However, my first concern is that the 'general principles' underlying UPICC (or, for Australians, their 'vibe') (13) do not necessarily equate to those of CISG, which is crafted for less relational cross-border sales of goods.
More Scope for Courts and Arbitrators to Apply UPICC
Thus, although a Declaration is worth trying, 1 believe we are more likely to generate more engagement with UPICC within Australia from a second proposal by Professor Boneil.
If the parties have not expressly designated UPICC or any other substantive law system to govern their underlying dispute but have selected Arbitration Rules like those of the Australian Centre for International Arbitration Arbitration (ACICA)--either its generic or Expedited Arbitration Rules--then the arbitrators way also apply UPICC (not just a national law) as the governing law.
ML-ICA Arts 7 and 8, which have no express provisions on the law governing that agreement when it comes to staying court proceedings to allow international arbitrations to commence, have not been amended either so as to allow the governing law to be 'rules of law' such as UPICC. This represents a missed opportunity for Australia to expand the scope for applying the Principles in the context of international commercial arbitration.
And the latest edition of a leading Australian textbook on private international law provides little indication as to whether 'limits on choice' might result in courts excluding 'rules of law' such as UPICC, and instead applying only the contract 'law' of a particular jurisdiction.
After 20 years of experience with C1SG, a Model Law based on UPICC similarly may find considerable traction.
But so far UPICC has been less widely used than the UNCITRAL Rules for conducting arbitrations.
Even so, and despite the use of UPICC as a model for legislation having 'become perhaps their most important role' worldwide, (27) I would expect considerable resistance in Australia to updating Our own contract law based on such a Model Law.