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Florida State University Journal of Transnational Law & Policy

Abstract

This Article examines judicial, arbitral, and scholarly interpretations of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) Article 74 and the recoverability of attorneys’ fees in CISG-governed contract disputes. The divergence in these interpretations and the locus of the resulting controversy is the Zapata decision of the U.S. Seventh Circuit Court of Appeals and the Court’s ruling that attorneys’ fees are not a recoverable loss under Article 74. Post-Zapata, mounting evidence exists of the lack of harmonization and uniformity on this interpretative issue. This Article analyzes the adjudicated outcomes of CISG-governed contract disputes in courts and arbitral tribunals throughout the world where attorneys' fees were sought and reveals that almost all forums outside the U.S. award attorneys’ fees for litigation in CISG disputes. The debate is framed in the context of the significant disagreement among scholars as to the proper interpretation of Article 74’s loss provision as it relates to attorneys’ fees recovery. The disarray posed by discordant interpretations of this issue creates both practical and moral imperatives to adopt a consistent and coherent understanding of Article 74’s loss provision on the recoverability of attorneys’ fees. An excavation of the ethical and legal considerations underlying this interpretative issue demonstrates that the goals of harmonization as well as the CISG are best achieved by rejecting the Zapata rationale. Construing the loss provision of Article 74 to accord with its plain meaning does include attorneys’ fee recovery.

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