Part 1 General and Special Reports, 4 HCCH: Roadmap for the Promotion of the HCCH Principles, with a Focus on the Role of International Organizations

2021 ◽  
Author(s):  
Ribeiro-Bidaoui João
Keyword(s):  
International Trade ◽  
International Organizations ◽  
Private International Law ◽  
Model Choice ◽  
Legal Certainty ◽  
Choice Of Law ◽  
Intergovernmental Organization ◽  
Party Autonomy ◽  
The Hague

This chapter focuses on the Hague Conference on Private International Law (HCCH), a global intergovernmental organization which develops and services multilateral legal instruments, in response to global needs. The HCCH Principles affirm party autonomy as a basis for the choice of law in international contracts and strengthen legal certainty and predictability in cross-border commercial transactions. They are important to easing reform and harmonization initiatives concerning the rules applicable to international trade, and they operate as both a model choice of law regime and as a guide to ‘best practices’ in establishing and refining such a regime. The chapter considers the use of the HCCH Principles to date and foreshadows their potential uses in the future. It reviews the envisaged use of the Principles by legislators at national and international levels, international organizations, courts, arbitral tribunals, the commercial parties, and their legal counsel. The chapter then outlines the parties to whom the Principles may be promoted in a manner consistent with the Preamble and identifies specific means for promotion.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 14 Ethiopia: Ethiopian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Gebremeskel Fekadu Petros
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
The Subject ◽  
The Hague ◽  
Federal Supreme

This chapter reflects on Ethiopian perspectives on the Hague Principles. Ethiopia does not have a codified law regulating matters of private international law, nor is there detailed case law from which one could derive key principles of the subject. While the shortage of private international law in Ethiopia is evident, the problem is most severe in the area of applicable law. In relation to party autonomy in choice of law, the Federal Supreme Court’s Cassation Division has handed down some interesting decisions, and these indeed have the force of law in Ethiopia. Nevertheless, the approach of the Ethiopian courts in respect of party autonomy is not very developed and clear, including in the field of international commercial contracts. While it would be prudent for Ethiopian courts to refer to the Hague Principles as persuasive authority, this requires awareness of the existence of the Hague Principles. In the long term, the Hague Principles will surely find their way into Ethiopian law.

scholarly journals The role of party autonomy under the regulations on matrimonial property regimes and property consequences of registered partnerships. Some remarks on the coordination between the legal regime established by the new regulations and other relevant instruments of European Private International Law = Il ruolo dell’autonomia della volontà nei regolamenti sui rapporti patrimoniali tra coniugi e sugli effetti patrimoniali delle unioni registrate. Alcune considerazioni sul coordinamento tra il regime giuridico stabilito dai nuovi regolamenti e altri strumenti di diritto internazionale privato europeo

2018 ◽  
Vol 10 (2) ◽  
pp. 457
Author(s):  
Cristina Grieco
Keyword(s):  
International Law ◽  
Legal System ◽  
Private International Law ◽  
Legal Regime ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
Property Regimes ◽  
Property Regime

 Abstract: The new Regulations (No. 2016/1103 and No. 2016/1104) recently adopted through an enhanced cooperation by the European Legislator aim to deal with all the private international law aspects of matrimonial property regimes and property consequences of registered partnerships, both as concerns the daily management of matrimonial property (or partner’s property) and its liquidation, in particular as a result of the couple’s separation or the death of one of the spouses (or partners). This paper aims to address the prominent role of party autonomy in the two Regulations and to focus on the coordination between the legal system embodied in the new two Regulations, and other relevant instruments of European private international law in force, such as the Succession Regulation and the Bruxelles II- bis Regulation.Keywords: party autonomy; successions; matrimonial property regime, partnership property regi­me, applicable law, choice of law, private international law.Riassunto: I due nuovi regolamenti (No. 2016/1103 e No. 2016/1104), recentemente adottati nell’ambito di una cooperazione rafforzata dal legislatore europeo, si propongono di regolare tutti gli aspetti internazional privatistici legati ai regimi patrimoniali tra coniugi e alle conseguenze patrimoniali delle partnership registrate, sia per ciò che concerne la regolare amministrazione dei beni sia per ciò che riguarda la liquidazione degli stessi beni facenti parte del regime matrimoniale (o della partnership regi­strata) nel caso si verifichino vicende che ne alterino il normale svolgimento, come la separazione della coppia o la morte di uno degli sposi (o dei partner). Il presente scritto si propone di esaminare il ruolo prominente che, all’interno di entrambi i regolamenti, è riservato alla volontà delle parti e di focaliz­zarsi sul coordinamento tra i due nuovi strumenti e gli altri regolamenti di diritto internazionale privato europeo attualmente in vigore e, particolarmente, il regolamento sulle successioni transfrontaliere e il regolamento Bruxelles II- bisParole chiave: autonomia della volontà; successioni; rapporti patrimoniali tra coniugi; effetti pa­trimoniali delle unioni registrate; legge applicabile; scelta di legge; diritto internazionale privato.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 18 Tunisia: Tunisian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Elbalti Béligh
Keyword(s):  
International Law ◽  
Case Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Legal Literature ◽  
The Hague ◽  
International Instruments ◽  
International Conventions ◽  
Clear Solution

