The CISG as a Basis for Federal Question Jurisdiction: The Need for Authority From the Eleventh Circuit

The CISG as a Basis for Federal Question Jurisdiction: The Need for Authority From the Eleventh Circuit

By Matthew Akiba, Coral Gables, and Jocelyne A. Macelloni, Miami
international law quarterly spring 2023 • volume XXXIX, no. 2

Introduction
Initially, the authors planned this article to be an illustrative analysis of Eleventh Circuit precedent on using the Convention on Contracts for the International Sale of Goods (CISG) as a basis for federal question jurisdiction pursuant to 28 U.S.C. § 1331 (the Federal Question Statute). As of the date of this article, however, neither the Eleventh Circuit nor any of the District Courts of Florida have expressly held that a dispute arising under the CISG provides the court with subject matter jurisdiction under the Federal Question Statute. Perhaps the scant authority on this issue is due to the likelihood that a case involving the CISG involves parties from different states, providing subject matter jurisdiction under 28 U.S.C. § 1332 (the Diversity Jurisdiction Statute). Another reason, perhaps, is that attorneys may not realize that the CISG applies to a particular dispute because the parties’ contract may contain a choice of law provision, leading to an assumption that the CISG simply does not apply.

Knowledge of the workings of the CISG as a basis for subject matter jurisdiction under the Federal Question Statute may salvage a litigant faced with a motion to dismiss for lack of subject matter jurisdiction or a motion for remand. For instance, assume that the parties to a particular dispute are from two foreign countries. In that case, the Diversity Jurisdiction Statute will not confer subject matter jurisdiction because “[i]t is a standard rule that federal courts do not have diversity jurisdiction over cases where there are foreign entities on both sides of the action, without the presence of citizens on both sides.”1 Or perhaps a party is an unincorporated business entity, such as an LLC. In that case, diversity jurisdiction may be lacking, or the parties will have to engage in potentially arduous and costly jurisdictional discovery to uncover the citizenships of all of the LLC’s members because, for purposes of the Diversity Jurisdiction Statute, an LLC is a citizen of every state that any member is a citizen of, including other LLCs.2

Accordingly, the purpose of this article is to encourage litigants in federal court to invoke the Federal Question Statute as a basis for subject matter jurisdiction in cases arising under the CISG, which would promote Eleventh Circuit precedent on the matter and align the Eleventh Circuit with other circuits, including the Fifth3 and Third Circuits.4 Thus, to properly arm litigants faced with a motion to dismiss for lack of subject matter jurisdiction, this article will proceed to instruct practitioners on (1) the scope and application of the CISG, and (2) federal precedent on using the CISG as a basis for federal question jurisdiction.

The Scope of the CISG: When It Applies and When It Does Not
Contracting States
Logically, the first step in applying the CISG as a basis for subject matter jurisdiction is to “determine whether [the] dispute falls within the realm of the CISG so as to invoke [the] [c]ourt’s treaty jurisdiction.”5 Pursuant to Article 1(1) (a), the CISG “applies to contracts of sale of goods between parties whose places of business are in different States . . . when the States are Contracting States. . . .”6 In the case where only one party has its place of business in a Contracting State, however, Article 1(1)(b) provides that the CISG applies “when the rules of private international law lead to the application of the law of a Contracting State.” In other words, the court must conduct a choice of law analysis. For instance, if a seller in Australia (a Contracting State) contracts to sell goods to a party in Malaysia (a non-Contracting State), the court must determine whether the contract is governed by Australian or Malaysian law. If the contract is governed by Australian law, the CISG applies; if the contract is governed by Malaysian law, then Malaysian commercial sales law applies. It is important to note that pursuant to Article 95, “[a]ny State may declare at the time of the deposit of its instrument of ratification, acceptance, approval or accession that it will not be bound by subparagraph (1)(b) of article 1 of this Convention” (emphasis added). Accordingly, practitioners should make sure that neither of the parties’ states has invoked the Article 95 reservation before engaging in a conflict of laws analysis.

Another potential pitfall is in Article 93, which provides that:

If a Contracting State has two or more territorial units in which, according to its constitution, different systems of law are applicable in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of them, and may amend its declaration by submitting another declaration at any time.

While easy to gloss over, the ramifications of Article 93 may prove fatal to a litigant invoking the CISG as a basis for subject matter jurisdiction. For instance, in America’s Collectibles Network, Inc. v. Timlly (HK), the court disagreed that Hong Kong was a party to the CISG and declined to invoke Federal Question Jurisdiction under the CISG.7 The court reasoned that although China had not formally declared under Article 93 that the CISG does not apply to Hong Kong, in 1997, the Chinese government deposited with the secretary general of the United Nations a written declaration announcing the conventions to which China was a party that should apply to Hong Kong upon its transfer. The CISG was not on this list.8 Accordingly, the court granted the plaintiff’s motion to remand for want of subject matter jurisdiction under the Federal Question Statute.

