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)

The United Nations Convention on Contracts for the International Sale of Goods’ (‘CISG’) trade facilitation purpose is undermined by divergent State interpretations. Homeward trend CISG interpretations, and the duty to consult international CISG precedents, are well- travelled ground. Common law precedent’s effect in perpetuating the homeward trend (and precluding reference to international case law), however, has not yet been satisfactorily examined. My analysis offers a novel interpretation of CISG article 7(1): it negates the binding effect of local CISG precedent that is inconsistent with its terms. This interpretation allows judges in both common law and civil law States to freely consult foreign CISG case law. Using an Australian 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 offered concerning my argument’s generalisability to other common law States, arbitration, and other private international law instruments.