Legislating, Decision-Making, Practice and Education
Edited by Mary Hiscock and William van Caenegem
Chapter 10: Internationalisation or Isolation: The Australian Cul de Sac? The Case of Contract
Justice Paul Finn* The titles of three recently published articles are presently arresting. The first two are both concerned with significant areas of judge-made law. They are Professor Michael Taggart’s ‘“Australian Exceptionalism” in Judicial Review’1 and the then Justice Michael Kirby’s ‘Overcoming Equity’s Australian Isolationism’.2 The short title of the third, authored by Lisa Spagnolo, is ‘The Last Outpost’.3 It is about Australia’s studied disregard, to our cost, of the Convention on the International Sale of Goods (CISG)4 and of its jurisprudence. What I have to say betrays a like mix of pessimism and optimism for our law as is conveyed in each of these pieces. I will suggest that there are significant, though I hope not insuperable, barriers to Australian engagement in those areas of international legal thought that have the potential to bear upon the shaping and development of Australia’s common law. Necessarily I will disregard those parts of the common law that are intrinsically international or transnational in character as, for example, maritime law,5 private international law6 and, save in relation to the CISG, those areas of statute law that incorporate international conventions. I will, in the main, use contract law to illustrate my concerns. My reasons for this choice are various. First, obviously, contract is a foundational subject in our law. It is the primary vehicle the law provides for giving legal consequence to our voluntarily assumed relationships and dealings with others. Importantly, it tells us much about what is or is not permissible...
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