Composed by Miss Sukpuck PhongsathitPrivate international law covers many issues in the legal world, such as family and children, wills and properties, or trade and commerce. Conflict of law may emerge in the case where parties do not have an opportunity to make a choice of law (such as in cases concerning family) or simply omit making such a choice (such as in cases concerning international business transactions).
Where parties have an opportunity to determine the choice of law, generally, in a commercial contract, courts tend to respect the concept of party autonomy. This means the parties concerned will have the freedom to choose the law applicable to the contract and the courts will give effect to such choice. In many cases, the chosen law does not even have a real connection to the contract. Baring certain exceptions (such as statutory restrictions or the parties' bargaining power being unequal as in cases involving consumer contract), courts usually allow the parties' choice to be applied.
International Conventions such as the Rome Convention 1980 and the Inter-American Convention on the Law Applicable to International Contracts of 1994 seem to adhere to this principle of parties autonomy with certain limited exceptions (i.e. mandatory rules, consumer protection, employment protection). The United States also takes a similar approach (i.e. in the US Restatement Second S. 187 or Uniform Commercial Code S. 1-105). Parties are encouraged to expressly determine the choice of law of the contract in order to avoid confusion and uncertainty in the future. This is also to save costs and time for business and possible litigation.
Although an expressed choice of law is extremely useful for the parties, especially since it significantly lessen legal uncertainty surrounding the contract, many commercial parties omit the choice of law in their contract. In such a case, courts tend to allow for 'implied choice' to be interpreted from the contract if there are elements in the contract concerned that the parties actually intended to choose the system of law as the applicable law of the contract. However, in cases where applicable law cannot be derived from the existing contract between the parties, courts generally apply the law of the place with the 'closest and most real' connection to the contract. This is generally determined by identifying the 'characteristic performance' - i.e. the performance that is the essence of the contract. As a general principle, the place of residence of the characteristic performer is usually the place with the closest and most real connection with the contract (in the case of a company, this could be the place which the company was incorporated or its place of business). The factors taken into account include the place of residence or business of the parties, the place where the relationship between the parties was centered, the place where the contract was made or was to be performed, or the nature or the subject-matter of the contract.
Regarding the development in this area among Asian countries exclusively, there seems little information on the topic. Thailand, especially, seems to stay out of most international conventions concerning conflict of laws. However, although there is limited development among Asian countries in general concerning this area, most of them are members of existing international conventions or conferences.
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Useful web sites:
http://www.unidroit.org/ International Institute for the Unification of Private International Law (useful site on the development of private international law and international co-operation in this subject)
http://hcch.e-vision.nl/index_en.php?act=text.display&tid=1 Hague Conference on Private International law (useful database on international co-operation regarding international law in general, good section on Conventions - sorted by countries)
http://www.asil.org/resource/pil1.htm The American Society of International Law (provide information on private international law within the American states)
http://www.eisil.org/index.php?sid=404746080&t=index Electronic Information system for International law (provide useful links to many other web sites on private international law)
http://www.questia.com/Index.jsp?CRID=international_law&OFFID=se1&KEY=international_law International Law (Online Library)
http://www.oecdobserver.org and
http://www.oecd.org/home/ Organisation for Economic Co-operation and Development (information on the unification of international law, including private international law)
http://www.uncitral.org/ United Nations Commission on International Trade Law (information on the unification of international trade law, including private international law, particularly in international commerce)
http://www.iccwbo.org/ International Chamber of Commerce (information on business policies and the development of harmonisation process in commercial law)
http://www.hg.org/internat.html HierosGamos Legal Research Centre (information on different area of international law, including private international law, particularly good for links to different Conventions, treaties and international agreements)
http://cisgw3.law.pace.edu/ PACE Law School web site - CISG Database (Link to Institute of International Commercial Law and Pace Law Library)
http://www.compassroseintl.com/pubs/Hague_Convention_Overview.htm The Hague Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters
http://www.rome-convention.org/ The Rome Convention 1980 (On Conflict of Laws - Commonly used within the European Community)
http://www.law.cornell.edu/ucc/ucc.table.html Uniform Commercial Code (United States of America)
http://www.kentlaw.iit.edu/perritt/conflicts/rest187.html US Restatement Second (S. 187, text and comments)
http://www.kentlaw.iit.edu/perritt/conflicts/rest188.html US Restatement Second (S.188, text and comments)
http://www.oas.org/juridico/english/Treaties/b-56.html Inter-American Convention on the Law Applicable to International Contracts of 1994 (Organization of American States, Department of Legal Affairs and Services, Office of Inter-American Law and Programs)
http://www.law.ualberta.ca/alri/ulc/97pro/e97n.htm Uniform Law Conference of Canada (Contained brief description of many different international conventions and Canada's involvement/actions)
Interesting Articles
http://www.unidroit.org/english/publications/review/articles/1997-3.htm UNIDROIT Principle and Harmonization of International Commercial Law: Focus on Chapter Seven (by Arthur Rosett)
http://www.unidroit.org/english/publications/review/articles/2000-2.htm The UNIDROIT Principle and Transnational Law (By Michael Joachim Bonell)
http://ruessmann.jura.uni-sb.de/rw20/people/rschu/public/rome.html Outline of the EEC Convention on the Law Applicable to Contractual Obligation 1980 (Brief explanation and criticism of the Rome Convention by Reinhard Schu)
