Uniformity or Diversity of the Concept of Good Faith Under the CISG and UAE Law

Malkawi, Bashar

doi:10.1007/978-3-031-14105-8_10

Bashar Malkawi¹⁴

Part of the book series: LCF Studies in Commercial and Financial Law ((LCFSCFL,volume 1))

308 Accesses

Abstract

Good faith is considered the bedrock of sale contracts in civil law countries. Good faith can be characterized by honesty, openness, and consideration for the interests of the other party to the transaction or relationship in question. The position is far less clear in the United Nations Convention on Contracts for the International Sale of Goods (CISG) and is dependent on national precedents. The paper seeks to provide the readers with a background of the concept of good faith. The paper sheds light on good faith as one of the most important concepts in the CISG. This is done in comparison with the doctrine of good faith according to United Arab Emirates (UAE) law. Cases decided by UAE courts indicate a pattern that UAE courts will give effect to express good faith provisions in sale contracts.

I am indebted to Stephanie Clinch for her research assistance and comments throughout the various stages of this project.

This is a preview of subscription content, log in via an institution to check access.

Access this chapter

Log in via an institution

Chapter: USD 29.95; Price excludes VAT (USA)

eBook: USD 149.00; Price excludes VAT (USA)

Softcover Book: USD 199.99; Price excludes VAT (USA)

Hardcover Book: USD 199.99; Price excludes VAT (USA)

Tax calculation will be finalised at checkout

Purchases are for personal use only

Institutional subscriptions

Notes

1.
Dubroff (2006), pp. 565–566.
2.
See Juenger (1995).
3.
See Hodgins and Rotherham (2012). See also Tadros (2017).
4.
See MacMahon (2015).
5.
See Almutawa (2015), p. 27.
6.
Ibid, pp. 28–31.
7.
See Bridge (1999), p. 60. See also Ahmad (2010).
8.
See Ziegel and Samson (1981).
9.
See Davies and Snyder (2014), pp. 74–75.
10.
Ibid.
11.
See Ahmad, p. 120.
12.
See Kanakri (2019).
13.
See Kisswany (2016).
14.
See Eltom (2009), p. 28.
15.
See Dubai Court of Cassation judgment of 5 April 2009, 23/2009.
16.
CISG, Art 6: ‘The parties may exclude the application of this Convention or, subject to article 12, derogate from or vary the effect of any of its provisions.’
17.
During the 1980 Diplomatic Conference, a Canadian proposal suggested that the obligation of good faith be made non-excludable, but the parties may agree to the standard by which the performance of a good faith could be measured. However, this proposal was rejected. See Keily (1999).
18.
See Al-Muhairi and Sultan (1996), pp. 116–160.
19.
UAE Civil Code, Art 390 states that:
1. (1)
  The contracting parties may fix the amount of compensation in advance by making a provision therefore in the contract or in a subsequent agreement, subject to the provisions of the law.
2. (2)
  The judge may in all cases, upon the application of either of the parties, vary such agreement so as to make the compensation equal to the loss, and any agreement to the contrary shall be void.
20.
See Mather (2001).
21.
UAE Federal Supreme Court judgment of 7 June 2010, 556/2009.
22.
See CISG, Arts 49 and 64.
23.
See Woods (2018).
24.
UAE Civil Code, Art 272(1) states that: “In contracts binding on both parties, if one of the parties does not do what he is obliged to do under the contract, the other party may, after giving notice to the obligor, require that the contract be performed or cancelled.”
25.
UAE Federal Supreme Court judgment of 12 July 1992, 217/JY 13.
26.
UAE Civil Code, Art 271 states:

It shall be permissible to agree that a contract shall be regarded as being cancelled spontaneously (automatically) without the need for a judicial order failing performance of the obligations arising thereout, and such agreement shall not dispense with notice unless the contracting parties have expressly agreed that it should be dispensed with.
27.
UAE Federal Supreme Court judgment of 7 June 2010, 556/2009.

