Geschäftsführender Herausgeber: RA Prof. Dr. Rolf Herber in Soz. Ahlers & Vogel Schaarsteinwegsbrücke 2 20459 Hamburg IHR Internationales Handelsrecht International Commercial Law Zeitschrift für das Recht des internationalen Warenkaufs und -vertriebs 6/2009 9. Jahrgang S. 229- 272 Dezember 2009 Aufsätze Countertrade and the CISG Prof. Dr. Ingeborg Schwenzer * und Christopher Kee ** , LL.B., Basel A. Introduction Countertrade has become a significant part of international commerce. It has been estimated that between 5 and 35% of total world trade involves countertrade. 1 However, despite this many of the legal consequences remain shrouded in mys- tery. This article will first address the different types of coun- tertrade. Secondly it will deal with the importance of counter- trade in international commerce. Finally we will address the legal rules which govern the relationship between the parties to a countertrade contract. This discussion will examine both domestic and international approaches leading to a uniform solution. In general terms countertrade is a form of trade that in- volves the exchange of goods or services between two parties in lieu of monetary payment. “Countertrade transactions [...] are those transactions in which one party supplies goods, services, technology or other economic value to the second party, and, in return, the first party purchases from the second party an agreed amount of goods, services, tech- nology or other economic value.‘‘ 2 Within such there are different kinds of transactions. One of the most common types of countertrade is barter. Although a very old form of transaction it is far from an archaic legal instrument, rather it is a widely used contemporary phenom- enon. Barter in a strict legal sense refers to a contract invol- ving a two way exchange of goods where the supply of goods in one direction replaces the monetary payment of the supply of goods in the other direction. 3 Barter has been used by governments and private entities alike. Up to the 1990s it was principally socialist and devel- oping countries 4 who engaged in barter as it was easier than a currency transaction. Today, it is especially China and the African states utilising barter at an intergovernmental level. Allegedly a state owned Chinese enterprise has given Demo- cratic Republic of Congo USD 9 billion of infrastructure pro- jects – calculated as 2,400 miles of road, 2,000 miles of rail- way, 32 hospitals, 145 health centers and two universities. 5 The Chinese enterprise in turn is said to receive 10 million tons of copper and 400,000 tons of cobalt. 6 In the private sec- tor Pepsi reportedly entered into a deal whereby it exchanged products for a small fleet of naval vessels – 17 submarines, a cruiser, a frigate and a destroyer. 7 A second form is counterpurchase. This is a transaction whereby two parties of a purchase contract enter into an agreement to later conclude another sales contract in the * Dr. iur. (Freiburg, Germany), LL.M. (Berkeley USA), Professor of Private Law, University of Basel, Switzerland. ** LL.B. B.A. (Hons) (Deakin), Adjunct Professor, City University of Hong Kong; Senior Research Assistant, University of Basel, Swit- zerland, Honorary Fellow, Deakin University, Australia. The aut- hors thank lic. iur Alain F.Hosang and Ref iur. Mareike Schmidt LL.M. for their help in preparing this article. 1 Rowe Countertrade (Euromoney Publications, London, 3rd ed., 1997) 3. 2 UNCITRAL Legal Guide on International Countertrade Transacti- ons (1992) 6, para. 1. 3 Rowe (see above fn. 1) 8. 4 Sumer / Chuah „Emerging Legal Challenges for Countertrade Tech- niques in International Trade“ 13(6) International Trade & Regu- lation Journal (2007) 111, 112. 5 http://news.bbc.co.uk/2/hi/programmes/newsnight/7343060.stm (last accessed 7 January 2009). 6 See „$9 billion barter deal“, available at http://www.barternews.com/ archive/04_15_08.htm (last accessed 7 January 2009). 7 http://www.witiger.com/internationalbusiness/countertrade.htm (last accessed 7 January 2009). Brought to you by | Universitaetsbibliothek Basel Authenticated Download Date | 10/17/17 3:18 PM