APPLICATION OF MANDATORY RULES IN THE PRIVATE INTERNATIONAL LAW OF CONTRACTSPDF电子书下载

Chapter 1: Introduction and preliminary matters 21

Ⅰ The Problem: Application of mandatory rules in the conflict setting 21

Ⅱ Historical background: From Savigny and the 'liberal state' to the modern welfare state of the 20th century 22

Ⅲ Party autonomy and mandatory rules 26

Ⅳ Recent legislative approaches 27

Ⅴ Definition of different kinds of mandatory rules 30

1 Mandatory rules in a domestic sense or international sense 31

2 The country of origin 32

3 Private law or public law 32

4 Application as law or consideration as fact 33

Ⅵ Determination and limitation of the scope of examination 33

1 A comparative study 33

2 The choice of countries 35

3 The contexts of application of mandatory rules in the private international law of contracts 41

Ⅶ Structure of this study 42

Chapter 2: Party autonomy and mandatory rules 45

Ⅰ Party autonomy and its limitations by the application of mandatory rules under the Rome Convention 46

1 Art 3 (3) of the Rome Convention: Purely domestic contracts 47

a International contracts versus purely domestic contracts 48

b Requirements for purely domestic contracts 49

c Mandatory rules in the sense of art 3 (3) of the Rome Convention 50

d Art 3 (3) Rome Convention as a multilateral conflict rule 51

2 Limitation of the parties' choice in order to protect the weaker contracting party 51

a Background and purpose of articles 5 and 6 of the Rome Convention 51

b Art 5 (2) of the Rome Convention 54

(1) Conditions of art 5 (2) of the Rome Convention 55

(2) Mandatory rules in the sense of art 5 (2) of the Rome Convention 56

(3) The relationship between the chosen law and the mandatory rules of the law of the consumer's country of habitual residence 57

c Art 6 (1) of the Rome Convention 59

(1) Contracts subject to art 6 of the Rome Convention 59

(2) Mandatory rules in the sense of art 6 (1) of the Rome Convention 60

(3) The relationship between the chosen law and the mandatory rules of the otherwise applicable law according to paragraph (2) 62

d Application of articles 5 and 6 of the Rome Convention by analogy 63

e Relationship of articles 5 and 6 to article 7 of the Rome Convention 64

f Concluding remarks 66

Ⅱ Restriction of party autonomy under the Swiss IPRG 67

1 Domestic contracts 68

2 Consumer contracts 68

3 Employment contracts 69

Ⅲ The Swiss solution of restricting party autonomy versus the favour principle of the Rome Convention 69

Ⅳ Internationally mandatory rules 71

Ⅴ Evasion of law (fraus legis) 72

1 The doctrine of fraus legis 72

2 Evasion of law as limitation of party autonomy? 74

3 Evasion of law under the Rome Convention 77

4 Conclusion and remarks 78

Ⅵ Proposal for South African private international law of contracts on the limitation of party autonomy 79

1 Party autonomy and its limitations under present South African private international law of contracts 80

2 Proposal 84

Chapter 3: Internationally mandatory rules 89

Ⅰ The application of internationally mandatory rules: Three issues 94

Ⅱ Characterising, identifying and distinguishing internationally mandatory rules 95

1 The formal criterion: Internationally mandatory rules as unilateral conflict rules 97

2 The material criterion: The purpose of the rule 99

a Time of enactment of the rule 99

b The distinction between public law and private law 99

c Interests and purposes pursued by the rule 101

d Concluding remarks 102

Chapter 4: Internationally mandatory rules of the lex fori 105

Ⅰ Methodological approaches 105

1 Positive function of ordre public 106

2 'Special connection'', 'lois d'application immediate', 'overriding statutes' 108

3 Critical remarks 111

Ⅱ Art 7 (2) of the Rome Convention, art 18 of the Swiss IPRG 112

1 Domestic contact 113

2 Internationally mandatory rules 114

3 Legal consequences 116

Ⅲ Examples of internationally mandatory rules of English, German and Swiss law 116

