5. During legal proceedings an intent to exclude may not be inferred merely from failure of one or both parties to plead or present arguments based on the CISG. This applies irrespective of whether or not one or both parties are unaware of the CISG’s applicability.
5.1 Court decisions on purported exclusion of the CISG’s application during the course of legal proceedings by reason of failure to plead or argue the CISG during legal proceedings do not exhibit similar levels of uniformity to that displayed by ex ante exclusion decisions. A number of anomalies seem evident. There is an unsatisfactory variety of outcomes amongst cases involving similar circumstances. The uniformly strict approach to intent to exclude at the ex ante stage is not evident, despite the fact that both involve interpretation of Art. 6. Moreover, courts and tribunals have relied on an unsatisfactorily wide range of rationale for decisions in such circumstances.
5.2 There are a number of cases where parties did not refer to the CISG in pleadings or argument, or only did so upon appeal, despite the fact it was the applicable law. The applicability of the CISG has been overlooked in first instance hearings due to failure by parties to plead or argue the CISG, leading to decisions based on domestic law. In some decisions, reference to domestic law without mention of CISG during proceedings led to the conclusion that the CISG was ‘inapplicable’. In some cases, non-application of the CISG has been upheld upon appeal, sometimes on the basis that the manner in which proceedings were conducted precludes application of the CISG. Alternatively, the CISG has sometimes been applied upon appeal for the first time, or the matter remitted to lower courts with a direction to determine the case pursuant to the CISG. Conversely, in other cases, the CISG was applied by the court regardless of the fact that counsel did not present CISG based arguments, or inadequately argued the CISG. In one Dutch case, the CISG was applied due to a choice of Dutch law during proceedings.
5.3 Amongst such cases, courts have often ignored Art. 6 in their decision as to whether to apply the CISG or domestic sales law. The domestic procedural principle of iura novit curia has been invoked to apply the CISG, but in other cases, the decision to apply non-CISG domestic law has been based on domestic waiver principles, discussed below [§6]. Yet the CISG governs exclusion during proceedings where it is prima facie applicable pursuant to Art. 1, just as much as during performance or at the time the contract is concluded.
5.4 There has been a view that the lex fori controls which law is to be applied where both sides have not presented argument on the applicable law. The domestic procedural principle of iura novit curia (the court knows the law) defines the respective roles of the court and parties in relation to the task of establishing which substantive law applies, and ascertaining the content of that law. A court is said to be obliged to apply the applicable law irrespective of whether parties have invoked it in a forum that follows the principle.
5.5 Contracting States: In Contracting States, courts must apply the CISG to an existing contract to which the CISG is applicable ipso jure from the nature of the CISG as international law, or as international law incorporated into domestic law. Courts in Contracting States are bound to apply the CISG whenever it is applicable pursuant to Art. 1. The duty is not derived from the forum’s principle of iura novit curia. The conduct of counsel during proceedings does not unilaterally relieve the court of its duty. In Contracting States, the CISG is not a foreign law, but a part of the law of the forum. Its applicability and content are therefore always questions of law, not fact, and default rules regarding substitution of domestic for unascertainable foreign law are irrelevant.
5.6 Non-Contracting States: As courts in non-Contracting States are not bound by an obligation to apply the CISG, in such courts the procedural law of the forum remains determinative, thus domestic principles of iura novit curia are relevant. If such a court’s own conflict rules point to the law of a Contracting State, application of the CISG will amount to application of a foreign law, thus the extent to which a court considers itself either obliged or empowered to apply the CISG will be influenced by whether its procedural rules classify foreign law as a question of fact or law.
5.7 Arbitral tribunals: The CISG itself does not impose any obligation upon arbitral tribunals to apply the Convention, thus in principle no duty arises to apply the CISG ex officio where parties have remained silent on the issue. The respective roles of tribunals and parties in relation to identification and application of substantive law is derived from the procedural law of the arbitration, including mandatory due process rules, the arbitration agreement and any arbitration rules agreed by the parties. Some arbitral rules and laws contemplate the iura novit arbiter issue, and empower arbitrators to look beyond party submissions (unless parties have agreed to the contrary), but do not oblige the tribunal to do so.
5.8 Appeals: Appeal courts present additional considerations due to the diversity in rules regarding grounds for appeal and the options open to appellate courts where the lower court has applied the incorrect law. Accordingly, a range of approaches is evident in cases which have proceeded to appeal where the CISG was not pleaded or argued at first instance. Some were remitted back to the lower court for re-determination under the correct law. However, in other cases, appeal courts have declined application of the CISG on the basis of rules restricting the jurisdiction of the appellate court to matters raised at trial. Where grounds of appeal are within judicial discretion,  the matter may turn on whether new arguments would be ‘futile.’ In such instances, allowing preliminary CISG argument would enable appellate courts to gauge the extent of potential futility. Where rules of appeal allow for judicial discretion regarding new grounds, in Contracting States it is suggested that the duty of the court to apply the CISG should be taken into account in the exercise of that discretion. In other circumstances, appeal courts may choose to remit matters to lower courts for determination under the correct law, where such a course is open to the court under its own procedural rules. Alternatively, where open to courts, leave to amend pleadings and an adjournment to enable presentation of argument upon the CISG may prevent infringement of any duty not to render ‘surprise’ judgments.
5.9 The procedural principle of iura novit curia has been explicitly relied upon to justify application of the CISG in cases where counsel did not plead it. Courts in some cases view conduct during proceedings as “waiver” without application of Art. 6 CISG. Indeed, within a single jurisdiction, conflicting decisions have been reached on this point.
