Choice of Law Research Papers (original) (raw)

In a private international law context reflecting significant divergences between the objective choice-of-law rules for matrimonial property regimes, the principle of party autonomy appears as a salutary solution, bringing certainty, predictability and simplicity, while satisfying also the spouses' substantial interests. The study focuses on the rules devoted to this principle by the European legislator in the (EU) Regulation no 2016/1103, attempting to outline its regime and insisting, particularly, on its admissibility and on the limitations that accompany its practical exercise. Providing a sufficient framework for discussion and helping to illustrate the implications of the European text, the rules of the Romanian Civil Code and of the 1978 Hague Convention on the law applicable to matrimonial property regimes will serve as a benchmark. Keywords: matrimonial property regimes, EU Regulation no 2016/1103, autonomy of will, electio juris agreements, states with more than one legal system, change of the applicable law.

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- Private International Law, Choice of Law, Droit International Prive, Conflits De Lois
- by Pietro Sirena
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- Contract Law, Law of Obligations, European contract law, Law of Contract

В статье анализируется применение норм международного частного права в юридической практике Республики Сингапур. Рассматривается место норм международного частного права в правовой системе Сингапура и их влияние на правоприменительную практику. Особенности сингапурской правовой системы демонстрируют успешное нормативно-правовое сочетание элементов англосаксонской и континентальной правовых семей, а также особое место
в этой системе норм международного частного права. Автор предлагает проанализировать особенности решения в судебной практике Сингапура вопросов, связанных с выбором места судебного разбирательства и выбором применимого права.

- by Dmitrii Demidov
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- Private International Law, Singapore law, Common Law, Choice of Law

The nature of the arbitration agreement in most legal systems (at least legal systems other than common law) is somewhat unclear. Presently, it is not possible to make any decisive statements as to which theory is the only correct one. On the other hand, it is necessary to examine each arbitration agreement invoked by the parties at the beginning of the proceedings and choose one of the current theories mentioned above. The classification of the arbitration agreement might, under certain circumstances, be the decisive element in determining the rules, i.e. procedural or substantive rules, applicable to the arbitration agreement. In civil law tradtion arbitration agreements may be defined as procedural agreements in broader sense, which does not have effects in proceedings only, but which are of substantial significance for qualitative evaluation of the substantive contractual relation between parties. Nevertheless, despite a mixed nature of arbitration agreements (as well as all jurisdictional agreements), jurisdiction is a procedural and not substantive category in the civil law tradition and jurisdiction remains the procedural condition (procedural requirement). Taking decision on jurisdiction in arbitration by partial award is in contradiction to the concept of jurisdiction as a procedural category, rather an interim award may be used for such decisions. Jurisdictional decisions taken in course of arbitration are, however, not substantive decisions and do not effect any Res Judicata. Some of civil law jurisdictions, completely in compliance with the concept of jurisdiction as procedural category, therefore deny to set-aside jurisdictional awards rendered prior to rendering award(s) on the merits of the dispute. Having any civil law dimension in arbitration, it may cause significant problems to the parties, if the arbitral tribunal decides on jurisdiction by a separate jurisdictional award.

- by Alexander Belohlavek
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- Contract Law, International Arbitration, Arbitration, Arbitration Law
- by Matthias Weller
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- Choice of Law, Droit De Suite

Latest development of European family private international law was marked with the entry into force of two enhanced cooperation regulations in January 2019, one of which is the Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes (Matrimonial Property Regime Regulation). When it comes to applicable law, the party autonomy, while allowed, is restricted by connexity requirement. The parties are allowed to choose between either the law of the state of the habitual residence of one of the spouses at the time the agreement is concluded or the law of the state of nationality of one of the spouses. Material and formal validity of the choice of law may further subjected to additional rules. The purpose of the presentation is to give an overview of the party autonomy rules concerning applicable law and to inspect the interplay of these rules with the corresponding ones in the Succession Regulation and Rome III Regulation. Particular emphasis will be placed on the issue whether different approach to party autonomy in the Matrimonial Property Regime Regulation compared to the Succession Regulation and Rome III Regulation may cause unfavourable fragmentation in applicable law among issues closely connected to the spouses’ matrimonial property regime such as divorce or succession between spouses.