1 Rules serving the state's economic and political goals 116

a Foreign exchange control and currency regulations 117

b Competition and Anti-Trust Law 118

c Import and Export Restrictions and Embargoes 120

d Protection of landed property 122

2 Protection of the weaker contracting party 122

a Excursus: Dispute about characterising of protective private laws as internationally mandatory rules 124

b Examples 128

(1) Employment protection 129

(2) Consumer protection 131

(3) Protection for tenants 133

Chapter 5: Foreign internationally mandatory rules 135

Ⅰ Approaches of academic writers 137

1 'Schuldstatutstheorie''or'Proper law doctrine' 137

2 'International administrative law', 'Public Conflict of Laws' 140

3 'Special Connection Theory'' or ' Theory of Special Point of Contact' 142

a'Conflict of Economic Laws' (Wirtschaftskollisionsrechi) 143

b Does the special connection imply a return to unilateralism? 144

c Origins of the Special Connection Theory 145

d Further developments 147

e Double functionality of contracts 148

f Elements of a conflict rule for a special connection 150

g Internationally mandatory rule 150

h Close connection 152

i Control of the content,'shared values' 153

j Legal consequences - Means and scope of application 155

k Subsidiary consideration as fact in the substantive law 157

4 'Combination theory' 157

5 Consideration only on the level of substantive law 159

6 Summary 160

a Internationally mandatory rules of the foreign proper law 160

b Third country's internationally mandatory rules 161

7 Critical analysis of the different approaches and final remarks 162

a Principle of unity of the conflict of laws relating to contracts versus the special connection 162

b Does taking account of (third countries') internationally mandatory rules as 'facts' replace choice of law considerations? 164

c The ultimate control of the forum 166

d Principle of territoriality or non-applicability of foreign public law 167

e The advantage of the solution of the Special Connection Theory 169

f Does the special connection imply a departure from the traditional allocation technique? 170

g Other objections to a'special connection process' 172

h International comity, decisional harmony 174

i Combination Theory 175

Ⅱ German and Swiss case law solutions 177

1 The general rule: Application of mandatory rules of the proper law of the contract 178

a 'Proper law doctrine' of the Supreme Court of the German Reich 179

b Principle of 'non-applicability of foreign public law', 'International Administrative Law' or 'Public Conflict of Laws' of the Federal Supreme Court 180

c Exceptions to the principle of 'non-applicability of foreign public law' 183

(1) The foreign public law serves predominantly private interests 183

(2) The foreign state has the power to enforce its law 184

d Swiss case law solutions 185

e Concluding remarks 187

2 Internationally mandatory rules of a third country 189

a Non-applicability of third countries' public law - Public Conflict of Laws 190

b Public Law rules serving private interests and internationally mandatory private law rules of a third country 191

c Consideration as factum within the substantive rules of the lex causae 192

d Infringement of foreign prohibition as violation of German boni mores 192

(1) Smuggling contracts and import restrictions 193

(2) The Federal Supreme Court 194

(3) Borax and Borsaure case - the foreign rule also serves German interests 195

(4) Nigerian mask case - the foreign rule serves interests shared in common by all civilised nations 196

(5) Generally valid moral principles 197

(6) Inapplicability of German boni mores 197

e Consideration within the operative facts of §823 BGB 200

f Impossibility of performance or frustration of contract 201

g Swiss case law 204

(1) Refusal of application of third countries' mandatory laws 204

(2) Consideration as fact within the substantive law of the lex causae 206

h Conclusion 209

3 Critical remarks 210

a Duality of solutions 211

b Public Conflict of Laws, principle of territoriality 212

c Different kinds of public law rules 214

d Consideration as fact within the applicable substantive law 215

(1) Are foreign rules facts? The need for choice of law considerations 215

(2) The need for a conflict rule 218

(3) The enlargement of substantive law rules 219

(4) The ultimate control of the forum state 219

e Conclusion 220

Ⅲ The English common law approach 221

1 The general rule: Application of mandatory rules of the lex causae 221

a Private and public law 222

b Exceptions to the general rule; non-enforcement of foreign penal, revenue and other public laws 226

c Concluding remarks 232

2 Application of third countries' internationally mandatory rules 232

a English public policy, 'international comity' solution 233

(1) Foster v Driscoll 234

(2) Regazzoni v K C Sethia 235

(3) Other cases 236

(4) Inapplicability of English public policy despite the violation of foreign law 237

