Tetley (2002) introduction to conflict of laws 5
CONTRACT (BILLS OF LADING)
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CONTRACT (BILLS OF LADING)Introduction to Contracts in GeneralExpress Choice - Party AutonomyExpress or explicit choice or party autonomy is the first rule of choice of contract law in the US, Canada and Australia, as it is in England and France, whether or not the Rome Convention, 1980 applies. There need not be any connection between the contract and the applicable law if the choice is bona fide but not all follow this rule. However, there are exceptions to any choice of law rule for public order/policy, mandatory rules, illegality and evasion of the law. Change of choice - the parties, by express choice and mutual agreement, may change the applicable law after the contract has been entered into under all systems of law; so, can change it but has to be bona fide and legal. Implied and inferred choice - if no express choice, it can be inferred; but the problem if it is objectively or subjectively decided—this is a classic problem in all systems of law: Rome Convention – Art.3(1) – subjective test suggested, what the parties really intended, not what the court believes reasonable people in the place of the contractants would have intended. This article does not permit the court to infer a choice of law that the parties might have made where they had no clear intention of making a choice. Such a situation is governed by Art. 4: The intent of the parties in the Rome Convention is drawn from the terms of the K or the circumstances of the case. It must be demonstrated in each case with reasonable certainty. “Closest and most real connection” If no choice, express and implied or inferred in those jurisdictions which apply them, use closest and most real connection. This is a rule in the US, Canada, Australia, Quebec, Switzerland and Rome Convention and was the rule in France and the UK even before the coming into force of the Rome Convention. Art.4(2) – rebuttable presumption of characteristic performance…presumed that the contract is most closely connected with the country where the party who is to perform the contract has his habitual residence. Presumption doesn’t apply in the carriage of goods. Conflict Presumptions of the Closest and Most Real Connection Presumptions are useful as pointing in a certain direction, but can be dangerous unless they themselves have an escape hatch allowing them to be avoided at the discretion of the judge. Essential (Material) and Formal ValidityThe law applicable to the formalities of the contract is usually known as the law of its “formal validity” and the law applicable to the contract itself and the obligations of the parties as the law of its “essential or material validity”. Usually, the two laws are identical…contractants are well-advised to so specify in their choice of law clauses. International commercial arbitration agreements usually specify the law applicable to both. All international contracts, as well, should do so. Essential (material) validity – subject to the proper law of the contract. Any right claimed must be essentially valid (legal) under the applicable proper law. In other words, just as one should not enforce a contract if it contradicts international public order of the forum or the domestic public order of the proper law or the mandatory rules of the putative proper law, so the essence of the contract must be valid under the putative proper law. The contract must also be essentially valid (legal) under the law of the place where it is performed. Rome Convention, Art.8(1) – existence and validity of a K shall be subject to its putative proper law. Exception here, Art.8(2) – instead of putative proper law, a party may rely on the law of his residence to establish that he did not consent where it appears from the circumstances that the application of the putative proper law would not be reasonable. Evia Luck – blacking (or secondary striking) is not of public order/policy in England but a question of essential validity (legality); essential validity (legality) of the contract should be judged under the putative proper law of the contract. Formal Validity - established by either its proper law or the lex loci contractus, but exception for public order/policy. Rome Convention - not really defined but look art.9 – art.9(2): a contract concluded between persons in different countries is formally valid if satisfies the formal requirements of the law which governs it under the convention or of the law of one of those countries. CapacityDecided either by the law of the place where the contract was entered into as the domicile or residence of the person in question or by the proper law of the contract. DepeçageDefinition: The dividing into two or more parts and, in conflicts of law, means that a legal relationship (a contract or a tort) can have two or more different parts, each subject to a different law. Contract and Depeçage In arbitration proceedings, one law may apply to the agreement to arbitrate; the contract under dispute may be subject to another law; the arbitration proceedings themselves may be subject to yet different law and rules; and the performance of the award to even another law. Those who have difficulties accepting depeçage in respect to conflict of contract laws look at the principles of formal and material validity. Possibility of different laws affecting a contracts formation and its content. Formal and material validity as a distinction is an admission that exists in the conflict of contract laws. Also, the drawing of a distinction between the law of a contract and the law of its performance is another admission that depeçage exists in the conflict of laws. Depeçage is more and more accepted in respect to a contract. Rome Convention art.3(1) and 4(1); the Restatement Second. Tort and Depeçage Difficult to distinguish between the claims in contract and tort. Dangerous to have different conflict rules for tort and contract. That is why a general rule such as the closest and most real connection, for both contract and tort, used in a consistent methodology, is sensible. Escape Clauses (Escape Hatches)Two types: those found in codes or statutes permitting a different law to apply as a general rule and those which permit a particular rule or presumption to be ignored if the court believes it is wise to do so. They allow a choice of law rule or choice of law presumption to be circumvented when it is clear that the law chosen has only a slight connection to the facts of the case and another law has a much closer connection. Examples: CCQ Art.3082 Rome Convention Art.4(5), 5(2), 6(2), 7(2) 8(2) – exceptions for mandatory rules/fairness Note: Netherlands and China do not contain escape hatches. Directory: pubdocs -> files -> privateinternationallaw files -> Chapter 1: Property as rights, not thing files -> Insurance Law – May 4 files -> Contractual Obligations – Prof. Helge Dedek Introduction 1 files -> Constitutional Limits on Criminal Law 1 files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law privateinternationallaw -> Private International Law – Prof. Walsh Summer 2005 files -> Part I: conceptualizing and justifying ip space 3 files -> Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law? Download 0.88 Mb. Share with your friends:
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