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, 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, 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.

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, 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.

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 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 2.1 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.

Part VI The Law of Property, 38 Trusts

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Public Policy ◽  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Mandatory Rules ◽  
The Hague ◽  
The Law ◽  
Definition Of ◽  
The Uk

This chapter examines the private international law rules governing trusts which are laid down in the Recognition of Trusts Act 1987 and its scheduled Convention. The Recognition of Trusts Act was passed in 1987 to enable the UK to give effect to the Convention, formally concluded in 1985 by the Hague Conference on Private International Law, on the Law Applicable to Trusts and on their Recognition. The chapter begins with a discussion of some preliminary issues, such as the definition of a trust, types of trust that fall within the 1987 Act, validity of the instrument of creation of the trust, and transfer of trust assets. It then considers the specific rules governing choice of law and the recognition of trusts, along with mandatory rules and public policy. It also looks at the variation of trusts and marriage settlements, citing the relevant provisions of the Variation of Trusts Act 1958.

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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