CISG's Place in the Context of the Anticipated International Civil Law Act in Australia

The purpose of this chapter is to examine the “United Nations Convention on Contracts for the International Sale of Goods” (Vienna, 1980) (CISG) from an Australian perspective. Australia ratified the CISG on 17 March 1988 and the CISG came into force in Australia on 1 April 1989. Australia has given effect to the CISG through the statute enacted in different states and territories. Yet, to date, there have been only 26 cases on the CISG raised before the courts in Australia. The reason is in part cultural as it has become a “prevalent practice” for parties to opt out from CISG scheme ever since the early stage of contract drafting. In cases where CISG was supposed to apply, “courts across Australia perpetuated the unfortunate tendency to cite non-applicable domestic legislation, case law or concepts … often due to the reluctance of counsel to engage with the CISG”. It is not the purpose of the author in this chapter to re-examine how Australia has been treating CISG. It is instead the purpose of the author in this chapter to look to the future on how this international convention on international sales will interact with a much anticipated “International Civil Law Act”. This piece of legislation, which is currently in the drafting stage, will give effect to the “Hague Convention of 30 June 2005 on Choice of Court Agreements” (HCCCA) with an expectation is that Australia will accede to this Convention in a foreseeable future. The original plan was to accommodate in this legislation as well the “Principles on Choice of Law in International Commercial Contracts” (the Principles). This inclusion is now unlikely. Yet, there is nothing to prevent Australia to implement the Principles in the future, if it deems appropriate. In view of this, discussions in this chapter will encompass the likely role of the Principles.