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Reproduced with permission of Uniform Law Review, Vol. V, No. 1 (2000) 23-41

Procedural law issues and law Conventions

Chiara Giovannucci Orlandi [*]

I. Introductory remarks
II. The relevance of procedural issues for the well-balanced application of uniform laws in international disputes
III. The "Erie test" and the countervailing strong federal policy considerations as a way of demonstrating the irrelevance of a-prioristic classifications of evidence under substantive or procedural law
IV. The parol evidence rule and the correct international interpretation of the Vienna Sales Convention rendered by the 11th Circuit
V. Uniform application of CISG and the Italian legal system
VI. Conclusions

I. INTRODUCTORY REMARKS

It is often said that legal practitioners and businessmen around the world should have recourse to uniform commercial law Conventions as a way of facilitating the regulation of their international transactions.

In pursuing these aims, drafters endeavour to create bodies of rules capable of reducing the great number of unpleasant divergences existing among the different legal systems. Foreign traders often fear municipal laws, as they can hide dangerous traps for the success of their businesses.

Ernst Rabel [1] understood this long before anyone else could imagine a volume of international trade of such vast proportions as today's global commerce. Consequently, when it comes to drafting international contracts, uniform laws should provide foreign traders .with a good dose of predictability.[2] This, obviously, cannot be achieved where potential disputes are governed by conflict of laws.

Considering that the usefulness of a law can only be measured after it has been tested in the courts, the said predictability should be regarded both from a substantive and a procedural point of view. [page 23]

To date, however, even the most successful uniform law,[3] the 1980 United Nations Convention on Contracts for the International Sale of Goods [hereinafter CISG, or Vienna Sales Convention],[4] has tended to be analysed prevalently from a "substantive law" perspective, without stressing the various procedural implications that may arise from its world-wide application.

Very few legal commentators have discussed in detail issues such as the burden of proof,[5] including the legal presumptions, or evidence, due to their strict relation to [page 24] other fundamental topics of CISG, whereas procedural matters were held for the most part to fall outside the scope of the Convention, thus. relying entirely on the lex fori [6] for their coverage.[7]

The purpose of this article is to show that, in interpreting international Conventions, all abstract distinctions between substantive and procedural laws become redundant, if not harmful, especially when the parties turn to the courts for equal enforcement of their contractual rights pursuant to these uniform bodies of rules.

II. THE RELEVANCE OF PROCEDURAL ISSUES FOR THE WELL-BALANCED APPLICATION OF UNIFORM LAWS IN INTERNATIONAL DISPUTES

In recent years, courts have faced a growing number [8] of international disputes [9] that need to be solved as much as possible through recourse to uniform laws.

Probably, this is the best response to the need for uniformity [10] in international trade, the importance of which is certainly undisputed. In order to achieve this goal, however, we must bear in mind that the uniform laws embody the tensions that still exist between the domestic and the international legal orders. If this is true on a substantive legal base, even wider differences persist in the procedural field.[11] [page 25]

The texts of Conventions only rarely include procedural rules, and even when they do,[12] they leave a number of relevant questions unanswered.

There is somewhat justified concern among legal practitioners that the well-recognised objective of promoting uniformity in international trade and the great efforts made to achieve an independent set of substantive rules could be thwarted by the application of arcane or outdated domestic procedural rules.

The uniform laws bring to national systems changes for which the courts are not always prepared, especially when it comes to their so-called "housekeeping"[13] procedure. During litigation, a judge is liable to encounter a wide range of potential conflicts between the uniform substantive laws and domestic procedural rules.

The most common examples are the general problems related to evidence and its different meanings in the various legal systems, especially in those systems where evidence is not exclusively classified as part of the procedural rules.[14]

With this in mind, some comments as to evidence and its relevance for the application of the Vienna Sales Convention may be of use.

Within the Convention itself, the evidence has been analysed from different perspectives. These include matters such as the allocation of the burden of proof upon the party that wishes to exclude application of the Convention ex Article 2(a);[15] the legal presumptions under Article 79;[16] the admissibility of evidence under Article 11; [17] [page 26] and the formalities required of the buyer in examining the goods and the duty to notify the seller of possible lack of conformity, as expressly stated in Articles 38-39.[18]

Upon interpreting the relevant provisions, we could agree with those legal scholars who suggest that a solution to the question of the burden of proof be found within the Convention itself.[19] In this view, the court should not resort unnecessarily to its [page 27] domestic law, since the burden of proof falls within the scope of CISG. This is intended to prevent restrictions of its uniformity caused by diverging national legal interpretations and to promote its international character pursuant to the drafters' intentions.[20] Hence, according to these scholars, in deciding which of the parties should bear the burden of proof, the judge must refer to CISG. However, the final determination of whether or not the judge finds the evidence sufficiently convincing should continue to be based on the rules of the lex fori, which are also defined as strictly procedural rules.[21]

The conflict between the lex fori and the lex causae brings us back to one of the most traditional distinctions between substantive and procedural rules. In this sense, the law of evidence has been the object of endless, and for the most part unsolved, debates concerning its substantive or procedural nature.[22] The question of whether evidence should be governed by the lex fori or the lex causae becomes extremely relevant for the resolution of conflicts of laws in international disputes.

In most countries, the rules of evidence are classified as substantive, not as procedural rules.

From a practical point of view, it is sometimes very hard for courts to interpret the content of foreign laws, also considering that the nature of such rules is still the subject of spirited debate by legal scholars in the domestic systems concerned.

Furthermore, while the rules on burden of proof in a given country might be linked to the lex causae, this might not be the case in the country where the decision is to be taken.

Although legal doctrine has opportunely discussed the burden of proof with reference to specific CISG provisions, other questions in this field remain unanswered. [page 28]

III. THE "ERIE TEST" AND COUNTERVAILING STRONG FEDERAL POLICY CONSIDERATIONS AS A WAY OF DEMONSTRATING THE IRRELEVANCE OF A-PRIORISTIC CLASSIFICATIONS OF EVIDENCE UNDER SUBSTANTIVE OR PROCEDURAL LAW

First of all, it is still unclear whether the wording of Article 11(2), which states that: "[a contract] may be proved by any means, including witnesses,"[23] should result in the general and free admissibility of any kind of evidence.

This is a very thorny issue, considering the great relevance of the admissibility or otherwise of certain types of evidence on the parties' chances of proving their case.

In the light of these considerations, we are all aware that it is impossible to make a list of every potential conflict that may arise between the substantive law governing the contract and the procedural rules applicable to the dispute. Hence, for the purpose of our discussion, we can only say that there is a need to resolve these conflicts in accordance with the Convention's well-documented objective of uniformity. It is one thing to say that domestic procedural law should govern the conflict at all times; it is quite another to seek a solution in accordance with the general principles of CISG.

Recourse to the domestic procedural law must be the exception, not the rule.

In such cases, the risk of making statements devoid of practical meaning, based exclusively on theoretical reasoning, is very real. Here, a look at past experience may yield some useful suggestions as to how the rigid classification of rules under substance or procedure, which often generates confusion (especially at a transnational level), may be overcome.

This distinction between substance and procedure was a topic much debated, albeit from different angles, in the United States before, during and after the 1938 Erie [24] case, commonly regarded as a leading case in US jurisprudence.

The Supreme Court was concerned that, in conflicts between federal and state laws, failure to apply state laws to actions filed in federal courts would read to forum shopping, and most importantly, to a possibly unfair situation in which the enforcement of state laws would depend on whether or not the federal judge considered them applicable.

The Court took the view that, in "diversity jurisdiction" cases, citizens should receive equal protection and equal enforcement of their rights under state laws, whereas the application of federal rules should be limited to purely procedural matters. The rationale underlying this ruling was dubbed the outcome determinative test,[25] which became the principal instrument used in conflicts between state and [page 29] federal laws when courts could not easily determine the substantive or procedural nature of a rule.[26] A more general purpose was also attained through these decisions, i.e., to give formal recognition to the autonomous legislative power of states and to set clear boundaries against the intrusion of federal laws in questions governed by the local rules, independently of any previous abstract qualifications of such rules.

In the ensuing years, the Erie doctrine was modified and restricted [27] in the sense of admitting the test only if a certain issue was not covered by the Rules of Federal Procedure.[28]

Consequently, the outcome test became inappropriate whenever a strong federal policy required federal laws to discipline a specific matter. In the end, a balance was achieved between the protection of states' legislative autonomy and the need to leave certain matters to federal laws under prevailing policy considerations.