References

Ahmad WH (2010) Good faith in international sales. Dar Alfikr wa Alqanon, pp 120, 225–255
Google Scholar
Al-Muhairi B, Sultan BA (1996) The development of the UAE legal system and unification with the judicial system. Arab Law Q 11(2):116–160
Article Google Scholar
Almutawa OK (2015) The role of good faith in the United Nations Convention on contracts for the international sale of goods (CISG). Thesis, University of Leicester, p 27
Google Scholar
Bridge M (1999) The international sale of goods: law and practice. Oxford University Press, p 60
Google Scholar
Davies M, Snyder DV (2014) International transactions in goods: global sales in comparative context. Oxford University Press, pp 74–75
Book Google Scholar
Dubroff H (2006) The implied covenant of good faith in contract interpretation and gap-filling: reviling a revered relic. St. John’s Law Rev 80(559):565–566
Google Scholar
Eltom O (2009) The emirates law in practice. Future Bookshop, p 28
Google Scholar
Hodgins P, Rotherham T (2012) United Arab Emirates: Good faith in the UAE. Clyde and Co. Available via Mondaq. www.mondaq.com/reinsurance/196112/good-faith-in-the-uae. Accessed 29 Feb 2021
Juenger F (1995) Listening to law professors talk about good faith: some afterthoughts. Tul Law Rev 69:1253
Google Scholar
Kanakri CAH (2019) The Overarching Obligation to Act in Good Faith in Contracts Governed by UAE Law - Legal Regime and Practice. Kennedys. Available via Mondaq. https://www.mondaq.com/government-contracts-procurement-ppp/859084/the-overarching-obligation-to-act-in-good-faith-in-contracts-governed-by-uae-law%2D%2Dlegal-regime-and-practice. Accessed 19 June 2021
Keily T (1999) Good Faith and the Vienna Convention on contracts for the international sale of goods (CISG), Vindobona. J Int Commer Law Arbitr 3:15
Google Scholar
Kisswany R (2016) Duty of good faith in contracts: how might a UAE Court interpret the duty of good faith in contracts that are governed by foreign law? Zawya News
Google Scholar
MacMahon P (2015) Good faith and fair dealing as an underenforced legal norm. Minn Law Rev 99:2051
Google Scholar
Mather H (2001) Choice of law for international sales issues not resolved by the CISG. J Law Commer 20:162–164
Google Scholar
Tadros R (2017) The Inconvenient Truth: Good Faith and Termination for Convenience under UAE Law. Ince. Available via Ince. www.incegd.com/en/news-insights/inconvenient-truth-good-faith-and-termination-convenience-under-uae-law. Accessed 12 Mar 2021
Woods V (2018) How to part ways – the three ways to terminate a contract in the UAE. Hadef & Partners. Available via Lexology. https://www.lexology.com/library/detail.aspx?g=a3434b5a-3775-47b7-868d-3cd894b1d875. Accessed June 2021
Ziegel JS, Samson C (1981) Report to the Uniform Law Conference of Canada on Convention on Contracts for the International Sale of Goods. Available via Pace Law School CISG Database. www.cisg.law.pace.edu/cisg/wais/db/articles/english2.html. Accessed 6 Apr 2021

Download references

Author information

Authors and Affiliations

University of Arizona, Tucson, AZ, USA
Bashar Malkawi

Authors

Bashar Malkawi
View author publications
You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Bashar Malkawi .

Editor information

Editors and Affiliations

University of Oslo, Oslo, Norway
Mads Andenas
The London Centre for Commercial and Financial Law (LCF), London, UK
Maren Heidemann

Rights and permissions

Reprints and permissions

Copyright information

About this paper

Cite this paper

Malkawi, B. (2023). Uniformity or Diversity of the Concept of Good Faith Under the CISG and UAE Law. In: Andenas, M., Heidemann, M. (eds) Quo vadis Commercial Contract?. LCF Studies in Commercial and Financial Law, vol 1. Springer, Cham. https://doi.org/10.1007/978-3-031-14105-8_10

Download citation

DOI: https://doi.org/10.1007/978-3-031-14105-8_10
Published: 16 March 2023
Publisher Name: Springer, Cham
Print ISBN: 978-3-031-14104-1
Online ISBN: 978-3-031-14105-8
eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics