Lisa Spagnolo (Monash University – Faculty of Law) has published “Iura Novit Curia and the CISG: Resolution of the Faux Procedural Black Hole” in I. Schwenzer & L. Spagnolo, Towards Uniformity: The 2nd Annual MAA Schlechtriem CISG Conference, Eleven International Publishing (2011) 181-221. The Introduction reads:
“A growing line of cases points to a potential black hole in the CISG. Through a combination of domestic procedural rules and waiver principles it seems many cases to which the CISG clearly applies are being determined on the basis of inapplicable law, simply because counsel failed to mention the CISG.
This result is at worst incorrect, and at best, unsatisfactory. In my view, judges (and to a lesser extent, arbitrators) who realize the CISG applies to the case before them rather than the local sales law presented by counsel, often should, and in many cases, must apply the CISG. In this article I will present the case for how and why this should occur, regardless of local procedural ground rules.
The chapter begins in Part 2 with a typical factual setting and examples of it in practice. Part 3 presents the traditional view, according to which the forum’s procedural rules should provide the solution, outlines the nature of iura novit curia, and queries whether observed diversity in outcomes can be attributed to variance in procedural rules or interpretation of the CISG. The balance of the chapter attempts to provide a resolution to the problem that will improve certainty. Parts 4 and 5 respectively pose and analyse the questions so often obscured by the approach taken in the cases and by the traditional view: is there an obligation to apply the CISG if it is not pleaded? And if so, does failure to plead the CISG per se amount to an agreement to exclude it? Part 6 puts forward a range of practical solutions, and Part 7 draws some brief conclusions.”
The paper is available for free download via the Pace Law School CISG Database here [pdf link].
Gelboim v. Credit Suisse Group AG et al. (12-CV-1025) is is a recent international banking antitrust class action filed in the U.S. District Court (S.D.N.Y). A pdf copy of the pleading is available here.
The Plaintiff seeks certification of the class action as a representative plaintiff under Rule 23(b)(3) of the Federal Rules of Civil Procedure. She alleges that the world’s leading international banking institutions, including the Royal Bank of Canada, conspired to manipulate the London Interbank Offer Rate (LIBOR), administered by the British Bankers Association, in violation of the Sherman Antitrust Act, 15 U.S.C.§ 1 “to create the appearance of financial strength and not reveal to the market their true respective financial positions.” (at para. 10).
Dan Hull and Brian Tannebaum have already paid personal and professional tribute to Scott Greenfield: the man, the lawyer, the curmudgeon, the husband, the father, the friend. Many on Twitter have expressed their 140-character long wishes and condolences.
I have never met Scott, as the interwebz hipsters say, “IRL”. Yet, I have had the distinct privilege of getting to know him as a lawyer and as a blawger in the past few years. We have talked over the phone and exchanged emails regularly. I have often burdened Scott with practice-related questions. Not once has Scott given me short shrift. Even as I approach 20 years of legal practice, he remains one of my very few trusted mentors.
Scott and I acquainted on Twitter, of all places, back in 2009. For his own inscrutable reasons, Scott chose to add me as one of his “friends”. This means nothing to many who only see Twitter as a means to an end.
Over time, we have shared some jokes and ideas, but mostly I gained from Scott a deeper and more abiding respect for the nobility of the legal profession. Candidly, if I had met Scott as a new lawyer, I would have chosen to become a criminal defence lawyer instead. The depth and breadth of his passion (used in the traditional, not social media, sense) and respect for the Rule of Law, even when the legal profession and the judiciary lose sight of the meaning of “Simple Justice”, resonated with me on a fundamentally personal level.
As I recently said on the Twitter: “I lament @ScottGreenfield’s decision to shutter Simple Justice. I do not need to know his reason for his doing so.”
I previously paid tribute to Scott in a post, which is reproduced below:
A Tribute to one of the Four Horsemen: Scott Greenfield and His Simple Justice Blawg
The White Horse
“I watched as the Lamb opened the first of the seven seals. Then I heard one of the seven living creatures say in a voice like thunder, “Come!” I looked, and there before me was a white horse! Its rider held a bow, and he was given a crown, and he rode out as a conqueror bent on Conquest.” —Revelation 6:1-2
This is a short tribute to Scott Greenfield, the author of the widely acclaimed Simple Justice blawg and one of the Four Horsemen of the Blawgosphere.
I began blawging last August and first became “virtually” acquainted with Scott Greenfield, along with Mark W. Bennett (Defending Peopleand Social Media Tyro), Brian Tannebaum (Criminal Defense Blog andMy Law License) and Brian Cuban (The Cuban Revolution) by following each of them on Twitter and their blawgs. I take credit in dubbing them “The Four Horsemen”: they are the harbingers of the decline of the legal profession in the wake of the social media hyperbole that permeates the internet with an odoriferous ,sickly-sweet smell of brimstone and treacle.
While each is fiercely individualistic, they all share a common trait: a fierce dedication to exposing hypocrisy, injustice and tyranny—whether it is committed by the government, the legal profession or individual lawyers or what I call “fauxyers” (those who are suspended, disbarred, unemployed or non-practising). While our perspectives, practices and philosophies differ, we shared an antipathy towards self-anointed legal ethicists, cyberpaths and social media svengalis; none of whom deserve mention, even in passing.
Like many others (most recently Eric Turkewitz over at New York Personal Injury Law Blog), I admire Scott’s unique ability to write cogently and succinctly about a wide range of legal and societal issues. How Scott is able to sustain the prodigious output of quality legal analysis remains a mystery; but self-discipline is not preternatural, it is a skill that is learned, yet cannot be taught.
