Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 26 Iran: Iranian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Yassari Nadjma
Keyword(s):  
International Law ◽  
Contract Law ◽  
Private International Law ◽  
Commercial Arbitration ◽  
International Commerce ◽  
Trade Law ◽  
International Trade Law ◽  
Foreign Law ◽  
The Hague ◽  
Model Law

This chapter presents Iranian perspectives on the Hague Principles. Generally, private international law is not very developed in Iran, neither in theory nor in practice. This is for diverse reasons: the history and the legacy of the capitulations systems, according to which foreign citizen and entities were exempted from Iranian jurisdiction, is still vividly felt, as is the fear of potential foreign domination. This has nurtured a general suspicion towards the application of foreign law as a gateway for political intervention of foreign powers. Following the revolution of 1979, the political situation and the instability and insecurity of foreign investments have been major impediments to the spread of international commerce between Iran and the rest of the world, diminishing the need to establish efficient private international law tools. This factual situation is mirrored by a poor engagement with international contract law in scholarly writings, which often remain hypothetical and abstract due to the lack of case law. Nowhere in the literature is any reference made to the Hague Principles. Only in the field of international arbitration has there been some movement: in 1997, the Law on International Commercial Arbitration (LICA) was enacted, a code that relies greatly on the United Nations Commission on International Trade Law (UNCITRAL) Model Law.

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.

Le Canada et l’unification Internationale du droit privé

1995 ◽  
Vol 32 ◽  
pp. 3-37
Author(s):  
Christiane Verdon
Keyword(s):  
International Law ◽  
International Organizations ◽  
Federal State ◽  
Private Law ◽  
Private International Law ◽  
Trade Law ◽  
International Trade Law ◽  
American States ◽  
The Hague ◽  
Le Canada

SummaryThis article reviews Canada's participation in the international unification of private law and private international law that is carried out by international organizations such as The Hague Conference on Private International Law, Unidroit, the United Nations Commission on International Trade Law, and the Specialized Conferences on Private International Law of the Organization of American States. It describes the new mechanisms that have been established to facilitate this participation, since the conventions developed in these organizations often deal with matters that fall within provincial kgislative competence and thus need to be implemented by the provinces. The new “territorial federal State clause” that Canada has had inserted in these conventions and the federal-provincial consultation mechanisms that have been put in place have been instrumental in facilitating Canada's ratification of conventions that unify private law and private international law.

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.

scholarly journals Koordinacija stečajnih postupaka – sa posebnim osvrtom na transfer sredstava stečajne mase i stečaj povezanih društava / Coordination of Bankruptcy Proceedings - with special emphasis to the the transfer of bankruptcy assets and to bankruptcy of a members of group of companies

2016 ◽  
Vol 6 (6) ◽  
pp. 5
Author(s):  
Vladimir Čolović ◽  
Siniša Aleksić
Keyword(s):  
International Law ◽  
Private International Law ◽  
Trade Law ◽  
International Trade Law ◽  
The Status ◽  
The Usa ◽  
Model Law ◽  
Insolvency Proceedings ◽  
The Relationship ◽  
The Eu

The possibility to start against the debtor more bankruptcy proceeding, of which one is main bankruptcy, and the other are secondaries or specials, has led to the necessity of defining the rules governing coordination of these proceedings, in order to achieve the unity of the bankruptcy assets and to the equal settlement of creditors. Today, national laws and international statutory sources contain rules governing the coordination of bankruptcy proceedings. However, these rules have their basis in Private International Law. The author presents the rules of the EU Regulation No. 2015/848 of the European Parliament and of the Council of 20 May 2015 on insolvency proceedings, then the rules of Model Law on Cross-Border Insolvency of the United Nations Commission on International Trade Law, and, also, the rules of the USA legislature. The paper analyzes the status of the foreign bankruptcy decision on the territory of the country of recognition, then, the relationship and cooperation between the subjects referred to bankruptcy proceedings, in particular between the bankruptcy trustees, as well as between foreign bankruptcy trustee and the court, and the transfer of bankruptcy assets from the secondary to the main bankruptcy proceeding, which defines the status of the main relative to the secondary proceeding. Special attention is paid to bankruptcy of a members of group of companies.

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.

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.

scholarly journals The Modern Travelling Merchant: Mobile Communication in International Contract Law

2017 ◽  
Author(s):  
Ulrich G. Schroeter
Keyword(s):  
International Law ◽  
Mobile Communication ◽  
Mobile Communications ◽  
Contract Law ◽  
Recent Attempt ◽  
Private International Law ◽  
Electronic Communications ◽  
Business World ◽  
Cross Border ◽  
The Hague

Contratto e impresa/Europa (2015), pp. 19-43The use of mobile communication devices like mobile phones, smartphones, tablet computers or notebooks with access to the internet has become an everyday phenomenon in today’s business world. However, whenever mobile communications are used for purposes of contract formation, i.e. the mobile dispatch of offers or acceptances, the mobility of the communicating parties raises important difficulties for the application of traditional legal rules: The fact that messages transmitted via phone, e-mail or SMS can be dispatched and received at virtually any place on earth challenges the categories of private international law and international contract law, which are based on the (unspoken) assumption that parties communicate from their home country. The existing legal framework for cross-border contracts therefore hardly takes into account the possibility that parties may move across borders, and that the place of their communications may accordingly vary.The present article addresses the legal difficulties and uncertainties that cross-border mobile communication raises under international rules of law, covering both conflict of laws rules and substantive law rules. It elaborates on the traditional role of the place of communication in this context before scrutinizing how ‘mobility-friendly’ the provisions of the relevant conventions developed by the United Nations, the Hague Conference for Private International Law and other organisations are. In doing so, it critically discusses in particular Article 10(3) of the UN Electronic Communications Convention of 2005, the most recent attempt at regulating mobile communications. Finally, it identifies a number of problems that have hitherto been overlooked (as notably the interaction of Article 10(3) of the UN Electronic Communications Convention with traditional private international law rules on the formal validity of contracts or with Article 3(2) of the Hague Convention on the Law Applicable to International Sales of Goods of 1955), and proposes appropriate solutions.

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’.

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