- by Danijela Vrbljanac
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- European Law, Matrimonial Property Law, Choice of Law, European family law

The Hague Principles on Choice of Law in International Commercial Contracts are “soft” private international law rules. They empower parties to choose either State law or soft “rules of law” to govern their contract, regardless of whether they litigate or arbitrate. This article investigates the relationship between the Hague Principles and two sets of rules of law which parties may choose: the UNIDROIT Principles of International Commercial Contracts (PICC) or the United Nations Convention on Contracts for the International Sale of Goods (CISG). It makes three principal claims. First, the nature of the Hague Principles and their relationship with the PICC or the CISG gives rise to several normative ambiguities which need clarifica-tion. Second, the Hague Principles do not limit the parties’ ability to divide their contract at a choice of law level (horizontal dépeçage): parties can influence not only which rules of law go-vern the contract but also their content. This is undesirable as a matter of principle. It may also facilitate results which the PICC and the CISG do not intend. Third, the Hague Principles provide that the law which the parties purportedly chose determines whether the parties agreed on a choice of law. They also provide a mechanism which designates the law which the parties purportedly chose in standard contract terms. Applied to rules of law, the suitability of these provisions is questionable: alternatives should be explored.

- by Brooke A Marshall
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- Private International Law, Conflict of Laws, Choice of Law, CISG

Many commentators have noted how the courts of leading international arbitration centers — namely England, Singapore, and Hong Kong — apply divergent choice of law rules to determine the law governing the arbitration agreement. Although this may be true on the surface, this Note demonstrates that these courts have actually been applying the same choice of law rule: an in favorem validitatis rule. In light of this fact, this Note argues that the courts of England, Singapore, and Hong Kong should begin expressly adopting the in favorem validitatis rule rather than hiding it. The reason is that aspiring arbitration jurisdictions — such as India, China, and Malaysia — look to leading arbitration centers to design their own arbitration laws and rules, and consequently may be misled into invalidating arbitration agreements that courts in the leading arbitration centers would probably find to be valid.

This article is dedicated to the one of the most important questions of the International Commercial Law. As a rule, it is widely accepted that the principle of party autonomy has been adopted, in respect of contractual obligations, by practically all national legislations in their provisions for private international law. At the same time, the Principles are silent regarding the option to choose trade usages as lex causae of the contract, and understandably so, since, from a systematic viewpoint, they cannot form a comprehensive set of rules capable of resolving basic issues of contractual obligations. Author believes that the Principles do not add any significant new features to the legal systems that have already developed and adopted the principle of party autonomy, with the exception of the possible application of non-national law before state courts. As a result, there have been formulated several useful conclusions which can be used in the science of the International Commerc...

- by DIMITRIOS STAMATIADIS
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- Law, Political Science, Conflict of Laws, Choice of Law

The Encyclopedia of Private International Law quite simply represents the definitive reference work in the field. Bringing together 195 authors from 57 countries the Encyclopedia sheds light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. And so has the number of legislative activities on the national, international and, most importantly, the European level. The Encyclopedia is a rich and varied resource in four volumes. The first two volumes provide comprehensive coverage of topical aspects of Private International Law in the form of 247 alphabetically arranged entries. The third volume provides insightful detail on the national Private International Law regimes of 80 different countries. The fourth volume presents invaluable, and often unique, English language translations of the national codifications and provisions of Private International Law in those countries.

يهدف هذا المقال إلى إبراز دور المحكمة العليا الأمريكية في حل مشكلة تنازع القوانين من خلال دراسة إحكامها في هذا المجال وما تركته من أثر على الكيفية التي يتم بها فض تنازع القوانين بواسطة المحاكم الأمريكية سواء كنا بصدد المحاكم الفيدرالية أو محاكم الولايات المختلفة داخل الاتحاد الفيدرالي الأمريكي. وسنحاول هنا إبراز أن حل مشكلة تنازع القوانين، في الكثير من الأحيان، قد جاء كمحصلة لتوزيع السلطات التشريعية والقضائية المنصوص عليها في الدستور الأمريكي بين الحكومة الفيدرالية وحكومات الولايات من ناحية ورغبة المحكمة العليا الأمريكية في تحقيق العدالة المادية باعتبارها الهدف الاسمي من حل مشكلة تنازع القوانين من وجهة نظرها من ناحية أخري. وهو ما ترتب عليه تخبط الأحكام الصادرة عن المحكمة العليا الأمريكية وكذلك عن محاكم الولايات، وفتح الباب للاجتهاد القضائي لمشكلة تنازع القوانين بعيداً عن إعمال قواعد الإسناد التقليدية استنادا إلى تفسير المحكمة العليا الأمريكية لنصوص الدستور الأمريكي فيما يعرف بالثورة الأمريكية في مجال تنازع القوانين.
ولعرض ما سبق فلقد تم تقسيم هذا المقال إلى مبحثين: المبحث الأول ويتناول كيفية توزيع السلطات التشريعية والقضائية داخل الاتحاد الفيدرالي الأمريكي باعتباره مدخلاً هاماً وضرورياً لفهم كيفية إثارة مشكلة تنازع القوانين داخل النظام القانوني الأمريكي، إن علي المستوي الفيدرالي أو علي مستوي الولايات وما يحكمها من نصوص دستورية عملت المحكمة العليا على استغلالها، في مرحلة أولي، لكي تفرض حلولاً مادية لمشكلة تنازع القوانين قبل أن تتراجع عن ذلك. أما المبحث الثاني فسيفرد لدراسة القيود الدستورية التي وضعتها المحكمة العليا الأمريكية فيما يتعلق بالتنازع بين قوانين الولايات أو بينها وبين قوانين الدول الأجنبية، وكذلك فيما يتعلق بتطبيق التشريعات الفيدرالية.