The strong impact of the outcome determinative test on the US legal system and its fundamental role in overcoming the problem of the nature of rules is also the object of an incisive comparative study carried out by an eminent Italian legal scholar. He argues [29] that all abstract distinctions between substantive and procedural rules [page 30] become irrelevant under the outcome determinative test, for the only appropriate concern is the test's effective capacity to support the policy goals of uniformity.

Pursuant to the aforementioned analysis, we must refer to the Swiss legal system where the legislative power to create substantive law rules belongs solely to the Federation,[30] whereas the cantons' legislative sphere of influence is limited to procedural rules.[31] The Swiss Government adopted a policy for the, unification of the law of evidence' by means of the abduction of probative instruments under federal substantive law. The Swiss federal policy tends to consider evidentiary rules as matters of substantive law, thereby avoiding possibly divergent interpretations of the rules of evidence under local procedural statutes.[32]

By contrast, the United States has developed a policy towards the law of evidence that tends to consider these issues to be of a procedural nature and therefore subject to Federal rules of evidence. Apart from employing different ways of classifying evidence as a matter of a substance or of procedure, the American and Swiss legal systems have one extraordinary thing in common: the uniform coverage of the law of evidence under a single body of federal rules.

The importance of evidence for the final outcome of the dispute was such that policymakers in these two countries decided to remove its regulation from the local sphere and create a homogeneous discipline at federal level.

As far as we are concerned, we suggest that the same policy considerations be followed at an international level whenever CISG is applicable.

In the light of a world-wide uniform interpretation of CISG, the probative instruments are of too great significance to allow them to be regulated by the lex fori.

Just imagine the consequences that adoption of this criterion would have in cases where CISG applies. In deciding whether a certain procedural issue should be governed by the Convention or by the lex fori, judges would no longer rely on the theoretical distinction between substance and procedure. They would instead look at the actual impact of the CISG provision on the outcome of the decision and apply the Convention whenever this best guaranteed the policy goals of international uniformity.

Indeed, we must remember that CISG contains a number of provisions which could reasonably lead to the conclusion that evidence comes within its scope.[33] For example, the wording of Article 11(2) implies that any evidence is admissible to prove the conclusion of a contract, as are its ensuing modifications pursuant to Article 29. [page 31] This means that a judge cannot justify a refusal to apply CISG on the grounds of the limitations to evidence provided by the local rules of his country,

The application world-wide of this principle of informality is of especial relevance, also in the light of the many evidence exclusionary [34] rules that still exist in the various jurisdictions.[35]

IV. THE PAROL EVIDENCE RULE AND THE CORRECT INTERNATIONAL INTERPRETATION OF THE VIENNA SALES CONVENTION RENDERED BY THE 11TH CIRCUIT

Notwithstanding the above, we should now begin to hope for a more accurate international approach towards procedural issues in the light of some encouraging recent developments in American case law, In this regard, the traditional enforcement of the parol evidence rule [36] in disputes where the contracts are governed by CISG has undergone a major change.

Needless to say, this American rule of evidence stands firmly against the principle of informality stated in Articles 11 and 29 CISG by excluding any evidence, oral or written, of statements made by either of the parties prior to or contemporaneous with the signing of the contract which vary or contradict the writing,[37] It follows that the vast majority of CISG commentators [38] have always held this rule [39] inconsistent [page 32] with the general principles of the Convention and hence inapplicable to contracts that come within its scope. As to the others, John Honnold has stated that: "this rule has been an embarrassment for the administration of modern transactions."[40]

Nevertheless, in the 1993 Beijing case,[41] the 5th Circuit upheld application of the parol evidence rule whether or not the dispute was governed by CISG.[42] This case involved a Chinese manufacturer and a US importer who agreed to develop a market in North America for weight-lifting equipment produced in China. After a dispute, the parties concluded a modified payment agreement in writing, but when the Chinese seller tried to enforce it, the US buyer raised defences pursuant to allegedly contemporaneous oral agreements between the two parties. The District Court, under the parol evidence rule, refused to hear in trial a testimony concerning the oral agreement and awarded the summary judgment in favour of the Chinese seller. The Appellate Court of the 5th Circuit declined to resolve the dispute on whether CISG was applicable to the case and decided that evidence of that oral agreement was barred by the parol evidence rule.

This decision was severely criticised, one commentator hot hesitating to define it as "the somewhat bizarre and abstruse methods for determining intent associated with the parol evidence rule."[43] Notwithstanding the staunch opposition of several legal [page 33] scholars, the ruling fueled the aforementioned concern of legal practitioners who were thus led to believe that uniform application of CISG could be seriously threatened by the enforcement of domestic procedural rules. As one scholar noted, these cases induce parties who feel that they can no longer rely on the predictable effects of the Convention to opt it out of their contracts by means of Article 6.[44]

Meanwhile, although it may be premature to say that these fears have become unrealistic, it is with a good dose of optimism that we should look at a recent development in cases applying CISG.

In this respect, a recent (1998) decision of the US 11th Circuit Court of Appeals, MCC Marble Center v Ceramica Nuova D'Agostino,[45] represents an extraordinarily favourable precedent for the uniform application of CISG. The importance of this case cannot be over-emphasised, since it was the very first time that the Convention [page 34] succeeded in overriding a well-established domestic principle of law, the parol evidence rule. The fact that it was handed down by a Federal Court of Appeals, not by an ordinary state court, only underscores its relevance.[46]

The dispute was between an American buyer, MCC Marble, and Ceramica Nuova D 'Agostino, an Italian ceramic tiles manufacturer, the seller. The parties met at the Bologna trade fair and orally agreed on the crucial terms of price, quality, quantity, delivery and payment.[47]

Shortly after, the parties recorded these terms on one of the seller's standard pre-printed forms and Mr Monzon, buyer's representative, signed the contract. Several months later, seller having failed to comply with its contractual obligations, buyer brought action against Ceramica Nuova. Seller responded that buyer had not made the required payments in due time and so it did not intend to ship any more tiles.

Buyer counterclaimed that the tiles it had previously received were of a lower quality than that contracted for, thus entitling it to a reduction of the purchase price under CISG.

In support of its position, seller argued that buyer had signed a contract according to which "possible complaints for defects of the merchandise must be made in writing by means of a certified letter within and not later than 10 days." Although this clause was placed on the back of the contract, it was also true that buyer never submitted any written complaints whatsoever.

The American plaintiff did not dispute these facts, but submitted before the District Court three different affidavits containing the declarations of the persons who materially signed the contract on behalf of both buyer and seller.

Surprisingly, all three affidavits unanimously affirmed that although the pre-printed form was signed by buyer's representative, no one intended to be bound by the clause printed on the back of the form. Most importantly, seller's representatives admitted that they were fully aware at the time of the conclusion of the contract of buyer's representative's intention to be bound by the terms of the oral agreement, not the written.

The District Court judge, however, held that the affidavits did not raise an issue of material fact and awarded the summary judgment in seller's favour.

The 11th Circuit Federal Court of Appeals found that summary judgment was inappropriate and decided to reverse the decision. The Court found that the affidavits clearly underlined the parties' intention not to be bound by the written contract and gave relevance to such intention by means of Article 8 CISG. This article requires courts to take into account the parties' subjective intent and their conduct, with special consideration to all relevant circumstances of the case including negotiations. As the Court noted: "the acknowledgement that seller's representatives were aware of the buyer's representative's [page 35] intention puts this case squarely within Article 8(1) CISG and therefore requires the court to consider buyer's evidence as it interprets the parties' conduct."[48]

Obviously, the decision as to whether the parol evidence rule should be applied to the case at hand became of vital importance for the resolution of the dispute. In fact, buyer's only hope was to prove the existence of that oral agreement pursuant to Article 8 CISG. The Appellate Court, in addressing this issue, concluded that Article 8 CISG, which governed the contract, should prevail over enforcement of the parol evidence rule. The Court's reasoning is highly justifiable in the light of the following consideration: a rule that prohibits the parties to rely on any possible evidence of divergent written or oral agreements entered into prior to or contemporaneously with the conclusion of the contract is incompatible with the language of Article 8 CISG, which requires judges to give consideration to the negotiations.[49]

In its reasoning, the Court did not confine itself to the mere exclusion of the application of the parol evidence rule. The 11th Circuit also created an important precedent [50] as to the future enforcement of the parol evidence rule. Contrary to its title, this rule was considered by the court as a substantive rule of law, since it does not purport to exclude a particular type of evidence as an untrustworthy or undesirable way of proving a fact but prevents litigants from demonstrating that fact. As such, it was the court's belief that this rule should not be automatically be applied by federal courts as any other procedural matter.

