Part 2 National and Regional Reports, Part 2.6 North America: Coordinated by Geneviève Saumier, 68 United States of America: American Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Symeonides Symeon C ◽  
Cohen Neil B
Keyword(s):  
Common Law ◽  
State Level ◽  
Active Role ◽  
Choice Of Law ◽  
Party Autonomy ◽  
Commercial Code ◽  
State Statutes ◽  
American Law ◽  
The Common ◽  
The Hague

This chapter focuses on American perspectives on the Hague Principles. At the state level, Louisiana and Oregon have enacted comprehensive choice of law codifications, which strongly endorse party autonomy. Many other states have enacted statutory provisions that affect party autonomy. At one end of the spectrum, there are provisions that prohibit or restrict outbound choice of law clauses in certain contracts that have enumerated contacts with the enacting state. At the other end of the spectrum, there are statutes designed to ensure enforcement of inbound choice of law clauses in certain commercial contracts with high-dollar value, even in the absence of any connection with the enacting state. Despite the multiplicity of state statutes, many of which pre-empt a judicial choice of law or obviate the need for it, the bulk of American conflicts law for matters other than those governed by the Uniform Commercial Code is found in judicial decisions. In keeping with the common law tradition, American courts play an active role in the development of the law, both in general and regarding party autonomy in particular. One hopes that American courts will take into account the Hague Principles, if only for answering those questions, as few as they may be, whose answer is unclear under American law.

scholarly journals The Common Law Choice of Law Rules for Resulting and Constructive Trusts

2005 ◽  
Vol 54 (4) ◽  
pp. 855-883 ◽  
Author(s):  
Adeline Chong
Keyword(s):  
Common Law ◽  
Hague Convention ◽  
Choice Of Law ◽  
Foreign Law ◽  
The Common ◽  
The Hague ◽  
English Law ◽  
The Law ◽  
The Hague Convention ◽  
Rules Set

There is a dearth of authority and in-depth discussion concerning what the choice of law rules are for claims involving the assertion that property is held on a resulting or constructive trust. It is usually thought that the choice of law rules set out by the Hague Convention on the Law Applicable to Trusts and on their Recognition (hereafter the ‘Hague Trusts Convention’), as enacted into English law by the Recognition of Trusts Act 1987, apply. However, it is arguable that this is not so for some types of resulting and constructive trusts, namely those governed by a foreign law; or, at the very least, that some doubt exists as to whether the Hague choice of lawrules apply to all resulting and constructive trusts. It is therefore important that the common law choice of law rules for such trusts is clearly elucidated. Unfortunately, this is an area of the law that is distinctly undeveloped. The aim of this article is to consider what are or should be the common law choice of law rules for resulting and constructive trusts.

scholarly journals The Contractual Principle of Good Faith and the Duty of Honesty in Bhasin v. Hrynew

2015 ◽  
Author(s):  
Shannon O'Byrne ◽  
Ronnie Cohen
Keyword(s):  
Supreme Court ◽  
Common Law ◽  
Good Faith ◽  
Contracting Out ◽  
Commercial Code ◽  
The Supreme Court ◽  
American Law ◽  
The Common

This article explores the Supreme Court of Canada’s 2014 decision in Bhasin v. Hrynew. This includes an assessment of the new duty of honesty in contractual performance and the newly identified organizing principle of good faith. The authors also discuss contracting out of the duty of honesty — which Bhasin itself raises as a possibility — by assessing both Canadian and American law on point, including the Uniform Commercial Code. The article concludes that Bhasin’s largest and most lasting contribution is likely in how it expressly legitimates and defends the role of good faith in the common law of contract.

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 2.3 Australasia: Coordinated by Brooke Marshall, 41 Australia: Australian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Marshall Brooke
Keyword(s):  
Common Law ◽  
Medium Term ◽  
Modal Choice ◽  
Choice Of Law ◽  
Scope Of Application ◽  
The Common ◽  
The Hague ◽  
The Law

This chapter analyses the common law choice-of-law rules that determine the law applicable to international and intra-national commercial contracts in Australia. It compares those rules with the Hague Principles and evaluates the extent to which the Principles offer an improvement. The chapter demonstrates that Australia’s core choice-of-law rule for contract, which gives effect to the parties’ choices, is well-established. However, its ‘modal choice of law rules’ and rules that determine the scope of application of the chosen law are incomplete and, in several respects, ambiguous. Adoption of the Principles’ approach to assignment and renvoi, in particular, would redress significant uncertainties in the current law. The Australian Commonwealth government’s 2016 proposal to implement the Principles, via legislation, has since stagnated. It follows that incremental judicial development of the common law, by reference to some of the Principles’ solutions, is the most realistic prospect in the medium term.

Rediscovering Blackstone: wpływ Williama Blackstone’a na rozwój amerykańskiej nauki prawa w recepcji Alberta W. Alschulera

2017 ◽  
Vol 15 (2) ◽  
pp. 175-185
Author(s):  
Edyta Sokalska
Keyword(s):  
United States ◽  
18Th Century ◽  
Common Law ◽  
The United States ◽  
Law School ◽  
Large Measure ◽  
American Colonies ◽  
Late 18Th Century ◽  
American Law ◽  
The Common

The reception of common law in the United States was stimulated by a very popular and influential treatise Commentaries on the Laws of England by Sir William Blackstone, published in the late 18th century. The work of Blackstone strengthened the continued reception of the common law from the American colonies into the constituent states. Because of the large measure of sovereignty of the states, common law had not exactly developed in the same way in every state. Despite the fact that a single common law was originally exported from England to America, a great variety of factors had led to the development of different common law rules in different states. Albert W. Alschuler from University of Chicago Law School is one of the contemporary American professors of law. The part of his works can be assumed as academic historical-legal narrations, especially those concerning Blackstone: Rediscovering Blackstone and Sir William Blackstone and the Shaping of American Law. Alschuler argues that Blackstone’s Commentaries inspired the evolution of American and British law. He introduces not only the profile of William Blackstone, but also examines to which extent the concepts of Blackstone have become the basis for the development of the American legal thought.

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.

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