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Way Out West? Understanding The CISG’s Application in Australia
Way out west, where the rain don’t fall
There’s a treaty for the sale of goods that’s good news for all
But you might not know it’s here
Unless you’re livin’ and a workin’ on the land …
In 2009, Associate Professor Lisa Spagnolo observed – based upon her census of Australia’s CISG case law at that time – that the Convention was effectively ‘in the Australian legal outback’. For those unfamiliar with Australia’s geography, most of its population is concentrated on the continent’s eastern coast. Australia’s outback extends, amongst other places, across much of Western Australia. With that geographic imagery in mind, one might not be surprised to hear that a recent decision of the County Court of Victoria – in Australia’s east – overlooked the Vienna Sales Convention’s application.
The circumstances in which this omission occurred are interesting, and provide a useful opportunity for Australian practitioners to learn more about the CISG’s application in Australia.
The case at issue is last year’s C P Aquaculture (India) Pvt Ltd v Aqua Star Pty Ltd [2023] VCC 2134. That case involved a sale of goods dispute (concerning prawn and shrimp) between Australian and Indian parties. Whilst the CISG has been part of Australian law since 1989, it is a well-known fact that India is not a CISG Contracting State. It is perhaps this well-known fact – taken at face value – that led the County Court of Victoria to overlook the CISG’s application.
The C P Aquaculture judgment indicates that ‘[t]he parties are agreed that the proper law of the contracts between CP (India) and Aqua Star for the sale of shrimp or prawns is Victorian law’. As recorded in the judgment, this followed from the plaintiff’s view that ‘India has not adopted the convention on contracts for the international sale of goods’, and from the defendant’s view that there was a ‘failure on the part of either part[y] to allege and prove the terms of any other law as a proper law’.
On either view, however, there is actually a very good basis for applying the CISG, rather than non-harmonised Victorian law. This case therefore represents an excellent opportunity for Australian lawyers to better understand how and why the CISG applies in Australia.
Taking the plaintiff’s position first, the fact that India has not adopted the CISG is actually not fatal to the Convention’s application. In fact, the Convention specifically provides for its application in those exact circumstances. This follows from Art. 1(1) CISG, the treaty’s key application provision:
This Convention applies to contracts of sale of goods between parties whose places of business are in different States:
(a) when the States are Contracting States; or
(b) when the rules of private international law lead to the application of the law of a Contracting State.
Where – as in C P Aquaculture – it is not the case that both parties are from Contracting States, the CISG cannot apply by virtue of Art. 1(1)(a) CISG. But it can still apply pursuant to Art. 1(1)(b) CISG. The key here is whether ‘the rules of private international law’ call for the application of a Contracting State’s law.
In an informal discussion I once had with a leading Australian barrister, I was asked ‘what does “the rules of private international law” here actually mean?’ It may be that uncertainty over the meaning of this phrase contributes to the CISG’s application being overlooked in cases like C P Aquaculture. In short, private international law rules include choice of law rules (where a sales contract is governed by a CISG State’s law because of a choice of law clause) and conflict of laws rules (where, absent party choice of law, the forum’s rules indicate that a CISG State’s law is to apply). In a way, Art. 1(1)(b) CISG might have been more easily understood by non-specialists if it read ‘when a Contracting State’s law is the governing law’. Although it doesn’t read this way, that is essentially the provision’s effect, and understanding Art. 1(1)(b) CISG accordingly may better help Australian practitioners identify cases requiring the treaty’s application.
Taking the defendant’s position second, where the law of an Australian jurisdiction governs, it is actually not necessary to ‘allege and prove’ the CISG’s terms because the CISG – despite its abstract existence as a treaty – is not foreign law. Roder Zelt-Und Hallenkonstruktionen GmbH v Rosedown Park Pty Ltd – Australia’s first ever case applying the CISG – confirmed this by explaining that the CISG is ‘part of’ Australian law and is thus ‘not to be treated as a foreign law which requires proof as a fact’.
