Vol 7 No 1 - Roger Williams University School of Law

ecause of a recognition of the controversial nature of UCITA,references to it were conspicuously missing from the WorkingGroup report to the Commission.B. UCITA’s Implications for the CISGThe debates surrounding UCITA (and not necessarily theprovisions of UCITA as they stand in the official version) mightshed light on three issues confronting UNCITRAL: whether (orhow) to extend the scope of the CISG beyond pure goods; adaptingthe existing contract formation rules of the CISG (beyond merelyincorporating the electronic contracting provisions of the ModelLaw) to address newer contracting methods such as shrink-wrapor click-wrap used frequently in electronic commerce; andextension of the CISG into the consumer area. Each of these threeareas has been extremely controversial in the UCITA process.ScopeThe appropriate scope of UCITA has been a persistentproblem throughout its drafting history. As was noted earlier,work on information contracts in the United States began with anexamination of the scope of Article 2. Attempts to broaden Article2 to cover software were ultimately abandoned in favor of separatestatutory treatment of goods and information. As also notedearlier, the decision to separate goods and software was not onereached by the drafting committee, but by the Conferenceleadership, its decision representing a political or administrativedecision much more than a decision on the merits. After the split,the scope provisions of UCITA (and its predecessor, Article 2B)received a great deal of discussion throughout the remainingdrafting process, were the object of most of the criticism of thedraft by the American Law Institute, and have continued to benot adequate to address the way in which technology services and items suchas software were being sold.Id. The Secretariat’s report also noted two ICC projects: the draft Uniform Rules andGuidelines for Electronic Trade and Settlement (URETS) and the Model ElectronicSales Contract. Id. Elsewhere, the UNCITRAL staff member for the Working Groupon Electronic Commerce for UNCITRAL noted that UCITA “may serve as a usefulintroduction to electronic contracting issues that should be addressed, in addition tothose already included in the Model Law, on a global scale.” Renaud Sorieul et al.,Establishing a Legal Framework for Electronic Commerce: The Work of the UnitedNations Commission on International Trade Law (UNCITRAL), 35 Int’l Law. 107, 120(2001).