Sale of Goods
What is a contract of “sale of goods”? Rather than define what constitutes a sale of goods, the CISG opts to expressly define what is not a sale of goods. For instance, pursuant to Article 2, this Convention does not apply to sales: a. of goods bought for personal, family, or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use; b. by auction; c. on execution or otherwise by authority of law; d. of stocks, shares, investment securities, negotiable instruments, or money; e. of ships, vessels, hovercraft, or aircraft; or f. of electricity. Further, similar to the Uniform Commercial Code (UCC), the CISG does not apply to contracts where “the preponderant part of the obligations of the party who furnishes the goods consists in the supply of labour or other services.”9 Moreover, manufactured goods fall under the scope of the CISG “unless the party who orders the goods undertakes to supply a substantial part of the materials necessary for such manufacture or production.”10 Finally, courts in the United States have held that framework and distributorship contracts do not fall under the CISG.11

Opting Out of the CISG: Easy to Do and Even Easier to Neglect
Litigants unfamiliar with the CISG often assume that because the contract in dispute contains a choice of law provision, the CISG does not apply. Litigants may be surprised that the CISG automatically applies where Article 1’s conditions are met unless the contract contains a choice of law provision to the contrary.12 Indeed, Article 6 provides that “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.” Nevertheless, to opt out of the CISG, it is insufficient to simply draft a choice of law provision providing that “this contract shall be governed and construed in accordance with the law of X”; the exclusion of the CISG must be express. For instance, in BP Oil Int’l., Ltd. v. Empresa Estatal Petroleos de Ecuador, the contract at issue provided: “Jurisdiction: Laws of the Republic Ecuador.”13 The Ecuadorian company argued that this choice of law provision demonstrated the parties’ intent to apply Ecuadorian domestic law instead of the CISG.14 The Fifth Circuit disagreed, reasoning that “given that the CISG is Ecuadorian law, a choice of law provision designating Ecuadorian law merely confirms that the treaty governs the transaction.”15

Accordingly, unless the contract provides something along the lines of “the Parties hereby agree that the CISG does not govern this contract,” the CISG will apply, assuming Article 1’s conditions are otherwise met. As a note to my fellow South Florida practitioners, the District Court for the Southern District of Florida follows this same precedent.16

Application of the CISG as a Basis for Federal Question Jurisdiction
The Federal Question Statute provides that “[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States” (emphasis added). Indeed, federal courts sitting in Florida regularly hold that the CISG preempts state law causes of action because “Florida is bound by the Supremacy Clause to the treaties of the United States.”17 In order for an individual to enforce a treaty’s provisions, the treaty must be “self-executing, that is, when it expressly or impliedly creates a private right of action.”18 Numerous courts have held that the CISG properly creates a private right of action.19 Indeed, the United States’ ratification of the CISG itself provides that:

The Convention sets out substantive provisions of law to govern the formation of international sales contracts and the rights and obligations of the buyer and seller.20

Along these lines, because the CISG is a self-executing treaty, it has the “preemptive force of federal law.”21 That is to say that under the Supremacy Clause, the CISG displaces any contrary state sales law such as Article 2 of the UCC.22 Accordingly, courts have held that “if the CISG properly applies to [an] action, federal [question] jurisdiction exists.”23

To illustrate, in Asante Technologies, Inc. v. PMC-Sierra, Inc., a Delaware corporation sued another Delaware corporation in California state court for breach of contract and a claim for breach of express warranty based on the defendant’s alleged failure to deliver conforming goods.24 The defendant removed the case, asserting subject matter jurisdiction under the Federal Question Statute, and the plaintiff moved to remand the case for lack of subject matter jurisdiction.25 During the relevant time period, however, the Delaware defendant’s “corporate headquarters, inside sales and marketing office, public relations department, principal warehouse, and most of its design and engineering functions were located in Burnaby, British Columbia, Canada.”26 Accordingly, the court found that the defendant’s “place of business that has the closest relationship to the contract and its performance is British Columbia, Canada. Consequently, the contract at issue in this litigation is between parties from two different Contracting State, Canada and the United State. This contract therefore implicates the CISG.”27

