Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 24 India: Indian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Neels Jan L
Keyword(s):  
Member State ◽  
International Law ◽  
Common Law ◽  
Primary Source ◽  
Case Law ◽  
Private International Law ◽  
Rules And Principles ◽  
The Common ◽  
The Hague ◽  
The Republic

This chapter provides comments on the Hague Principles from the perspective of Indian private international law of contract. The Republic of India inherited the English common law, also in the field of private international law. Case law is the primary source of Indian private international law of contract. Rooted in the common law tradition, the courts would certainly be entitled to refer to the Hague Principles as persuasive authority in the interpretation, supplementation, and development of the rules and principles of private international law. In any event, the Hague Principles were adopted on March 19, 2015, by consensus between all Member States of the Hague Conference on Private International Law, including India, which has been a Member State since March 13, 2008. The chapter then demonstrates that the Hague Principles have real potential to assist in the interpretation, supplementation, and development of Indian private international law of contract.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 11 Common Law Africa: Common Law African Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Oppong Richard Frimpong
Keyword(s):  
International Law ◽  
Common Law ◽  
Case Law ◽  
Private International Law ◽  
International Treaties ◽  
African Countries ◽  
International Convention ◽  
Judicial Decisions ◽  
The Common ◽  
The Hague

This chapter studies the common law African countries Gambia, Ghana, Kenya, Malawi, Nigeria, Sierra Leone, Tanzania, Uganda, and Zambia. Their main source of private international law rules is judicial decisions or case law. Because of the relatively underdeveloped nature of their private international law regimes, foreign case law often serves as an important source of persuasive authority. In this regard, the jurisprudence of the English courts is particularly persuasive and is often referred to by the courts. In general, an international convention or treaty does not have the force of law in the legal systems of the countries under study, unless it is expressly incorporated into national law. In essence, they are dualist countries. However, courts in some of the countries under study have demonstrated a willingness to seek guidance from international treaties that are not yet domestically in force, if the circumstances are appropriate. Thus, it is possible, that courts in the countries under study may be receptive to the Hague Principles, especially if argued by counsel.

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 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 17 South Africa: South African Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Neels Jan L
Keyword(s):  
South Africa ◽  
International Law ◽  
South African ◽  
Comparative Approach ◽  
Private International Law ◽  
Rules And Principles ◽  
The Hague ◽  
The Republic ◽  
Contractual Obligations ◽  
Academic Authors

This chapter provides the reader with comments on the Hague Principles from the perspective of South African private international law of contract.Private international law in the Republic of South Africa is historically based on Roman–Dutch and English law, but is today influenced by domestic constitutional values, especially in the fields of international family and succession law. In the realm of the international law of obligations, the impact of the English common law is particularly strong. The notion of ‘the proper law of the contract’ is therefore widely used to indicate the law applicable to contractual obligations. The sources of private international law of contract are almost exclusively case law and the opinions of academic authors. The South African courts have always followed a comparative approach in respect of private international law, initially under the influence of an internationalist understanding of the conflict of laws. The courts would therefore certainly be entitled to refer to the Hague Principles as persuasive authority in the interpretation, supplementation, and development of the rules and principles of South African private international law.

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 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 63 Paraguay: Paraguayan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Rodríguez José Antonio Moreno
Keyword(s):  
Latin America ◽  
Member State ◽  
International Law ◽  
International Institute ◽  
Private International Law ◽  
State Law ◽  
Conflict Of Laws ◽  
Commercial Code ◽  
The World ◽  
The Hague

This chapter highlights Paraguayan perspectives on the Hague Principles. Paraguay does not have a law dealing comprehensively and organically with Private International Law. The Civil and Commercial Code of 1987 contains the basic regulation on conflict of laws, and other provisions on the field can be found scattered in several special laws dealing with specific matters. Paraguay adhered, as a Member State, to the Hague Conference on Private International Law via Law 2555 of 2005. It is the first country in the world to legislate on international contracts heavily influenced by the Hague Principles. The Paraguayan law on international contracts drawn upon the Hague Principles openly allows the application of non-State law, and the International Institute for the Unification of Private Law (UNIDROIT) Principles clearly qualify as such.

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.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 35 Singapore: Singaporean Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Yeo Tiong Min
Keyword(s):  
New York ◽  
International Law ◽  
Common Law ◽  
Private International Law ◽  
Party Autonomy ◽  
Important Principle ◽  
Settlement Agreements ◽  
The Hague ◽  
Model Law ◽  
New York Convention

This chapter describes Singaporean perspectives on the Hague Principles. Party autonomy is recognized as a very important principle in the private international law of Singapore. The primacy given to the role of party autonomy is evidenced by the adoption of the New York Convention and UNCITRAL Model Law for international arbitration, the adoption of the Convention on Choice of Court Agreements for international litigation, and the palpable support of the UNCITRAL Convention on International Settlement Agreements Resulting from Mediation. Most of private international law in Singapore is sourced in judge-made law. In the absence of direct Singapore authority, Singapore courts have traditionally looked to English case law for guidance, but increasingly, the courts have looked to the laws of other jurisdictions, and indeed international instruments which do not have binding force in Singapore law. Given the level of sophistication of existing common law contract choice of law rules, it is unlikely that Singapore will engage in radical law reform. However, it is likely that the Singapore courts will continue to look to the Hague Principles for guidance in areas where the common law is unclear or where there is a gap or strong imperative for change.

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, 16 Morocco: Moroccan Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Zaher Khalid
Keyword(s):  
Public Policy ◽  
International Law ◽  
Case Law ◽  
Vital Role ◽  
Private International Law ◽  
Statutory Law ◽  
The Hague ◽  
The Law

This chapter examines Moroccan perspectives on the Hague Principles. In Morocco, the sources of private international law applicable to international commercial contracts are both of a national and an international nature. International sources include mainly treaties and, to a lesser extent, international customs to which the Moroccan courts may refer in particular cases. National sources are statutory law, case law, and scholarly writings. Case law has always played a vital role in the development and the interpretation of the rules applicable to international commercial contracts. It is indeed the role of the courts to determine the scope of law chosen by the parties and to delimit the boundaries of international public policy as a limit to the application of the law chosen by the parties. Moroccan courts consider international customs as important sources in respect of international contracts and arbitration. Having frequently used the universally accepted principles of private international law, Moroccan courts could easily draw on the Hague Principles to find solutions to certain questions that have not been addressed by the legislature.

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