Choice of Law Methods in the Private International Law of Contract

1979 ◽  
Vol 16 ◽  
pp. 230-275 ◽  
Author(s):  
Joost Blom
Keyword(s):  
International Law ◽  
Social Regulation ◽  
Private International Law ◽  
Choice Of Law ◽  
Legitimate Concern ◽  
Private Autonomy ◽  
The Way

For anyone who is interested in the methodology of choice of law, no field is more rewarding than that of contracts. As domestic laws of contracts develop a progressively more intricate relationship between the principles of social regulation and private autonomy, private international law is led to develop choice of law techniques that will keep an appropriate balance between these principles in interjurisdictional cases. Choice of law rules that underemphasize the interests of the parties, and rely instead on the regulatory concerns of states that are affected by the transaction, may place too many obstacles in the way of persons who should be left to arrange their transaction in the way they think best. At the same time, choice of law rules that give too much weight to the parties’ wishes may interfere unduly with a state’s ability to regulate a transtaction with which it has a legitimate concern. In this respect, balance is more difficult to achieve in contracts than it is elsewhere.

Characterisation of Breach of Confidence as a Privacy Tort in Private International Law

2018 ◽  
Vol 41 (2) ◽  
Author(s):  
Michael Douglas
Keyword(s):  
International Law ◽  
Private Information ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Unique Character ◽  
The Way

Certain kinds of breach of confidence may be characterised as torts, at least for the purposes of Australian private international law, in respect of rules of jurisdiction and choice of law. When a breach of confidence involves a misuse of private information, a tortious characterisation is appropriate. This view is consistent with appellate authority recognising the unique character of equitable jurisdiction. The article begins by considering debates concerning the juridical basis of breach of confidence, and its metamorphosis into the tort of misuse of private information. The very existence of that debate indicates that breach of confidence may intelligibly have more than one character. The substantive principles of breach of confidence inform the way that cross-border problems ought to be resolved in private international law. The remainder of the article considers characterisation in respect of long-arm jurisdictional rules, and then in respect of choice-of-law rules.

Part II Preliminary Topics, 4 The Incidental Question

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
International Law ◽  
Essential Elements ◽  
Main Issue ◽  
Main Question ◽  
Private International Law ◽  
Choice Of Law ◽  
Foreign Law ◽  
The Way

This chapter examines the issue of incidental question from a choice of law perspective. A case involving private international law may place a subsidiary issue, as well as a main question, before the court. The main issue should, under the English rules of private international law, be governed by a foreign law. This chapter first explains what an incidental question is before discussing its essential elements. It then considers two cases that illustrate the way in which an incidental question arises: Lawrence v Lawrence in England and Schwebel v Ungar in Canada. It also proposes a coherent and predictable approach for dealing with the incidental question and concludes with an overview of a problem related to that of the incidental question — dépeçage or ‘picking and choosing’.

scholarly journals FORMA CZYNNOŚCI PRAWNEJ W PRAWIE PRYWATNYM MIĘDZYNARODOWYM

2017 ◽  
Vol 5 (2) ◽  
pp. 67
Author(s):  
Jadwiga Pazdan
Keyword(s):  
International Law ◽  
Decisive Role ◽  
Legal Action ◽  
Private International Law ◽  
Choice Of Law ◽  
Mutual Relation ◽  
The Law ◽  
Polish Law ◽  
Contractual Relation ◽  
The Way

