How to draft a CISG opt-out clause under Dutch law

Dutch term: CISG opt-out clausule opstellen | Legal basis: Article 6 CISG

To exclude the CISG from an international sale of goods contract with a Dutch party, the opt-out must be explicit. A clause stating 'This agreement is governed by Dutch law' does NOT exclude the CISG, because the CISG is part of Dutch law. The recommended 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.' This language is clear, unambiguous and consistently upheld by Dutch courts.

Common drafting mistakes include: (a) choosing 'the laws of the Netherlands' without mentioning the CISG (the CISG still applies); (b) excluding 'international conventions' without naming the CISG specifically (courts may find this insufficiently specific); (c) placing the opt-out in the general terms rather than in the main contract body (risk of incorporation failure under article 6:233 BW). The opt-out should appear in the governing law clause of the main contract, not buried in a schedule or annex.

Why it matters for international businesses

For international businesses trading with Dutch counterparties, the CISG opt-out is the single most common drafting mistake. Getting it right takes one sentence; getting it wrong can change the entire remedies framework of the contract.