The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the Vienna Sales Convention for Australian Lawyers
78 Pages Posted: 25 Jul 2009 Last revised: 1 Mar 2010
Date Written: 2009
Australian lawyers and courts have tried long and hard to ignore the CISG. However, this article argues that widespread exclusion of the CISG and its misapplication in Australian courts has had serious consequences: clients have been disadvantaged, professional obligations have been heavily glossed over, the administration of justice has been compromised, and client costs and judicial resources wasted. This article points out that CISG cases are disseminated and analysed throughout the world, and Australian misapplication of the CISG has not gone unnoticed. This reflects upon the reputation of the Australian legal profession, Australian courts, and Australia’s viability as a location for international dispute resolution. It is argued that, while other jurisdictions are improving their track records, Australia still lags behind.
Why Australian lawyers should not routinely exclude the CISG is explained through its advantages and an outline of its provisions. The article provides arguments that barristers could run in future, references numerous freely available resources, and gives courts and awyers guidance on the CISG’s unique interpretive methodology and its effect in displacing local laws, both key elements in its proper application. It is argued that if Australian lawyers and courts do not rise to the challenge, Australia will be left behind as an outpost of CISG ignorance.
Keywords: Convention of International Sales of Goods, International trade, Australia, choice of law, CISG, Vienna Sales Convention, opt outs, opt out, interpretive method
JEL Classification: K00, K12, K2, K33, K4, K41, K49, D61, L84
Suggested Citation: Suggested Citation