Lisa Spagnolo on “Iura Novit Curia and the CISG: Resolution of the Faux Procedural Black Hole”

Spagnolo Bio Pic InsertLisa 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].

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4 Responses to “Lisa Spagnolo on “Iura Novit Curia and the CISG: Resolution of the Faux Procedural Black Hole””

  1. Ted Folkman Says:

    Nino, this is an interesting paper. I caught the reference to your 2009 presentation, which was nice to see!

    The conclusion of the paper seems questionable to me in an American context, though. Say that A sues B asserting a state-law theory that, it turns out, is preempted by federal law (ERISA preemption, say). Sure, the court ought to apply federal law under the Supremacy Clause of the Constitution. But if the parties don’t raise it, and the court doesn’t raise it on its own initiative, deciding the case on the law as the parties have defined it in their papers, has the court erred? I think not. It’s not clear to me why a treaty obligation to apply international law would or should lead to any different result. The author’s concerns seem really to be a CISG scholar’s concerns rather than a lawyer’s concerns: she worries that non-application of the CISG “deprives the expanding body of
    CISG case law from valuable additions, and robs the CISG of visibility in those jurisdictions where it is needed most; where the unwillingness of counsel to engage with it may arise from low levels of CISG litigation in their jurisdiction. It signals to other counsel that they really need not bother to plead the CISG, even where it governs.” In other words, and this is a little tongue in cheek, let’s adopt a rule that maximizes the materials for CISG scholars to write about!

  2. Antonin I. Pribetic Says:

    The CISG is not foreign law, once implemented or accceded to by a Contracting Party. Applying domestic sales law (e,g. UCC) when the CISG applies by default. Then again, when it comes to international treaty obligations, America is exceptional.

  3. Ted Folkman Says:

    Agreed that the CISG is the law of the United States, as are all treaties. Still, the author focuses on the international law obligation to apply the CISG: ” …when the governing law is
    a treaty, a court’s failure to apply the applicable governing law can amount to a breach of international obligations.” I probably should have written “It’s not clear to me why a treaty obligation to apply the CISG would or should lead to any different result” instead of “It’s not clear to me why a treaty obligation to apply international law would or should lead to any different result.”

  4. Lisa Spagnolo Says:

    Thanks for your response Ted. My concern for raising the CISG’s visibility through case law in jurisdictions such as the United States and Australia is not to have more cases to write about – there are thousands so plenty to keep me busy. It is because the CISG is a relatively efficient law for parties engaged in international transactions, and greater visibility by means of more cases in those jurisdictions raises familiarity levels. Unfamiliarity has led to exclusions where the CISG would have been a more appropriate choice of law for the transaction
    .

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