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" Choice of Law in International Commercial Contracts in the BRICS Countries "
Agbeko, Fafa Delight
Bouwers, G
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Latin Dissertation
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English
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| Record Number
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1110405
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TLpq2485541550
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| Main Entry
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Agbeko, Fafa Delight
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Bouwers, G
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| Title & Author
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Choice of Law in International Commercial Contracts in the BRICS Countries\ Agbeko, Fafa DelightBouwers, G
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| College
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University of Johannesburg (South Africa)
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| Date
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2019
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| student score
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2019
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| Degree
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LL.M.
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| Page No
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28
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| Abstract
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Formed in 2010, BRICS is an acronym for the economic bloc comprising Brazil, Russia, India, China and South Africa.1 Its predecessor was the BRIC group, comprising Brazil, Russia, India and China. The original BRIC organisation was birthed in 2001, as part of an economic modelling exercise undertaken by Goldman Sachs to forecast global economic trends. Goldman Sachs former chairperson Jim O’Neil, in the course of that modelling exercise, coined the “BRIC” acronym and predicted that the BRIC countries would overtake the United States of America and other G-7 countries in the near future. In 2010, the BRIC group agreed to invite South Africa to join the organisation and on 14 April 2011, South Africa attended the first joint summit, which saw BRIC formally evolve into BRICS. The BRICS organisation is regarded as a coalition of leading emerging nations who are dominating the international stage for both economic and political reasons. The BRICS countries occupy over 25% of the world’s total land coverage, account for 40% of the world’s population and hold a combined GDP of approximately 20 trillion dollars. They also account for at least 15% of world trade and two-fifths of the world’s foreign currency reserves. The principles that underpin BRICS are captured in the declarations of the Heads of State Summit and summarized in the Five Pillars of the BRICS Long Term Strategy endorsed by the Heads of State in a summit at Fortaleza (Brazil) in July 2014. One of these pillars is the need for economic cooperation. In addition, BRICS has also established a Business Council whose objectives include the promotion and strengthening of business, trade and investment ties amongst the business communities of the five BRICS countries. It goes without saying that the BRICS group is desirous of achieving greater cooperation in the area of commerce. Aspects relating to the contract are undoubtedly at the heart of all commerce. Goods and services are supplied pursuant to the terms of the contract made between businesspersons. Irrespective of the nature of the transaction in international commerce, the fundamental question as to the validity, interpretation, enforceability and effectiveness of the contract entered into is: what law governs the contract? As Lord Diplock succinctly put it in Amin Rasheed Shipping Corporation v Kuwait Insurance Company, “contracts are incapable of existing in a legal vacuum. They are mere pieces of paper devoid of all legal effect unless they were made by reference to some system of private law which defines the obligations assumed by the parties to the contract by their use of particular forms of words and prescribes the remedies enforceable in a court of justice for failure to perform any of those obligations." The current author is of the opinion that the much-desired objectives of economic trade and commercial cooperation can best be achieved with greater harmonisation in international commercial law. The field of international commercial law encompasses private international law (or the conflict of laws), which is the first point of departure in resolving multistate disputes. This study concerns itself with a subset of private international law called “choice of law”. According to Symeonides: “Choice of law is a subdivision of ‘Conflict of Laws’ – namely, that branch of law that aspires to provide solutions to multistate legal disputes between persons or entities (other than states).” It refers specifically to the method or process by which one determines which State’s law will/should govern a multistate dispute. The aim of this paper is to illustrate and assess how the various BRICS countries handle the “choice of law” question in commercial litigation i.e. whether they allow for party autonomy; if they do, in what manner may the parties express their choice and what limitations (if any) apply to the parties’ choice of law. In order to present a holistic view of the choice of law question, the paper shall also briefly discuss the approach adopted by each of these countries in determining the applicable law in the absence of choice. Finally, a comparison shall be made between the various countries to ascertain areas where harmonization is necessary.
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Economic theory
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Economics
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International law
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International relations
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