APPLICATION OF MANDATORY RULES IN THE PRIVATE INTERNATIONAL LAW OF CONTRACTS2025|PDF|Epub|mobi|kindle电子书版本百度云盘下载

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Chapter 1: Introduction and preliminary matters21

Ⅰ The Problem: Application of mandatory rules in the conflict setting21

Ⅱ Historical background: From Savigny and the 'liberal state' to the modern welfare state of the 20th century22

Ⅲ Party autonomy and mandatory rules26

Ⅳ Recent legislative approaches27

Ⅴ Definition of different kinds of mandatory rules30

1 Mandatory rules in a domestic sense or international sense31

2 The country of origin32

3 Private law or public law32

4 Application as law or consideration as fact33

Ⅵ Determination and limitation of the scope of examination33

1 A comparative study33

2 The choice of countries35

3 The contexts of application of mandatory rules in the private international law of contracts41

Ⅶ Structure of this study42

Chapter 2: Party autonomy and mandatory rules45

Ⅰ Party autonomy and its limitations by the application of mandatory rules under the Rome Convention46

1 Art 3 (3) of the Rome Convention: Purely domestic contracts47

a International contracts versus purely domestic contracts48

b Requirements for purely domestic contracts49

c Mandatory rules in the sense of art 3 (3) of the Rome Convention50

d Art 3 (3) Rome Convention as a multilateral conflict rule51

2 Limitation of the parties' choice in order to protect the weaker contracting party51

a Background and purpose of articles 5 and 6 of the Rome Convention51

b Art 5 (2) of the Rome Convention54

(1) Conditions of art 5 (2) of the Rome Convention55

(2) Mandatory rules in the sense of art 5 (2) of the Rome Convention56

(3) The relationship between the chosen law and the mandatory rules of the law of the consumer's country of habitual residence57

c Art 6 (1) of the Rome Convention59

(1) Contracts subject to art 6 of the Rome Convention59

(2) Mandatory rules in the sense of art 6 (1) of the Rome Convention60

(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 analogy63

e Relationship of articles 5 and 6 to article 7 of the Rome Convention64

f Concluding remarks66

Ⅱ Restriction of party autonomy under the Swiss IPRG67

1 Domestic contracts68

2 Consumer contracts68

3 Employment contracts69

Ⅲ The Swiss solution of restricting party autonomy versus the favour principle of the Rome Convention69

Ⅳ Internationally mandatory rules71

Ⅴ Evasion of law (fraus legis)72

1 The doctrine of fraus legis72

2 Evasion of law as limitation of party autonomy?74

3 Evasion of law under the Rome Convention77

4 Conclusion and remarks78

Ⅵ Proposal for South African private international law of contracts on the limitation of party autonomy79

1 Party autonomy and its limitations under present South African private international law of contracts80

2 Proposal84

Chapter 3: Internationally mandatory rules89

Ⅰ The application of internationally mandatory rules: Three issues94

Ⅱ Characterising, identifying and distinguishing internationally mandatory rules95

1 The formal criterion: Internationally mandatory rules as unilateral conflict rules97

2 The material criterion: The purpose of the rule99

a Time of enactment of the rule99

b The distinction between public law and private law99

c Interests and purposes pursued by the rule101

d Concluding remarks102

Chapter 4: Internationally mandatory rules of the lex fori105

Ⅰ Methodological approaches105

1 Positive function of ordre public106

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

3 Critical remarks111

Ⅱ Art 7 (2) of the Rome Convention, art 18 of the Swiss IPRG112

1 Domestic contact113

2 Internationally mandatory rules114

3 Legal consequences116

Ⅲ Examples of internationally mandatory rules of English, German and Swiss law116

1 Rules serving the state's economic and political goals116

a Foreign exchange control and currency regulations117

b Competition and Anti-Trust Law118

c Import and Export Restrictions and Embargoes120

d Protection of landed property122

2 Protection of the weaker contracting party122

a Excursus: Dispute about characterising of protective private laws as internationally mandatory rules124

b Examples128

(1) Employment protection129

(2) Consumer protection131

(3) Protection for tenants133

Chapter 5: Foreign internationally mandatory rules135

Ⅰ Approaches of academic writers137

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 Theory145

d Further developments147

e Double functionality of contracts148

f Elements of a conflict rule for a special connection150

g Internationally mandatory rule150

h Close connection152

i Control of the content,'shared values'153

j Legal consequences - Means and scope of application155

k Subsidiary consideration as fact in the substantive law157

4 'Combination theory'157

5 Consideration only on the level of substantive law159

6 Summary160

a Internationally mandatory rules of the foreign proper law160

b Third country's internationally mandatory rules161

7 Critical analysis of the different approaches and final remarks162

a Principle of unity of the conflict of laws relating to contracts versus the special connection162

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

c The ultimate control of the forum166

d Principle of territoriality or non-applicability of foreign public law167

e The advantage of the solution of the Special Connection Theory169

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 harmony174

i Combination Theory175

Ⅱ German and Swiss case law solutions177

1 The general rule: Application of mandatory rules of the proper law of the contract178

a 'Proper law doctrine' of the Supreme Court of the German Reich179

b Principle of 'non-applicability of foreign public law', 'International Administrative Law' or 'Public Conflict of Laws' of the Federal Supreme Court180

