Internationalization or isolation: the Australian cul de sac? The case of contract law

Abstract

My purpose is to stand back a little and to question the extent of Australia's participation in what to some are seen today as convergences in the laws and legal systems of the international community. I rather suspect my conclusions may be a little surprising. 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’ and the then Justice Michael Kirby's ‘Overcoming Equity's Australian Isolationism’. The short title of the third, authored by Lisa Spagnolo, is ‘The Last Outpost’. It is about Australia's studied disregard to our cost of the Convention on Contracts for the International Sale of Goods 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. I will disregard those parts of the common law that are intrinsically international or transnational in character as, for example, maritime law, private international law and, save in relation to the Convention on Contracts for the International Sale of Goods, those areas of statute law that incorporate international conventions.

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