scholarly journals Part 1 General and Special Reports, 1 General Comparative Report: Global Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Girsberger Daniel ◽  
Graziano Thomas Kadner ◽  
Neels Jan L
Keyword(s):  
International Law ◽  
The State ◽  
Soft Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Global Perspectives ◽  
Party Choice ◽  
The Hague ◽  
The Law

This chapter presents the General Comparative Report, which addresses, article by article, the Hague (or HCCH) Principles on Choice of Law in International Commercial Contracts of 2015 (the Hague Principles). The General Comparative Report compares the Hague Principles with the state of the law in over sixty jurisdictions worldwide and with supranational rules and soft law principles. It aims to encourage legislators, courts, practitioners, and academics to further develop their domestic private international law systems and possibly benefit hereby from the Hague Principles by consistently and adequately applying, interpreting, and amending domestic, supranational, and regional private international law (PIL) in the context of party choice of law. The chapter then details the structure of the Report and the questionnaire used to address the issues covered by the Hague Principles. It also provides an introduction and a comparative overview of each of the Articles of the Hague Principles.

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 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 23 Hong Kong: Hong Kong Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Reyes Anselmo
Keyword(s):  
Hong Kong ◽  
International Law ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
English Court ◽  
Choice Of Law ◽  
The Hague ◽  
The Law

This chapter explores Hong Kong perspectives on the Hague Principles. Hong Kong has no enacted code of private international law rules. In relation to contracts dealing with commercial matters, the choice of law principles of Hong Kong law are largely to be found at common law. Decisions of the English court, in particular, are often cited in Hong Kong as exemplifying the law on a given question. To a lesser degree, principles may be found in statute. While Hong Kong judges must look to case law to discern relevant choice of law principles, nothing prevents them from also having regard to the Hague Principles and holding that one or more articles therein accurately reflect Hong Kong law. Indeed, articles of the Hague Principles can be referred to by Hong Kong judges as accurate statements of present day Hong Kong law, as foundations for the refinement of existing common law rules, or as indications of how Hong Kong choice of law principles may be extended to deal with novel situations.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 44 Iceland: Icelandic Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Þorláksson Eiríkur Elís
Keyword(s):  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Recognition And Enforcement ◽  
The Hague ◽  
The Law ◽  
The Republic ◽  
Contractual Obligations

This chapter focuses on Icelandic perspectives on the Hague Principles. The constitution of the Republic of Iceland does not contain any provisions on the principles of private international law. Moreover, there is no general act on private international law in force in Iceland. However, legislation on specific aspects of private international law, such as conflicts of the laws of contract and recognition and enforcement of foreign decisions, can be found in Icelandic law. Moreover, individual provisions on recognition and enforcement, jurisdiction, and choice of law can be found throughout Icelandic legislation. The legislative act which applies to contractual obligations in the field of private international law in Iceland is Act No 43/2000 on the law applicable to contractual obligations. There are no other acts that explicitly aim to address choice of law issues other than Act No 43/2000, but individual provisions can be found indicating the choice of law in specific areas of law; otherwise, Icelandic courts will apply general principles to the case at hand. There is currently no revision of Act No 43/2000 under discussion in Iceland.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 46 Norway: Norwegian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Cordero-Moss Giuditta
Keyword(s):  
International Law ◽  
Public Consultation ◽  
Soft Law ◽  
Private International Law ◽  
Party Autonomy ◽  
The Hague ◽  
The Law ◽  
Rome I ◽  
The Eu

This chapter assesses Norwegian perspectives on the Hague Principles. To understand the significance in Norway of the Hague Principles, it is necessary to explain the Norwegian system of private international law and its sources. Historically, conflict rules in Norway were not codified. Nowadays, private international law, at least as far as civil obligations are concerned, is undergoing a process of codification. A proposal for a statute on the law applicable to obligations has been released for public consultation, which has been concluded, and the Ministry is expected to draft a Proposition on that basis. The proposal is largely based on the EU regulations Rome I and Rome II. The Norwegian system of private international law may therefore be said to have turned into a system that is de facto parallel to EU Private International Law. Should the proposed statute be enacted, the system will also formally, albeit unilaterally, be parallel to Rome I and Rome II. Generally, therefore, it can be assumed that conflict rules will coincide with the rules contained in Rome I. In such a picture, the role that the Hague Principles may play for the Norwegian regime of party autonomy is quite restricted, as Norwegian courts generally use sources of soft law as a corroboration of Norwegian law, but not as a correction.

Part 2 National and Regional Reports, Part 2.4 Europe: Coordinated by Thomas Kadner Graziano, 50 Ukraine: Ukrainian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Vorobey Dmytro
Keyword(s):  
International Law ◽  
Contract Law ◽  
Legal Order ◽  
Private International Law ◽  
Choice Of Law ◽  
Rome Convention ◽  
Recognition And Enforcement ◽  
The Hague ◽  
The Law ◽  
Contractual Obligations

This chapter studies Ukrainian perspectives on the Hague Principles. Ukrainian private international law act, or formally the ‘Law of Ukraine “On Private International Law” ’ (PIL), was adopted on June 23, 2005. As per the Preamble to the PIL, it applies to ‘private [legal] relationships which are connected to one or more legal orders other than the Ukrainian legal order’. According to Article 2 of the PIL, it applies to matters of choice of law, procedural standing of foreign citizens, stateless persons and foreign legal entities, jurisdiction of Ukrainian courts in cases involving foreign parties, execution of letters rogatory, and recognition and enforcement of foreign court judgements in Ukraine. The Ukrainian private international law and specifically the PIL were influenced by the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Although, considering the relative novelty of the Hague Principles, the authority of the courts to refer to the Hague Principles has not been addressed by the higher Ukrainian courts, the courts have frequently referred to the international codifications of contract law such as the UNIDROIT Principles of International Commercial Contracts.