Indeed, the Goods Act 1958 (Vic) – a statute that the defendant itself sought to rely upon in C P Aquaculture – is the very vehicle giving effect to the CISG in Victoria, via its pt IV.
All this being said, C P Aquaculture provides Australian practitioners (and lawyers representing Australian traders’ counterparts) with some useful lessons in understanding how and why the CISG applies. If the CISG really is still in the Australian legal outback, then perhaps what Australian practitioners need is a good understanding of the lay of the land. And to that end, private international law can be their map.
Dr Benjamin Hayward
Associate Professor, Department of Business Law and Taxation, Monash Business School
X (Twitter): @LawGuyPI
International Trade and International Commercial Law research group: @MonashITICL
Abu Dhabi Supreme Court on the Applicability of Law on Civil Marriage to Foreign Muslims
I. Introduction
Recent developments in the field of family law in the UAE, in particular the adoption of the so-called “Civil Marriage Laws”, have aroused interest, admiration, curiosity, and even doubt and critics among scholars and practitioners of family law, comparative law and private international law around the world.[1] First introduced in the Emirate of Abu Dhabi,[2] and later implemented at the federal level,[3] these “non-religious” family laws, at least as originally enacted in Abu Dhabi, primarily intend to apply to foreign non-Muslims.[4] The main stated objective of these laws is to provide foreign expatriates with a modern and flexible family law based on “principles that are in line with the best international practices” and “close to them in terms of culture, customs and language”.[5] One of the peculiar feature of these laws is that their departure from the traditional family law regulations and practices in the region, particularly in terms of gender equality in pertinent matters such as testimony, succession, no-fault divorce and joint custody.[6]
Aside from the (critical) judgment that can be made about these laws, their application raises several questions. These include, inter alia, the question as to whether these laws would apply to “foreign Muslims”, and if yes, under which conditions. The decision of the Abu Dhabi Supreme Court (hereafter “ADSC”) reported here (Ruling No. 245/2024 of 29 April 2024) shed some light on this ambiguity.
II. The Facts:
The case concerns a unilateral divorce action initiated by the husband (a French-Lebanese dual national, hereafter “X”) against his wife (a Mexican-Egyptian dual national, hereafter “Y”). Both are Muslim.
According to the facts reported in the decision, X and Y got married in the Emirate of Abu Dhabi on 11 September 2023, apparently in accordance with the 2021 Abu Dhabi Law Civil Marriage Law[7] although some aspects of the Islamic tradition regarding marriage appear to have been observed.[8] On 6 November 2023, X filed an action for no-fault divorce with the Abu Dhabi Civil Family Court (hereafter ADCFC) pursuant to the 2021 Abu Dhabi Law Civil Marriage Law using the prescribed form.[9] Y contested the divorce petition by challenging the jurisdiction of the court. However, the ADCFC admitted the action and declared the dissolution of the marriage. The decision was confirmed on appeal.
Y then appealed to the ADSC primarily arguing that the Court of Appeal had erred in applying the 2021 Abu Dhabi Law Civil Marriage Law to declare the dissolution of the marriage because both parties were Muslim. Y’s main arguments as summarized by the ADSC are as follows:
- The Abu Dhabi courts lacked international jurisdiction because she was foreigner and did not have a place of residence in Abu Dhabi and that her domicile was in Egypt,
- The Court of Appeal rejected her argument on the ground that X had a known domicile in Abu Dhabi,
- Both parties were foreign Muslims and not concerned with the application of the 2021 Abu Dhabi Law Civil Marriage Law knowing that the marriage fulfilled all the necessary requirement for Islamic marriage and was concluded with the presence and the consent of Y’s matrimonial guardian (her brother in casu).