5.10 On the other hand, in cases where Art. 6 has been relied upon as the basis for decisions on whether conduct of proceedings amounts to an agreement to exclude the CISG, the standards applied in relation to intent to exclude, and consequently the outcomes reached, have been widely inconsistent. A number of court decisions uphold the notion that failure to mention the CISG during proceedings is not sufficient agreement to exclude. By contrast, in other cases, the same conduct has been construed as demonstrating intent to exclude pursuant to the CISG, for example, in a Chilean case, where failure to plead the CISG until the appellate stages was characterized as a tacit exclusion pursuant to Art. 6. Spanish courts have also determined the CISG was tacitly excluded pursuant to Art. 6 due to the failure of parties to raise it until the appeal stage. In China, Serbia and France, courts and tribunals appear to have applied the domestic law on the basis that failure of parties to invoke the CISG is tacit exclusion under Art. 6, and it has been considered a relevant factor in determining exclusion in Dutch and Austrian cases. In two cases, the French Cour de Cassation initially applied the domestic law on the basis of tacit exclusion due to failure by parties to invoke the CISG, although tacit exclusion was later limited by the Cour de Cassation to situations where parties fail to both plead and argue the CISG only. While each case turns on its own facts, such differences in the interpretation of Art. 6 undermine uniformity, and should be resolved in favour of a more consistent approach.
5.11 Cases applying Art. 6 CISG in regard to conduct of proceedings frequently set a far lower evidentiary standard for intent than at the time of contractual conclusion, and in some cases courts appear quick to conclude exclusion without careful consideration. It is unsatisfactory that different evidentiary standards be employed in the interpretation of Art. 6 CISG. As concluded above, the better view is that the evidentiary standard for intent to exclude the CISG should be the same at all stages, although it may manifest in different ways depending on whether exclusion is ex ante or ex post. Further, as there is a high level of consistency amongst the decisions of courts and tribunals about the high level of clarity required for exclusion at the contractual stage, this is the appropriate degree of intent for a single uniform standard. Therefore at the post-contractual stage an equally high threshold for the standard of intent is required, and thus there must also be a clear agreement between parties to modify the contract so as to exclude the CISG.
5.12 Moreover, more coherent and uniform results will flow from realignment of the ex ante and ex post interpretations of Art. 6, promoting uniformity: Art. 7(1). Application of a high threshold for intent to exclude, the standard that is already applied by courts in relation to exclusion at the time of concluding a contract, enhances the purpose of the CISG in reducing barriers to trade. While a general principle of party autonomy underlies the CISG, and Art. 6 undoubtedly permits exclusion during proceedings, the divergence observed above demonstrates the need to develop a balanced and consistent approach as to how party autonomy may be legitimately exercised. Finally, it is anomalous that a lower evidentiary standard apply in relation to ex post exclusions than for ex ante exclusions, since not only do the same provisions apply to both, but in the case of ex post exclusion, because a CISG contract already exists, it follows that Art. 29 must also be satisfied. Scholarly opinion suggests any type of modification under Art. 29 CISG requires clear intent, simply by virtue of the fact that an agreed bargain already exists. This suggests that rather than a lower standard of intent, ex post exclusions should involve a high degree of evidentiary certainty. In view of the fact that exclusion by modification during proceedings involves both Arts 6 and 29, the appropriate measure of intent for ex post modifications should be no less stringent. The general requirement of restraint before any type of modification is upheld under Art. 29 CISG accords with the requirement of clear intent for ex ante exclusion pursuant to Art. 6. Combining both requirements in relation to the appropriate standard for exclusions during legal proceedings will realign evidentiary standards for exclusion at all contractual stages and ensure greater consistency and uniformity.
5.13 This means that inferences of an intent to exclude by the way that proceedings are conducted should not be drawn lightly. Courts and tribunals must find parties have formed an agreement to exclude, and should not simply accept the mere conduct of proceedings without mention of the CISG in pleadings or argument as sufficient. Arts 6 and 29 require a clear indication of intent to modify the contract by agreement between parties. In interpreting conduct during proceedings under Art. 8, consistently with Art. 7(1) and the purpose underlying the CISG, courts and tribunals should be slow to find intent to exclude without clear indications of an agreement to that effect between parties.
5.14 Adjudicators should be careful to balance alternative inferences arising from the conduct of proceedings. Absent other evidence, the following examples provide some general indications of the appropriate level of caution, for reasons discussed below in [§§5.15-22]:
(a) Mere failure by both parties to plead the CISG and one party to argue the CISG cannot generally be reasonably understood as offers to modify with sufficient intent to be bound, and cannot manifest a clear intent to exclude the CISG pursuant to an agreement to modify the contract under Art. 29;
(b) Mere failure by both parties to argue the CISG where one or both have pleaded it would similarly be insufficient to manifest clear intent to exclude by modification. In accordance with the observation in (a) above that failure to plead the CISG in claims will not constitute an offer to modify, failures to raise the CISG in defence in response cannot be reasonably understood as acceptances of purported offers to modify pursuant to Art. 8(2) CISG;
(c) Failure by both parties to plead the CISG, and of one to argue the CISG would similarly be insufficient to manifest clear intent to exclude by modification;
(d) Mere failure by both parties to plead and failure by both to argue the CISG would also be insufficient to manifest clear intent to exclude by modification;
(e) Mutual lack of awareness of the CISG’s applicability cannot amount to a clear intention to exclude, since there cannot be an agreement upon something of which parties are unaware;
(f) Where one party pleads the CISG but then later withdraws their pleading, this may indicate of awareness of the CISG’s applicability, but will not, without more evidence, be sufficient clear intention of the parties to exclude the CISG by agreement to modify the contract.