Just as the White Horse represents righteousness, so does Scott’s Simple Justice blawg. Scott, as he notes, writes for himself. We are the beneficiaries of his selfishness. Most of Scott’s posts are devoted to timely, incisive analysis on substantive criminal law issues, much like the Law & Order slogan of “stories ripped from the headlines”. Yet, Scott does not fictionalize, sanitize or trivialize. His Simple Justice blawg is the embodiment of a Manichean conflict of the good versus the mediocre; a pitched battle against spammers, trolls, social media gurus, and the Slackoisie—all of whom share a common pathology: a narcissistic sense of self-entitlement. Well enough that the White Horse also signifies pestilence or plague, and it is Scott whose infectious writing is a panacea to all the phony baloney wanna-be unemployed legal marketing experts.
Keep fighting the good fight, Scott. I continue to try to scale the vertiginous heights with the hope that someday I will stand aloft on the shoulders of a blawging giant.
Wherever and whenever you end up writing again, Scott, I will be among the first to read and benefit from your insights. While this may be the end of Simple Justice, it is a surely the beginning of even greater things.
And now…a musical interlude as the curtain closes….
Apparently he’s a New York attorney and a New York Democrat who represented the state’s 95th Assembly District in Albany from 2003–2006. His meteoric rise within New York political and legal circles apparently warrants his own Wikipedia page. So, when I received a comment this morning from “Ryan Karben” , which found its way into my spam folder, I was intrigued. I clicked on the Tumblr link and here’s what it said (glaring grammatical errors included):
Ryan Karben a Awesome Leader
Ryan Karben’s success in the court room and at the negotiating table, experience at New York’s most prestigious law offices and superior academic credentials make sure that your legal needs are handled with focus, care and precision.
When the requirement to obtain a lawyer arises, you must manage to find a great lawyer who’s knowledgeable inside region that’s needed and it has an incredible reputation. Lots of people would rather locate a local lawyer if it is Ryan Karben, a brand new York lawyer or not. A lawyer search happens to be an overwhelming and frequently frightening task for anybody who has certainly not needed a lawyer before. Personal, business and criminal problems can arise for pretty much anyone without notice.
Ryan Karben was born within the borough with the Bronx on September 29, 1974. In 1979, his family transferred to Spring Valley, Nyc. Karben would be a student at the Frisch School in Paramus, Nj-new jersey.[1] He attended Yeshiva University as being a Max Stern Distinguished Scholar and graduated magna cum laude in 1996 having a B.A. in English. Then attended the Columbia Law School to be a Harlan Fiske Stone Scholar, graduating in 1999.
Karben is usually a an affiliate the American Bar Association and also the Ny State Bar Association.
Karben married Lauren C. Bekritsky, his senior high school sweetheart, in June 1996. The Karbens have three daughters.
In 1995, Karben lost his initial bid being county legislator in the age of 21 when he finished fourth inside a race for 3 open positions. In his concession speech at the Holiday Inn in Suffern, The big apple, Karben assured his supporters he considered the election an optimistic experience and that he can be back.
In 1997, Karben was elected to represent Ramapo within the Rockland County Legislature. He was the youngest county lawmaker from the State of the latest York during those times and remains the youngest person to get served inside the Rockland County Legislature. Karben was selected as majority leader from the Rockland County Legislature in 2001-2002.
In November 2002, Karben was elected for the Nyc State Assembly in Albany to represent the 95th district, including the city of Orangetown and parts of the Town of Ramapo in Rockland County. Karben served for the Energy Committee and led an exploration of Consolidated Edison in 2004. Karben had also pushed for tougher sex-offender tracking laws and environmental cleanups at several Rockland County sites. Following his resignation, he soon began his personal law practice, the Law Office of Ryan Karben, based at his home in Monsey. In September 2007, Karben was named Managing Director of Fleishman-Hillard Government Relations, a national political consulting and lobbying firm.
A client-centered lawyer, Karben provides individuals, privately-held and public companies with candid advice in transactions and determined advocacy inside courtroom. He’s represented major construction companies, property companies, publishers, health clinics, non-profit organizations and municipalities in a number of practice areas.
Karben’s legal practice is informed from the experience he gained over 13 years in town plus the Nyc State Legislature. Karben graduated with honors on the Columbia University School of Law. His “real-world” experience is gleaned from his have Manhattan’s largest legal firms.
He has repeatedly won oral arguments before New York’s jurists, secured numerous approvals for environmentally responsible real-estate developments and negotiated comprehensive and thoughtful answers to serious business disputes.
In Reference re Broadcasting Act, 2012 SCC 4, the Supreme Court of Canada today affirmed the Federal Court of Appeal ruling that retail Internet Service Providers (“ISPs”) do not carry on, in whole or in part, “broadcasting undertakings” subject to the Broadcasting Act when, in their role as ISPs, they provide access through the Internet to “broadcasting” requested by end‑users. Read the rest of this entry »
Le droit au silence (Véronique Robert)
Droit criminel – Réflexions au fil des jours. Commentaires sur l’actualité judiciaire, québécoise et canadienne surtout.
Lisa Spagnolo (Monash University – Faculty of Law) has published “Iura Novit Curia and the CISG: Resolution of the Faux Procedural Black Hole” in I. Schwenzer & L. Spagnolo, Towards Uniformity: The 2nd Annual MAA Schlechtriem CISG Conference, Eleven International Publishing (2011) 181-221. The Introduction reads:
Posted by Antonin I. Pribetic 
Antonin I. Pribetic