III. The Ruling
The ADSC accepted the appeal and ruled that the ADCFC was not competent to hear the dispute, stating as follows:
“Pursuant to Article 87 of the [2022 Federal Act on Civil Procedure, hereafter “FACP”], challenges to the court’s judicial jurisdiction or subject matter jurisdiction may be raised by the courts sua sponte and may be invoked at any stage of the proceedings. On appeal, Y argued that the court lacked subject matter jurisdiction to hear the case because she was Muslim […] and a dual national of Mexico and Egypt, while X was also a Muslim […] and holder of French and Lebanese nationalities.
[However,] the Court of Appeal rejected Y’s arguments and confirmed its jurisdiction based on Articles 3 and 4 of [the Procedural Regulation]; [although] the opening of Article 3 relied on [by the court] states that “the court is competent to hear civil family matters for non-Muslim foreigners regarding civil marriage, divorce and their effects”. In addition, Article 1(1) of Federal Legislative Decree No. 41/2022 states that “The provisions of the present Legislative Decree shall apply to non-Muslim citizens of the UAE and to foreign non-Muslims residing in the UAE, unless they invoke the application of their own law in matters of marriage, divorce, succession, wills and establishment of filiation.”
[Given that] it was judicially established by the parties’ acknowledgement that they were Muslim, the Court of Appeal violated the Law No. 14/2021, as amended by Law No. 15/2021, and its Procedural Regulation [No. 8/2022], as well as Federal Legislative Decree No. 41/2022 by upholding the appealed decision without ascertaining the religion of the parties and ruling as it did, [therefore its decision] must be reversed”.
IV. Comments
The main legal question referred to the ADSC concerned the applicability of the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation to foreign Muslims. The ADSC answered the question in the negative, stating that the ADCFC was not competent to declare the dissolution a marriage between foreign Muslims. Although the case raises some interesting issues regarding the international jurisdiction of the ADCFC, for the sake of brevity, only the question of the applicability of the 2021 Abu Dhabi Civil Marriage Law will be addressed here.
1. Unlike the 2022 Federal Civil Personal Status, which explicitly states that its provisions “apply to non-Muslim UAE citizens, and to non-Muslim foreigners residing in the UAE” (article 1, emphasis added), the law in Abu Dhabi is rather ambiguous on this issue.
i. It should be indicated in this respect that, the 2021 Abu Dhabi Civil Marriage Law, which was originally enacted as “The Personal Status for Non-Muslim Foreigners in the Emirate of Abu Dhabi” (Law No. 14/2021 of 7 November 2021, emphasis added) clearly limited its scope of application to foreign non-Muslims. This is also evident from the definition of the term “foreigner” contained in the former article 1 of the Law, according to which, the term (foreigner) was defined as “[a]ny male or female non-Muslim foreigner, having a domicile, residence or place of work in the Emirate.” Former article 3 of the Law also defined the scope of application of the Law and limited only to “foreigners” in the meaning of article 1 (i.e. non-Muslim foreigners). Therefore, it was clear that the Law, in its original form, did not apply to “foreign Muslims” in general.[10]
ii. However, only one month after its enactment (and even before its entry into force), the Law was amended and renamed “The Law on Civil Marriage and its Effects in the Emirate of Abu Dhabi” by the Law No. 15/2021 of 8 December 2021. The amendments concerned, inter alia the scope of application rationae personae of the Law. Indeed, the Law No. 15/2021 deleted the all references to “foreigners” in the Law No. 14/2021 and replaced the term with a more neutral one: “persons covered by the provisions of this Law [al-mukhatabun bi hadha al-qanun]”. This notion is broadly defined to include both “foreigners” (without any particular reference to their religious affiliation) and “non-Muslim citizens of the UAE” (New Article 1).
Article 5 of the Procedural Regulation provides further details. It defines the terms “persons covered by the provisions of this Law” as follows:
- Non-Muslim [UAE] citizens.
- A foreigner who holds the nationality of a country that does not primarily apply the rules of Islamic Sharia in matters of personal status as determined by the Instruction Guide issued by the Chairman of the [Judicial] Department […] (emphasis added).
