Finn, Paul --- "Internationalisation or Isolation: The Australian Cul de Sac? The Case of Contract" [2010] ELECD 426; in Hiscock, Mary; van Caenegem, William (eds), "The Internationalisation of Law" (Edward Elgar Publishing, 2010)

Book Title: The Internationalisation of Law

Editor(s): Hiscock, Mary; van Caenegem, William

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849801027

Section: Chapter 10

Section Title: Internationalisation or Isolation: The Australian Cul de Sac? The Case of Contract

Author(s): Finn, Paul

Number of pages: 24

Extract:

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 dis-
regard, 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 foun-
dational subject in our law. It is the primary vehicle the law provides for
...