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.

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.

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 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 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.

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 2.2 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 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 37 South Korea: South Korean Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Hyun Suk Kwang
Keyword(s):  
International Law ◽  
Private International Law ◽  
Commercial Arbitration ◽  
Choice Of Law ◽  
Applicable Law ◽  
South Korean ◽  
Trade Law ◽  
International Trade Law ◽  
The Hague ◽  
Model Law

This chapter studies South Korean perspectives on the Hague Principles. Korea has enacted choice of law rules for courts in litigation and choice of law rules for arbitral tribunals. The former are set forth in the Private International Law Act of Korea (KPILA) and the latter in the Arbitration Act of Korea (KAA). The single most important Korean legislation on private international law is the KPILA, which mainly consists of provisions on applicable law and on international jurisdiction in civil and commercial matters. As for the KAA, it was modelled on the 1985 Model Law on International Commercial Arbitration of United Nations Commission on International Trade Law (UNCITRAL), and further amended in 2016 in order to reflect the amendments adopted in 2006 to the UNCITRAL Model Arbitration Law. Since Korea has detailed choice of law rules for courts and arbitral tribunals, the role which could be played by the Hague Principles in Korea will be very limited. Korean courts could use them for reference in the interpretation, supplementation, and/or development of applicable rules of choice of law regarding matters not covered by the choice of law rules of the KPILA.

scholarly journals DISCUSSION ON CHARACTERISATION IN SOUTH AFRICAN PRIVATE INTERNATIONAL LAW

2011 ◽  
Author(s):  
Justin Leach
Keyword(s):  
International Law ◽  
South African ◽  
Case Law ◽  
Private International Law ◽  
Current Case ◽  
Choice Of Law ◽  
Legal Rules ◽  
The Subject ◽  
The Relationship ◽  
Domestic Law

To inform those unfamiliar to the subject, private international law is simply that branch of a country’s domestic law, which regulates the relationship between private individuals when foreign legal rules are in some way concerned. This branch generally has three subbranches: Jurisdiction (choice of court), choice of law and recognition of foreign judgments. The discipline of characterisation forms part of the choice of law sub-branch and is explained further below. This article discusses the problem of a ‘gap’ arising from the phenomenon of characterisation in South African private international law, by considering the current case law authorities on the matter as well as the criticisms (and suggested solutions) of legal academics. A general discussion of characterisation, with some alternative suggestions for dealing with the problem, is also mooted for consideration in a bid to air ideas. No short work could do justice to the problem visited here. This work seeks to show that the obsession with characterisation in the choice of law arena is perhaps ill founded and should perhaps be simplified in favour of a ‘most natural results’ approach.

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