Part 2 National and Regional Reports, Part 2.5 Latin America: Coordinated by Lauro Gama and José Antonio Moreno Rodríguez, 55 Bolivia: Bolivian Perspectives on the Hague Principles

2021 ◽  
Author(s):  
Schütt José Manuel Canelas
Keyword(s):  
Public Policy ◽  
Legal Reform ◽  
Contract Law ◽  
Party Autonomy ◽  
Legal Provisions ◽  
Legal Precedent ◽  
Mandatory Rules ◽  
Specific Rule ◽  
The Hague ◽  
Effective Use

This chapter examines Bolivian perspectives on the Hague Principles. Bolivia has few legal provisions and little meaningful legal precedent referring to international commercial contracts and choice of law. Nevertheless, Bolivia’s legal system recognizes the importance of party autonomy, custom, usage, equity, and even culture in contract law. In that sense, the Hague Principles may be useful in a variety of ways, such as supplementing or re-interpreting national laws, as guidance for legal reform, or as incorporated by reference into a contract. The existing legal vacuums in Bolivian law may at times offer even broader opportunities for their use than in other jurisdictions where the law is more developed. The Hague Principles could be applied by courts and arbitral tribunals as a subsidiary source of law, either in cases where there is no specific rule applicable to the matter at hand or in cases where the Hague Principles would be helpful to interpret the applicable conflict rule. The application of the Hague Principles cannot contradict Bolivia’s mandatory rules or public policy. For an effective use of the Hague Principles, it should be noted how these are in line with constitutional principles, particularly party autonomy.

Part I General Principles, 2 The Conflict of Laws in Commercial Transactions

2015 ◽  
Keyword(s):  
Private International Law ◽  
Commercial Law ◽  
Conflict Of Laws ◽  
Party Autonomy ◽  
Mandatory Rules ◽  
Uniform Law ◽  
The Hague ◽  
Substantive Law ◽  
The Relationship ◽  
Domestic Law

Chapter 2 examines the relationship between transnational commercial law (in the sense of harmonised substantive law) and that body of rules determining the applicable domestic law in the absence of any such ‘uniform law’. The conflict-of-laws rules, too, are either national (be it codified, be it judge-made or common law) or transnational, such as the relevant EU Regulations or conventions prepared, for example, under the auspices of the Hague Conference on Private International Law or CIDIP, the specialized body of the Organization of American States. The chapter discusses the most important connecting factors (party autonomy, characteristic performance, lex situs, etc) as well as general concepts, such as ‘public policy’, ‘internationally mandatory rules’, etc. Finally, it addresses the question whether with the increasing numbers of ‘uniform’ law instruments the conflict of laws may ever become superfluous.

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 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 21 China (Mainland): Chinese Perspectives on the Hague Principles

2021 ◽  
Author(s):  
He Qisheng
Keyword(s):  
International Law ◽  
Mainland China ◽  
Contract Law ◽  
Private International Law ◽  
Party Autonomy ◽  
Republic Of China ◽  
The Hague ◽  
The Law ◽  
China Mainland ◽  
Article 5

This chapter addresses Chinese perspectives on the Hague Principles. The modern legislation of private international law in China began with the establishment of choice of law in contracts. The first statute enacting private international law rules was the Foreign Economic Contract Law of 1985. Article 5 of the Law stipulated that the parties to a contract may choose the law applicable to the contract dispute. Since the promulgation of the Foreign Economic Contract Law, party autonomy and the closest connection doctrine have been two major approaches in determining the law applicable to a contract dispute. In 2010, the National People’s Congress of China promulgated a new private international law: the Law of the People’s Republic of China (PRC) on Application of Law for Foreign-Related Civil Relationships. The chapter then compares the current position of private international law of contract in Mainland China with the Hague Principles.

Part VI The Law of Property, 38 Trusts

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Public Policy ◽  
International Law ◽  
Private International Law ◽  
Choice Of Law ◽  
Mandatory Rules ◽  
The Hague ◽  
The Law ◽  
Definition Of ◽  
The Uk

This chapter examines the private international law rules governing trusts which are laid down in the Recognition of Trusts Act 1987 and its scheduled Convention. The Recognition of Trusts Act was passed in 1987 to enable the UK to give effect to the Convention, formally concluded in 1985 by the Hague Conference on Private International Law, on the Law Applicable to Trusts and on their Recognition. The chapter begins with a discussion of some preliminary issues, such as the definition of a trust, types of trust that fall within the 1987 Act, validity of the instrument of creation of the trust, and transfer of trust assets. It then considers the specific rules governing choice of law and the recognition of trusts, along with mandatory rules and public policy. It also looks at the variation of trusts and marriage settlements, citing the relevant provisions of the Variation of Trusts Act 1958.

7 The Law Applicable to the Merits and the Award

2015 ◽  
Author(s):  
Kaufmann-Kohler Gabrielle ◽  
Rigozzi Antonio
Keyword(s):  
Public Policy ◽  
Party Autonomy ◽  
Deliberation Process ◽  
Mandatory Rules ◽  
The Law ◽  
Lex Mercatoria

Before describing the main features of an award, this chapter discusses the determination of the law governing the merits of the dispute or lex causae. It considers the role of party autonomy in this respect and examines the scope and content of the potentially applicable substantive laws that may be chosen by the parties or selected by arbitral tribunals, from national laws to transnational rules of law (the so-called lex mercatoria) over trade usages and ex aequo et bono principles. It also discusses the relevance and impact of international public policy and overriding or internationally mandatory rules. Turning to the award, the last part of the chapter sets out a typology of arbitral decisions, addresses the required form and content of awards and discusses the deliberation process as well as issues such as institutional scrutiny, dissenting opinions, and the notification, publication, and effects of the award.

Mandatory rules and public policy in international contract law

ERA Forum ◽  
2010 ◽  
Vol 11 (1) ◽  
pp. 29-43 ◽  
Author(s):  
Monika Pauknerová
Keyword(s):  
Public Policy ◽  
Contract Law ◽  
Mandatory Rules

scholarly journals Hermeneutical Injustice, Contract Law, and Global Value Chains

2020 ◽  
Vol 16 (1) ◽  
pp. 139-159
Author(s):  
Lyn K.L. Tjon Soei Len
Keyword(s):  
Social Power ◽  
Global Value Chains ◽  
Contract Law ◽  
Value Chains ◽  
Party Autonomy ◽  
Normative Constraint ◽  
Contract Framing ◽  
Exchange Relations

AbstractGlobal value chains (GVCs) resist dominant contract framing, because presumptions about contract’s bilateral structure and party autonomy fail to capture the complex interconnections between private exchange relations. Contract law seems to obscure, rather than capture, the ways in which the relationships and experiences of various actors in GVCs are linked. This article argues that, in doing so, contract law contributes to systemic hermeneutical injustice. Systemic hermeneutical injustice captures how shared interpretative resources can render those in disadvantaged positions of social power unable to make intelligible that what is in their interest to render intelligible. The article’s primary aim is to show how this form of injustice bears on contract law and how it can function as an independent normative constraint on the institution of contract law.

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