Consequently, under the Convention, and especially in the light of its Articles 8 and 11, the parties' intent, regardless of the form of their statements, must prevail, if unambiguous, even against written documents. In international trade usage, merchants who have developed the habit of concluding their contracts orally and following them up with written confirmation often prefer this principle of informality.

V. UNIFORM APPLICATION OF CISG AND THE ITALIAN LEGAL SYSTEM

At this point, we should try to answer the question of whether the free admissibility of evidence pursuant to Article 11(2) should be subject to any restrictions at all.[51] [page 36] Although a literal interpretation of this provision could leave the doors open for virtually unlimited admissibility of evidentiary methods, some basic distinctions ought to be made.

In fact, the Italian civil procedural system admits only a limited and mandatory number of probative methods.[52] Other, different methods, expressly defined as prove atipiche,[53] are simply not taken into consideration by the court.

Obviously, the more probative methods we consider admissible under CJSG, the greater the chances of its uniform application in the various countries of the world. However, we must beware of premature conclusions in this regard.

As far as the Italian legal scene is concerned, there can be no doubt that the limits on the use of testimony in the proof of written contracts as provided by the Italian Civil Code [54] should likewise fall in the wake of the parol evidence rule's defeat in the United States. But there exist other limitations that can still cause trouble.

Despite the introduction of some degree of flexibility in labour disputes,[55] some rigidities and formalities still remain to be abolished.[56]

First of these is the inadmissibility of a party's deposition.[57] In Italy, parties' knowledge may be disclosed in trial only through a prova legale,[58] a binding proof [page 37] such as confession [59] or oath,[60] or in the form of a mere inference through an interrogatorio libero,[61] an informal [62] party examination conducted by the judge.

Conversely, it should be borne in mind that in Italy, statements made by a party pursuant to a prova legale are binding on the judge.

These limitations to free party deposition have been reaffirmed under the rulings of the Italian Constitutional Court,[63] despite strong opposition from a group of legal scholars.[64] Such a rigid view of party deposition is now more than ever inconsistent with the recent reforms in other European legal systems, such as the German Parteivernehmung, the French comparution personnelle des parties,[65] or the British party examination.[66]

Although, in view of the foregoing considerations, we are convinced that in cases where CISG applies, Italian judges should not reject the use of a party's deposition, we must nevertheless report that part of the German legal doctrine [67] does not consider the limits to party deposition overruled by CISG.

Another question remains as to whether the prove atipiche [68] should be deemed admissible by virtue of application of the Convention. As this is clearly not the appropriate sedes materiae for a closer examination of this difficult topic, we shall merely express our opinion in the sense of admitting the use of prove atipiche by means of enforcement of Article 11(2).

The last question concerns the possibility of avoiding the formal requirements for admission of evidence established by Italian law. Although linked to the previous [page 38] questions, we believe that this issue falls outside the scope of the Convention. Nevertheless, some brief comments may be in order, since scholars and legal practitioners with a common law background may be perplexed to hear that such popular documentary evidence as the affidavit is not deemed admissible in the Italian legal system. Recently, however, the reform of the Arbitration Law introduced pursuant to Article 819 ter of the Code of Civil Procedure the possibility of using written testimony similar to the common law affidavits.

This reform ran into fierce criticism by Italian legal scholars,[69] the admission of written testimony being accused of restricting the principle of due process in the evaluation of evidence.

In this sense, it was noted that problems may arise at the constitutional level, since application of Article 819 ter does not allow parties to confront witnesses in trial.

On the other hand, proposals have been made for the admission of cross-examination in the Italian Civil procedural system. Instead of cross-examination, in Italy the judge rather than the counsellor has the power of developing evidence.

Although the Italian Code of Criminal Procedure has recently introduced cross-examination, we do not consider this change sufficient to admit the use of this instrument in civil trials as it is in international disputes.

VI. CONCLUSIONS

With respect to the allocation of the burden of proof, it is certainly legitimate to assert that this issue can be regulated by means of an implicit reference to the relevant provisions of the Convention. However, considering that the brocard onus probandi incumbit ei qui dicit certainly belongs to many different legal systems around the world,[70] we believe that the burden of proof issue will be governed by the general principles of CISG pursuant to Article 7(2).[71] Although not expressly mentioned by the drafters during the preparatory work, we are convinced that this is a universal principle underlying the Convention as a whole.

With this in mind, greater concerns may arise instead from the application of the principle of informality pursuant to Article 11(2). We shall probably be given a better opportunity of clarifying this matter in the next few years, not least owing to the ever-growing number of cases applying CISG. [page 39]

Meanwhile, it is comforting to see how US courts have started to change their attitude towards the Convention and its ability to override domestic rules, as they did in Ceramica Nuova.[72]

We believe that looking at past experience, as we did for the outcome determinative test, should help us find the path of uniform application of CISG. Furthermore, we should feel encouraged at the fading of abstract distinctions between substance and procedure, which have often favoured the prevalence of the lex fori. As we mentioned, the goal of uniform application of the Convention can only be achieved through the widest possible admission of probative methods.

In our view, the only serious limitations to the free admissibility of evidence can derive from domestic public policy aimed at safeguarding well-established fundamental principles of law.

Finally, with respect to the law of evidence, its complexity and strong influence on international disputes is highlighted by the problematic application of the Hague Convention [73] dealing with the taking of evidence abroad. From a different perspective, the draft Uniform European Code of Civil Procedure presented by the Storme Commission deserves further scrutiny.[74]

Apart from the recognition of the brocard onus probandi incumbit ei qui dicit as a universally accepted principle, the draft lacked courage on certain issues, as though the drafters had been mostly concerned about possible negative reactions on the part of member States.

Certainly, more persuasive and bolder conclusions were reached in the draft sponsored by the American Law Institute for a body of Transnational Rules of Civil Procedure [75] that a country could adopt for the adjudication of disputes arising from international transactions that find their way into the ordinary courts of justice. This draft was the result of co-operation between two distinguished jurists of different legal backgrounds, Professors Hazard (USA) and Taruffo (Italy).

In their attempt to strike a compromise between the civil law and common law systems, the Transnational Rules have followed the common law tradition in defining admissible evidence as everything that is rationally useful in reaching judgment on the relevant facts of the case." [page 40]

The Rules also regard as competent to give evidence any person holding information about a relevant fact. This definition includes the parties and every other person with mental capacity, a reminder of how true and effective freedom in the admission of evidence can clearly support the parties' right to proof, which has lately been the subject of frequent debates among scholars, also because of its constitutional implications.

Acting on a proposal by the American Law Institute, the International Institute for the Unification of Private Law (UNIDROIT) decided to introduce in its Work Programme for 1999-2001 the preparation of transnational rules of civil procedure, thereby acknowledging the importance of carrying out such an exercise at a truly international level. There can be no doubt that the successful harmonisation of procedural law is a key factor in the effective uniform application of international bodies of rules.[76]


FOOTNOTES

*Adjunct Professor of Civil Procedure, Faculty of Economics, Bologna University (Italy). The author gratefully acknowledges the extensive contribution of Leonardo Graffi, J.D. Candidate, Bologna University, in translating the text.

For the full titles of publications abbreviated in the footnotes, see this issue, p. 189 et seq.

1. For a better understanding of the thinking of this highly distinguished jurist, see Observations on the Utility of Unifying (the) Law of Sale from the Standpoint of the Needs of international Commerce (1929), reprinted in: League of Nations: Draft of an International Law of the Sale of Goods (1935), 123 = RabelsZ 22(1957), 117-123.