5.15 Failure to invoke the CISG in argument can only constitute an implied agreement to exclude if it actually modifies the pre-existing CISG contract. Thus, in addition to Art. 6, the conduct would need to satisfy Art. 29 and Arts 11, 14-24. Pursuant to Art. 14 CISG, ex post offers to exclude should exhibit an ‘intent to be bound.’ It is improbable that absence of argument on applicable law in litigation constitutes such binding intent. On the contrary, failure to mention the law sought to be excluded renders purported offers to modify insufficiently definite pursuant to Art. 14 CISG, as is true under the prevailing approach to ex ante exclusions. In keeping with Art. 29 CISG, silence or inaction rarely constitutes an agreement to modify, and failure to object to modification offers amounts to assent only in ‘very exceptional cases’ since there is already a contractual balance of rights and obligations on foot. Additionally, as Art. 29 is ‘highly fact-specific’, the context of legal proceedings must be taken into account. Thus mere failure to object could only rarely amount to assent in the context of legal proceedings. A defence which answers only those arguments raised by the claimant cannot be reasonably understood as acceptance of a unilateral attempt to modify.
5.16 Where the original contract contains a ‘no oral modification’ clause, the potential for tacit waiver by conduct of the case is further reduced, unless there has been reliance on the conduct: Art. 29(2) CISG. However, the ‘mere fact that a party has not pursued his remedies against the other party should ... not constitute a sufficient reliance’ for the purposes of Art. 29(2). The manner in which a respondent formulates its response to claims should not be considered sufficient reliance in such situations.
73. See, e.g., Oberlandesgericht [Appellate Court](OLG) Naumburg, Germany, 13 February 2013 <http://cisgw3.law.pace.edu/cases/120213g1.html>; Ho Myung Moolsan, Co. Ltd. v. Manitou Mineral Water, Inc., supra note 35; Rienzi & Sons, Inc., v. Puglisi, supra note 35 (relying on Ho Myung Moolsan case in applying NY UCC where parties failed to plead the CISG other than in one incidental paragraph and did not mention it in preliminary conference)
Italian Imported Foods Pty Ltd v. Pucci Srl, New South Wales Supreme Court, Australia, 13 October 2006 <http://cisgw3.law.pace.edu/cases/061013a2.html>; Gammatex International Srl v. Shanghai Eastern Crocodile Apparels Co. Ltd., Shanghai First Intermediate People’s Court, China, 21 August 2002 <http://cisgw3.law.pace.edu/cases/020821c1.html>(translation W. Long). See Spagnolo, supra note 3, at 197-199; Y. Xiao & W. Long, Selected Topics on the Application of the CISG in China, 20 Pace Int’l L.Rev. 61, at 71 (2008) <http://www.cisg.law.pace.edu/cisg/biblio/xiao-long.html> (‘Application of the CISG in China’).
74. Amanda Waters, Digest, ICC Award No. 8453/1995, October 1995, ICC Court of Arbitration Bulletin, 2000, 55 <http://cisgw3.law.pace.edu/cases/958453i1.html> (stating that as ‘[b]oth parties agree that the contract is subject to French law and neither party referred to CISG’ that the CISG ‘was considered inapplicable’). Similarly, see Shanghai First Intermediate People’s Court, China, 22 March 2011 <http://cisgw3.law.pace.edu/cases/110322c1.html> in which the parties’ arguments at first instance were based only on Chinese domestic law. On appeal the court upheld this as a choice of Chinese domestic law, concluding that this meant ‘the parties agreed on the application of [Chinese domestic law] during the proceedings at 1st instance, thereby excluding the application of the CISG’ (translation W. Long).
75. Industrias Magromer Cueros y Pieles SA v. Sociedad Agrícola Sacor Limitada, Corte Suprema [Supreme Court], Chile, 22 September 2008 <http://cisgw3.law.pace.edu/cases/080922ch.html> (sub-nom Jorge Plaza Oviedo v. Sociedad Agricola Sacor Limitada); J. Oviedo-Albán, Exclusión tácita de la ley aplicable e indemnización de perjuicios por incumplimiento de un contrato de compraventa internacional (a propósito de reciente jurisprudencia chilena), 14 Int’l Law, Revista Colombiana de Derecho Internacional 191, at 203, note 22 & 214 (2009) at 194, 195, 198, 199 & note 7. The CISG was only argued in the Court of Appeal and Supreme Court: Oviedo-Albán, id., at 194 & 195 (stating the decision was incorrect).
76.GPL Treatment v. Louisiana-Pacific Corp., 894 P. 2d 470 (Or. Ct App., 1995), 12 April 1995; aff’d 914 P. 2d 682 (Or, 1996), Oregon Court of Appeals, U.S.A. <http://cisgw3.law.pace.edu/cases/950412u1.html>; (domestic ‘in writing’ requirement was displaced by the CISG, but counsel for plaintiff failed to raise this until late in the trial, and case was decided on basis of UCC). See also, W. S. Dodge, Teaching the CISG in Contracts, 50 Journal of Legal Education 72, at 74 (2000); H. M. Flechtner, Another CISG Case in the US Courts: Pitfalls for the Practitioner and Potential for Regionalized Interpretations, 15 J. L. & Com. 127, at 131 (1995); Ferrari, International Legal Forum, supra note 16, at 220, n. 742.