Discusses whether a foreign court can have jurisdiction to give a judgment, whether in persobam or in rem, involving immovable property located in Malaysia. Considers the theories underlying the recognition of some foreign judgments, and the conditions that have to be satisfied under Malaysian statutes and the common law. In particular it takes a look at the provisions of the Malaysian National Land Code 1965, Reciprocal Enforcement of Judgments Act 1958 (Revised 1972) and section 44 of the Evidence Act 1950.

- by Hardial Khaira
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- Conflict of Laws, Choice of Law, Forum Non Conveniens, Foreign judgments

Sistemele de drept cunosc diferenţieri esenţiale la nivelul reglementării fiecărei instituţii. În dreptul intern, raporturile juridice sunt reglementate de dreptul român, singura problemă care se pune este aceea a justei aplicări al acestui drept; dar atunci când într-un raport juridic apar elemente de extraneitate, raportul juridic respectiv intră în contact cu mai multe sisteme de drept şi se pune problema care sistem de drept este aplicabil în cauză.

- by Hisashi HARATA
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- Japanese Studies, International Law, Private International Law, Conflict of Laws

This article seeks to examine the fundamental juridical nature, classification and enforcement of choice of law agreements in international commercial contracts. At the outset, it will be observed that the predominance of jurisdictional disputes in international civil and commercial litigation has displaced choice of law issues to the periphery. The inherent dialectic between the substantive law paradigm and the internationalist paradigm of party autonomy will be harnessed to provide us with the necessary analytical framework to examine the various conceptions of such agreements and aid us in determining the most appropriate classification of a choice of law agreement. A more integrated and sophisticated understanding of the emerging transnationalist paradigm of party autonomy will guide us towards a conception of choice of law agreements as contracts, albeit contracts that do not give rise to promises inter partes. This coherent understanding of both the law of contract and choice of law has significant ramifications for the enforcement of choice of law agreements.

- by Ece Uyanık
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- Private International Law, Cloud Computing, Cloud Storage, Choice of Law

In 2019, the EU Member States started applying the Matrimonial Property Regulation, which concerns the property regimes of international marriages. This regulation is aimed at helping couples manage their property and divide it in case of divorce or the death of one spouse. One of the main features of this regulation is its openness to the parties' choice. The

Subject matter of the analysis are the so called personal connecting factors for natural persons in the choice of law, which in particular stands for the criteria of nationality, domicile, and habitual residence. Choosing one of them as the basis for the designation of the law applicable to issues of the personal status, family law, or the law of successions has been discussed since the moment of the very birth of the modern conflict of laws. The paper compares the most important characteristics of personal connecting factors, taking into consideration a general evaluation of their location within the framework of the Polish conflict-of-law provisions. Every solution in this field has its advantages and disadvantages , so that it is not possible a priori to say that the domination of a particular criterion is better than any other. At the same time the nationality connecting factor in its pure, objective form is gradually eliminated from both the European and international rules on the conflict of laws. Admittedly, such a trend not necessarily is a guidance for the Polish lawgiver, yet it will surely have some influence on the content of the future amendments to the Law of 4 February 2011 on the Private International Law. The author criticizes a solution consisting in using both domicile and habitual residence as subsidiary personal connecting factors, whereas this role should be assigned only to the latter. New prospects of a wider use of habitual residence not only in the private international law, but also the substantive law have been opened up recently. The answer to the challenges of the contemporary international commerce is not looking for the mystic " Sorcerer's stone " in the form of an ideal choice-of-law connection but rather a skillful mixture of various methods of designating and applying the appropriate rules of law, including among others a wider use of the parties' autonomy in the field of the choice of law.