Although the complaint at issue did not reference the CISG, the defendants argued that “the preemptive force of the CISG converts the state breach of contract claim into a federal claim.”28 As the court noted, “Congress may establish a federal law that so completely preempts a particular area of law that any civil complaint raising that selected group of claim is necessarily federal in character.”29 Identifying the issue of whether the CISG preempts state law as a matter of first impression, the court concluded that “the expressly stated goal of developing uniform international contract law to promote international trade indicates the intent of the parties to the treaty to have the treaty preempt state law causes of action.”30 In so concluding, the court ultimately held that the fact that the CISG is not mentioned in the complaint “does not preclude federal jurisdiction in this case, because the CISG preempts state law causes of action falling within the scope of the CISG.”31

In Impuls I.D. Int’l., S.L. v. Psion-Teklogix, Inc., 32 the Southern District of Florida came close—but did not expressly hold— that the CISG provides a basis for subject matter jurisdiction under the Federal Question Statute. In Impuls, a Spanish corporation, an Argentine corporation, and a Florida corporation brought suit against a Canadian corporation arising out of an oral contract between the Spanish and Argentine corporations on the one hand and two British companies on the other hand.33 After the oral agreement  was reached, one of the two British companies acquired the Canadian corporation—the named defendant.34 Following the acquisition, the Canadian corporation’s president terminated the oral agreement.35 The plaintiffs alleged that the court had subject matter jurisdiction under the Federal Question Statute “in that the above-styled cause arises under a treaty of the United States” because “all the parties to the contract have their places of business in Contracting States.”36 The Canadian corporation argued that the oral agreement was entered into by the British companies; as such, the CISG did not apply because the United Kingdom “is not a Contracting State.”37 After finding “no case law supporting the proposition that a contract entered into by party in a non-Contracting State is governed by the CISG when a subsequent party to the contract located in a Contracting State allegedly breaches the contract[,]” the court found that the CISG did not govern the contract at issue. Therefore, “there [wa]s no federal question present in the above-styled case.”38

Following the holding by the Southern District of Florida in Impuls, the question nonetheless remains: whether the Eleventh Circuit recognizes claims arising under the CISG as a basis for subject matter jurisdiction pursuant to the Federal Question Statute. The resources provided in this article, as well as the authority cited herein, may be enough to salvage a litigant faced with a motion to dismiss or a motion for remand for lack of subject matter jurisdiction, resulting in precedent establishing the same.

Conclusion
With the foregoing in mind, the authors hope that practitioners will be armed when faced with a motion to remand or a motion to dismiss for lack of subject matter jurisdiction in federal courts sitting in Florida. As a hub of international commerce, parties would benefit from the CISG’s application to their dispute given that the CISG was enacted to “provide a modern, uniform and fair regime for the international sale of goods.”39 Arguing that the CISG confers subject matter jurisdiction under the Federal Question Statute would provide precedent, clarity, and certainty in disputes involving the international sale of goods, and if ultimately decided by the Eleventh Circuit, would foster an overall impression that federal courts sitting in Florida are a welcome venue for international commercial disputes.

Jocelyne A. Macelloni is a partner and director of education at Barakat + Bossa PLLC, located in Miami, Florida. Board certified by The Florida Bar in business litigation, Ms. Macelloni has spent more than a decade representing businesses and business owners in courts and arbitrations around the United States including in cross-border transactions and disputes, enforcing secured creditor’s rights, and commercial frauds. Ms. Macelloni can be reached at jmacelloni@b2b.legal.