The wording of article 5(2) is somewhat confusing, as it can be interpreted in two manners:
(i) if read a contrario, the provision would mean that foreigners, irrespective to their religion (including non-Muslims), would not be subject to the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation if they hold the nationality of a country that does “primarily apply the rules of Islamic Sharia in matters of personal status”. As a result, family relationships of Christian Algerian or Moroccan, for example, would not be governed by the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation. However, this interpretation seems to be in opposition with the very purpose of adopting the Law, which, in its own terms, applies to non-Muslim UAE citizens.
(ii) Alternatively, the word “foreigner” here could be understood to mean “Muslim foreigners”, but only those who hold the “the nationality of a country that does not primarily apply the rules of Islamic Sharia in matters of personal status”. As a result, the family relationships of Muslim Canadian, French, German or Turkish (whether Tunisian would be included here is unclear) would be governed by the Law.
The latter interpretation seems to be prevalent.[11] In addition, the Abu Dhabi Judicial Department (ADJD)’s official website (under section “Marriage”) presents even a broader scope since it explains that “civil marriage” is open to “anyone, regardless of their religion” including “Muslims” “as long as they are not UAE citizens”.
iii. The situation becomes more complicated when the parties have multiple nationalities especially when, as in the reported decision, one is from of a predominantly Muslim country and the other from a non-Muslim country. Here, article 5 of the Procedural Regulation provides useful clarifications. According to paragraph 2 in fine, the nationality to be taken into account in such situation is the one used by the parties according to their [status] of residence in the UAE. If interpreted literally, family law relationships of foreign Muslims who, in addition to their nationality of a non-Muslim country, also hold a nationality of a country whose family law is primarily based on Islamic Sharia (as in the reported decision) would be governed by the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation if, according to their status of residence, they use the nationality of their non-Muslim country nationality.
iv. In the case commented here, the parties have dual nationality (French/Lebanese, Mexican/Egyptian). Although the parties are identified as “Muslim”, they appear to have used the nationality of their non-Muslim countries.[12] Accordingly, contrary to the ADSC’s decision, it can be said that the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation were applicable in this case.
2. In addition to the religion of the parties, the 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation determine other situations in which the Law applies.
i. These include, with respect to the effect of the marriage and its dissolution, the case where “the marriage is concluded in accordance with” the Law and its provisions (Article 3 of the 2021 Abu Dhabi Civil Marriage Law;[13] Article 5(4) of the Procedural Regulation).[14] The application of this rule does not seem to be dependent on the religion of the parties concerned. Consequently, since the marriage in casu was concluded pursuant to the provisions of the 2021 Abu Dhabi Civil Marriage Law,[15] its dissolution should logically be governed by the provisions of the same Law.
ii. However, it must be acknowledged that such a conclusion is not entirely self-evident. The confusion stems from the ADJD’s official website (under section “Divorce”) which states as a matter of principle that, normally, “anyone who obtained a Civil Marriage through the ADCFC” is entitled to apply for divorce in application of the 2021 Abu Dhabi Civil Marriage Law. However, the same website indicates that “[f]or applicants holding citizenship of a country member of the Arab League countries [sic], an official document proving the religion of the party may be required” when they apply for divorce” (emphasis added).[16] Although the ADSC made no reference to the Arab citizenship of the parties in its decision, it appears that it adheres to the idea of dissociation between the conclusion and the dissolution of marriage in dispute involving Muslims. In any case, one can regret that the ASDC missed the opportunity to examine the rule on dual nationality under article 5(2).
Concluding Remarks
1. To deny the jurisdiction of the ADCFC, the ASDC relied on article 3 of the Procedural Regulation, which the Court quoted as follows: “The [ADCFC] is competent to hear civil family matters for foreign non-Muslims in relation to civil marriage, divorce and its effects (emphasis added).” The problem, however, is that the ADSC conveniently omitted key words that significantly altered the meaning of the provision.