Form of Legal Act in Private International LawSummaryThe form of a legal act in private international law is usually governed by particular conflict rules. Such provisions define the scope of their application. The aim of conflict rules is to indicate territorial application of different legal systems. That function fixes the approach while determining the way of understanding the notion of a „form” in private international law. The appropriate approach is the autonomic qualification. That is why I admit that the form in private international law is nothing else that the way of submission and incorporation of the declaration of will, being a component of a legal act.According to art. 12 of Polish Act on private international law from 1965 (1965 Act), the form of a legal act is governed by the law proper for that act (the first rule), however, it is sufficient to fulfill the conditions of the law of the country where the legal act is undertaken (the second rule).Lex causa, relevant to the form of a legal act (art. 12 section 1 of 1965 Act), may be indicated not only by means of conflict rules based on objective factors of alien, but also by the choice-of-law clause (if a choice of law is not forbidden). Nevertheless, a choice of law regarding solely the form of a legal act is not acceptable. The choice of law for the form of a legal act cannot be justified by the permissibility of a partial choice of law, which is supposed to be a choice relative to that part of legis causae, which is taken into consideration while determining the conditions required for the form of a particular legal act, on the base of art. 12 section 1 1965 Act. Although, there is no fragment of the legis causae applied in the scope of the form, there is complete lex causae or divided into segments (in the case of a complex or simple choice of law). The form cannot constitute such a segment. It has its own status.The second rule is subsidiary to the first one.The mutual relation of these two rules has subsequent consequences: 1 lex loci actus may be applied only when the conditions of lex causae were not fulfilled;2 the answer to the question if the legis loci actus constitutes the proper law for the form of a legal act is dependent on the fact whether during the performance of the legal act the requirements resulting from that law were fulfilled;3 when the conditions regulated by both lex causae as well as lex loci actus were not fulfilled, it is to lex causae to decide about the consequences (sanctions) of non-fulfillment of the requirements relating to the form;4 lex loci actus cannot be replaced by the Polish law by the virtue of art. 7 of 1965 Act, when the content of the law binding on the territory where the legal action was undertaken cannot be determined;5 the transmission and remission, based on the conflict rules binding in that country where the legal act was undertaken, is not allowed;6 the requirements of legis loci actus are also fulfilled when there are no special requirements relating to the form. The legal act will be valid in such a situation although the requirements relating to the form, resulting of lex causae, were not fulfilled.The place where the legal act is performed understood as the factor of alien in art. 12 section 2 of 1965 Act must be interpreted in the light of autonomic qualification. The decisive role should be granted to the place where an event which brought (or should have brought) to the performance of a legal act had happened while the contractual relation has been formed.De lege ferenda, I am opting for the maintenance of both rules in Polish law, however, their position should be equal. In case of discrepancy of the effects the preference should be granted to those more favorable for the legal act (the solution in favorem negotii).

Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. (U.S. Sup. Ct.)

2020 ◽  
Vol 59 (1) ◽  
pp. 1-10 ◽  
Author(s):  
Christopher A. Whytock
Keyword(s):  
International Law ◽  
Private International Law ◽  
Animal Science ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Foreign Law ◽  
Domestic Courts ◽  
The Way

Domestic courts frequently apply foreign law. For example, the forum's choice-of-law rules may require a court to apply foreign law, or a party may expressly base a claim or defense on foreign law. Private international law (or “conflict of laws”) provides principles governing many aspects of the way courts should identify and interpret foreign law.

scholarly journals A NEW SOLUTION CONCERNING CHOICE-OF-LAW FOR THE ASSIGNMENT OF DEBTS

2021 ◽  
Vol 70 (3) ◽  
pp. 665-696
Author(s):  
Alison Xu
Keyword(s):  
International Law ◽  
Analytical Framework ◽  
Use Value ◽  
Private International Law ◽  
Choice Of Law ◽  
Cross Border ◽  
Exchange Value

AbstractThis 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.

Part 2 National and Regional Reports, Part 2.3 Australasia: Coordinated by Brooke Marshall, 42 New Zealand: New Zealand Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Hook Maria
Keyword(s):  
New Zealand ◽  
International Law ◽  
General Position ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Legislative Reform ◽  
The Hague ◽  
The Law

This chapter examines the choice of law rules that determine the law applicable to international contracts in New Zealand, comparing them to the Hague Principles. Private international law in New Zealand is still largely a common law subject, and the choice of law rules on international commercial contracts are no exception. The general position, which has been inherited from English common law, is that parties may choose the law applicable to their contract, and that the law with the closest and most real connection applies in the absence of choice. There are currently no plans in New Zealand for legislative reform, so the task of interpreting and developing the choice of law rules continues to fall to the courts. When performing this task, New Zealand courts have traditionally turned to English case law for assistance. But they may be willing, in future, to widen their scope of inquiry, given that the English rules have long since been Europeanized. It is conceivable, in this context, that the Hague Principles may be treated as a source of persuasive authority, provided they are consistent with the general principles or policies underlying the New Zealand rules.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 45 Liechtenstein: Liechtenstein Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Heiss Helmut
Keyword(s):  
International Law ◽  
Case Law ◽  
Contract Law ◽  
Constitutional Court ◽  
Private International Law ◽  
International Treaties ◽  
Choice Of Law ◽  
International Convention ◽  
Legal Literature ◽  
The Hague

This chapter looks at Liechtenstein perspectives on the Hague Principles. Rules on choice of law, including international commercial contract law, have been codified by virtue of the Act on Private International Law 1996 (Liechtenstein PILA). The Liechtenstein PILA does not expressly state that conventions will take precedence over national laws. However, it has been held by the Liechtenstein Constitutional Court that international treaties are of at least equal status to regular national laws and that national law must be interpreted in line with public international law. Moreover, an international convention will often be considered to be a lex specialis and be given precedence over national rules on that ground. Liechtenstein courts will refer first of all to (old) Austrian case law and legal literature when dealing with matters pertaining to the parties’ choice of law. Whenever these sources leave ambiguity to a specific question, Liechtenstein courts may and most likely will consider other persuasive authorities. The Hague Principles may constitute such persuasive authority.

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