77. Appellate Court (OLG) Naumberg, 13 February 2013, supra note 73; Oberlandesgericht [Appellate Court](OLG) Linz, Austria, 25 July 2008, GZ 3 R 46/08t-49 (applying CISG despite lower court and parties overlooking the CISG in Landesgericht [District Court](LG) Steyr, Austria, GZ 4 Cg 146/05m-45, 29 January 2008. At first instance, both parties and the court referred to domestic law including Art. 922 Allgemeines Bürgerliches Gesetzbuch 1811 [Austrian General Civil Code](ABGB). On further appeal to the Supreme Court, exclusion of CISG upheld on basis of original choice of law, conduct of the case at first instance, and held there had been an infringement of § 182a ZPO by OLG in rendering surprise judgment): see Oberster Gerichtshof [Supreme Court], Austria, 2 April 2009, supra note 27, see also Petra Peer, Abstract <http://cisgw3.law.pace.edu/cases/090402a3.html>).
78. Regional Court, Nitra, Slovak Republic, 15 October 2008 <http://www.cisg.sk/en/15cob-140-2008.html>; Supreme Court, Slovak Republic, 26 October 2006,<http://www.cisg.sk/en/3obo-247-2005.html>; Supreme Court, Slovak Republic, 28 February 2001 <http://www.cisg.sk/en/2cdo-114-2000.html>. However, one Slovak court interpreted such conduct as a choice of law, but pursuant to domestic law: Regional Court, Bratislava, Slovak Republic, 10 October 2007 <http://www.cisg.sk/en/3cob-102-2007.html> (interpreting failure to plead or argue the CISG as an exclusion of CISG and tacit choice of Slovakian domestic law pursuant to §9(1) of act no. 97/1963 Coll., on International Private and Procedural Law as amended)(translation by J. Kotrusz).
79. Tribunale di Vigevano, Italy, 12 July 2000 <http://cisgw3.law.pace.edu/cases/000712i3.html>; Appellate Court (OLG) Hamm, 9 June 1995, supra note 43, §§ I & II; Landgericht [District Court](LG) Landshut, Germany, 5 April 1995, supra note 32. See also, M. Torsello, Italy, in F. Ferrari (Ed.), The CISG and Its Impact on National Legal Systems 187, at 191–195, notes 20 & 22 & 209 (2008); Oviedo-Albán, supra note 75, at 204; Ferrari, Digest & Beyond, supra note 11 at 114 at 131 (2004). See also Landgericht [District Court] Saarbrücken (LG), Germany, 1 June 2004, CLOUT Case No 590 <http://cisgw3.law.pace.edu/cases/040601g1.html> at [I] (application of CISG not contradicted by the fact that the parties argued in their pleadings referring to provisions of their respective domestic laws, as that action, in itself, does not lead to an implicit exclusion of the CISG). Asserting a lack of cases on CISG applicability in light of conduct during legal proceedings, see Rienzi & Sons, Inc., v. Puglisi, supra note 35 (in dismissing a summary motion, there was “little case law interpreting the CISG” and no “controlling case considering application of the CISG that addresses post-contract actions, particularly, the parties' actions during the course of litigation”).
80. See Eyroflam SA v. PCC Rotterdam BV, Rechtbank [District Court](Rb) Rotterdam, Netherlands, 15 October 2008 <http://cisgw3.law.pace.edu/cases/081015n2.html> (holding that a choice of Dutch law during proceedings led to applicability of CISG). Notably, seller had argued the CISG applied and the buyer left the applicability open: id., para. 7.2.
81. Ferrari International Legal Forum, at 220, supra note 16 (1998); Peter Huber, Scope of Application, in Peter Huber & Alastair Mullis, The CISG: A New Textbook for Students and Practitioners 41, 65 (Sellier 2007); J. Oviedo-Albán, supra note 75 at 203, note 22 & 214 (2009)(denying applicability of the CISG unless the parties invoke it or [i]ura novit curia applies and criticising the Chilean Industrias Magromer case, infra note 75, for non-application of the CISG on the basis that the court failed to observe the procedural law of the forum which was subject to iura novit curia); M. Reimann, The CISG in the United States: Why It Has Been Neglected and Why Europeans Should Care, 71 RabelsZ 115, at note 48 & accompanying text (2007); Bridge, supra note 10, at 917; M. Torsello, Italy, in F. Ferrari (Ed.), The CISG and Its Impact on National Legal Systems 187, at 191–192 & note 20 (2008); F. Ferrari, Remarks on the UNICITRAL Digest’s Comments on Article 6 CISG, 25 J. L. & Com. 13, at 30–31 (2005); P. Schlechtriem & P. Perales Viscasillas, Case note on decision of Court of First Instance of Tudela (Spain) 29 March 2005, at note 10 (2005) <http://www.cisg.law.pace.edu/cisg/biblio/perales4.html> (‘Whether counsel pleading for the parties properly introduced the applicable provisions of the CISG is not known to these annotators, but would be irrelevant, since jura novit curia’); A. Pribetic, An “Unconventional Truth”: Conflict of Laws Issues Arising under the CISG, at 27, presented at the Continuing Legal Education Program, Toronto, 10 March 2009, at 27; F. Mazzotta, The International Character of the UN Convention on Contracts for the International Sale of Goods: An Italian Case Example, 15 Pace Int’l L. Rev. 437, at 443 (2003); F. Ferrari, Applying the CISG in a Truly Uniform Manner: Tribunale di Vigevano (Italy), 12 July 2000, 1 Uniform L. Rev. 203, at 211 (2001); UNCITRAL Digest of Case Law on the United Nations Convention on the International Sales of Goods (2008) Art. 6 para.  <http://www.uncitral.org/pdf/english/clout/08-51939_Ebook>. The 2012 version omits these comments: UNCITRAL Digest of Case Law on the [CISG] (2012), supra note 27, Art. 6 .
