Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 27 Israel: Israeli Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Einhorn Talia
Keyword(s):  
International Law ◽  
Civil Code ◽  
Private International Law ◽  
International Obligations ◽  
The Hague ◽  
International Sale Of Goods

This chapter reflects on Israeli perspectives on the Hague Principles. Israeli private international law (PIL) has not been codified. The only statute having a rather comprehensive set of PIL rules is the Succession Law, 5765-1966. The PIL rules contained in the separate statutes were included in the Draft Civil Code, but apart from the Draft CC chapter on succession, which contains a comprehensive set of PIL rules, their fragmentary contents have been retained in the various chapters. With one exception, namely, contracts for the international sale of goods, no conflict rules governing international commercial contracts have been adopted by the Knesset. Regarding Israel’s international obligations, Israel is a member of the Hague Conference on Private International Law and has ratified a number of the Hague Conventions. However, at this point in time, especially in view of the paucity of conflict rules adopted by the Knesset, it is difficult to predict whether the Knesset would adopt the Hague Principles in an Israeli statute.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 39 United Arab Emirates: Emirati Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Bälz Kilian
Keyword(s):  
International Law ◽  
United Arab Emirates ◽  
Civil Code ◽  
International Standards ◽  
Federal State ◽  
Private International Law ◽  
International Treaties ◽  
Federal Law ◽  
The Hague ◽  
The Law

This chapter presents Emirati perspectives on the Hague Principles. The United Arab Emirates (UAE) are a federal State that was established in 1971. Private international law, civil procedure, and arbitration all are federal matters that are covered by federal laws. Private international law is codified in a section of the UAE Civil Code (Federal Law No 5 of 1985) that deals in Articles 10 to 28 with ‘The application of the law regarding the place’. The section also contains the conflict of law rules applicable to international commercial contracts. The statutory provisions of the Civil Code are, in practical terms, the most important source of law when determining the law applicable to an international contract in the UAE. According to Article 22 of the Civil Code, international treaties, to the extent they apply, override the provisions of municipal law. Moreover, Article 23 of the Civil Code provides that in the absence of any statutory provision, ‘the [general] principles of private international law’ shall apply. This provides the UAE courts with the option to make reference to international standards such as the Hague Principles.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 34 Qatar: Qatari Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Elrifai Silke Noa
Keyword(s):  
International Law ◽  
Civil Code ◽  
Private International Law ◽  
Federal Law ◽  
Conflict Of Laws ◽  
Law System ◽  
Financial Centre ◽  
The Hague ◽  
Legal Frameworks

This chapter addresses Qatari perspectives on the Hague Principles. The State of Qatar has two legal frameworks: the onshore civil law system and the offshore common law-based the Qatar Financial Centre, established in 2005 and not covered in this chapter. In onshore Qatar, private international law is codified in Articles 10–38 of Subchapter 3 (conflict of laws in space) of Chapter 1 of the Qatar Civil Code (Federal Law No 22 of 2004). In comparison to its European counterparts, the Qatari private international law codification contains significant gaps. Though only promulgated in 2004, Articles 10–38 are near copies of the conflict of law rules contained in the Egyptian Civil Code of 1949, with a few differences. In accordance with Article 34 Civil Code, ‘the [general] principles of private international law’ shall apply in the case of a conflict of laws absent any statutory provision. The provision opens the doors for Qatari courts to refer to the Hague Principles.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 36 South Caucasus: South Caucasian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Kupelyants Hayk
Keyword(s):  
International Law ◽  
Civil Code ◽  
Soft Law ◽  
Private International Law ◽  
Legal Systems ◽  
The South ◽  
South Caucasus ◽  
Customary International Law ◽  
The Hague