The provision, properly quoted, reads as follows: “The [ADCFC] is competent to hear civil family matters for foreigners or non-Muslim citizens in relation to civil marriage, divorce and its effects (emphasis added).” In other words, article 3 does not limit the scope of application of the Law and its Regulation exclusively to “foreign non-Muslims” as outlined above.
2. Moreover, it is quite surprising that the ADSC also referred to Article 1 of the 2022 Federal Civil Personal Status in support of its conclusions, i.e. that the taking of jurisdiction by the ADFCF “violated the law”. This is because it is accepted that the 2022 Federal Civil Personal Status does not apply to Abu Dhabi.[17] In addition, some important differences exist between the two laws such as age of marriage which fixed at 18 in the 2021 Abu Dhabi Civil Marriage Law (article 4(1)), but raised to 21 in the 2022 Federal Civil Personal Status (article 5(1)).[18] The combined (mis)application of 2021 Abu Dhabi Civil Marriage Law and the 2022 Federal Civil Personal Status appears opportunistic and reveals the ADSC’s intention to exclude contra legem foreign Muslims (or at least those who are binational of both a Muslim and Non-Muslim countries) from the scope of application of 2021 Abu Dhabi Civil Marriage Law and its Procedural Regulation.
[1] see on this blog, Lena-Maria Möller, “Abu Dhabi Introduces Personal Status for non-Muslim Foreigners, Shakes up Domestic and International Family Law”. See Also, idem, “One Year of Civil Family Law in the United Arab Emirates: A Preliminary Assessment”, 37 Arab Law Quarterly (2023) 1 ff. For a particularly critical view, see Sami Bostanji, “Le droit de statut personnel au service de l’économie de marché! Reflexoins autour de la Loi n°14 en date de 7 novembre 2021 relative au statut personnel des étrangers non-musulmans dans l’Emirat d’Abou Dhabi” in Mélanges offerts en l’honneur du Professeur Mohamed Kamel Charfeddine (CPU, 2023) 905 ff.
[2] Law No. 14/2021 of 7 November 2021 on the “Personal Status for Non-Muslims” as modified by the Law No. 15/2021 of 8 December 2021 which changed the Law’s title to “Law on Civil Marriage and its Effects” (hereafter “2021 Abu Dhabi Civil Marriage Law”) and its Procedural Regulation issued by the Resolution of the Chairman of the Judicial Department No. 8/2022 of 1 February 2022, hereafter the “2022 Procedural Regulation”
[3] Federal Legislative Decree No. 41/2022 of 3 October 2022 on “Civil Personal Status” (hereafter “2022 Federal Civil Personal Status”) and its Implementing Regulation issued by the Order of the Council of Ministers No. 1222 of 27 November 2023.
[4] See below IV(1)(i). On the difference between the 2021 Abu Dhabi Law Civil Marriage Law the 2022 Federal Civil Personal Status on this particular point, see below IV(1).
[5] Article 2 of the 2021 Abu Dhabi Law Civil Marriage Law.
[6] Article 16 of the 2021 Abu Dhabi Law Civil Marriage Law; article 4 of the 2022 Federal Civil Personal Status.
[7] The text of the decision is not clear on this point. Some comments online explain that the marriage was concluded pursuant to 2021 Abu Dhabi Civil Marriage Law.
[8] The text of the decision particularly mentions the presence and consent of Y’s matrimonial guardian (wali), which is a necessary requirement for the validity of marriage between Muslims, but not a requirement under the 2021 Abu Dhabi Civil Marriage Law.
[9] The ADCFC, which was established specifically to deal with family law matters falling under the purview of the 2021 Abu Dhabi Civil Marriage Law, holds subject-matter jurisdiction in this regard.
[10] cf. Möller, “Abu Dhabi Introduces Personal Status for non-Muslim Foreigners” op. cit.
[11] For an affirmative view, see Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 7.
[12] Some comments online explain that the marriage was concluded using foreign passports with no-Arabic names and no indication of the parties’ religion.
