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.

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 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 56 Brazil: Brazilian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Gama Lauro ◽  
Tiburcio Carmen ◽  
Albuquerque Felipe
Keyword(s):  
International Law ◽  
Law Reform ◽  
Private International Law ◽  
Party Autonomy ◽  
Article 9 ◽  
Legislative Proposals ◽  
Rules And Principles ◽  
Legislative Initiative ◽  
The Hague ◽  
The 1960S

This chapter evaluates Brazilian perspectives on the Hague Principles. Despite the proposition of several bills in the 1960s, no legislative initiative to modernize the Brazilian private international law has succeeded so far. The most recent legislative proposals have focused on modifying Article 9 of the Law of Introduction to the Norms of Brazilian Law (LINDB) rather than the whole system. One of these proposals, pending before the Senate, amends the Brazilian Code of Consumer Protection and updates and expands the contents of Article 9 LINDB. This bill incorporates several provisions of the Hague Principles; it states the basic principle of party autonomy and authorizes choice of law in respect of international contracts (B2B transactions). As Brazil still waits for law reform, the Hague Principles may be relevant as persuasive authority before the Brazilian courts. In this sense, the Hague Principles may be used in the interpretation, supplementation, and development of the applicable rules and principles of Brazilian private international law.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 30 Lebanon: Lebanese Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Kobeh Marie-Claude Najm
Keyword(s):  
International Law ◽  
Civil Procedure ◽  
Private International Law ◽  
Choice Of Law ◽  
International Jurisdiction ◽  
Foreign Law ◽  
Statutory Law ◽  
Rules And Principles ◽  
Recognition And Enforcement ◽  
The Hague

This chapter evaluates Lebanese perspectives on the Hague Principles. In Lebanon, private international law rules in respect of international commercial contracts are not codified. There are statutory rules governing certain areas of private international law, some of which might be relevant in cases where international commercial contracts are litigated. This is the case for rules on international jurisdiction (Articles 74–80 Code of Civil Procedure, hereafter CCP), recognition and enforcement of foreign decisions (Articles 1009–1024 CCP), international arbitration (Articles 809–821 CCP) and the application of foreign law (Articles 139–142 CCP). Given the rarity of private international law statutory rules, and specifically the absence of statutory choice of law rules for international commercial contracts, it was up to the courts to shape conflict of law rules for these contracts.. In this respect, Lebanese courts do not have the authority to refer to the Hague Principles as persuasive applicable rules, ie to use them to interpret and supplement the applicable rules and principles of private international law. Nevertheless, it should be noted that Article 4 CCP invites the courts, in the absence of statutory law, to rely on ‘general principles, custom and equity’.

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 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 19 Asian Principles of Private International Law: The Asian Principles of Private International Law and the Hague Principles

2021 ◽  
Author(s):  
Takasugi Naoshi ◽  
Elbalti Béligh
Keyword(s):  
International Law ◽  
Driving Force ◽  
Private International Law ◽  
International Arbitration ◽  
Choice Of Law ◽  
International Jurisdiction ◽  
Rules And Principles ◽  
Recognition And Enforcement ◽  
The Hague ◽  
The Relationship

This chapter looks at the relationship between the Asian Principles of Private International Law (APPIL) and the Hague Principles. The APPIL are intended to be a non-binding instrument which includes a comprehensive set of principles on private international law (PIL) generally recognized among the different Asian jurisdictions. The main purpose of the APPIL is to provide guidance to possible future harmonization of PIL rules and principles in Asia. Compared to the Hague Principles which are limited only to the issue of choice law in international contracts based on the express or tacit will of the parties, the APPIL have much broader scope, including choice of law, international jurisdiction, the recognition and enforcement of foreign judgments, and judicial support to international arbitration. The chapter then outlines the history and the driving force behind the APPIL.

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 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 25 Indonesia: Indonesian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Lumbantobing John ◽  
Hardjowahono Bayu Seto
Keyword(s):  
International Law ◽  
Court Decisions ◽  
Private International Law ◽  
Sovereign State ◽  
Party Autonomy ◽  
Legal Questions ◽  
Rules And Principles ◽  
The Hague ◽  
Foreign Materials ◽  
International Instruments

This chapter highlights Indonesian perspectives on the Hague Principles. Generally speaking, private international law (PIL) in Indonesia is not an area of law where statutory rules have developed in a comprehensive and systematic manner. Rules on many aspects of private international law, including the freedom of choice of law, remain very rudimentary and do not address sufficiently complicated legal questions surrounding modern commercial transactions. The chapter then analyses Indonesian PIL doctrines and court decisions on party autonomy in contracts. It is uncertain whether and how far the Hague Principles can be accepted as a persuasive authority in the interpretation, supplementation, and/or development of the applicable rules and principles of private international law before the Indonesian courts. In principle, there is no restriction for the courts to refer to international instruments as sources of inspiration for interpreting or filling gaps of existing rules. However, Indonesian courts are infamously insular and are not receptive to foreign materials, particularly ‘soft law’ resources which are not part of national laws of a sovereign state.

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.

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