This chapter explores South Caucasian perspectives on the Hague Principles. The rules of private international law in all three South Caucasian countries—Armenia, Georgia, and Azerbaijan—are primarily contained in statutes: the Chapter of Private International Law in Armenia (1998) and separate statutes on Private International Law in Azerbaijan (2000) and Georgia (1998). Article 1253(1) of the Armenian Civil Code and Article 1(2) of the Azerbaijani Act provides that the courts may apply international customs in the area of private international law. In so far as the Hague Principles amount to or eventually crystallize into customary international law, the courts may give effect to the Hague Principles in that manner. Before that happens, there is nothing in the legal systems of either of the three jurisdictions preventing the courts from citing for explanatory and persuasive reasons soft law instruments, such as the Hague Principles. That said, stylistically the judgments of the South Caucasian jurisdictions are often drafted in a very concise and skeletal manner. Soft law instruments and commentary might influence the reasoning of the judges, but they would rarely refer to them in the text of the judgment.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 15 Mauritius: Mauritian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Cupido Robin
Keyword(s):  
International Law ◽  
Future Development ◽  
Civil Code ◽  
Law Reform ◽  
Private International Law ◽  
Commercial Law ◽  
Conflict Of Laws ◽  
The Past ◽  
The Status ◽  
The Hague

This chapter discusses Mauritian perspectives on the Hague Principles. The Code Civile Mauricien (Mauritian Civil Code) governs most private and commercial law matters and is thus one of the main sources of Mauritian law. Another main source is the Constitution of Mauritius 1968. It is important to note that there is no constitutional imperative for courts to consider international law when interpreting legislation, which could be a contributing factor to the lack of development of a cohesive private international law regime in Mauritius. The Law Reform Commission of Mauritius has thus been reviewing the status of private international law in Mauritius over the past five years and has issued several reports and studies on the matter. The chapter then investigates the extent to which Mauritian private international law already reflects the content of the Hague Principles and how this set of principles could influence the future development of the conflict of laws in Mauritius.

scholarly journals Contract for the international sale of goods: Principle of autonomy of the will of parties within documents of the Hague Conference on Private International Law

2020 ◽  
Vol 11 (4) ◽  
pp. 972-992
Author(s):  
Tatiana V. Novikova ◽  
Keyword(s):  
International Law ◽  
Legal Regulation ◽  
Private International Law ◽  
External Trade ◽  
Wide Range ◽  
The Hague ◽  
The Law ◽  
International Sale Of Goods ◽  
Sensitive Issues ◽  
Autonomy Of Will

The article is devoted to the analysis of legal regulation dealing with choice-of-law agreements by parties to international sale of goods contracts, namely in two documents of the Hague Conference on Private International Law: the Convention of 1955 on the Law Applicable to International Sales of Goods (in force) and the Convention of 1986 on the Law Applicable to Contracts for the International Sale of Goods (not yet in force). The Convention of 1955 sets a strict standard of autonomy of will (choice of a country’s domestic law; based only on the terms of the contract). Having a small number of participants and characterized by inconsistent law enforcement practice, this convention, nevertheless, is a valid legal instrument which Russian actors in the field of external trade should take into account when cooperating with nationals of member states. The Convention of 1986 establishes a substantively more liberal autonomy of will standard (change of the applicable law; demonstrated by the terms of the contract and the conduct of the parties in their entirety). However, many participants in the drafting procedure led to a wide range of views in regard to parties’ autonomy (including diametrically opposite ones). This resulted in a compromise nature of the solutions (and even the drafters’ direct refusal to address parties’ choice sensitive issues: choice of lex mercatoria, depecage) and, likely, an insufficient adoption for the Convention to enter into force. The Conventions’ basic principles (1955 — irrespective of having a few number of participants; 1986 — irrespective of not entering into force) have the potential for practical application in international commercial arbitration. In the case of parties’ autonomy, such an application would be limited to its recognition as far as the standard of the first is strict and somewhat outdated, whereas the standard of the second has been accepted in the framework of discord between states and avoids addressing sensitive issues in its implementation.

Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 62 Panama: Panamanian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Montenegro Carlos Alberto Arrue
Keyword(s):  
Latin America ◽  
International Law ◽  
Civil Code ◽  
Legal Rule ◽  
Legal Authority ◽  
Private International Law ◽  
Binding Effect ◽  
Judicial Decisions ◽  
The Hague ◽  
Correct Application

This chapter studies Panamanian perspectives on the Hague Principles. In relation to obligations and contracts, the Panamanian Civil Code reproduces Book IV, ‘Of Obligations and Contracts’, of the Spanish Civil Code of 1889, but contains a number of important differences in other sections. In terms of sources of law, statutes occupy the most prominent position among sources of law. Consequently, neither interpretations given by Panamanian courts, nor decisions on previous cases, are binding for courts that must then decide on similar cases, even when the same provisions apply. Nevertheless, judicial decisions may, and in fact usually do, serve as an illustration on the correct application or interpretation of a legal rule. It is in this limited context that the Panamanian courts may refer to the Hague Principles and other principles of private international law and/or international contracts. The latter will not have an automatic or binding effect, but they may provide legal authority upon which the court may depend to properly interpret similar provisions of Panamanian private international law, or otherwise develop and complete legal gaps in Panamanian private international 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.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 12 Democratic Republic of the Congo: Congolese Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Monsenepwo Justin
Keyword(s):  
International Law ◽  
Democratic Republic ◽  
Civil Code ◽  
Private International Law ◽  
Choice Of Law ◽  
Conflict Of Laws ◽  
Republic Of The Congo ◽  
The Hague ◽  
Code Book

This chapter highlights Congolese perspectives on the Hague Principles. It first outlines the sources of private international law for international commercial contracts in the Democratic Republic of the Congo. Until July of 2016, Articles 8–15 of the Decree of May 4, 1895 (Title II of the Civil Code Book I) constituted the most relevant national source of private international law. As of January of 2019, there is no plan from the Congolese authorities for the adoption of new conflict of laws provisions after the repeal of Title II of the Congolese Civil Code I. If new rules of private international law were developed and adopted, the Hague Principles could theoretically play an important part in providing the Congolese lawmakers with apt rules on choice of law in international commercial contracts. However, since most Congolese lawmakers, judges, and legal advisors do not know the Hague Principles yet, their use for the development of new statutes is practically unlikely. Hence, it is important to widely diffuse the Hague Principles in the Democratic Republic of the Congo.

Part 2 National and Regional Reports, Part 2.1 Africa: Coordinated by Jan L Neels and Eesa A Fredericks, 13 Egypt: Egyptian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Ibrahim Badr Yehya Ikram
Keyword(s):  
International Law ◽  
Civil Code ◽  
Private International Law ◽  
Conflict Of Laws ◽  
Party Autonomy ◽  
Applicable Law ◽  
Transfer Of Technology ◽  
The Hague ◽  
Egyptian Government ◽  
Made In

This chapter presents Egyptian perspectives on the Hague Principles. The Egyptian private international law rules for international commercial contracts are found mainly in the Egyptian Civil Code no 131/1948 and the Egyptian Arbitration Code no 27/1994. Egyptian private international law, in general, accepts party autonomy as a private international law rule for determining the applicable law to international contracts. However, the Egyptian legislature has decided to exclude certain contracts, such as contracts for the transfer of technology and commercial agency, from the private international law rule in respect of party autonomy. To date, the Egyptian government has not expressed any plans to revise Egyptian private international law, despite some Egyptian scholars believing that the Egyptian conflicts rules are outdated and in desperate need of being replaced with more modern rules in this regard. Nonetheless, Article 24 of the Egyptian Civil Code allows the Egyptian Courts to resort to ‘[t]he principles of private international law [which] apply in the case of conflict of laws for which no provision is made in the preceding articles’. In principle, the courts are therefore allowed to refer to the Hague Principles to supplement either Article 19 of the Egyptian Civil Code or Article 39 of the Egyptian Arbitration Code.

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