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 2.1 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.

scholarly journals Party autonomy and the law applicable to the matrimonial property regimes in Europe = La autonomía de la voluntad y la ley aplicable a los regímenes matrimoniales en Europa

2018 ◽  
Vol 10 (2) ◽  
pp. 579
Author(s):  
Elena Alina Oprea
Keyword(s):  
International Law ◽  
Legal System ◽  
System Change ◽  
Hague Convention ◽  
Private International Law ◽  
Party Autonomy ◽  
Eu Regulation ◽  
The Law ◽  
Property Regimes ◽  
The Eu

 Abstract: In a private international law context reflecting significant divergences between the ob­jective choice-of-law rules for matrimonial property regimes, the principle of party autonomy appears as a salutary solution, bringing certainty, predictability and simplicity, while satisfying also the spouses’ substantial interests. The study focuses on the rules devoted to this principle by the European legislator in the (EU) Regulation no 2016/1103, attempting to outline its regime and insisting, particularly, on its admissibility and on the limitations that accompany its practical exercise. Providing a sufficient fra­mework for discussion and helping to illustrate the implications of the European text, the rules of the Romanian Civil Code and of the 1978 Hague Convention on the law applicable to matrimonial property regimes will serve as a benchmark.Keywords: matrimonial property regimes, EU Regulation no 2016/1103, autonomy of will, electio juris agreements, states with more than one legal system, change of the applicable law.Resumen: En un contexto de derecho internacional privado que refleja divergencias significativas entre las reglas objetivas de elección de los regímenes matrimoniales, el principio de autonomía de las partes aparece como una solución saludable, aportando certeza, previsibilidad y simplicidad, al tiempo que satisface también los intereses sustanciales de los cónyuges. El estudio se centra en las normas dedicadas a este principio por el legislador europeo en el Reglamento (UE) n. ° 2016/1103, que intenta delinear su régimen e insistir, en particular, en su admisibilidad y en las limitaciones que acompañan a su ejercicio práctico. Proporcionar un marco suficiente para el debate y ayudar a ilustrar las implicaciones del texto europeo, las normas del Código Civil rumano y del Convenio de La Haya de 1978 sobre la ley aplicable a los regímenes matrimoniales de propiedad servirán como punto de referencia.Palabras clave: regímenes económicos matrimoniales, Reglamento (UE) no 2016/1103, auto­nomía de la voluntad, acuerdo de elección de la ley aplicable, estados con diversos regímenes jurídicos, cambio de la ley aplicable.

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 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, 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.

The new Uruguayan private international law: an open door to party autonomy in international contracts

2021 ◽  
Author(s):  
Eduardo Florio de León
Keyword(s):  
International Law ◽  
General Analysis ◽  
Private International Law ◽  
State Law ◽  
Open Door ◽  
Commercial Law ◽  
Party Autonomy ◽  
Applicable Law ◽  
General Law ◽  
Contractual Obligations

Abstract On 17 November 2020, the General Law on Private International Law (Law 19.920) was approved. This Law resulted from a process of hard work that took over two decades of discussions and debates.1 With this Law, Uruguay becomes one of a group of countries that have already carried out this kind of reform, particularly in regard to international commercial law and international contracts. The new Law 19.920 allows parties to choose the applicable law (State or non-State law) to regulate their international contractual obligations. This reform has a real disruptive imprint since Uruguay leaves behind its old and anachronistic regulation of the matter. This article provides a general analysis of the regulation of international commercial law under Law 19.920 (Articles 13 and 51) and the new regime applicable to international contracts, including the parties’ right to choose the applicable law (Article 45) (State or non-State law), which increases their autonomy in comparison with the previous regime.

scholarly journals PARTICULAR FEATURES OF CONTRACTUAL INHERITANCE OF LEGAL CLAIMS AND OTHER LIABILITIES

2016 ◽  
pp. 0-0
Author(s):  
Эдвард Пилипсон ◽  
Edvard Pilipson
Keyword(s):  
International Law ◽  
Subject Matter ◽  
Practical Problem ◽  
Correct Choice ◽  
Private International Law ◽  
Legal Regime ◽  
Applicable Law ◽  
The Subject ◽  
The Right ◽  
The Cost

Contractual succession of legal claims and liabilities in administering rules of private international law is a quite complicated practical problem. The correct choice of the applicable law is the priority in this situation. As of today inheritance of movables, including claims, liabilities takes place according to the connecting factors’ rules “lex patriae” and “lex domicilii” which according to the offered assumption, are not adequate in a situation of the inheritance by contract. It is worth mentioning that in some cases the right to claim, liability acquires legal regime called “res in transitu” which requires special succession regime. Secondly, it is necessary to evaluate the subject matter of the contract. Inheritance by contract is mediated by the tools of the contractual right which is based on the concluded contract with the cross material perquisites evaluated in a certain sum. Due to this circumstance the assessment should be accepted as a basis for the contract price. Since in accordance with the current legislation the assessment can be made solely in relation to a constant liability (for example, in the situation with a contract of purchase), in case of a contractual inheritance of legal claims (cession), it is not clear how provisional assessment can be made, as the cost of liabilities can change drastically depending on circumstances in the course of a certain period of time. This article is devoted to the investigation of these problems.

Part 1 General and Special Reports, 4 HCCH: Roadmap for the Promotion of the HCCH Principles, with a Focus on the Role of International Organizations

2021 ◽  
Author(s):  
Ribeiro-Bidaoui João
Keyword(s):  
International Trade ◽  
International Organizations ◽  
Private International Law ◽  
Model Choice ◽  
Legal Certainty ◽  
Choice Of Law ◽  
Intergovernmental Organization ◽  
Party Autonomy ◽  
The Hague

This chapter focuses on the Hague Conference on Private International Law (HCCH), a global intergovernmental organization which develops and services multilateral legal instruments, in response to global needs. The HCCH Principles affirm party autonomy as a basis for the choice of law in international contracts and strengthen legal certainty and predictability in cross-border commercial transactions. They are important to easing reform and harmonization initiatives concerning the rules applicable to international trade, and they operate as both a model choice of law regime and as a guide to ‘best practices’ in establishing and refining such a regime. The chapter considers the use of the HCCH Principles to date and foreshadows their potential uses in the future. It reviews the envisaged use of the Principles by legislators at national and international levels, international organizations, courts, arbitral tribunals, the commercial parties, and their legal counsel. The chapter then outlines the parties to whom the Principles may be promoted in a manner consistent with the Preamble and identifies specific means for promotion.

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.

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