For a historical background to the role of Ernst Rabel in promoting uniform law, see F. FERRARI, International Sale of Goods, Applicability and Applications of the United Nations Convention on Contracts for the International Sale of Goods (1999), 1 et seq. (stating that "[... the need to create an internationally uniform discipline for cases linked to a plurality of countries designed to transcend national borders in order to maximize the utilization of resources and to create certainty was recognized as early as in the 1920s, when it was suggested by Ernst Rabel to start with the work of unifying the law of international sales of goods. Upon this suggestion, the International Institute for the Unification of Private law, UNIDROIT [...] decided to undertake extensive studies in this field which led, in 1935, to the first draft of a uniform law in the international sale of goods ...]"); see also M.J. BONELL, "Introduction", in: Commentary on the International Sales Law -The 1980 Vienna Sales Convention (1987).

2. For the need to improve predictability in international trade, see H.E. HARTNELL, "Rousing the sleeping dog: the validity exception to the Convention on Contracts for the International Sale of Goods", 18 Yale J. Int'l L. (1993), 3 (according to which [...the goals of the Convention are to provide a "better law" for international commercial transactions, and thereby achieve greater fairness in international trade, and to increase the predictability of international commerce and thereby facilitate the process of negotiation and, alleviate the complexities of transnational dispute resolutions."].

3. For this conclusion, see R.A. BRAND / H.M. FLECHTNER, " Arbitration and Contract Formation in International Trade: First Interpretations of the U.N. Sales Conventions", 121 J.L. & Com. (1993), 239 (where the authors state that the 1980 Vienna Sales Convention "[...is rapidly becoming one of the most successful multilateral treaties ever...]"); see also J. LOOKOFSKY, "Loose Ends and Contorts in International Sales: Problems in the Harmonization of Private Law Rules", Am.J. Comp. L. (1991), 403.

4. For a select bibliography in English on the 1980 Vienna Sales Convention, see J. BARRERA GRAF, "John Honnold and the Vienna Convention on the International Sale of Goods", 132 U. Pa. L. Rev. (1984), 943-946; C.M. BIANCA / M.J. BONELL (eds.) Commentary on the International Sales Law (1987) (the Commentary includes contributions by BARRERA GRAF, BENNETT, BIANCA, BONELL, DATE-BAH, EORSI, EVANS, FARNSWORTH, JAYME, KHOO, KNAPP, LANDO, MASKOW, NICHOLAS, RAJSKI, SONO, TALLON, WILL); F. FERRARI, The Sphere of Application of the Vienna Sales Convention (1995); J.O. HONNOLD, Uniform Law for International Sales under the 1980 United Nations Convention (1999); A.H. KRITZER, Guide to Practical Applications of the United Nations Convention on Contracts for the International Sale of Goods (1989), 125; D. MASKOW / F. ENDERLEIN, International Sales Law. United Nations Convention on contracts for the International Sale of Goods - Convention on the Limitation Period in the International Sale of Goods. Commentary (1992); P. SCHLECHTRIEM, Uniform Sales Law. The UN-Convention on Contracts for the International Sale of Goods (1986); P. SARCEVIC / P. VOLKEN, International Sale of Goods. Dubrovnik Lectures [papers by CONETTI, DROBNIG, ENDERLEIN, GOLDSTAJN, HELLNER, VON HOFFMANN, VAN HOUTTE, HOYER, SARCEVIC, SEVON, SONO, VILUS, VOLKEN] (1986); for a select bibliography in French, see B. AUDIT, La vente internationale de marchandises, Convention des Nations Unies du 11 avril 1980 (1990); V. HEUZE, La vente internationale de marchandises (1992); J.P. BERAUDO, "La Convention des Nations Unies sur les contrats de vente internationale de marchandises et l'arbitrage", ICC lCArb. Bull. (1994) No.1, 60-64; P. KAHN, "Convention de Vienne du 11 avril 1980 -Caracteres et domaine d'application des regles conventionnelles", Dr. prat. com. int. (1989), 385-399; S. MARCHAND, Les limites de l'uniformisation materielle du droit de la vente internationale: mise en oeuvre de la Convention des Nations Unies du 11 avril 1980 sur la vente internationale de marchandises dans le contexte juridique suisse (1994); Ch. MOULY, "La conclusion du contrat selon la Convention de Vienne sur la vente internationale de marchandises", Dr. prat. com. int. (1989), 400-421; K. NEUMAVER / C. MING, Convention de Vienne sur les contrats de vente internationale de marchandises. Commentaire (1993); C. WITZ, "Le champ d'application de la Convention de Vienne, La vente eclatee: la diversite des regimes juridiques dans les ventes de marchandises" (Colloque de Deauville (7/8-06- 97), Rev. jur. comm., ancien journal des agrees (1997), 79-97; for a select bibliography in Italian, see F. FERRARI, "La vendita Internazionale: Applicabilita ed applicazioni della Convenzione di Vienna del 1980", Trattato di diritto commerciale e di diritto pubblico dell'economia (Vol. XXI) (1997); C.M. BIANCA, Convenzione di Vienna sui contratti di vendita Internazionale dei beni mobili, contributions by ANGELICI, BELLELLI, BENEDETTI, BERNARDI, BIANCA, BONELL, BONELLI, BONFANTE, BUONCRISTIANO, CARBONE, CARBONE, CORBO, COTTINO, CUFFARO, DE NICTOLIS, DI PRISCO, FERRETTI, FIORAVANTI, FRATTINI, FUSARO, GALLETTA, GIARDINA, LIPARI, LOI, LOPEZ DE GONZALO, MANFREDONIA, MUSUMECI, NAPOLI, NUZZO, PACE, PASSAGNOLI, PATTI, PEDICINI, PIETRAVALLE, PONZANELLI, RICOLFI, ROCCHIETTI, RUBINO, SCARANO, SCOGNAMIGLIO, UBALDI, VECCHI, VESSICHELU, VETTORI, ZACCHEO in: Nuove Leggi (1989), 1-366; F. GALGANO, "II diritto uniforme: la vendita internazionale", in Atlante dir. priv. comp. (1999), 212-220.

5. For an accurate analysis of the various procedural issues arising from the interpretation and application of CISG provisions, with special focus on the burden of proof, see C. ANTWEILER, Beweislastverteilung im UN-Kaufrecht- insbesondete bei Vertragsverletzungen des Verkaufers (1994); 218 et seq.

With reference to the burden of proof and its allocation, it should be noted that there is an interesting and ongoing dispute among CISG commentators to determine the exclusion of consumer contracts from the scope of the Convention under Art. 2(a); for a closer insight into this issue, see J.O. HONNOLD, supra note 4 at 97 et seq.; B. AUDIT, supra note 4 at 28 et seq.; F. FERRARI, La vendita Internazionale ..., supra note 4 at 139 et seq.; D. MASKOW / F. ENDERLEIN, supra note 4 at 34.

6. See K.H. NADELMANN, "Some Historical Notes on the Doctrinal Sources of American Conflicts Law", in Conflict of laws: international and interstate (1972), 14-18.

7 . For this kind of conclusion, see W. KHOO, in Commentary on the international sales law the 1980 Vienna Sales Convention (1987), 39 (stating that ["Delegations speaking on the burden of proof were all quite definite that it was not the intention to deal in the Convention with any questions concerning the burden of proof. The consensus was such that these questions must be left to the court as matters of procedural law"]); for a critical analysis of this view, see infra note 19.

8. For an updated list of all the cases in which CISG has been applied, with a specific indication of the parties' provenance and of the relevant CISG provisions for the dispute, see M.R. Will International Sales Law under CISG. The UN Convention on Contracts for the International Sale of Goods (1980), The First Hundred Decisions (1994); The First 150 or so Decisions (1995); The First 222 or so Decisions (1995); The First 284 or so Decisions (1996); The First 300 or so Decisions (1997); The First 444 or so Decisions (1997); The First 464 or so Decisions (1997); The First 555 or so Decisions (1999).

9. See M. KAROLLUS, Judicial Interpretation and Application of the CISG in Germany 1988-1994, Cornell Review of the Convention on Contracts for the International Sale of Goods (1995); F. FERRARI, "Specific Topics of the CISG in the Light of Judicial Application and Scholarly Writing" 15 J. L. & Com. (1995-1996), 1.

