ASLI Working Paper Series

Publication Title The Paradox of Substantive-Procedural Dichotomy and the Admissibility of Extrinsic Evidence under the CISG 1980: Towards Global Harmonization of Procedural Law?
Publisher Asian Law Institute
Series WPS043
Publication Date Oct 2020
Author/Speaker Tidarat Sinlapapiromsuk
The CISG 1980 has tended to be analyzed largely from a "substantive law” point of view, with a relatively limited clarification on various procedural implications that may arise from its world-wide applications—both in the context of civil law and common law jurisdictions, and in the forums of Contracting States and non-Contracting States alike.

In the backdrop of these diversifications, especially in light of a rigid classification of the matters concerning extrinsic evidence, as either substantive or procedural in nature, a domestic court confronting with international commercial litigations, may decide that, although another forum's substantive law incorporating the CISG should apply, the court's own rules of civil procedure will, nevertheless, continue to govern the question of admissibility of evidence at a trial. In numerous cases, such a rigid dividing line can induce judicial refusal to apply certain provisions of the uniform substantive law, governing the issue of contractual interpretation, liberalizing the procedural-law restrictions on the admission of evidence.

The creation of a uniform law might not in and of itself guarantee a uniform application of such law, giving rise to a resulting inconsistency in the outcomes in the manner that can incentivize forum-shopping behaviors. If the Vienna Sales Convention is to be applied one way in Singapore and another in Vietnam, or even in a non-Contracting State like Thailand, there is no such thing as a truly uniform sales law. This paper will systematically and critically explore these potential challenges to the uniformity in the applications of the CISG 1980, unlocking the substantive – procedural dichotomy in the international commercial law.
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