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

(1) The foreign public law serves predominantly private interests183

(2) The foreign state has the power to enforce its law184

d Swiss case law solutions185

e Concluding remarks187

2 Internationally mandatory rules of a third country189

a Non-applicability of third countries' public law - Public Conflict of Laws190

b Public Law rules serving private interests and internationally mandatory private law rules of a third country191

c Consideration as factum within the substantive rules of the lex causae192

d Infringement of foreign prohibition as violation of German boni mores192

(1) Smuggling contracts and import restrictions193

(2) The Federal Supreme Court194

(3) Borax and Borsaure case - the foreign rule also serves German interests195

(4) Nigerian mask case - the foreign rule serves interests shared in common by all civilised nations196

(5) Generally valid moral principles197

(6) Inapplicability of German boni mores197

e Consideration within the operative facts of §823 BGB200

f Impossibility of performance or frustration of contract201

g Swiss case law204

(1) Refusal of application of third countries' mandatory laws204

(2) Consideration as fact within the substantive law of the lex causae206

h Conclusion209

3 Critical remarks210

a Duality of solutions211

b Public Conflict of Laws, principle of territoriality212

c Different kinds of public law rules214

d Consideration as fact within the applicable substantive law215

(1) Are foreign rules facts? The need for choice of law considerations215

(2) The need for a conflict rule218

(3) The enlargement of substantive law rules219

(4) The ultimate control of the forum state219

e Conclusion220

Ⅲ The English common law approach221

1 The general rule: Application of mandatory rules of the lex causae221

a Private and public law222

b Exceptions to the general rule; non-enforcement of foreign penal, revenue and other public laws226

c Concluding remarks232

2 Application of third countries' internationally mandatory rules232

a English public policy, 'international comity' solution233

(1) Foster v Driscoll234

(2) Regazzoni v K C Sethia235

(3) Other cases236

(4) Inapplicability of English public policy despite the violation of foreign law237

(5) Application of English public policy where foreign public policy is violated, not a foreign statute239

(6) Summary240

b Academic discussion of the rule of public policy and critical remarks241

(1) The scope of this rule of public policy242

(2) Public policy in English law242

(3) The juristic basis of the public policy rule243

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

(5) The vagueness of the public policy rule245

c The lex loci solutionis; Ralli Bros v Compania Naviera Sota y Aznar246

d The juristic basis of the lex loci solutionis rule249

(1) Conflict of laws approach249

(2) Substantive law approach250

(3) Dicta in English case law252

e Concluding remarks254

(1) The problematic situation255

(2) The necessity of choice of law considerations255

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 nationality257

(1) Kleinwort Sons ＆ Co v Ungarische Baumwolle Industrie AG257

(2) The lex loci contractus259

(3) Rossano v Manufacturers' Life Insurance Co260

3 Concluding critical remarks260

a The need for choice of law considerations261

b Internationally mandatory rules stemming from a law other than the lex loci solutionis262

c Internationally mandatory rules of the proper law264

Ⅳ Foreign internationally mandatory rules under the Rome Convention and the Swiss IPRG - approaches of the legislature267

1 Article 7 (1) of the Rome Convention, article 19 of the Swiss IPRG268

a The law of another country270

b With which the situation has a close connection271

c Internationally mandatory rule271

d Article 19: Legitimate and overriding interests of a party273

e Discretion of the court275

(1) Evaluation of the nature and purpose and regard to consequences275

(2) To give effect / to take into account277

2 Academic debates and criticism279

3 Reservation to article 7 (1)282

4 Internationally mandatory rules of the proper law283

a The Rome Convention283

b Article 13 of the Swiss IPRG284

5 Impact on the law in Germany, England and Switzerland285

a Germany285

(1) Closing of the loophole285

(2) Scope of reference of the normal conflict rules287

b England288

(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 Switzerland292

(1) Art 19: A special connection of third countries' internationally mandatory rules292

(2) Influence of article 13 sentence 2 of the Swiss IPRG294

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 system298

b Party autonomy is unduly restricted299

c Uncertainty in law300

d Move towards Unilateralism301

e International comity and decisional harmony303

f The structurally preferable solution304

g Conclusion305

Chapter 6:　Proposal for the application of internationally mandatory rules with a view to South African private international law of contracts307

Ⅰ Legal situation in South African private international law307

1 Application of the internationally mandatory rules of the lex fori307

2 Application of (internationally) mandatory rules of the lex causae309

3 Internationally mandatory rules of a third legal system311

a Public policy of the forum state311

b Reasonable claim of application314

c South African cases on this issue315

4 Conclusion316

Ⅱ Proposed Approach317

1 The common denominator318

a Internationally mandatory rules of the forum318

b Internationally mandatory rules of the proper law319

c Internationally mandatory rules of a third country320

2 The structurally preferable solution: A special connection of internationally mandatory rules322

a Internationally mandatory rules of the lex fori324

(1) Special connection of internationally mandatory rules324

(2) Identification of internationally mandatory rules325

b Internationally mandatory rules of a third country327

(1) The structurally preferable solution328

(2) A special connection in conformity with conflict of laws330

(3) General guidelines for special conflict rules331

(4) Subsidiary consideration of the factual effects on the private Relationship335

c Internationally mandatory rules of the proper law336

Bibliography339

Table of cases357

Abbreviations of Journals and Reports363