This chapter focuses on Tunisian perspectives on the Hague Principles. The main source of private international law in Tunisia is the 1998 Code of private international law (CPIL). Tunisia has not signed any convention on choice of law in international contractual matters. However, it is worth mentioning that, in the field of international arbitration, some conventions to which Tunisia is party include an express reference to party autonomy. As a matter of principle, Tunisian courts are bound only by Tunisian law and other international instruments duly ratified by Tunisia. Nevertheless, it is not uncommon that Tunisian courts refer to foreign laws, international conventions not ratified by Tunisia, model laws, foreign case law, or even foreign legal literature when such reference is deemed persuasive. Therefore, it can be safely said that nothing prevents Tunisian courts from referring to the persuasive authority of the Hague Principles. This would be the case if the parties invoked the Principles in support of their arguments in the case where a clear solution is lacking under Tunisian law.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 65 Uruguay: Uruguayan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
de Aguirre Cecilia Fresnedo
Keyword(s):  
Latin America ◽  
International Law ◽  
Buenos Aires ◽  
Civil Law ◽  
Civil Code ◽  
Private International Law ◽  
Party Autonomy ◽  
Additional Protocol ◽  
The Hague

This chapter reflects on Uruguayan perspectives on the Hague Principles. In Uruguay, international commercial contracts are regulated by the following conventions: the Montevideo Treaty on International Civil Law of 1889; the Montevideo Treaty on International Civil Law of 1940; the Additional Protocol to the Montevideo Treaty on International Civil Law of 1940; and the Buenos Aires Protocol on International Jurisdiction in Contractual Matters. They are also regulated under the domestic private international law rules contained within the Appendix of the Civil Code of Uruguay. The Appendix of the Civil Code, including rules regulating contract, is under revision; a Draft General Act on Private International Law is in Parliament under consideration. It seems unlikely that the Hague Principles will play any role regarding this Draft Act at present; however, the draft has yet to be approved mainly due to disagreement on the role of party autonomy. If the Draft Act is approved and entered into force, the Hague Principles may become useful in Uruguayan law.

International Approaches as Plausible Solutions to Resolve the Battle of Forms under the Indian Law of Contract

2019 ◽  
Vol 8 (1) ◽  
pp. 1-26
Author(s):  
Saloni Khanderia
Keyword(s):  
International Law ◽  
Private International Law ◽  
Bad Faith ◽  
Substantial Evidence ◽  
Choice Of Law ◽  
Party Autonomy ◽  
The Subject ◽  
The Hague ◽  
Indian Law ◽  
Standard Terms

The Indian court’s rigid application of the last-shot rule to resolve the problem of the battle of forms among conflicting standard terms in domestic disputes has resulted in unreasonableness and has fostered the conclusion of contracts in bad faith. Likewise, although there is substantial evidence to prove the existence of party autonomy in the choice of law and jurisdiction under Indian private international law, its courts have failed to delineate a coherent solution for “battles” arising on these aspects. The paper thus examines the plausibility of employing the solutions prescribed by the unidroit’s Principles on International Commercial Contracts and the Hague Conference on Private International Law’s Hague Principles on Choice of Law in International Commercial Contracts on the subject, as gap-fillers to interpret, supplement or develop the Indian national and private international law.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 38 Taiwan: Taiwanese Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Tsai Hua-Kai
Keyword(s):  
Public Policy ◽  
International Law ◽  
Primary Source ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
The Hague ◽  
Set Up ◽  
Domestic Law

