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].