Fantastic Precedents and Where to Find Them: An Argument for Limiting the Operation of Common Law Binding Precedent Rules When Interpreting the UN Sales Convention (CISG)
Year: 2024
Type: article
Abstract: The United Nations Convention on Contracts for the International Sale of Goods (‘CISG’), as a shared international sales law, seeks to facilitate trade. That purpose is undermined, however, when different States’ courts interpret the CISG in different ways. The homeward trend – a phenomenon whereby courts interpret the CISG in light of their own States’ ordinary sales and contract laws – is by now well-travelled ground. What has not yet been satisfactorily investigated, however, is the potential for common law binding precedent rules to perpetuate homeward trend reasoning. It is widely agreed that judges interpreting the CISG have a duty to consult international case law. It has not yet been explained, though, how common law judges can meaningfully do so in the face of ostensibly binding local CISG interpretations affected by the homeward trend. My analysis in this article solves this problem via a novel interpretation of CISG article 7(1). I argue that this provision negates the binding effect of local CISG interpretation precedent that is inconsistent with its terms. This reading of CISG article 7(1) allows judges in both common law and civil law States alike to freely consult foreign CISG case law, as the CISG intends them to do. With reference to Australia as a case study, I show that neither of two potential public law objections – the principle of legality and the separation of powers – affect my argument. Comments are also offered, in conclusion, concerning my argument’s generalisability to other common law States, to arbitration, and to other private international law instruments.
DOI: 10.53637/yljn3212
Author: Benjamin Hayward
Institution: Monash University
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: hybrid
OpenAlex ID: W4407992354