This chapter highlights Taiwanese perspectives on the Hague Principles. The Act Governing the Choice of Law in Civil Matters Involving Foreign Elements is the primary source of choice of law rules in Taiwan’s private international law (Taiwanese PIL Act). Party autonomy is set up as a prioritized connecting factor for the choice of law rules on contracts under the Taiwanese PIL Act. Due to the fact that Taiwan is not a Member State to most of the international organizations such as the Hague Conference on Private International Law, the source of Taiwan’s private international law is mainly domestic law. Being a non-binding instrument, the Hague Principles can be taken into consideration in Taiwan as an informal source of choice of law rules on contracts. However, the Hague Principles do not provide for rules determining the applicable law in the absence of the parties’ choice. Article 20 of the Taiwanese PIL Act is, in this respect, more comprehensive. Nonetheless, the Hague Principles may be used to interpret, supplement, and further develop rules only to Article 20(1) concerning party autonomy and the limitation on that autonomy such as public policy.

Part 1 General and Special Reports, 2 The Story of Party Autonomy

2021 ◽  
Author(s):  
Symeonides Symeon C
Keyword(s):  
International Law ◽  
Basic Principle ◽  
Legal System ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
The Common ◽  
The Hague ◽  
International Rule ◽  
Historical Origins

This chapter discusses the principle of party autonomy. The term ‘party autonomy’ as used in this book is a shorthand expression for the notion that parties to a multistate contract should be allowed, within certain parameters and limitations, to agree in advance on which law will govern the contract. This notion is now considered a universal principle of private international law (PIL) or conflicts law. In 2015, the year in which the Hague Conference on Private International Law adopted the Principles on Choice of Law in International Commercial Contracts, only eleven of the 161 countries surveyed did not adhere to this principle. It has been characterized as ‘perhaps the most widely accepted private international rule of our time’, a ‘fundamental right’, and an ‘irresistible’ principle that belongs to ‘the common core’ of nearly all legal systems. Naturally, there are significant variations from one legal system to the next about not only the exact scope, modalities, parameters, and limitations of this principle, but also about its theoretical source and justification. The chapter then traces the historical origins and subsequent evolution of the basic principle.

Part 1 General and Special Reports, 3 The Provenance of the Hague Principles

2021 ◽  
Author(s):  
Pertegás Marta
Keyword(s):  
International Law ◽  
Feasibility Study ◽  
Private International Law ◽  
Choice Of Law ◽  
Party Autonomy ◽  
The Hague ◽  
Legal Domain ◽  
First Time

This chapter examines the institutional provenance of the Hague Principles from mandate to adoption, which can be traced back to 2006. At a meeting of the Council on General Affairs and Policy of the Hague Conference on Private International Law (HCCH) that year, the Secretariat of the HCCH was tasked with preparing a feasibility study on the development of an instrument concerning choice of law in international contracts. However, this was not the first time that the HCCH included the topic of international (commercial) contracts on its agenda. Earlier work carried out by the HCCH in this legal domain share similar objectives with the Hague Principles, that is, the consolidation of party autonomy in the private international law of contracts. In sketching the recent and more remote origins of the Principles, the chapter describes the most salient phases in the development of the Hague Principles between 2006 and 2015. It then places this instrument in the broader context of the HCCH’s contribution to party autonomy in international contracts.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 20 Bahrain: Bahraini Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Elbalti Béligh ◽  
Shaaban Hosam Osama
Keyword(s):  
International Law ◽  
Private International Law ◽  
General Application ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Knowing That ◽  
Domestic Legislation ◽  
Rules And Principles ◽  
General Article ◽  
The Hague

This chapter assesses Bahraini perspectives on the Hague Principles. In Bahrain, private international law rules are mainly found in domestic legislation. The main legislative text in this regard is the Act No 6/2015 on Conflict of Law in Civil and Commercial Matters involving a Foreign Element (the 2015 Act). The Act includes a number of rules of general application, among which is Article 4 on party autonomy in addition to some other rules relating to choice of law in contractual matters in general (Article 17) or applicable to special types of contracts and other juristic acts. It can be safely said that nothing in principle prevents the Bahraini courts from referring to the Hague Principles as a persuasive authority nor from using its solutions in the interpretation or the development of the applicable rules and principles of private international law in Bahrain. This is particularly true knowing that many of the solutions adopted by the 2015 Act are particularly consistent with the Hague Principles’ solutions.

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