82. T. Isele, The Principle of Iura Novit Curia in International Commercial Arbitration, 13(1) Int’l Arbitration L. Rev. 14, at 14 (2010); M. S. Kurkela, ‘Jura Novit Curia’ and the Burden of Education in International Arbitration – A Nordic Perspective, 21(3) ASA Bulletin 486, at 490 (2003); S. L. Sass, Foreign Law in Civil Litigation – A Comparative Survey, 16 Am. J. Comp. L. 332, at 332 (1968).
83. See also, Sass, S. L. Sass, Foreign Law in Civil Litigation – A Comparative Survey, 16 Am. J. Comp. L. 332, at 334-5 (1968).
84. Bridge, supra note 10, at 916; Schwenzer & Hachem, supra note 3, Introduction to Arts 1-6, at 19 para. 3; Spagnolo, supra note 9, 195-196; L. Sevón, Method of Unification of Law for the International Sale of Goods, in K. Buure-Hägglund (Ed.), The Finnish National Reports to the Twelfth Congress of the International Academy of Comparative Law, 11 at 14 (1986); Georgia Pacific Resins, Inc. v. Grupo Bajaplay, S.A. de C.V, Baja California, Fourth Panel of the Fifteenth Circuit Court [Federal Court of Appeals], Mexico, 9 August 2007 <http://cisgw3.law.pace.edu/cases/070809m1.html>.
85. Spagnolo, supra note 9, at 195-96.
86. Noting classification of the CISG as foreign law in such circumstances: I. Schwenzer & P. Hachem, in I. Schwenzer (Ed), Schlechtriem & Schwenzer: Commentary on the UN Convention on the International Sale of Goods (CISG), Art. 1, at 40 para. 31(2010)(‘Schwenzer 3nd edn’); Spagnolo, supra note 9, at 198-99.
87. English courts cannot take judicial notice of foreign law: S. Geeroms, Foreign Law in Civil Litigation: A Comparative and Functional Analysis 114 (2004); M. Cappelletti & B. G. Garth, Introduction – Policies, Trends and Ideas in Civil Procedure, in M. Cappelletti (Ed.), International Encyclopedia of Comparative Law, Ch. 1, Vol. XVI, Civil Procedure, at 29, notes 176- 177, §1-26 (1987). In the US, foreign law is now treated as a question of law, and federal courts and certain state courts are empowered (but not obliged) to take judicial notice of it: Rule 44.1 Federal Rules of Civil Procedure, U.S.A.. See Frummer v. Hilton Hotels International, Inc., 60 Misc. 2d 840, 304 N.Y.S. 2d 335, Supreme Court, New York, U.S.A., 18 August 1969 (courts can take judicial notice of foreign law, but are not obliged to raise it sua sponte, unlike domestic law) <http://www.leagle.com/decision/196990060Misc2d840_1654>. By contrast, a duty to establish foreign law ex officio if necessary exists in some jurisdictions: see, e.g., F. Galgano, The New Lex Mercatoria, 2 Ann. Surv. Int'l & Comp. L. 99, at 105 & note 11 (1995)(Italian judges must ascertain and apply foreign law ex officio); S. L. Sass, Foreign Law in Civil Litigation – A Comparative Survey, 16 Am. J. Comp. L. 332, at 357 & note 85 (1968) (Italy); B. Bastuck & B. Gopfert, Admission & Presentation of Evidence in Germany, 16 Loy. L.A. Int’l & Comp. L. J. 609, at 622-623 (1994)(Germany); G. Dannemann, Establishing Foreign Law in a German Court, Joint Workshops on Comparative Litigation Practice, presented at British Institute of Int’l & Comparative Law & British-German Jurists Association, 30 June 1994, at text accompanying notes 4-7.
88. CISG Advisory Council Opinion No 15: Reservations under Articles 95 and 96 CISG, Rapporteur Prof. Dr. Ulrich G. Schroeter, Commentary [3.19].
89. G. Born, International Commercial Arbitration 1528 et seq. (2014, Kluwer); J. Lew, L. Mistelis & S. Kroll, Comparative International Commercial Arbitration 524 para. 21-17 (2003). Generally, see G. Cordero Moss, Can an Arbitral Tribunal Disregard the Choice of Law made by the Parties?, 1 Stockholm Int’l Arbitration Rev. 1, at 4 (2005).
90. R. Goode, Litigation or Arbitration? The Influence of the Dispute Resolution Procedure on Substantive Rights, 19 Pace Int’l L. Rev. 53, at 56 (2007); Lew et al, supra note 89, at 427, para. 17-51; Schwenzer & Hachem, supra note 3, Introduction to Arts 1-6, at 23 para. 13; G. Kaufmann-Kohler, Globalization of Arbitral Procedure, 36 Vand. J. Transnat’l L. 1313, passim (2003).
