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 2.1 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 2.1 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.

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, 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 2.2 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 2.4 Europe: Coordinated by Thomas Kadner Graziano, 50 Ukraine: Ukrainian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Vorobey Dmytro
Keyword(s):  
International Law ◽  
Contract Law ◽  
Legal Order ◽  
Private International Law ◽  
Choice Of Law ◽  
Rome Convention ◽  
Recognition And Enforcement ◽  
The Hague ◽  
The Law ◽  
Contractual Obligations

This chapter studies Ukrainian perspectives on the Hague Principles. Ukrainian private international law act, or formally the ‘Law of Ukraine “On Private International Law” ’ (PIL), was adopted on June 23, 2005. As per the Preamble to the PIL, it applies to ‘private [legal] relationships which are connected to one or more legal orders other than the Ukrainian legal order’. According to Article 2 of the PIL, it applies to matters of choice of law, procedural standing of foreign citizens, stateless persons and foreign legal entities, jurisdiction of Ukrainian courts in cases involving foreign parties, execution of letters rogatory, and recognition and enforcement of foreign court judgements in Ukraine. The Ukrainian private international law and specifically the PIL were influenced by the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Although, considering the relative novelty of the Hague Principles, the authority of the courts to refer to the Hague Principles has not been addressed by the higher Ukrainian courts, the courts have frequently referred to the international codifications of contract law such as the UNIDROIT Principles of International Commercial Contracts.

scholarly journals “Judicial Convention” as a New Stage in the Recognition and Enforcement of Foreign Judgments

Lex Russica ◽  
2019 ◽  
pp. 84-103
Author(s):  
O. F. Zasemkova
Keyword(s):  
International Law ◽  
Private International Law ◽  
International Treaties ◽  
Draft Convention ◽  
The Usa ◽  
Recognition And Enforcement ◽  
The Russian Federation ◽  
The Hague ◽  
The Impact ◽  
The Eu

In May 2018, at the 4th and final meeting of the Special Commission of the Hague Conference on Private International Law, the draft Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters that had been developed since 1992 was represented. It is expected that after the Diplomatic Session that will be held in the mid-2019 the draft will be finalized and the Convention will be adopted and opened for signature.In this regard, the article attempts to analyze the main provisions of the draft Convention and assess the appropriateness for the Russian Federation to access it, taking into account the fact that Russia has a limited number of international treaties permitting recognition and enforcement of foreign judgments in Russia and decisions of Russian courts abroad. Based on the results of the analysis, the author concludes that the adoption of this Convention will provide for a simple and effective basis for the recognition and enforcement of foreign judgments eligible for States with different legal, social and economic circumstances. This, in turn, will increase the practical value of court decisions ensuring the most comprehensive protection of the rights and interests of the party in whose favour the decision has been made and, as a consequence, will contribute to the attractiveness of this method of dispute resolution for parties involved in cross-border private law relations.However, the mixed attitudes of the EU and the USA to the Draft Convention raises the question of their accession to the future Convention and may significantly reduce the impact of the adoption of the document under consideration.

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 2.2 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 2.1 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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