10. For this view, see S. COOK, "The Need for Uniform Interpretation of the 1980 United Nations Convention on Contracts for the International Sale of Goods", 50 U. Pittsb. L. Rev. (1988); for a discussion on this matter, see also J.O. HONNOLD,. "The 1980 Sales Convention - Can Uniform Words Give Us Uniform Results?", ]ur. Tids. (1990-91), 3 et seq.; J.O. HONNOLD, "The Sales Convention in Action - Uniform International Words, Uniform Application?", 8 J. L. & Com. (1988), 207 et seq. (stating that ["…one threat to international uniformity in interpretation is a natural tendency to read the international text through the lenses of domestic law" ...]).

11. C. GIOVANNUCCI ORLANDI, "Le rapprochement des procedures civiles internationals", The Unification of International Commercial Law -Tilburg Lectures, F. Ferrari (ed.) (1998).

12. E.g., the Convention on the International Carriage of Goods (CMR) in its Chapter V deals with some procedural issues. Articles 30-33 are concerned respectively with the making of reservations in support of claims, jurisdiction, periods of limitations and arbitration. For a reference to this Convention, see A. MESSENT / D.A. GLASS, CMR: Contracts for the International Carriage of Goods by Road, (1995); F .J. SANCHEZ-GAMBORINO, El Contrato de Transporte International. CMR (1996); J. PUTZEYS, Le contrat de transport routier de marchandises (1981); for a reference to the procedural issues contained in the Vienna Sales Convention, see S. LA CHINA, "La Convenzione di Vienna sulla vendita internazionale di diritto uniforme. Profili processuali la giurisdizione" , Riv. trim. dir. proc. civ. (1990), 769.

13. This peculiar definition was given several years ago by NOTE, "State Trial Procedure and the federal Courts: Evidence, juries, and Directed Verdicts under the Erie Doctrine", 66 Harv. L. Rev. (1953), 1516.

14. E.g., in the Italian legal system, the rules of evidence feature both in the Civil Code and in the Code of Civil Procedure, respectively dealing with the admissibility of evidence and the taking of evidence.

15. Art. 2(a) states that: "[This Convention does not apply to sales of goods bought for personal, family or household use, unless the seller, at any time before or at the conclusion of the contract, neither knew nor ought to have known that the goods were bought for any such use]". For a comment on this article see supra note 5.

16. Art. 79 states that: "(1) A party is not liable for a failure to perform any of his obligations if he proves that the failure was due to an impediment beyond his control and that he could not reasonably be expected to have taken the impediment into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences. (2) If the party's failure is due to the failure by a third person whom he has engaged to perform the whole or a part of the contract, that party is exempt from liability only if: (a) he is exempt under the preceding paragraph; and (b) the person whom he has so engaged would be so exempt if the provisions of that paragraph were applied to him. (3) The exemption provided by this article has effect for the period during which the impediment exists. (4) The party who fails to perform must give notice to the; other party of the impediment and its effect on his ability to perform. If the notice is not received by the other party within a reasonable time after the party who fails to perform knew or ought to have known of the impediment; he is liable for damages resulting from such non-receipt. (5) Nothing in this article prevents either party from exercising any right other than to claim damages under this Convention."

For a comment on this article, see D. TALLON, in C.M. Bianca / M.J. Bonell (eds.), supra note 4 at 572 et seq.; see also P. SCHLECHTRIEM, supra note 4 at 1-28; J.O. HONNOLD, supra note 4 at 472 et seq.; A.H. KRITZER, supra note 4 at 50 et seq.; D. Maskow / F. Enderlein, supra note 4 at 322 {stating that: "[the burden of proof for the existence of impediments lies with the aggrieved party]").

17. Art. 11 states that: "A contract of sale need not be concluded in or evidenced by writing and is not subject to any other requirement as to form. It may be proved by any means, including witnesses." For a comment on this article, see J. ZIEGEL, Report to the Uniform Law Conference of Canada on the Convention on Contracts for the International Sale of Goods (1981) (stating that "[... The [Secretariat] Commentary justifies the exclusion of a writing requirement in Art. 11 on the ground that many international sales contracts are concluded by modern means of communication which do not always involve a written contract. An equally persuasive reason is that writing requirements encourage litigation and unmeritorious defences ...]"); J.O. HONNOLD, supra note 4 at 134 et seq.; A.H. KRITZER, supra note 4 at 138 et seq.; D. MASKOW / F. ENDERLEIN, supra note 4 at 72 et seq.; P. SCHLECHTRIEM / F. FERRARI, Kommentar zum UN- Kaufrecht, Art. 11 (12), (2000) (according to Schlechtriem: "... [Art. 11 overrides even where rules as to the form of evidence are classified by domestic law as procedural. However, that should not affect domestic procedural rules concerning the means of proof and restrictions thereon, for example, where the proceedings are on the basis of documentary evidence alone or involve the examination of a party] ...").

18. Art. 38 states that: "(1) The buyer must examine the goods, or cause them to be examined, within as short a period as is practicable in the circumstances. (2) If the contract involves carriage of the goods, examination may be deferred until after the goods have arrived at their destination. (3) If the goods are redirected in transit or redispatched by the buyer without a reasonable opportunity for examination by him and at the time of the conclusion of the contract the seller knew or ought to have known of the possibility of such redirection or redispatch, examination may be deferred until after the goods have arrived at the new destination."

Art. 39 states that: "(1) The buyer loses the right to rely on a lack of conformity of the goods if he does not give notice to the seller specifying the nature of the lack of conformity within a reasonable time after he has discovered it or ought to have discovered it. (2) In any event, the buyer loses the right to rely on a lack of conformity of the goods if he does not give the seller notice thereof at the latest within a period of two years from the date on which the goods were actually handed over to the buyer, unless this time- limit is inconsistent with a contractual period of guarantee."

For a comment on these articles, see C.M. BIANCA, supra note 4 at 295 et seq.; for scholarly writings dealing with the issue of the buyer's duty to inspect the goods and notify the seller of any lack of conformity, see J.O. HONNOLD, supra note 4 at 328 (stating that the buyer's duty to inspect the goods is "a necessary step towards the timely notification of defects required by Art. 39"); D. TALLON, "La consécration de la notion de conformité après la Convention des Nations Unies sur les contrats de vente internationale de marchandises", in Gedächtnisschrift für Leontin-]ean Constantinesco (1983), 753 et seq. ; A.H. KRITZER, supra note 4 at 299 et seq.; D. MASKOW / F. ENDERLEIN, supra note 4 at 154 et seq.; P. SARCEVIC / P. VOLKEN, supra note 4 at 165 et seq.; although not expressly settled by the Convention, some Court decisions have deduced from an implicit interpretation of Arts. 38-39 that the buyer bears the burden of proving the lack of conformity of the goods, and that the inspection took place within the reasonable time requested by the Convention, This interpretation was given in accordance with the general principles of the Convention under Art. 7(2) by Handelsgericht Zürich, 26-04-95, UNILEX; Landgericht Landshut, 05-04-95, I UNILEX; Landgericht Frankfurt a/M., 06-07-94, UNILEX; Oberlandesgericht Innsbrück, 01-07-94, UNILEX; I Handelsgericht Zürich, 09-09-93, UNILEX; see also A. VENEZIANO, "Non Conformity of Goods in International Sales. A Survey of Current Case Law on CISG", Int'l Bus. L.J. 39 (1997), 50.

19. For this conclusion, at least with respect to the burden of proof ex Art. 2(a) CISG, see F. FERRARI, The sphere of application..., supra note 4 at 28 (stating that" [Some authors assert that the Convention does not deal with any procedural questions and, consequently, that this question should be left to domestic procedural law. The better view seems to be to the contrary, that is, the allocation of this burden of proof is governed by the Uniform Sales Law]"); for a similar conclusion, U. MAGNUS, Stand und Entwicklungen des UN-Kaufrechts, ZeuP 3 (1995), 207 (who argues that the burden of proof is certainly governed by the Convention in its general principles under Art. 7(2), thus making recourse to the national laws unacceptable); D.MASKOW / F. ENDERLEIN, supra note 4 at 34 (stating that: "[The Convention should be invoked to the extent to which it solves these problems ...Therefore, the usual methods of interpretation are to be used]").

20. For the importance of an international interpretation of the Convention by the judges at the domestic level, and as to the risk of an interpretation based on familiar domestic legal concepts see, among others, P. KONERU, "The International Interpretation of the UN Convention on Contracts for the International Sale of Goods: An Approach Based on General Principles", 6 Minn. j. Global Trade (1997), 105-152.