Part VI The Law of Property, 38 Trusts

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Public Policy ◽  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Mandatory Rules ◽  
The Hague ◽  
The Law ◽  
Definition Of ◽  
The Uk

This chapter examines the private international law rules governing trusts which are laid down in the Recognition of Trusts Act 1987 and its scheduled Convention. The Recognition of Trusts Act was passed in 1987 to enable the UK to give effect to the Convention, formally concluded in 1985 by the Hague Conference on Private International Law, on the Law Applicable to Trusts and on their Recognition. The chapter begins with a discussion of some preliminary issues, such as the definition of a trust, types of trust that fall within the 1987 Act, validity of the instrument of creation of the trust, and transfer of trust assets. It then considers the specific rules governing choice of law and the recognition of trusts, along with mandatory rules and public policy. It also looks at the variation of trusts and marriage settlements, citing the relevant provisions of the Variation of Trusts Act 1958.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 10 Angola and Mozambique: Angolan and Mozambican Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Dias Rui ◽  
Nordmeier Carl Friedrich
Keyword(s):  
International Law ◽  
Civil Procedure ◽  
Civil Code ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
The Hague ◽  
The Law ◽  
Procedure Codes

This chapter explores Angolan and Mozambican perspectives on the Hague Principles. The rules of Angolan and Mozambican civil law, and with them private international law, currently in force correspond to the Portuguese rules as they stood in 1975. As to private international law, the 1966 Portuguese Civil Code (hereafter CC) contains a codification of this field of the law in Articles 15 to 65. Meanwhile, rules on international civil procedure are to be found in the Angolan and the Mozambican Civil Procedure Codes. They concern, inter alia, international jurisdiction and the enforcement of foreign judgments. Party autonomy is recognized as the principal connecting factor for contractual relationships (Art 41(1) CC). Nevertheless, the choice of law is not unlimited: it is necessary that either some of the elements of the contract having relevance in private international law are connected with the law chosen, or that the choice of the applicable law corresponds to a serious interest. It is clear from this backdrop that a set of rules, such as the Hague Principles, which present themselves as an embodiment of current best practices is well placed to help interpret, supplement, or develop the choice of law rules of the 1966 Civil Code.

Part 1 General and Special Reports, 7 International Commercial Arbitration: Perspective on the Hague Principles in International Commercial Arbitration

2021 ◽  
Author(s):  
Gama Lauro ◽  
Girsberger Daniel ◽  
Rodríguez José Antonio Moreno
Keyword(s):  
International Law ◽  
State Court ◽  
Private International Law ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
International Commercial Arbitration ◽  
Party Choice ◽  
The Hague ◽  
Model Law

This chapter studies how the private international law rules of most jurisdictions have traditionally addressed State court litigation, without considering the specificities of international arbitration. Many nations have now created their own legislation for international arbitration or adopted the UNCITRAL Model Law on International Commercial Arbitration. These laws regularly contain their own rules dealing with parties’ choice of law on the merits. The chapter then explores choice of law in international arbitration with a particular view on the Hague Principles which are, as paragraph 4 of their Preamble discloses, intended to apply equally to courts and arbitral tribunals. It analyses the approach arbitral tribunals have taken when confronted with choice of law issues, and particularly a party choice of the law applicable to the merits of the dispute. The chapter also assesses whether it is correct and if so, for which reasons, and in which way, that commercial parties have a larger autonomy in arbitration, compared to litigation, to choose non-State rules of law, and which types of rules they may choose. Finally, it demonstrates why, how, and to what extent the Hague Principles can contribute to define, delineate, interpret, and supplement existing (conflict of law) regimes in the field of international arbitration.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 59 Costa Rica: Costa Rican Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Chan Anayansy Rojas ◽  
París Mauricio
Keyword(s):  
Costa Rica ◽  
International Law ◽  
Costa Rican ◽  
Private International Law ◽  
International Treaties ◽  
Commercial Arbitration ◽  
The Hague ◽  
The Law ◽  
Local Courts ◽  
Article 5

This chapter assesses Costa Rican perspectives on the Hague Principles. Costa Rica does not have a systematic and codified system that regulates conflicts of law, usually known in Costa Rica as private international law (PIL). Instead, the main sources of PIL in Costa Rica are: (i) international treaties; (ii) the Civil Code, the Code of Civil Procedures, and other domestic laws; and (iii) the Law on International Commercial Arbitration. In general, Costa Rica’s private international law regime, applicable to international commercial contracts, allows for parties to select the law of their choice as long as it does not breach public policy or harm a third party’s interest. According to Article 5 of the Organizational Law of the Judiciary, courts cannot excuse themselves from exercising their authority or from ruling in matters of their competence for lack of a rule to apply and they must do so in accordance with the written and unwritten rules. Unwritten rules refer to the general principles of law, usages and practices, and case law, according to the hierarchical order of their legal sources. Such rules serve to interpret, integrate, and delimit the field of application of law. Therefore, the local courts have limited themselves to only apply domestic law and have consequently restrained themselves from applying the Hague Principles or other soft law instruments as a persuasive authority source.

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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