- by Mateusz Pilich
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- Private International Law, Choice of Law

The approaches taken by legislators, national courts and arbitral tribunals to choice of law in international commercial contracts differ both in terms of the law which the parties may choose and the limits of that choice. Given the importance of this issue for international commerce, the Hague Conference on Private International Law has sought to create some consistency in approach. It has developed an instrument which reinforces party autonomy and espouses the principle that the law chosen by the parties will govern the contract to the greatest possible extent, subject to clearly defined limits. The Hague Principles on International Commercial Contracts seek to harmonize approaches to choice of law in two ways. First, they provide a universal model including best practice solutions that lawmakers can use to create, supplement, or develop their choice of law rules. Secondly, the Hague Principles seek to “level the playing field” between arbitration and litigation. The Hague Principles allow parties to choose not only State law but also non-State law irrespective of whether they arbitrate or litigate their dispute while at the same time ensuring that the parties’ choice of the law does not have the effect of excluding imperative norms (overriding mandatory rules and rules of the ordre public). After tracing the development of the Hague Principles this article explores each of these aspects, and offers points of comparison with the conflict of laws rules applicable in the United States, the European Union, and China.

- by Brooke A Marshall and +1
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- Comparative Law, Arbitration, Private International Law, International Commercial Law

from Family Law Quarterly, vol. 36(2): 2002

- by Brian Bix
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- Family Law, Conflict of Laws, Same Sex Marriage, Choice of Law

This article explores a solution to the choice-of-law issues concerning both voluntary and involuntary assignments arising in a domestic forum. The focus is on English private international law rules relating to cross-border assignments. A distinction is made between primary and extended parties as the foundation for choice-of-law analysis. Drawing on insights from the distinction of the use value and exchange value of debts found in economics, this article proposes a new analytical framework for choice-of-law based on a modified choice-of-law theory of interest-analysis.

- by Alison Xu
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- Law, International Law, Private International Law, Choice of Law
- by Ekin (Hacibekiroglu) Omeroglu
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- Property Rights, Conflict of Laws, Choice of Law

This article appraises the choice of law rule that applies where parties have either impliedly chosen, or failed to choose, the law governing their contract. It reconsiders the problems besetting the common law rule, known as the proper law of the contract, that were identified by Australia's Law Reform Commission twenty years ago. While the choice of law rule in Australia remains unchanged, it has undergone significant reform in the European Community and is now the subject of reform at the Hague Conference on Private International Law. Despite these reforms, a comparative analysis reveals that several of the common law problems persist. This article proffers a proposal for Australian legislatures based on the author's refined version of the Draft Hague Principles and the Rome I Regulation. It also suggests that the Hague Conference adopt these refinements. Under this proposal, tacit choice of law is absorbed as a subset of express choice and must be clearly established by the terms of the contract or the circumstances of the case. The probative value of an exclusive jurisdiction agreement will be made apparent in the drafting of the clause on tacit choice of law itself. It is further proposed that, in the absence of choice, the closest connection test be reduced to an escape clause applicable in default of fixed rules tailored to the exigencies of commercial contracting. The reformulated test will be used to ascertain the law of the country most appropriate for determining the issues arising in the case.

- by Brooke A Marshall
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- Private International Law, Australia, International Commercial Law, Common Law

The English Court of Appeal in the case of Shamil Bank of Bahrain EC v. Beximco Pharmaceuticals Ltd and Others [2004] EWCA Civ 19 had decided that the English law shall be applied as the governing law to determine the validity of an Islamic financial contract since the Shari‘ah law is not considered as a law of a country pursuant to the 1980 Rome Convention. However, this position has changed after the 1980 Rome Convention was replaced by the 2008 Rome I Regulation which permits Shari‘ah (non State law) as the governing law to the contracting parties. Despite the due recognition given to Shari‘ah, the fact remains that Shari‘ah is still treated as foreign law in some jurisdictions and hence expert evidence from Shari‘ah scholars is required. With differences in opinion among the Shari‘ah experts, the secular court judges face difficulty in applying the Shari‘ah law to resolve the disputes between contracting parties. Nevertheless, in Malaysia, Shari‘ah law is accepted as lex loci (law of the land) and this was decided by the Court of Appeal in Ramah Taat v. Laton Malim Sutan [1927] 6 FMSLR 128. As part of the local law, expert evidence is not required. In addition, the Shari‘ah Advisory Council established by the Bank Negara Malaysia is the sole authority in giving ruling pertaining to Shari‘ah issues and such ruling is binding on court. As such, this paper will discuss the suitability of the Malaysian law and Malaysian Court in resolving international Islamic financial disputes. The discussion will also touch on the proposal for establishment of Malaysian International Mu‘amalat Court (MIMC) to settle international Islamic financial disputes following the Singapore International Commercial Court (SICC) model.