Endnotes
1 Iraola & CIA, S.A. v. Kimberly-Clark Corp., 232 F.3d 854, 860 (11th Cir. 2000).
2 Purchasing Power, LLC v. Bluestem Brands, Inc., 851 F.3d 1218, 1220 (11th Cir. 2017).
3 BP Oil Int’l., Ltd. v. Emprese Estatal Petrolos de Ecuador, 332 F.3d 333, 336 (5th Cir. 2003) (recognizing that the trial court overlooked its concurrent federal jurisdiction because the parties’ dispute arose under the CISG, relegating a conflict of laws analysis unnecessary).
4 ECEM European Chemical Marketing B.V. v. Purolite Co., 451 Fed. App’x 73, 79 (3d Cir. 2011) (“On the other hand, if, as ECEM argues, the CISG (an international treaty) governs the dispute, then we may treat the dispute as a federal question.”).
5 Genpharm Inc v. Pliva-Lachema a.s., 361 F. Supp. 49, 53 (E.D.N.Y. 2005).
6 For a list of Contracting States, please refer to Institute of International Commercial Law, CISG: Table of Contracting States, Pace University, https://iicl.law.pace.edu/cisg/page/ cisg-table-contracting-states (last visited 11 Mar. 2022).
7 746 F. Supp. 2d 914 (E.D. Tenn.).
8 Id. But see Electrocraft Arkansasm Inc. v. Super Electric Motors, Ltd., 2009 WL 5181854 (E.D. Ark. Dec. 23, 2009) (holding that Hong Kong was a party to the CISG).
9 Convention on Contracts for the International Sale of Goods, Article 3(2), [hereinafter “CISG”].
10 Id. at 3(1).
11 See, e.g., Helen Kaminski Pty. Ltd. v. Marketing Australian Products, Inc., 1997 WL 414137 at *3 (S.D.N.Y. July 23, 1997) (holding that the CISG did not govern the parties’ distributorship agreement, but it suggested in dictum that the CISG would apply to a term in the contract that addressed specified goods); Viva Vino Import Corp. v. Farnese Vini S.r.l., No. 99–6384, 2000 WL 1224903, at *1–2 (E.D.Pa. Aug. 29, 2000) (CISG did not govern an exclusive distributorship agreement, an agreement granting the plaintiff a 25% interest in the defendant, or a sales commission agreement); Amsco Ukrservice v. American Meter Co., 312 F. Supp.2d 681, 687 (E.D. Penn. 2004) (“We therefore join the other courts that have examined this issue and conclude that, although the CISG may have governed discrete contracts for the sale of goods that the parties had entered pursuant to the joint venture agreements, it does not apply to the agreements themselves.”).
12 Viva Vino, supra note 7, at *1 (“When two foreign nations are signatories to the CISG, that Treaty governs contracts for the sale of goods between parties whose places of business are in such nations unless the contract contains a choice of law provision to the contrary.”).
13 332 F. 3d 333, 335 (5th Cir. 2003).
14 Id. at 337.
15 Id. See also Asante Techs., Inc. v. PMC–Sierra, Inc., 164 F.Supp.2d 1142, 1150 (N.D.Cal.2001) (holding that a choice-oflaw provision selecting British Columbia law did not, without more, “evince a clear intent to opt out of the CISG . . . . Defendant’s choice of applicable law adopts the law of British Columbia, and it is undisputed that the CISG is the law of British Columbia.”).
16 See Topp Paper Co. v. Eti Converting Equipment, 2013 WL 12101111, at *6 (S.D. Fla. 2013) (holding that CISG applied where contract stated “this agreement shall be constructed and enforced in accordance with the Laws of the Province of Quebec (Canada),” reasoning that the CISG “is the law of Quebec.”).
17 Id. at n. 5 (citing to U.S. Const. Art. VII, cl. 2 (“This Constitution and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land.”)).
18 Asante Technologies, Inc. v. PMC-Sierra, Inc., 164 F.Supp.2d 1142, 1147 (N.D. Cal. 2001).
19 Delchi Carrier v. Rotorex Corp., 71 F.3d 1024, 1027–28 (2d Cir.1995); Filanto, S.p.A. v. Chilewich Int’l Corp., 789 F.Supp. 1229, 1237 (S.D.N.Y.1992).
20 15 U.S.C. App at 52 (1997).
21 American Mint LLC v. GOSoftware, Inc., 2005 WL 2021248 (M.D. Penn Aug. 16, 2005).
22 Usinor Industeel v. Leeco Steel Prods., Inc., 209 F.Supp.2d 880, 884 (N.D. Ill. 2002) (holding that under the Supremacy Clause, the CISG would displace any contrary state sales law such as Article 2 of the Uniform Commercial Code).
23 Asante, supra note 14 at 1147.
24 Id. at 1147–48
25 Id.
26 Id. at 1148.
27 Id.
28 Id. at 1150.
29 Id.
30 Id. at 1151.
31 Id. at 1151 (citing to the “well-pleaded complaint rule.”).
32 234 F.Supp. 2d 1267 (S.D. Fla. 2002).
33 Id. at 1269.
34 Id. at 1270.
35 Id.
36 Id.
37 Id. at 1271.
38 Id. at 1272. For a similar scenario out of the Northern District of Georgia, see Mado Holdings, LLC v. Jinming Wu, 2017 WL 7660407 (M.D. Ga. Sept. 22, 2017).
39 United Nation Commission on International Trade Law (UNCITRAL), United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) (CISG), https://uncitral.un.org/en/texts/salegoods/conventions/ sale_of_goods/cisg#:~:text=The%20purpose%20of%20the%20 CISG,exchanges%20and%20decreasing%20transaction%20 costs.

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