallel. For a Dutch-law-governed CISG contract, the gap-filler is Dutch domestic law (mainly Book 3 and Book 6 of the Dutch Civil Code).

Opting in, opting out, and the drafting mistake to avoid

Article 6 of the CISG permits the parties to exclude the Convention's application or, subject to article 12, to derogate from or vary the effect of any of its provisions. The opt-out is the single most important drafting point for international parties trading with a Dutch counterparty, and the single most common mistake.

The mistake runs as follows. An international sale contract between a party in a CISG-contracting state and a Dutch party contains a clause that reads "This agreement is governed by Dutch law". The drafter assumes this brings in the Dutch Civil Code's domestic sale of goods rules (Book 7, Title 1). In fact, because the CISG is part of Dutch law, the CISG applies to the sale, and the domestic rules apply only as gap-filler for matters not covered by the CISG. The practical differences are significant: the notice of defect rules, the threshold for rescission, the availability of price reduction, the interest mechanism on overdue payments, and the calculation of damages all follow different rules under the CISG than under the Dutch domestic regime.

If the parties want to exclude the CISG and apply only Dutch domestic sale of goods law, the opt-out must be explicit. A standard formulation is:

This agreement is governed by Dutch law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG), Vienna 1980, is expressly excluded.

If the parties actively want the CISG to apply, the better drafting is to confirm that expressly, which removes any doubt at the dispute stage. If the parties are ambivalent or inexperienced, getting advice before the contract is signed is almost always worthwhile, because fixing a wrong opt-out after the fact is impossible.

Conformity and notice of defect under the CISG

Article 39 of the CISG requires the buyer to give the seller notice of non-conformity, specifying the nature of the defect, within a reasonable time after the defect was discovered or ought to have been discovered. The buyer loses the right to rely on a lack of conformity if it fails to give notice within this period. As a long-stop, the buyer loses the right in any event if it does not give notice within two years from the date on which the goods were actually handed over, unless this two-year period is inconsistent with a contractual warranty.

The "reasonable time" requirement is where most CISG conformity disputes happen. There is no uniform international standard for what counts as reasonable, and the answer depends on the nature of the goods, the industry, the contract, and the buyer's ability to examine the goods promptly. Case law, tracked in international CISG databases, varies from a few days for perishable or easily examined goods to several weeks or months for complex industrial equipment that requires commissioning. The absolute two-year cutoff cannot be extended by the fact that the defect was discovered late.

The CISG also requires the buyer to examine the goods within as short a period as is practicable in the circumstances (article 38). Failure to examine promptly can start the reasonable-time clock running earlier than the buyer realised, because the period runs from when the buyer "ought to have discovered" the defect. For international buyers receiving goods at a port or warehouse, building a prompt examination process into the purchase workflow is a practical protection against losing rights under article 39.

Fundamental breach and remedies under the CISG

The CISG distinguishes between ordinary breach, which gives rise to remedies of damages, specific performance or price reduction, and fundamental breach, which additionally gives the aggrieved party the right to avoid the contract. The distinction is set out in article 25 and it has generated substantial case law.

Under article 25 of the CISG, a breach is fundamental if it results in such detriment to the other party as substantially to deprive it of what it was entitled to expect under the contract, unless the party in breach did not foresee and a reasonable person of the same kind in the same circumstances would not have foreseen such a result. The test is higher than the Dutch domestic law threshold for rescission under article 6:265 of the Dutch Civil Code, which requires only that the breach be non-trivial. International case law sets a relatively high bar for fundamental breach, particularly in cases where a partial cure or replacement is still commercially possible.

The remedies available to the buyer under the CISG are: require specific performance including delivery of substitute goods or repair where the non-conformity constitutes a fundamental breach (article 46), declare the contract avoided in case of fundamental breach (article 49), require a reduction in price (article 50), and claim damages (article 45 and articles 74 to 77). The remedies available to the seller include specific performance (article 62), avoidance for fundamental breach (article 64), and damages.

Price reduction under article 50 is a remedy that does not exist in the same form under Dutch domestic law, and it can be valuable for a buyer who has received non-conforming goods and does not want to rescind the contract. Damages under articles 74 to 77 follow a full-compensation principle limited by foreseeability at the time of contract formation, and include consequential and lost profits damages with more readily available recovery than under some national regimes.