(5) Application of English public policy where foreign public policy is violated, not a foreign statute 239

(6) Summary 240

b Academic discussion of the rule of public policy and critical remarks 241

(1) The scope of this rule of public policy 242

(2) Public policy in English law 242

(3) The juristic basis of the public policy rule 243

(4) The public policy-comity rule as special conflict rule? 244

(5) The vagueness of the public policy rule 245

c The lex loci solutionis; Ralli Bros v Compania Naviera Sota y Aznar 246

d The juristic basis of the lex loci solutionis rule 249

(1) Conflict of laws approach 249

(2) Substantive law approach 250

(3) Dicta in English case law 252

e Concluding remarks 254

(1) The problematic situation 255

(2) The necessity of choice of law considerations 255

f Illegality under legal systems other than the lex loci solutionis, in particular the lex loci contractus and the law of the parties domicile or nationality 257

(1) Kleinwort Sons ＆ Co v Ungarische Baumwolle Industrie AG 257

(2) The lex loci contractus 259

(3) Rossano v Manufacturers' Life Insurance Co 260

3 Concluding critical remarks 260

a The need for choice of law considerations 261

b Internationally mandatory rules stemming from a law other than the lex loci solutionis 262

c Internationally mandatory rules of the proper law 264

Ⅳ Foreign internationally mandatory rules under the Rome Convention and the Swiss IPRG - approaches of the legislature 267

1 Article 7 (1) of the Rome Convention, article 19 of the Swiss IPRG 268

a The law of another country 270

b With which the situation has a close connection 271

c Internationally mandatory rule 271

d Article 19: Legitimate and overriding interests of a party 273

e Discretion of the court 275

(1) Evaluation of the nature and purpose and regard to consequences 275

(2) To give effect / to take into account 277

2 Academic debates and criticism 279

3 Reservation to article 7 (1) 282

4 Internationally mandatory rules of the proper law 283

a The Rome Convention 283

b Article 13 of the Swiss IPRG 284

5 Impact on the law in Germany, England and Switzerland 285

a Germany 285

(1) Closing of the loophole 285

(2) Scope of reference of the normal conflict rules 287

b England 288

(1) Does the public policy-comity rule survive the Rome Convention? 288

(2) Does the lex loci solutionis rule survive the Rome Convention? 290

c Switzerland 292

(1) Art 19: A special connection of third countries' internationally mandatory rules 292

(2) Influence of article 13 sentence 2 of the Swiss IPRG 294

6 Concluding critical remarks: Was the reservation in respect of article 7 (1) of the Rome Convention justified? 297

a Unity of the law applicable to contracts and the confidence of the parties in the application of only one legal system 298

b Party autonomy is unduly restricted 299

c Uncertainty in law 300

d Move towards Unilateralism 301

e International comity and decisional harmony 303

f The structurally preferable solution 304

g Conclusion 305

Chapter 6:　Proposal for the application of internationally mandatory rules with a view to South African private international law of contracts 307

Ⅰ Legal situation in South African private international law 307

1 Application of the internationally mandatory rules of the lex fori 307

2 Application of (internationally) mandatory rules of the lex causae 309

3 Internationally mandatory rules of a third legal system 311

a Public policy of the forum state 311

b Reasonable claim of application 314

c South African cases on this issue 315

4 Conclusion 316

Ⅱ Proposed Approach 317

1 The common denominator 318

a Internationally mandatory rules of the forum 318

b Internationally mandatory rules of the proper law 319

c Internationally mandatory rules of a third country 320

2 The structurally preferable solution: A special connection of internationally mandatory rules 322

a Internationally mandatory rules of the lex fori 324

(1) Special connection of internationally mandatory rules 324

(2) Identification of internationally mandatory rules 325

b Internationally mandatory rules of a third country 327

(1) The structurally preferable solution 328

(2) A special connection in conformity with conflict of laws 330

(3) General guidelines for special conflict rules 331

(4) Subsidiary consideration of the factual effects on the private Relationship 335

c Internationally mandatory rules of the proper law 336

Bibliography 339

Table of cases 357

Abbreviations of Journals and Reports 363