scholarly journals PILIHAN HUKUM DALAM THE HAGUE PRINCIPLES 2015 [Choice of Law in the Hague Principles 2015]

Law Review ◽  
2021 ◽  
pp. 360
Author(s):  
Priskila Pratita Penasthika
Keyword(s):  
Twentieth Century ◽  
International Law ◽  
First Century ◽  
Private International Law ◽  
Choice Of Law ◽  
The Hague ◽  
Twenty First Century ◽  
Bahasa Indonesia

<div class="WordSection1"><p><em>This article aims to introduce The Hague Principles 2015 to the discourses of choice of law and private international law in Indonesia. Various attempts to harmonize choice of law have been undertaken since the second half of the twentieth century. Those attempts remain to continue to the twenty-first century and are marked, among others, by the issuance of The Hague Principles 2015. This harmonization instrument has been drawing attention and debates due to its nature as a non-binding instrument, and some novel provisions it introduces that have never been explicitly addressed in the previous harmonization instruments on choice of law.</em></p><p><strong><em>Bahasa Indonesia Abstrak: </em></strong>Tulisan ini bertujuan untuk memperkenalkan The Hague Principles 2015 dalam diskusi-diskusi mengenai pilihan hukum dan hukum perdata internasional di Indonesia. Sejak paruh kedua abad ke-20 telah dimulai berbagai usaha untuk mengharmonisasi aturan-aturan mengenai pilihan hukum dalam kontrak. Usaha ini terus berlanjut di abad ke-21 dan ditandai salah satunya dengan terbitnya The Hague Principles 2015. Instrumen harmonisasi ini mengundang banyak perhatian dan perdebatan karena sifatnya sebagai sebuah instrumen yang tidak mengikat, dan beberapa ketentuan di dalamnya yang belum pernah diatur secara tegas dalam instrumen-instrumen harmonisasi mengenai pilihan hukum sebelumnya.</p></div>

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 2.4 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, 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.

Judicial and Legislative Jurisdiction in the Hague Conventions on Private International Law

1993 ◽  
Vol 27 (3) ◽  
pp. 460-486
Author(s):  
Celia Wasserstein Fassberg
Keyword(s):  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
The Past ◽  
The Hague

The aim of the Hague Conference on Private International Law is to work towards international unification of the rules in this area. Its hundred years of activity, and particularly the past forty years, have been devoted to producing conventions unifying the rules of law in the three central issues of private international law: jurisdiction, choice-of-law, and the enforcement and recognition of foreign judgments. These three distinct issues correspond to three distinct stages of litigation. The rules of jurisdiction answer the question, which state's courts have jurisdiction to decide a case or, from the perspective of any given state: does its courts have jurisdiction over the case? Choice-of-law rules, in contrast, answer the question, which law should govern the case, irrespective of where it is being adjudicated? Finally, the rules relating to foreign judgments define the terms on which a decision given in one state will be recognised and enforced in another.

scholarly journals Part 1 General and Special Reports, 1 General Comparative Report: Global Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Girsberger Daniel ◽  
Graziano Thomas Kadner ◽  
Neels Jan L
Keyword(s):  
International Law ◽  
The State ◽  
Soft Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Global Perspectives ◽  
Party Choice ◽  
The Hague ◽  
The Law

This chapter presents the General Comparative Report, which addresses, article by article, the Hague (or HCCH) Principles on Choice of Law in International Commercial Contracts of 2015 (the Hague Principles). The General Comparative Report compares the Hague Principles with the state of the law in over sixty jurisdictions worldwide and with supranational rules and soft law principles. It aims to encourage legislators, courts, practitioners, and academics to further develop their domestic private international law systems and possibly benefit hereby from the Hague Principles by consistently and adequately applying, interpreting, and amending domestic, supranational, and regional private international law (PIL) in the context of party choice of law. The chapter then details the structure of the Report and the questionnaire used to address the issues covered by the Hague Principles. It also provides an introduction and a comparative overview of each of the Articles of the Hague Principles.

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, 44 Iceland: Icelandic Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Þorláksson Eiríkur Elís
Keyword(s):  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Recognition And Enforcement ◽  
The Hague ◽  
The Law ◽  
The Republic ◽  
Contractual Obligations

This chapter focuses on Icelandic perspectives on the Hague Principles. The constitution of the Republic of Iceland does not contain any provisions on the principles of private international law. Moreover, there is no general act on private international law in force in Iceland. However, legislation on specific aspects of private international law, such as conflicts of the laws of contract and recognition and enforcement of foreign decisions, can be found in Icelandic law. Moreover, individual provisions on recognition and enforcement, jurisdiction, and choice of law can be found throughout Icelandic legislation. The legislative act which applies to contractual obligations in the field of private international law in Iceland is Act No 43/2000 on the law applicable to contractual obligations. There are no other acts that explicitly aim to address choice of law issues other than Act No 43/2000, but individual provisions can be found indicating the choice of law in specific areas of law; otherwise, Icelandic courts will apply general principles to the case at hand. There is currently no revision of Act No 43/2000 under discussion in Iceland.

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 2.2 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’.

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