Interest and enforcement under the CISG in the Netherlands

Article 78 of the CISG entitles the party to whom a sum of money is owed to interest on that sum, but the Convention does not specify the interest rate. The applicable rate is determined by the national law otherwise applicable, which for a Dutch-law CISG contract is the Dutch statutory commercial interest rate under the implementation of the EU Late Payment Directive.

For payment claims in international CISG contracts, the combination of article 78 and Dutch statutory commercial interest is a meaningful lever. The interest is calculated from the date payment was due and can add up significantly over the course of a dispute. Combined with the Dutch pre-judgment attachment regime, which allows a creditor to freeze a Dutch counterparty's assets on short notice, the practical enforcement position for an international seller with a Dutch buyer in default is usually strong.

Currency matters in international sales are determined by the contract and, where the contract is silent, by the CISG's residual rules and national law. We advise on currency clauses, payment mechanics and invoicing practice as part of our general drafting work on cross-border sales.

CISG disputes and enforcement in the Netherlands

Disputes under CISG contracts are handled by whichever forum the parties have chosen or, in the absence of a choice, by the courts that have jurisdiction under the applicable private international law. For a contract with a Dutch seller or buyer and a forum selection clause choosing Dutch courts, the dispute runs through the Dutch District Court or, for substantial international commercial disputes where the parties have agreed, through the Netherlands Commercial Court in English.

Our CISG litigation work covers the full range of dispute scenarios: non-conformity claims, late delivery and failure to deliver, price reduction claims, avoidance for fundamental breach, damages calculations, and payment disputes. We use summary proceedings (kort geding) and pre-judgment attachment (conservatoir beslag) where the urgency and the economics justify it, and we coordinate with foreign counsel where enforcement needs to happen in another jurisdiction.

Working with MAAK Advocaten on CISG matters

We act for both sellers and buyers, depending on the mandate. Our CISG work runs in English, German and Dutch. Clients reach the specialist handling the file directly, fees are agreed in advance as described on our lawyer fees page, and the first conversation about a new matter is at no charge. The CISG practice is led by Remko Roosjen.

If you are negotiating an international sale of goods contract with a Dutch party, reviewing a contract that may be subject to the CISG, or dealing with a dispute under a CISG-governed contract, we are happy to discuss the matter without commitment. Read more about MAAK Advocaten.

Related terms in our legal dictionary: how to draft a CISG opt-out clause, international sale of goods, non-conformity of goods.

Related pages: Dutch contract law guide, Dutch domestic purchase agreements, international contracting, international trade law firm, breach of contract litigation.

Call +31 20 210 31 38, email mail@maakadvocaten.nl, or visit our contact page. MAAK Advocaten is based at Kraanspoor 34, 1033 SE Amsterdam.

Frequently Asked Questions

Does a choice of Dutch law exclude the CISG?

No. The CISG is part of Dutch law, so a clause stating that "Dutch law applies" actually brings the CISG in for contracts within its scope, rather than excluding it. If you want to apply Dutch domestic sale of goods law instead of the CISG, the exclusion must be explicit. A standard formulation is: "This agreement is governed by Dutch law. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG), Vienna 1980, is expressly excluded." Getting this wrong is the single most common drafting mistake in international sale contracts with Dutch parties.

What counts as "reasonable time" for notice of non-conformity under article 39?

It depends on the nature of the goods and the circumstances, and there is no uniform international standard. Case law varies from a few days for perishable or easily examined goods to several weeks or even a few months for complex industrial equipment that requires commissioning. The safest practical approach is to give notice as soon as the defect is identified, specifying the nature of the defect in writing, and to have a documented examination process that demonstrates when the defect was actually or ought reasonably to have been discovered. The absolute two-year cutoff under article 39(2) cannot be extended by late discovery.

Can the buyer rescind the contract for any non-conformity under the CISG?

No. The CISG allows avoidance of the contract only for fundamental breach, as defined in article 25. The threshold is higher than under Dutch domestic rescission law (article 6:265 of the Dutch Civil Code), and international case law generally requires that the non-conformity substantially deprive the buyer of what it was entitled to expect. For less serious defects, the buyer's remedies are damages, specific performance or price reduction under article 50, rather than avoidance. This is one of the most important practical differences between CISG and Dutch domestic sale of goods law.