21. In other words, the judge should follow a "two-step" method. First, he must determine through an interpretation of the uniform substantive law (CISG), not the domestic procedural law, which party bears the burden of proof. Second, assuming that the parties succeeded in producing evidence, the judge can make his final decision basing his evaluation on the domestic procedural rules.

22. On the American legal side, see MORGAN, "Rules of Evidence: Substantive or Procedural?", 10 Vand. L. Rev. (1957), 467; LADD, "Uniform Evidence Rules in the Federal Court", 49 Va. L. Rev. (1963), 692; WIGMORE, A treatise on the Anglo-American system of evidence in trials at common law (1940); on the Italian legal side, see G. CHIOVENDA, "La natura processuale delle norme sulla prova e l'efficacia della 'legge proces- sua le nel tempo", Saggi di diritto procedurale civile (1930), 243; V. DENTI, "La relativitá della distinzione tra norme sostanziali e norme processuali", Dall'azione algiudicato (1983), 3 et seq.; E. ALLORIO, "Per una teoria dell'oggettodell'accertamento giudiziale", jus (1955), 152; L.P. COMOGLIO, "Libertà di forma e libertà di prova nella compravendita internazionale di merci", Riv. trim. dir. proc. civ. (1990), 785 et. seq. On the French legal side, see HUET, Les conflits des lois en matiere de preuve (1965),40 et. seq. (the article contains an overview of the well-known French Cour de cassation decisions with respect to the nature of evidence).

23. This is the so-called principle of informality, see RAJSKI, supra note 4 at 125 et seq.; see also J. ZIEGEL's comment on Art. 11, supra note 17 (stating that: "[. ..The precise scope of the second sentence of Art. 11 is not clear. Presumably it was intended to override any requirement under domestic law governing the proof of contracts not reduced to writing such as the "commencement de preuve" under the Quebec Civil Code. What is less clear is whether the sentence also permits the introduction of evidence to add to, vary, or contradict the terms of a writing contrary to the parol evidence rule of the common law ...]").

24. Erie R.R. v Tompkins, 304 U.S. 64 (1938).

25. The conclusions reached in the Erie case were subsequently implemented and clarified in the 1945 York case, see Guaranty Trust Co. of New York v York, 326 U.S. 99 (1945); in this case the outcome determinative test was announced for the first time as an instrument that could assist judges in overcoming the problem of distinguishing a substantive law from a procedural law. In order to qualify the state law as substantive, the Court must look at the impact of the choice of law on the outcome; if application of the state statute would make a substantial difference on the decision, state law must be followed. This test became especially useful in cases where the application of a state law was uncertain because of the difficulties in establishing whether it was of a procedural or a substantive nature.

26. For a reference to the memorable debate that followed the Erie decision, see TUNKS, "Categorization and Federalism: "Substance and "Procedure" after Erie Railroad v Tompkins", 34 Ill. L. R. (1939}, 271; KURLAND, "Mr. Justice Frankfurter, the Supreme Court and the Erie Doctrine in Diversity Cases", 67 Yale L.J. (1957), 187; NOTE, Harv. L. Rev., "State Trial Procedure", supra note 13; COOK, The logical and lega1 basis of the conflict of laws (1942), 1.54; CLARK, "State law in the Federal Courts: The Brooding Omnipresence of Erie v Tompkins", 55 Yale L.}. (1946), 267; HOROWITZ, "Erie R.R. v Tompkins - A Test to Determine those Rules of State law to Which Its Doctrine Applies", 23 S. Cal. L. Rey. (1950), 204 et seq.; VESTAL, "Erie R.R. v Tompkins, A Projection", 48 Iowa L. Rev. (1963), 248 with a significant background of the Supreme Court precedents that led to this decision.

27. A first restriction of the rule deriving from the outcome test was enacted by the U.S. Supreme Court decision Byrd v Blue Ridge Rural Electric Cooperative, Inc., 356 U .S. 525 (1958) in which the judges ruled that the principle of ensuring the same outcome in state and federal courts established in Erie must be balanced against any countervailing strong federal policy involved. A further restriction to the Erie doctrine was caused by the U.S. Supreme Court decision Hanna v Plumer, 380 U.S. 460 (1965) which held that the Erie test did not apply if the issue was covered by a Federal Rule of Civil Procedure. Only in the event that an applicable Federal Rule could not be found must the Court follow the outcome criterion.

28. The Federal Rules of Civil Procedure entered into force in 1938, only a few months after the Erie decision. Unfortunately, from the very outset, the purpose of unifying the Rules of Civil Procedure in one federal body ran counter to the opposite interest of preserving the rights recognised at state level by virtue of a homogeneous application of the state substantive law in federal courts. Eventually, this non-written potential conflict was resolved in Hanna v Plumer, supra note 27.

29. For this conclusion, see V. DENTI, supra note 22 (stating that: "[These brief remarks would suggest that there exists no systematic abstract criterion that would enable a given case to be classified unequivocally and rationally [...] as being either of a "procedural" or a "substantive" nature. Rather, it is the case law that decides, on the basis of policy considerations and with reference to the specific nature of each legal system, taking into account the consequences which, within these systems, might derive from the choice of one or the other of these two qualifications]"). (ULR translation of Italian original)

30. Art; 64 [Federal Civil Legislation] of the Swiss Constitution provides that: (1) The Confederation is entitled to legislate on: civil capacity; all legal matters relating to commerce and movable property transactions (law of contracts and tort, including commercial law and law of bills of exchange); copyrights in literature and arts; protection of inventions suitable for industrial use, including designs and models; suits for debts and bankruptcy. (2) The Confederation is also entitled to legislate in the other fields of civil law. (3) The organisation of the courts, procedure, and jurisdiction shall remain a matter for the cantons as before.

31. For more detailed references on the Swiss legal system, see VOYAME, Droit privé fédéral et proéedure civile cantonale (1962).

32. See V. DENTI, supra note 22.

33. For this conclusion, see the aforementioned scholarly considerations as to the interpretation of Arts. 2(a), 38 and 39, 79, supra notes 15, 18 and 16.

34. For the historical background concerning the critical analysis of the rules of exclusion of evidence in common law, see BENTHAM, "Traité des preuves judiciaries", CEuvres de Jérémie Bentham, (1840); THAYER, A Preliminary Treatise on Evidence at the Common Law (1898); for a more recent discussion concerning the rules of exclusion, LOEVINGER, "Facts, Evidence and Legal Proof", 9 West: Res. L.R. (1958), 154; also in Landmarks of Law (1960), 437 et seq. (denouncing the Irrationality of the rules of exclusion).

35. For a discussion on the rules of exclusion and the power of the judge to admit relevant evidence, see MORGAN, Basic Problems of Evidence (1962), 183; TRAUTMAN, "logical or legal relevancy. A conflict in theory", Vand. L. Rev. (1952), 387 et seq.; LADD, Determination of relevancy, Tulane L. Rev. (1956), 81.

36. For an easily accessible explanation of the parol evidence rule in the United States, see J.D. GORDON III, "Teaching Parol Evidence", B.Y.U. L. Rev. (1990), 647; for an extensive discussion of the U.C.C. parol evidence rule and the reasons behind it, see C.T. McCORMICK, Handbook of the Law of Evidence (1954), §§ 210, 211 (describing the development of the parol evidence rule as a means for common law judges to control juries who ignored credible and reliable written evidence of contracts). "The continental legal system, with no civil jury, and with most contracts required to be entirely in writing, has little trouble in guarding written bargains from oral encroachment. This danger to written transactions is peculiarly inherent in the common law methods of trial"; other authors provide an extensive discussion of rule 3: see A.L. CORBIN, Corbin on Contracts Ch. 26 (1960 & Supp. 1994); and idem, "The Interpretation of Words and the Parol Evidence Rule", 50 Cornell L.Q. (1965), 161; J.J. WHITE / R.S. SUMMERS, Handbook of the Law under the Uniform Commercial Code (2nd ed. 1980), § 2-9 to 12.

37. For a definition of the parol evidence rule as a substantive rule of law in accordance with the Erie test, see NOTE, supra note 11 (stating that "[The parol evidence rule, for example, ostensibly regulating the admissibility of evidence, is recognised as substantive because it requires parties to comply with the terms of written agreements regardless of prior oral understandmems]").

