We advise Vietnamese and regional businesses on Australian law, from selling into Australia to establishing and operating here.

The consumer limb is wider than the word suggests and narrower than it first looks. It is not confined to individuals buying for personal use, so a great deal of ordinary business supply is inside it. But it does not reach goods acquired for re-supply in trade or commerce, so a sale to your own Australian distributor is generally outside it, while that distributor’s onward sale is not. A clause disclaiming all liability for defects does not achieve what it appears to achieve where the guarantees do apply.

The third point is the one that surprises, and it changes who carries the risk. A person who imports goods into Australia is treated as their manufacturer where the actual maker has no place of business here, and goods imported on someone’s behalf count as imported by them. So the moment an Australian subsidiary becomes the importer, it is the manufacturer of everything it brings in, and a consumer at the end of the chain can recover damages from it directly for a failure of the acceptable quality guarantee, with no contract between them. Which entity imports is therefore a liability decision and not only a logistics one.

Goods also carry obligations of their own once they are here. Supplying consumer goods that do not comply with a mandatory safety standard is a contravention, there is a compulsory recall power, and a supplier who becomes aware of a death or serious injury or illness that its consumer goods may have caused must notify the Commonwealth Minister in writing within two days. Two days is a reporting line that has to exist before it is needed.

The small business limb is the one that reshapes a distribution or supply agreement. Where the contract is standard form and the counterparty is a small business, terms of the kind that are ordinary elsewhere, being unilateral variation, automatic renewal and broad termination rights, are exposed. The remedy is not a disclaimer; it is drafting the term so it is reasonably necessary to protect a legitimate interest.

One decision comes before any of that, and contracts on this route regularly leave it unmade. Australia and Vietnam are both parties to the United Nations Convention on Contracts for the International Sale of Goods, so a sale of goods between businesses in the two countries is governed by the Convention unless the contract excludes it. Excluding it is a choice and keeping it is a choice; what causes trouble is neither, because the parties assumed their own domestic law applied and it did not. Vietnam has also declared that a contract with a party there must be in writing, so an exchange of messages may not do.

The practical answer is usually an Australian set of terms for Australian sales, sitting alongside the terms used elsewhere, and not one global document amended at the edges.