Report by EAC Chair: Dr Lisa Spagnolo
This year our UN Laws Day was held as a live webinar due to the pandemic. While at first this seemed a daunting prospect, the 2 hour event turned into a great success. After a warm welcome by UNCCA Chair the Hon. Justice McKerracher of the Federal Court of Australia, the Keynote Speech was delivered by former Federal Court Judge, the Hon. Dr Kevin Lindgren QC, who carefully outlined the adoption of the CISG, and critiqued its acceptance in Australia.
This was followed by a panel of 4 expert speakers. Prof. Ulrich Schroeter of University of Basel, Switzerland, spoke on ‘The operation of the CISG in the age of COVID-19’. He covered the recent CISG Advisory Council Opinion which expands Article 79 to include cases of hardship as well as impossibility, as well as the high bar set by CISG cases.
Prof. Bruno Zeller gave an account of ‘How Australia needs to improve its application of the CISG’, touching on some of the areas in which Australian courts could more accurately reflect the international approach mandated by Article 7. Dr Benjamin Hayward presented a paper entitled ‘CISG opt-outs in Australia: fact or fiction, and what to do?’ in which he speculated upon the possibility and reasoning behind a perceived culture of CISG exclusion clauses. Prof. Elisabeth Peden SC spoke on ‘The importance of notice of non-conformity and avoidance in the CISG’, a topic which may also become vital to the pursuit and defence of claims in contracts governed by the CISG, given the requirement that notice of any non-conformity, or of avoidance (termination), must be given within a ‘reasonable time’.
These topics were much anticipated by many, including practitioners who fielded practical questions about how the CISG would deal with the fall out of the pandemic. In particular, there was much discussion about the impact of second or third waves of COVID and how this would affect the criterion of foreseeability within Article 79, and the ‘reasonable time’ requirement for notice under Article 26. Lively discussion arising from audience comments and questions, ranged from the impact of international commercial arbitration on the number of CISG cases, the prevalence of Australian parties in CISG cases reported in other jurisdictions, as well as the need for practitioner awareness of the better undergraduate legal education and CPD.
The event was Chaired by Dr Lisa Spagnolo, and organised by our Deputy Chair, Dr Dalma Demeter and Jagpreet Sandhu. UNCCA wishes to thank the Commercial Law Association which kindly sponsored the webinar, for their great support.