38. For this conclusion, see J.E. MURRAY, Jr, "An Essay on the Formation of Contracts and Related Matters under the United Nations Convention on Contracts for the International Sale of Goods", 8 J. L. & Com. 11 (1988), 44 ("[… ClSG rejects the parol evidence rule ...]"); P. WINSHIP, "Domesticating International Commercial law: Revising U.C.C. Art. 2 in light of the United Nations Sales Convention", 37 Loy. L. Rev. 43 (1991), 57 (according to this author, the parol evidence rule is largely inconsistent with Art. 8(3) of the Convention); for a similar conclusion see also A.H. KRITZER, supra note 4 at 125.

39. The parol evidence rule has both a statutory and a common law nature. For the statutory version, see, U.C.C. § 2-202 (1994). The rule is thus contained in Art. 2 of the Uniform Commercial Code. This article deals with transactions in goods, as much as the Vienna Sales Convention. It is therefore very likely that the parol evidence rule will be applicable in the same cases where CISG is applicable. On the common law side, the rule is well summarised in Restatement (Second) of Contracts §§ 209-218 (1979).

40. For this strong and vivid statement, see J.O. HONNOLD, supra note 4 at 121.

41. Beijing Metals & Minerals Import/Export Corp. v American Business Ctr., Inc., 993 F. 2d 1178, 1182-83 n.9 (5th Cir. 1993).

42. In the United States, CISG has as yet been applied in only a few decisions, and in some cases the Convention was only mentioned in the dicta. The number of these decisions is slowly beginning to increase, also because of judges' willingness to overcome their reluctance towards the application of non-traditional instruments of law such as the International Uniform Laws. For a detailed list of those decisions, see M.R. Will, The First 555 or so Decisions, supra note 8; the United States decisions applying CISG or only citing the Convention may be listed as follows: Calzaturificio Claudia s.n.c. v Olivieri Footwear Ltd., No.96 CIV, 8052 (HB)(THK), 1998 WL 164824 (S.D.N.Y. 07-04-98). Two cases which discuss the Convention are Delchi Carrier S.p.A. v Rotorex Corp., 71 F .3d 1024 (2d Cir. 1995); and Filanto, S.p.A. v Chilewich Int'l Corp., 789 F. Supp. 1229 (S.D.N.Y. 1992). Briefly citing CISG (paragraph or footnote): Attorneys Trust v Videotape Computer Prods., Inc. No.95-55410, 1996 WL 473755, at * 2 (9th Cir. 20-08-96); Beijing Metals & Minerals Import/Export Corp. v American Bus. Ctr., Inc., 993 F .2d 1178, 1182-83 n.9 (5th Cir. 1993); Huntington Int'l Corp. v Armstrong World Indus., 981 F. Supp. 134, 135-36 (E.D.N. Y .1997); Kahn Lucas Lancaster, Inc. v Lark Int'l Ltd., No.95 CIV. 10506 (DLQ, 1997 WL 458785, at *5 n.8 (S.D.N.Y. 11-08-97); Helen Kaminski Pty., Ltd. v Marketing Australian Prods., Inc., No. 97-8072A, 1997 WL 414137 (S.D.N.Y. 23-07-97); Graves Import Co. v Chilewich Int'l Corp., No.92 CIV. 3655 OFK), 1994 WL 519996, at *5 n.2 (S.D.N.Y. 22-09-94); s. V. Braun, Inc. v Alitalia-Linee Aeree ltaliane, S.p.A., No.91 CIV. 8484 (LBS), 1994 WL 121680, at *5 (S.D.N. Y. 06-04-94); Interag Co. v Stafford Phase Corp., No.89 CIV. 4950 CSH, 1990 WL 71478, at *4 (S.D.N.Y. 22- 05-90); Orbisphere Corp. v United States, 726 F. Supp. 1355 (Ct. Int'l Trade 1989); and finally, the most recent American court decision applying CISG: Magellan International Corporation v Salzgitter Handel GmbH, United States District Court, Northern District of Illinois, Eastern Division 07-12-99).

43. R.A. BRAND/ H.M. FLECHTNER, supra note 3 at 239,251-52 (1993) (stating that: "[... Nevertheless, even I conclude that the approach to parol evidence questions taken by the Fifth Circuit in Beijing Metals is inconsistent with CISG, and that the result in the case might well have been changed had the Court applied the Convention. The parol evidence rule in U.S. domestic law is, in essence, merely a special method of determining the parties' intent as to certain questions. Specifically, the rule establishes a distinct set of tests and procedures for ascertaining whether the parties intended to discharge prior or contemporaneous terms that were omitted from a document embodying the contract. It is clear that the Convention rejects any special methodology for determining the parties' intent as to the effect of writing"]); Schlechtriem has recently declared that: "... [Domestic rules of interpretation are also overridden in so far as they recognize only written declarations and do not permit proof that something else was agreed orally or some other meaning intended. Any (additional) oral agreements are valid under Art. 11; determination of what the parties wished or intended to express through their declarations is governed by Art. 8(3) and cannot be restricted by domestic law - e.g. by a "parol evidence rule" such as in § 2-202 UCC ...]", see P. SCHLECHTRIEM, Kommentar, Art, 11(13), supra note 17; however, we must report that a Note was published in support of the judges' decision to hold the parol evidence rule applicable against CISG. For a better understanding of this position, see D.H. MOORE, "Note, The Parol Evidence Rule and the United Nations Convention on the International Sale of Goods: Justifying Beijing Metals & Minerals Import/Export Corp. v American Business Center, Inc., 1995", B. Y.U. L. Rev., 1347 et seq. (according to this author, the parol evidence rule is fully compatible with the general principles underlying CISG and satisfies the international uniformity mandate of Art. 7(1). Flechtner's view is critised by virtue of the following reasoning "[Professor Flechtner takes issue with the Beijing Metals holding, arguing that the parol evidence rule is inconsistent with CISG because "the convention rejects any special methodology [such as the parol evidence rule] for determining the parties' intent as to the effect of writing. Professor Flechtner seeks support for this conclusion from CISG Arts. 7(1) and 8(3) and, in particular, from the fact that the Convention "lack[s] ...any provision …affording special treatment to parol evidence questions [...]. When the Convention does not give special treatment to a rule of law, however, the rule is not automatically displaced. Instead, the rule's fate depends on whether the Convention settles issues within the rule's scope against the rule, and if the Convention does not settle those issues, on whether the rule conforms with the general principles of the Convention. This section argues first that CISG Art. 8 settles questions regarding both the determination of the parties' intent as to the effect of their writing and the admissibility of extrinsic evidence consistently with the parol evidence rule so that courts may apply the parol evidence as an expression of Art. 8. This initial argument is buttressed by the fact that the parol evidence rule satisfies the international uniformity mandate under Art. 7(1). Second, this section alternatively contends that CISG governs but does not expressly settle parol evidence issues and the parol evidence rule conforms with the general principles of CISG, so that, consistent with Art. 7(2), the parol evidence rule may be applied to CISG contracts]."

44. This concern was appropriately expressed by R.A. FELDMAN, District Court Slides U.N. Convention onto Shoe Suit, 8 Corp. Legal Times (1998).

45. MCC-Marble Ceramic Ctr., Inc. v Ceramica Nuova d' Agostino, S.p.A., 144 F .3d 1384, 1389 (11th Cir. 1998); for a comment to this case, see KIM, "MCC-Marble Ceramic Ceriter , Inc. v Ceramica Nuova d'Agostino S.p.A.", NY Int'l L. Rev. (1999), 105-110; SPANOGLE / WINSHIP, International Sales Law: A Problem Oriented Coursebook (2000), 124-129; R.N. ANDREASON, "MCC-Marble Ceramic Center: The parol evidence rule and other domestic law under the Convention on Contracts for the International Sale of Goods", 1999 B.Y.U. L. Rev., 351.

46. According to R.N. ANDREASON, supra note 45 ("[In MCC-Marble Ceramic Center., Inc. v Ceramica Nuova d'Agostino, the Eleventh Circuit examined CISG and attempted to interpret it as an independent source of law ...Specifically, it discussed one of the more troubling aspects of the Convention for American practitioners - CISG's lack of a parol evidence rule. The court made important comments on the use of domestic law under the Convention and on avoiding parol evidence problems in the future]").