91. For example, Rule 22(1) LCIA Rules gives the tribunal the power to ascertain and apply the law sua sponte, provided the parties have not agreed otherwise. See e.g., London Court of International Arbitration Rules 1998 (LCIA Rules) Rule 22(1). See also, less emphatically, Art. 21(1) ICC Rules of Arbitration (effective 1 Jan. 2012)(‘ICC Rules’). Similarly, the U.K. Arbitration Act s. 34(1) & (2)(g) specifically deals with this aspect of procedure: U.K. Arbitration Act 1996 s. 34(1) & (2)(g) states that unless parties agree otherwise, the arbitral tribunal may decide ‘whether and to what extent the tribunal should itself take the initiative in ascertaining the facts and the law’. See also, M. S. Kurkela, ‘Jura Novit Curia’ and the Burden of Education in International Arbitration – A Nordic Perspective, 21(3) ASA Bulletin 486, at 493 (2003).
92. Supra note 91. Indeed, some rules require tribunals to take account of contractual terms and usages ‘in all cases’, which by implication includes those where parties have not invoked them: Art. 21(2) ICC Rules; Art. 35(3) UNCITRAL Arbitration Rules 2010.
93. For discussion, see Spagnolo, supra note 9, at 203-204.
94. See, e.g., Regional Court, Nitra, Slovak Republic, 15 October 2008 <http://www.cisg.sk/en/15cob-140-2008.html>; Supreme Court, Slovak Republic, 26 October 2006 <http://www.cisg.sk/en/3obo-247-2005.html>; Supreme Court, Slovak Republic, 28 February 2001 <http://www.cisg.sk/en/2cdo-114-2000.html>.
95. See eg., GPL Treatment v. Louisiana-Pacific Corp., supra note 76, where the appeal court refused to hear CISG arguments. Counsel was not allowed to alter the pleadings and was held to have waived the CISG argument since it was not raised until late in the trial: Leeson J (dissenting, at note 8); H. M. Flechtner, Another CISG Case in the US Courts: Pitfalls for the Practitioner and Potential for Regionalized Interpretations, 15 J. L. & Com. 127, at 129 & note 11 (1995). Similarly, in accordance with rules of appeal and pleading, counsel was refused permission to amend pleadings to incorporate CISG argument for the first time at the appeal stage in the Australian case of Italian Imported Foods Pty Ltd v. Pucci Srl, New South Wales Supreme Court, Australia, 13 October supra note 73; see Spagnolo, supra note 3, at 197-199.
96. GPL Treatment v. Louisiana-Pacific Corp., supra note 76; Italian Imported Foods Pty Ltd v. Pucci Srl, New South Wales Supreme Court, Australia, 13 October 2006, supra note 73; Summit Chemicals Pty Ltd v. Vetrotex Espana SA, Court of Appeal, Western Australia, 27 May 2004 <http://cisgw3.law.pace.edu/cases/040527a2.html>.
97. For discussion see Spagnolo, supra note 3, at 193-199.
98. Conversely, see Vrhovno sodišce v Celju [Celje High Court], Slovenia, 8 June 2011, supra note 48. In that case, the decision was remanded to the first instance court where the CISG had been applied by virtue of Art. 1(1)(a). The contractual choice of law was for ‘civil code and corresponding community regulations, but the court had failed to consider whether parties had excluded the CISG pursuant to Art. 6. <http://cisgw3.law.pace.edu/cases/110608sv.html>
99. See also, discussing Austrian § 182a ZPO, Oberster Gerichtshof [Supreme Court], Austria, 2 April 2009, supra note 27 (and discussion supra note 77).
100. Tribunale di Vigevano, Italy, 12 July 2000 <http://cisgw3.law.pace.edu/cases/000712i3.html> para 5 (‘[t]hus according to the principle iura novit curia, it is up to the judge to determine which Italian rules should be applied’); Tribunale Civile di Cuneo, Italy, 31 January 1996 <http://cisgw3.law.pace.edu/cases/960131i3.html> (‘[a]lthough the parties did not refer to the CISG, its rules must be followed by this Court from the principle iura novit curia’); Georgia Pacific Resins, Inc. v. Grupo Bajaplay, S.A. de C.V, Baja California, supra note 84 (where the court found it was irrelevant whether or not the parties had mentioned the CISG because of the principle of law ‘da mihi factur, dabo tibi ius’ and principle of ‘iura novit curia’); Tribunale di Padova, Italy, 25 February 2004 <http://cisgw3.law.pace.edu/cases/040225i3.html> (‘by virtue of the principle of iura novit curia, it is for the judge to determine the applicable Italian rules’).
101. For example, compare Regional Court, Bratislava, Slovak Republic, 10 October 2007 <http://www.cisg.sk/en/3cob-102-2007.html>; Regional Court, Nitra, Slovak Republic, 15 October 2008, supra note 94; Supreme Court, Slovak Republic, 26 October 2006, supra note 94 (translation by J. Kotrusz).
102. Contra Schroeter, supra note 18, at 9-10 (concluding that most courts are ‘sceptical’ in relation to whether conduct of proceedings demonstrates sufficiently clear intent to exclude).
