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Application of Mandatory Rules in the Private International Law of Contracts

A Critical Analysis of Approaches in Selected Continental and Common Law Jurisdictions, with a View to the Development of South African Law

Kerstin Ann Susann Schäfer

The application of mandatory rules in private international law of contracts is a controversial topic of growing international concern. Legislatures are increasingly intervening in private contracts in order to protect the economic interests of state, or the interests of vulnerable groups, such as consumers or employees. This thesis addresses two major contexts in which the application of mandatory rules arises, namely the restriction of party autonomy by the application of certain mandatory rules of a law, other than the chosen law, and the application of internationally mandatory rules of the forum, the proper law and, most controversially, of a third country.
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.

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

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Chapter 6: Proposal 307 Chapter 6 Proposal for the application of internationally mandatory rules with a view to South African private international law of contracts In this chapter a proposal for regulating the application of internationally mandatory rules in the South African private international law of contracts will be submitted. The submitted approach, however, may be equally suitable to other countries the private international law of which is based on the traditional allocation technique. For the purpose of developing a proposal the previous discussion and analysis of the court decisions and the various academic approaches in the countries under investigation will be helpful. Before beginning, however, the current South African common law and academic statements regarding application of internationally mandatory rules stemming from the lex fori, the lex causae and a third legal system will be examined. I Legal situation in South African private international law In South Africa discussion of the problem of applying internationally manda- tory rules commenced recently.1 At least with regard to its theoretical foundations, the whole issue is to a large extent still unexplored in South Africa. Decided cases on the issue are also rare.2 1 Application of the internationally mandatory rules of the lex fori The South African approach to the application of internationally mandatory rules of South African law as lex fori seems clear. Those rules that can be classified as lois d’application immédiate and that accordingly claim appli- cation to a transaction, even though South African law is not the lex...

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