Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 56 Brazil: Brazilian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Gama Lauro ◽  
Tiburcio Carmen ◽  
Albuquerque Felipe
Keyword(s):  
International Law ◽  
Law Reform ◽  
Private International Law ◽  
Party Autonomy ◽  
Article 9 ◽  
Legislative Proposals ◽  
Rules And Principles ◽  
Legislative Initiative ◽  
The Hague ◽  
The 1960S

This chapter evaluates Brazilian perspectives on the Hague Principles. Despite the proposition of several bills in the 1960s, no legislative initiative to modernize the Brazilian private international law has succeeded so far. The most recent legislative proposals have focused on modifying Article 9 of the Law of Introduction to the Norms of Brazilian Law (LINDB) rather than the whole system. One of these proposals, pending before the Senate, amends the Brazilian Code of Consumer Protection and updates and expands the contents of Article 9 LINDB. This bill incorporates several provisions of the Hague Principles; it states the basic principle of party autonomy and authorizes choice of law in respect of international contracts (B2B transactions). As Brazil still waits for law reform, the Hague Principles may be relevant as persuasive authority before the Brazilian courts. In this sense, the Hague Principles may be used in the interpretation, supplementation, and development of the applicable rules and principles of Brazilian private international law.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 25 Indonesia: Indonesian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Lumbantobing John ◽  
Hardjowahono Bayu Seto
Keyword(s):  
International Law ◽  
Court Decisions ◽  
Private International Law ◽  
Sovereign State ◽  
Party Autonomy ◽  
Legal Questions ◽  
Rules And Principles ◽  
The Hague ◽  
Foreign Materials ◽  
International Instruments

This chapter highlights Indonesian perspectives on the Hague Principles. Generally speaking, private international law (PIL) in Indonesia is not an area of law where statutory rules have developed in a comprehensive and systematic manner. Rules on many aspects of private international law, including the freedom of choice of law, remain very rudimentary and do not address sufficiently complicated legal questions surrounding modern commercial transactions. The chapter then analyses Indonesian PIL doctrines and court decisions on party autonomy in contracts. It is uncertain whether and how far the Hague Principles can be accepted as a persuasive authority in the interpretation, supplementation, and/or development of the applicable rules and principles of private international law before the Indonesian courts. In principle, there is no restriction for the courts to refer to international instruments as sources of inspiration for interpreting or filling gaps of existing rules. However, Indonesian courts are infamously insular and are not receptive to foreign materials, particularly ‘soft law’ resources which are not part of national laws of a sovereign state.

Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 20 Bahrain: Bahraini Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Elbalti Béligh ◽  
Shaaban Hosam Osama
Keyword(s):  
International Law ◽  
Private International Law ◽  
General Application ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Knowing That ◽  
Domestic Legislation ◽  
Rules And Principles ◽  
General Article ◽  
The Hague

This chapter assesses Bahraini perspectives on the Hague Principles. In Bahrain, private international law rules are mainly found in domestic legislation. The main legislative text in this regard is the Act No 6/2015 on Conflict of Law in Civil and Commercial Matters involving a Foreign Element (the 2015 Act). The Act includes a number of rules of general application, among which is Article 4 on party autonomy in addition to some other rules relating to choice of law in contractual matters in general (Article 17) or applicable to special types of contracts and other juristic acts. It can be safely said that nothing in principle prevents the Bahraini courts from referring to the Hague Principles as a persuasive authority nor from using its solutions in the interpretation or the development of the applicable rules and principles of private international law in Bahrain. This is particularly true knowing that many of the solutions adopted by the 2015 Act are particularly consistent with the Hague Principles’ solutions.

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, 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.

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 2.4 Europe: Coordinated by Thomas Kadner Graziano, 46 Norway: Norwegian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Cordero-Moss Giuditta
Keyword(s):  
International Law ◽  
Public Consultation ◽  
Soft Law ◽  
Private International Law ◽  
Party Autonomy ◽  
The Hague ◽  
The Law ◽  
Rome I ◽  
The Eu

This chapter assesses Norwegian perspectives on the Hague Principles. To understand the significance in Norway of the Hague Principles, it is necessary to explain the Norwegian system of private international law and its sources. Historically, conflict rules in Norway were not codified. Nowadays, private international law, at least as far as civil obligations are concerned, is undergoing a process of codification. A proposal for a statute on the law applicable to obligations has been released for public consultation, which has been concluded, and the Ministry is expected to draft a Proposition on that basis. The proposal is largely based on the EU regulations Rome I and Rome II. The Norwegian system of private international law may therefore be said to have turned into a system that is de facto parallel to EU Private International Law. Should the proposed statute be enacted, the system will also formally, albeit unilaterally, be parallel to Rome I and Rome II. Generally, therefore, it can be assumed that conflict rules will coincide with the rules contained in Rome I. In such a picture, the role that the Hague Principles may play for the Norwegian regime of party autonomy is quite restricted, as Norwegian courts generally use sources of soft law as a corroboration of Norwegian law, but not as a correction.

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’.

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 2.5 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.

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