103. Tribunale Civile di Cuneo, Italy, 31 January 1996, supra note 100; Tribunale di Vigevano, Italy, 12 July 2000, supra note 100, paras 5 & 6; C. Sant’Elia, Editorial Remarks <http://cisgw3.law.pace.edu/cases/000712i3.html>; Tribunale di Forli, Italy, 16 February 2009, §4.3.3 <http://cisgw3.law.pace.edu/cases/090216i3.html>; Appellate Court (OLG) Stuttgart, Germany, 31 March 2008, supra note 37; Appellate Court (OLG) Hamm, 9 June 1995, supra note 43; District Court (LG) Landshut, 5 April 1995, supra note 32, §II.1.a (the fact that both parties based their case on the BGB ‘does not change anything’); Appellate Court (OLG) Linz, 23 January 2006, supra note 24; Tribunale di Padova, 25 February 2004, supra note 100; Oberlandesgericht [Appellate Court](OLG) Zweibrüken, Germany, 2 February 2004, §3 (‘the mere fact that the parties were not aware of the applicability of the CISG and therefore cited the provisions of national German Law … is not to be considered as sufficient’) <http://cisgw3.law.pace.edu/cases/040202g1.html>; Oberlandesgericht [Appellate Court](OLG) Rostock, Germany, 10 October 2001 <http://cisgw3.law.pace.edu/cases/011010g1.html>; Oberlandesgericht [Appellate Court](OLG) Dresden, Germany, 27 December 1999 §A.II.1.b <http://cisgw3.law.pace.edu/cases/991227g1.html> (noting applicability of Art. 6, absence of conclusive exclusion, and stating ‘[t]he fact that the parties at first instance based their dispute on national German law does not lead to a different result’); Landgericht [District Court](LG) Bamberg, Germany, 23 October 2006 §II.1 (application of CISG ‘does not conflict with the fact that the parties have argued merely with reference to provisions of German law in their memoranda, since such practice does not in itself lead to an implied waiver of the CISG under Art. 6 CISG’); District Court (LG) Saarbrücken, Germany, 2 July 2002, CLOUT case No. 378 <http://cisgw3.law.pace.edu/cases/020702g1.html>. See also, ICC Award No. 7565/1994, supra note 27; UNCITRAL Digest, supra note 27, Art. 6, para. . But see Bundesgerichtshof [Federal Supreme Court], Germany, 23 July 1997, supra note 27, at 3310 (court considering it relevant that ‘the defendant had expressly adhered to application of the CISG during the oral court hearing in the second instance of the proceedings’)(translation by Schlechtriem/Todd, supra note 27; Oberster Gerichtshof [Supreme Court], Austria, 2 April 2009, supra note 27 (exclusion of CISG upheld on basis of original choice of law, but also taken into account was the conduct of the case at first instance, and infringement of § 182a ZPO by OLG in rendering surprise judgment based on the CISG, which had been overlooked at first instance by both parties and the bench).
104. Industrias Magromer Cueros y Pieles SA v. Sociedad Agrícola Sacor Limitada, supra note 75.
105.Industrias Magromer Cueros y Pieles SA v. Sociedad Agrícola Sacor Limitada, supra note 75; Oviedo-Albán, supra note 75, at 194, 195, 198, 199 & note 7.
106. Supreme Court, Spain, 24 February 2006 <http://cisgw3.law.pace.edu/cases/060224s4.html>, Pilar Perales Viscasillas, Abstract (not raised until third level of appeal, held tacit consent to domestic law, CISG inapplicable, court citing Art. 1); BSC Footwear Supplies Ltd v. Brumby St., Audiencia Provincial de Alicante, Spain, 16 November 2000 <http://cisgw3.law.pace.edu/cases/001116s4.html> (deciding the CISG was tacitly excluded for three reasons, including failure to raise the CISG in pleadings and failure to argue the CISG until appeal); see also, Perales Viscasillas, Abstract, supra note 34.
107. Gammatex International Srl v. Shanghai Eastern Crocodile Apparels Co. Ltd., supra note 73; Xiao & Long, Application of the CISG in China, supra note 73, at 71 (the court ignored the CISG’s applicability despite fulfilment of the requirements of Art. 1(1)(a) and no apparent intent to exclude)(translation W. Long); High Commercial Court, Serbia, 9 July 2004 <http://cisgw3.law.pace.edu/cases/040709sb.html> (where there was no choice of law but both parties were from Contracting States, the court applied domestic Law on Contract and Torts based on connections of the contract to that State and the conduct of the case at first instance whereby parties argued on the basis of that law); CIETAC Arbitral Award No CISG/2006/17 <http://cisgw3.law.pace.edu/cases/060500c3.html> (tribunal ruled that the CISG governed the contract but applied domestic law because the parties pleaded only Contract Law of China); ICC Award No. 8453/1995, supra note 74.
108. Hof's-Hertogenbosch [Appellate Court], Netherlands, 13 November 2007, supra note 27 (decision based partly on choice of law clause, and partly on the fact the CISG was not raised until rejoinder and had previously based argument on Dutch Civil Code)(translation by S. Kruisinga); Appellate Court, Aargau, Switzerland, 3 March 2009, supra note 60 (inter alia, it was considered relevant that one side had argued on the basis of non-uniform Swiss law and the other had not objected, although ultimately exclusion was not upheld)(translation by Landolt, supra note 3 & A. Raab).