47. See 144 F.3d 1384, 1389 (11th Cir. 1998), supra note 45.

48. Id.

49. Art. 8 CISG provides: "(1) For the purposes of this Convention statements made by and other conduct of a party are to be interpreted according to his intent where the other party knew or could not have been unaware that that intent was. (2) If the preceding paragraph is not applicable, statements made by and other conduct of a party are to be interpreted according to the understanding that a reasonable person of the same kind as the other party would have had in the same circumstances. (3) In determining the intent of a party or the understanding a reasonable person would have had, due consideration is to be given to all relevant circumstances of the case including the negotiations, any practices which the parties have established between themselves, usages and any subsequent conduct of the parties."

50. This precedent was soon after followed by the U.S. District Court, Northern District of Illinois, in Mitchell Aircraft Spares, Inc. v European Aircraft Service AB, which held once more inapplicable the parol evidence in cases where CISG applies: " ...This court agrees with the Eleventh Circuit that Art. 8 of the CISG requires the court to consider parol evidence inasmuch as that evidence is probative of the subject intent of the parties ..."

51. For a discussion concerning the impact of the Vienna Sales Convention on the national rules dealing with the form of contracts, see L.P. COMOGLIO, supra note 22 at 785 et seq.; for interesting remarks concerning the determination of the nature of the rules of evidence in international disputes, see Atti del 3° convegno internazionale di Diritto processuale civile (Venice, 12-15 April 1962) (Giuffré ed.) (1969), L'ammissibilità dei mezzi di prova nel diritto internazionale privato, ibid. G. BALLADORE PALLIERI, "L'ammissibilità dei mezzi di prova nel diritto internazionale privato", 164 et seq. (with a useful summary of the other author's opinions and some observations on the Italian legal system); R. PERROT, "Le régime des preuves en droit international privé francais", 15 et seq.; L. WELAMSON, "Conflict of laws in the field of evidence according to Scandinavian law", 88 et seq.

52. For a reference concerning the Italian civil probative instruments, see L.P. COMOGLIO, Le prove civili (1998); S. PATTI, "Prove, Disposizioni generali", Commentario del codice civile, A. Scialoja / G. Branca (eds.), Libro sesto, artt. 2697-2698; A. PROTO PISANI, "Appunti sulle prove civili", Foro it., V (1994), 74 et seq.; G. VERDE, "La prova nel processo civile (Profili di teoria generale)", Riv. dir. proc. (1998), 325.

53. For a more detailed discussion of the prove atipiche, see M. TARUFFO, "Prove atipiche e convincimento del giudice", Riv. dir. proc. (1973), 389 et seq.; L. MONTESANO, "Le 'prove atipiche', nelle 'presunzioni' e negli 'argomenti' del giudice civile", Riv. dir. proc. (1980), 233; see also the recent publication by G.F. RICCI, Le prove atipiche (1999); B. CAVALLONE, "Critica della teoria delle prove atipiche", Riv. dir. proc. (1978),679, n. 1.

54. "Della prova testimoniale", Arts. 2721-2726 Italian Civil Code.

55. Art.421 Italian Code of Civil Procedure.

56. For a discussion concerning the need of a reform of the Italian Probative Instruments, see M. TARUFFO, "Note per una riforma del diritto delle prove", Riv. dir. proc. (1986), 270.

57. M. CAPPELLETTI, La testimonianza della parte nel sistema dell'oralità, I, 270-271 (1962); S. CHIARIONI, "Per la chiarezza di idee in tema di analisi comparata della prova per testimony", Riv. dir. proc. (1994), 382 et seq.

58. Prova legale is a special kind of evidence that brings a set of binding results before the judge. The judge is not free to bring his personal evaluation to the facts which constitute the object of a prova legale, nor he can deem admissible any contrary evidence. For a deeper analysis of the Italian Civil Procedure in English, M. CAPPELLETTI / J.M. PERILLO, Civil procedure in Italy (1965), 189 (stating that "[At present, the general rule in Italy is that the court may admit and evaluate evidence freely. ...Binding rules prescribing the court's evaluation are the exception. However, while in other leading European countries the exceptions are rare and relatively unimportant, in Italy they are still significant, particularly in the area of party testimony]").

59. "Della Confessione", Arts. 2730-2735 Italian Civil Code.

60. "Del Giuramento", Arts. 2736-2739 Italian Civil Code.

61. "Valutazione delle prove", Art. 116 Italian Code of Civil Procedure.

62. With regard to the informal party examination (interrogatorio libero), see M. CAPPELLETTI / J.M. PERILLO, supra note 58 at 229 (stating that the Italian Courts consider the probative results of an informal examination only ''[as subsidiary factors ...to corroborate evidence already acquired in the proceeding]", whereas the authors are rather inclined to consider it a free deposition, similar to the witness deposition. By contrast, at 202, he states that: "[A formal interrogatory is a procedural device for obtaining admissions in a pending proceeding]", "[the Court may not rely on answers favorable to the party who gave them]".

63. Italian Constitutional Court decision n° 248, 23-07-74; for a comment to this ruling, see M. CAPPELLETTI, "La sentenza del bastone e della carota. A proposito della dichiarazione di costituzionalità - incostituzionalità degli artt. 246-247 C.P.C.", Giur. costituz. (1974), 3586 et seq.; L.P. COMOGLIO, "Incapacità e divieti di testimoniare nella prospettiva costituzionale", Riv.dir. proc. (1976), 41.

64. Among the others, see M. CAPPELLETTI / J.M. PERILLO, supra note 58 at 270-271.

65. See COUCHEZ, Procédure Civile (1998), 334 (where the author explains how French judges can freely evaluate the facts which constitute the result of the comparution personnelle, to the extent that they can deem this type of oral evidence equivalent to a beginning of written evidence (Art. 198 N.C.P.C.). This allows the Courts to override the limits to the witnesses' oral depositions.

66. For a comparative analysis of party deposition in the different legal systems, see S. CHIARLONI, supra note 57 at 382 et seq.; R. PERROT, supra note 51 at 15 et seq.

67. P. SCHLECHTRIEM / FERRARI, supra note 17 (according to Schlechtriem, "[... the wording of Art. 11 (the contract "may be proved by any means") does not mean that in disputes before German courts arising out of contracts under the CISG there are no restrictions on adducing evidence obtained by examination of a party to the dispute (Parteiverehmung)]").

68. See supra note 53.

69. See E.F. RICCI / W.RUOSI, "Assunzione delle testimonianze", Nuove Leggi (1995), 117. For a reference to the recent reform of the Italian Arbitration law, see S. BORELLI, "New arbitration law in Italy", Alt. Disp. Res. L.]. (1994), 158; COLVIN, "Arbitration in Italy After the New law", Arbitration (1995), 289; p . BERNARDINI, "L'arbitrage en Italie apres la recente reforme", Rev. Arb. (1994), 479; M. RUBINO SAMMARTANO, "New International Arbitration legislation in Italy", J. Int'l Arb. (1994), 77.

70. For an interesting comparative analysis of the various procedural systems of the world, also with philosophical and political comments on their structures, see M.R. DAMASKA, The Faces of Justice and State Authority: A Comparative Approach to the Legal Process (1986).

71. Art. 7(2) states that: "[Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private rnternational law]."

72. See supra note 45.

73. For a reference to the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, see J. PLASTER, "The Hague Evidence Convention: the Need for Guidance on Procedures and Resolution of Conflicts in Transnational Discovery", Vand. J. Transn'l L. (1994), 185; COUCHEZ, "Convention de la Haye du 18 mars 1970", Rev. crit. DIP (1995), 80; K.B. REISENFELD, "Service of United States Process Abroad: a Practica1 Guide to Serve under the Hague Service Convention and the Federal Rules of Civil Procedure", Int'l Law. (1990), 55; PLAINE, "Compulsory Discovery Methods: The Hague Evidence Convention, Letters Rogatory, Foreign Limits on Testimony and Document Production", A.B.A. Int'l Lit. (1989).

74. The draft of the STORME Directive for a Uniform European Code of Civil Procedure was published in Rapprochement du Droit Judiciaire de l'Union Européenne - Approximation of Judiciary Law in the European Union (STORME ed.) (1994).

75. For the latest updated edition, see J. HAZARD / M. TARUFFO, "Transnational Rules of Civil Procedure", American Law Institute (1999).

76. C. GIOVANNUCCI ORLANDI, supra note 11.


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