- by Hizri Hasshan
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- Dispute Resolution, Islamic Finance, Choice of Law, Malaysian legal system
- by Francesca C. Villata and +2
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- Private International Law, Conflicts of Law, Conflict of Laws, Choice of Law

Energy investment arbitration is never guaranteed from unexpected challenges or outcomes that may arise from the acts of parties to the dispute. Focused on completely different purposes of negotiations, parties may sometimes make a mistake by accepting settlement agreements with general wordings. Such settlement agreements can, in turn, result in the dismissal of proceedings before arbitration tribunals which can deprive one of the parties of many benefits, especially the compensation. An appropriately chosen applicable law plays a significant role in this case as they help interpret the agreements between parties. However, the Azpetrol case is quite notable to examine that applicable law did not save the investors from the dismissal of proceedings and all claims of claimants.

- by Pietro Sirena
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- Economics, Contract Law, Law of Obligations, European contract law

An examination of the 1999 Montreal Convention shows that
the drafters did not intend to lay down a comprehensive treaty
that would organize a carrier’s liability for personal injury to passengers.
They opted to achieve a certain level of uniformity
through enacting a set of rules that tackled several key issues
such as the grounds for a carrier’s liability, the available defenses,
and the limits on the recoverable damages. Consequently,
some unaddressed issues created a void in the Montreal
Convention and were then left without a clear remedy. In this
article, a distinction is made between two types of voids: first, the
definitional void describes the lack of definition for several key
terms used in the Montreal Convention, such as “accident” and
“carrier.” Second, the regulatory void describes the lack of rules
to address issues such as determining the effect of a passenger’s
contributory negligence as a defense for liability and the right of
action. This article demonstrates that national courts have resorted
either to the forum’s law or the forum’s choice-of-law
rules to fill the void in the Montreal Convention. As a result,
international uniformity of results cannot be achieved nor is
there any predictability. This article recommends the adoption
of Article 5 of the Rome I Regulation as a solution to this problem.
Doing so would give both parties the freedom to choose a law, form a predetermined list, and fill the above mentioned
voids, while providing alternative choice-of-law rules if the parties
decided not to choose a law to govern their contract for air
carriage.

- by Yehya Badr
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- Comparative Law, Private International Law, Personal Injury Law, Conflict of Laws
- by Pietro Sirena
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- Economics, Contract Law, Law of Obligations, European contract law
- by Jan Sloniewski
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- International Commercial Litigation, Choice of Law, Erie Doctrine

The recent decades have brought several changes in legal sources regulating the choice of law in contractual relationships in Slovenia. The Yugoslav Act on Private International Law was applicable until 1999, when it was replaced by the Slovenian Private International Law and Procedure Act. Later, the Rome Convention was applicable for several years and then replaced by the Rome I Regulation. Even though different legal sources would often bring the same result, it is important in a State of law that the courts apply the correct source and its characteristic methods of interpretation. This is possible under the condition that the judges have the appropriate knowledge of the relevant sources and of the relations between them. The author analyses Slovenian case law and searches for answers to many questions and problems that arise in the application of the choice of law rules for contractual relationships, e.g. the temporal application of each legal source, the non-application of choice of law in cases where the CISG is applicable, the overriding mandatory provisions, choice of law in consumer contracts etc. Problems arise already in the determining of the applicable legal source, as well as regarding the application and interpretation of the individual choice of law rules and their procedural "treatment", especially in cases where appellate courts doubt that the first instance courts applied the correct law. In the current situation where Slovenian judges are rarely confronted with a cross-border case, whereas the applicable choice of law rules change relatively often, the author pleads for more judicial training and academic research, as well as for the broader European political effort to “consolidate” the European choice of law rules and private international law in general.

- by Yehya Badr
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- Comparative Law, Private International Law, Political Science, Personal Injury Law
- by Mukarrum Ahmed
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- Contract Law, Private International Law, Jurisdiction, Private law