109. Société Muller Ecole et Bureau v. Société Federal Trait, Cour de Cassation, France, 26 June 2001 <http://www.cisg-france.org/decisions/2606012v.htm> & <http://cisgw3.law.pace.edu/cases/010626f1.html> (stating that while French judges must apply the CISG as the substantive law of French international sales, the parties had tacitly excluded under Art. 6 by ‘failing to invoke the [CISG] before the French court’); Cour de Cassation, France, 25 October 2005, CISG-online Case No 1098 <http://cisgw3.law.pace.edu/cases/051025f1.html> (‘that by invoking and discussing, without any reservation, the [French Civil Code] all of the parties ... voluntarily placed the resolution of their dispute under French domestic law’ by exclusion under Art. 6). Thus it appears absence of reference during oral arguments is no longer conclusive in the current approach of the French Supreme Court, although absence in both pleadings and oral argument is still relevant. See also Société Anthon GmbH & Co. v. SA Tonnellerie Ludonnais, Cour de Cassation, France, 3 November 2009
<http://cisgw3.law.pace.edu/cases/091103f1.html> (overturning lower court’s determination that ‘the parties to the dispute thus recognized that the applicable provisions are those of the French Civil Code’ based on the fact that while the seller had pleaded CISG provisions ‘it had not requested the application of the [CISG] before the court’); C. Witz & E. d'Almeida Abstract <http://cisgw3.law.pace.edu/cases/091103f1.html>(commenting on the abandonment of the Cour de Cassation approach in the 26 June 2001 decision, id., in favour of the approach in the 25 October 2005 decision, id., and concluding that in the Société Anthon case, id., the Supreme Court was correct in stating the lower court ‘could not infer the wish of the parties to exclude the application of the [CISG]’).
110. Contra Schroeter, supra note 18, at 9-10 (stating most courts are ‘skeptical’ and require ‘strict’ standards of proof in relation to intent to exclude during proceedings).
111. Promotion of uniformity in the CISG’s interpretation is described by Schlechtriem as a ‘maxim’: Uniform Sales Law 1986, supra note 11, at 38, §IVA.
112. As Schroeter points out, the requirement of ‘clear intent’ pursuant to Art. 6 results in a stricter standard in relation to implicit choice of law than would otherwise apply under most private international law, where ‘reliance by both counsel on the same domestic laws is often considered a valid choice of the law relied upon’: Schroeter, supra note 18, at 10.
113. Schlechtriem, in Schlechtriem & Schwenzer 2nd edn, supra note 2, Art. 6, at 89 & 91 paras 12 & 14.
114. Spagnolo, supra note 9, at 209-10 (‘[w]hy then do courts consistently show great restraint regarding ex ante exclusion, yet frequently are ready to quickly accept implicit or tacit waiver as sufficient where a CISG contract already exists?’).
115. U. Magnus, Incorporation of Standard Contract Terms under the CISG, in C. B. Andersen & U. Schroeter (Eds), Sharing International Commercial law across National Boundaries: Festschrift for Albert H. Kritzer on the Occasion of his Eightieth Birthday, 303 at 324 (2008)(‘Kritzer Festschrift’); Schroeter, supra note 10, Art. 29, at 476 para. 11; Perales Viscasillas, supra note 34, at 172; Schmidt-Kessel, supra note 3, Art. 8, at 172 para. 53; Macromex Srl v. Globex International Inc., American Arbitration Association Award, 23 October 2007 <http://cisgw3.law.pace.edu/cases/071023a5.html> (aff’d 2008 WL 1752530 (S.D.N.Y.); aff’d 330 Fed Appx. 241, U.S. Court of Appeal (2nd Cir.) 26 May 2009)(‘failure to object to a unilateral attempt to modify a contract is not an agreement to modify a contract’) <http://cisgw3.law.pace.edu/cases/090526u1.html>; Solae, LLC v. Hershey Canada, Inc., 557 F.Supp.2d 452, U.S. District Court Delaware, 9 May 2008 <http://cisgw3.law.pace.edu/cases/080509u1.html> (‘Nothing in the [CISG] suggests that the failure to object to a party’s unilateral attempt to alter materially the terms of an otherwise valid agreement is an ‘agreement’ within the terms of Article 29’). Björklund, supra note 8, at 384 para. 5 & 383 para. 4 (stating failure to protest as a form of acceptance ‘has not been decided uniformly’).
116. Contra Société Anthon GmbH & Co. v. SA Tonnellerie Ludonnais, Cour de Cassation, France, 3 November 2009, supra note 109. See Supreme Court, Poland, 17 October 2008, M. Zachariasiewicz, Abstract, supra note 27 (both parties ‘at certain stages of the proceedings…[put] forward arguments under Polish law [so] a question arose whetehr such concerted behaviour should be treated as a choice of Polish domestic law and an exclusion of the CISG’. The court ultimately held that counsel were not authorized to make a choice of law on behalf of parties, and their conduct of proceedings was simply ‘an expression of the parties’ legal representatives’ which was insufficient for exclusion).
117. Supra note 11.
118. Spagnolo, supra note 9, at 211.
119. Supra note 115.
120. Magnus, supra note 115, at 324; Schroeter, supra note 10, Art. 29, at 476 para. 11. Contra Ho Myung Moolsan, Co. Ltd. v. Manitou Mineral Water, Inc., supra note 35 (concluding that failure to plead or argue the CISG until just before trial began constituted ‘consent’ to application of the NY UCC rather than the CISG in light of a pleading by the claimant that relied only on ‘State Law’).
121. Björklund, supra note 8, Art. 29, at 384 para. 7.
122. Schroeter, supra note 10, Art. 29, at 486 para. 37.