MCC-Marble Ceramic Center: The Parol Evidence Rule and Other Domestic Law Under the Convention on Contracts for the International Sale of Goods

I. INTRODUCTION The United Nations Convention on Contracts for the International Sale of Goods1 (CISG or "Convention") is considered one of the greatest achievements of modern legal history.2 Even before its ratification by the United States Congress in 1987, it was widely hailed as an international Uniform Commercial Code capable of reducing international transaction costs and bringing unity to an extremely disorganized branch of law. Since Canada, Mexico, and most of the larger European nations have also adopted the CISG,3 the Convention governs a majority of all foreign transactions conducted by the United States.4 In addition, some countries have adopted the CISG as their domestic sales law,5 and in the United States, the Permanent Editorial Board for the Uniform Commercial Code has used the Convention as a constructive model for reforming the UCC.6 In short, the Convention governs virtually all sales transactions "between parties whose places of business are in different" signatory States.7 Nevertheless, the CISG has largely been avoided or ignored by international attorneys in the United States for over a decade. Accordingly, federal courts in the United States have encountered "surprisingly few cases"8 in which the CISG has even been referred to. One federal court notes "that there is little to no case law on the CISG in general."9 There is so little, in fact, that as of May 1998, only thirteen federal cases had even mentioned the Convention; of those thirteen, ten cited the Convention in only a single paragraph or footnote; just one of the remaining three devoted extended analysis to the Convention text.10 In contrast, approximately 464 cases governed by the CISG have been decided in courts around the world. Of those 464, only 32 involved an American company as a party; of those 32 suits, only 11 were initiated by the party from the United States.11 These statistics suggest that federal courts have not made a significant effort to interpret the CISG, even when presented with the opportunity to do so. As a result, many practitioners seem wary of making or enforcing agreements based on the laws of that Convention. It is of little wonder that many feel that "ft]he lack of judicial interpretation or construction of [the] CISG permits great leeway for anyone undertaking" the formation and enforcement of CISG agreements.12 In MCC-Marble Ceramic Center v. Ceramica Nuova d'Agostino, S.p.A.,l3 the Eleventh Circuit examined the CISG and attempted to interpret it as an independent source of law. The court addressed several issues important in advancing American jurisprudence on the Convention. Specifically, it discussed one of the more troubling aspects of the Convention for American practitioners-the CISG's lack of a parol evidence rule. The court made important comments on the use of domestic law under the Convention and on avoiding parol evidence problems in the future. In so doing, the court specifically disagreed with the holding of the Second Circuit in Beijing Metals & Minerals Import/Export Corp. v. American Business Center, Inc.,14 the only other federal appellate court case discussing parol evidence under the CISG. This Note will identify the progress made in understanding the CISG by examining the court's holding and discussion in MCC-Marble. Part II of this Note points out a number of the CISG's benefits and potential drawbacks, in addition to providing the pertinent factual background to MCC-Marble. Part III explains why the Court properly held that the CISG rejected the parol evidence rule, despite arguments in favor of harmonizing the rule with the Convention text. Part IV discusses two significant problems, which the court did not satisfactorily resolve: the possibility that one party may fabricate parol evidence for trial, and the potential ineffectiveness of a merger clause in avoiding parol evidence disputes. Part V stresses that while an independent interpretation of the Convention is crucial, a last resort to domestic law serves an essential gap-filling function necessitated by the brevity of the Convention. …