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" The Law Applicable to International Commercial Contracts : "
Harneker, Zaida
Neels, J L
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Latin Dissertation
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| Language of Document
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English
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| Record Number
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1110475
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| Doc. No
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TLpq2486137386
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| Main Entry
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Harneker, Zaida
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Neels, J L
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| Title & Author
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The Law Applicable to International Commercial Contracts :\ Harneker, ZaidaNeels, J L
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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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29
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| Abstract
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This mini-dissertation is a comparative study on the law applicable to international commercial contracts between the Rome I Regulation and Indian private international law. The governing / applicable law is that legal system or set of rules that governs the contract. Note: in civil law jurisdictions the governing law of a contract is referred to as ‘the applicable law’; and in common law jurisdictions the governing law of a contract is referred to as ‘the proper law of a contract’. In the case of Amin Rasheed Shipping Corporation v Kuwait 1983 AC 50 (HL), Lord Diplock remarked that contracts would not have legal effect and would accordingly only amount to a piece of paper if it were not concluded with reference to a particular system of private law. The rationale for this is that a particular system of law is required as it is what would define the parties’ obligations under the contract; and furthermore, would also provide the relevant remedies that are available should there be a failure to perform in terms of the relevant contract. Every country / state / jurisdiction has its own set of rules or methodology in terms of which the applicable law is determined. This methodology or set of rules is also known as ‘conflict of law’ rules. In some countries / states / jurisdictions, the set of rules is codified in a statute, for example, the conflict of law rules relating to the European Union (EU) is contained in the Rome I Regulation. In other countries / states / jurisdictions, the set of rules can be ascertained from academic sources or compilations, for example, the Restatement (Second) of Contracts; or the set of rules can be ascertained from case law, for example, in Indian private international law. Most countries / states / jurisdictions afford the parties the right to choose the applicable law to the contract in the first instance. This is known as the principle of party autonomy; party autonomy is now an established principle in most jurisdictions. However, the private international law rules vary in respect of how far this right stretches. For example, the rules of private international law of a jurisdiction could dictate that the principle of party autonomy is unlimited. In such an instance the parties can choose a foreign law to govern their contract, even where a connection to such foreign law is absent. Article 3(1) of the Rome I Regulation provides the parties with the freedom to choose a law to govern their contract; such freedom is not restricted to a legal system that is connected to the contract or the parties. Yet, in other jurisdictions where the principle of party autonomy is applicable, the freedom of choice could be restricted to a choice of law that is connected to the relevant contractual obligation. In the event that the parties do not exercise their right to choose the governing law of the contract, or in the event that this right is not afforded to the parties in the first place, then the other relevant conflict rules must be investigated to determine the applicable law. Section 2 of this mini-dissertation will address the history of colonisation in India by the British and explain how it is that India still applies the common law system, despite its independence since 1947. The conflict of law rules in India, which can be found in case law, will be investigated. The role that the Hague Principles can play in respect of choice of law in an international commercial contract in relation to India will also be discussed. Section 3 will investigate the conflict of law rules relevant to the EU, which is codified in terms of the Rome I Regulation. The history of the Rome I Regulation will be addressed briefly. The development of choice of law in international commercial contracts in the UK’s private international law will be briefly mentioned as it is (historically) linked to the conflict of law rules in India. Section 4 will compare some of the conflict of law rules between the Rome I Regulation, Indian private international law and the Hague Principles. Section 5 will provide very brief concluding remarks in relation to the findings contained in the comparison section.
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International law
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International relations
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Law
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