[13] On the problems of interpretation of this provision, see Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 7.
[14] The Procedural Regulation further expands the scope of application of the Civil Marriage Law to cover cases where “the marriage was concluded abroad in a country whose family law is not primarily based on Islamic Sharia as determined by Abu Dhabi authorities” (Article 5(3)) and in any other case determined by the Chairman of the Judicial Department and about which an order is issued (Article 5(5)).
[15] See supra n (7).
[16] However, this rule appears to be devoid of any legal basis.
[17] Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 2.
[18] For a comparision, see Möller, “One Year of Civil Family Law in the United Arab Emirates”, op. cit., 13-15.
Advocate General in Case Mirin (C-4/23): Refusal of recognition of a new gender identity legally obtained in another Member State violates the freedom of movement and residence of EU citizens
The following case note has been kindly provided by Dr. Samuel Vuattoux-Bock, LL.M. (Kiel), University of Freiburg (Germany).
On May 7, 2024, Advocate General Jean Richard de la Tour delivered his opinion in the case C-4/23, Mirin, concerning the recognition in one Member State of a change of gender obtained in another Member State by a citizen of both States. In his opinion, Advocate General de la Tour states that the refusal of such a recognition would violate the right to move and reside freely within the Union (Art. 21 TFEU, Art. 45 EU Charter of Fundamental Rights) and the right of respect for private and family life (Art. 7 EU Charter of Fundamental Rights). Read more
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Praxis des Internationalen Privat- und Verfahrensrechts (IPRax) 5/2024: Abstracts
The latest issue of the „Praxis des Internationalen Privat- und Verfahrensrechts“ (IPRax) features the following articles: Read more
Virtual Workshop (In English) on September 10: Nieve Rubaja on International Surrogancy Agreements From the Latin American Perspective. An Overview.
On Tuesday, September 10, 2024, the Hamburg Max Planck Institute will host its monthly virtual workshop Current Research in Private International Law at 2:00 pm – 3:30 pm (CEST). Nieve Rubaja (University of Buenos Aires) will speak, in English, about the topic
International Surrogacy Agreements From the Latin American Perspective. An Overview.
The media, judicial cases and administrative constraints show that surrogacy is a reality in Latin American countries. Regulation on this subject matter has become a need in order to protect the human rights involved, especially the rights of the children born. Over the last decades, legal systems in Latin America have been transversely affected by the emergence and progressivity of human rights. In addition, there are more than 20 countries in the region and each of them has its own historical, social and cultural shades; therefore, human rights have been a key factor for the unification of some conceptions in the region. This imprint impacts on surrogacy regulation (and bills) both for domestic and for cross-border cases. The few countries which provide rules regarding cross-border surrogacy cases choose a recognition approach. According to this, the legal parentage established abroad must be recognised in the forum if it is compatible with their international public policy, taking into account the best interest of the child. Among Latin American countries Argentina, Brazil, Mexico and El Salvador have designated representatives to participate in the Working Group on the Parentage/Surrogacy Project of the Hague Conference of Private International Law, which brings an opportunity to include Latin American voices. This meeting aims at providing an overview of the comparative analysis carried out considering the distinctive features of the region.
The presentation will be followed by an open discussion. All are welcome. More information and sign-up here.
If you want to be invited to these events in the future, please write to veranstaltungen@mpipriv.de.
RIDOC 2024: Call for Abstracts
RIDOC 2024: Rijeka Doctoral Conference has been announced by the RIDOC2024-Call.
Interested doctoral students and candidates in law or law-related areas may apply by sending the abstract accompanied by their CV to ridoc@pravri.uniri.hr.
Important dates:
20 September 2024 – application deadline
15 October 2024 – information on acceptance by the Programme Committee
13 December 2024 – conference presentation
RIDOC conferences have been organised by the University of Rijeka, Faculty of Law since 2016, regularly featuring sessions on private international law.