A Critical Analysis of Approaches in Selected Continental and Common Law Jurisdictions, with a View to the Development of South African Law
Approaches of academic writing, case law, legislature, and treaties in England, Germany and Switzerland are compared and critically analysed. Paying also attention to the legal situation in South Africa, the analysis results to provide guidelines for the application of mandatory rules in private international law of contracts.
Chapter 3:Internationally mandatory rules 89
Chapter 3: Internationally mandatory rules 89 Chapter 3 Internationally mandatory rules The previous chapter dealt with the limitation of party autonomy by the application of mandatory provisions. It has thus been seen that, in various contexts, mandatory rules play a major role when applying the principle of party autonomy. The examination, however, focused on a relatively new trend in the private international law of contracts: While the parties’ freedom to choose the applicable law is unlimited, special conflict rules have been created that limit the effect of the choice of law by the application of mandatory rules of the objectively applicable law. Mandatory rules have thus become a modern tool to limit party autonomy. Although, as was seen these special conflict rules reflect a change from the traditional allocation technique, which was neutral and blind, towards a more result-selecting process, they still operate within traditional choice of law techniques. The technique of ‘alternative connection’ or ‘optional connection’ to a legal system (or to certain rules) based on the so-called ‘more- favourable principle’, is well known to conflict lawyers.1 The following chapters, by contrast, are concerned with the question of when ‘internationally mandatory rules’ are applied in the international law of con- tracts by the court of the forum state: In what circumstances and on what juristic basis? This is an issue that is older in origin, broader in scope, and has a stronger effect on the choice of law process than the one discussed in the previous chapter. In probably...
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