Iura Novit Curia and the CISG: Resolution of the Faux Procedural Black Hole
in I. Schwenzer & L. Spagnolo (eds), Towards Uniformity: the 2nd Annual MAA Schlechtriem CISG Conference (2011, Eleven International Publishing, The Hague)
42 Pages Posted: 3 May 2012
Date Written: December 16, 2010
There are a number of cases in which the CISG is the applicable law of the contract, and yet both counsel fail to raise it in argument, relying instead upon domestic sales or contract law. The question raised in this paper is, what should courts do in such cases when the CISG’s relevance is realized, either at first instance or upon appeal?
The problem is often said to be one of procedure. If the jurisdiction recognizes the principle of iura novit curia, the court is obliged to apply the CISG, regardless of how the case was conducted. Otherwise, the court may be more constrained.
In this paper, it is contended that the forum’s procedural rules might not be determinative. Instead, an interpretation of the CISG is suggested which allows the matter to be dealt with uniformly in all jurisdictions.
Keywords: CISG, international sales law, procedural law, iura novit curia, right to be heard, international law, ex officio, waiver, waiver by conduct during proceedings, exclusion, opting out
Suggested Citation: Suggested Citation