Choice of Law in International Commercial Contracts :

Hague Principles ?

Permanent Bureau of the Hague Conference

on Private International Law *

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I. – INTRODUCTION

After the adoption of the Hague Convention of 30 June 2005 on Choice of

Court Agreements, the Hague Conference on Private International Law carried
out a feasibility study in 2006 on the development of an instrument relating to
the choice of law in international contracts. The Hague Conference was thereby
reiterating the need to consolidate choice-of-law agreements in international
dealings. Two comparative law studies were drawn up: one describing and
analysing the existing rules generally applied in judicial proceedings,1 and the
other focused on the situation in the area of international arbitration.2 In
addition, a questionnaire was sent to Members of the Organisation, to the
International Chamber of Commerce and a large number of centres and entities
involved in international arbitration. Its purpose was to explore the use of
agreements on the applicable law in current practice and the extent to which
such agreements are observed, and to identify any improvements, problems and
shortfalls of a future instrument.3 Further to the 2009 meeting of the Council on

* This paper is the outcome of consultations within the Permanent Bureau, involving
among others Ms Marta Pertegás, Secretary, and Ms Ivana Radic, Legal Officer, as well as Ms
Peggy Carlier, Ms Ning Zhao, Ms Éphigénie Gagné and Ms Aïcha Brahma, Interns. The Permanent
Bureau wishes to thank most particularly Ms Peggy Carlier, who devoted a large portion of her
internship with the Permanent Bureau to the drafting of this paper.
1 T. KRUGER, “Feasibility study on the choice of law in international contracts - Overview
and analysis of existing instruments”, Prel. Doc. No 22 B of March 2007. This information is
available on the Hague Conference website at <www.hcch.net>, under the headings “Work in
Progress”, “General Affairs”, and “Prel. Doc. No 22 B of March 2007”.
2 I. RADIC, “Feasibility study on the choice of law in international contracts - Special
focus on international arbitration”, Prel. Doc. No 22 C of March 2007. This information is
available on the Hague Conference website at <www.hcch.net>, under the headings “Work in
Progress”, “General Affairs”, and “Prel. Doc. No 22 C of March 2007”.
3 “Feasibility study on the choice of law in international contracts - report on work
carried out and preliminary conclusions”, Prel. Doc. No 22 A of March 2007, and “Feasibility

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General Affairs and Policy of the Conference, the Working Group on Choice of
Law in International Contracts (“the Working Group”) was set up and held its
first meeting in The Hague on 21 and 22 January 2010.4 A second meeting of
the Working Group is scheduled from 15 to 17 November 2010.
At the 2010 meeting of the Council on General Affairs and Policy of the
Hague Conference, the Members of the organisation acknowledged that the
main objective of the future instrument is to establish a global model for conflict
rules applicable to contracts. Therefore, the Council invited the Working Group

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to continue its work for the progressive development of a draft instrument of a
non-binding nature, and confirmed that priority should be given to the
development of rules for cases where a choice of law has been made.5
While a convention is the ultimate legislative instrument, could not the
Hague Conference also conduct discussions towards a non-binding instrument
in the performance of its legislative function? Its sister organisations, UNIDROIT
and UNCITRAL, adopt conventions but also principles, model laws and codes of
best practices, and thereby bolster their credibility in the world of the
unification of law. For the specific project regarding the choice of law in
international contracts, the Hague Conference has set up a Working Group
consisting of experts in the field who represent the main legal systems of the
world, in order to discuss and draft an instrument aimed at developing a
consistent set of rules relating to the choice of the law applicable to
international commercial contracts. The UNIDROIT Principles on International
Commercial Contracts provide a suitable model in terms of form. Obviously,
these rules would be prima facie intended for practitioners and in the field of
arbitration in particular. Nevertheless, as the sister organisations’ experience

study on the choice of law in international contracts - Report on work carried out and conclusions
(follow-up note)”, Prel. Doc. No 5 of February 2008. This information is available on the Hague
Conference website at <www.hcch.net>, under the headings “Work in Progress”, “General
Affairs”, and “Prel. Doc. No 22 A of March 2007” and “Prel. Doc. No 5 of February 2008” (follow-
up note).
4 See the Conclusions and Recommendations adopted by the Council on General Affairs
and Policy of the Conference (31 March – 2 April 2009). This information is available on the
Hague Conference website at <www.hcch.net>, under the headings “Work in Progress”,
“General Affairs” then “Conclusions and Recommendations adopted by the Council (31 March – 2
April 2009)”.
5 See the Conclusion and Recommendation adopted by the Council on General Affairs
and Policy of the Conference (7-9 April 2010). This information is available on the Hague
Conference website at <www.hcch.net>, under the headings “Work in Progress”, “General
Affairs” then “Conclusions and Recommendations adopted by the Council (7-9 April 2010)”.

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 Choice of Law in International Commercial Contracts: Hague Principles?

shows, such principles could eventually be used as a legislative guide for those
States that do not have rules of private international law in such matters.
The idea of developing a non-binding instrument in order to influence the
rules relating to the law applicable to international contracts is nothing new. In
1980, a Working Group established by the International Chamber of
Commerce’s Commercial Law and Practice Commission submitted to its
National Committees draft Guidelines for the law applicable to international
contracts. On that occasion, it considered that disputes between the parties to

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international commercial relationships “often give rise to questions concerning
the law applicable to contracts” and “it [is] appropriate to recommend
arbitrators to consider the conflict of law rules for cases where the law
applicable to contracts is in issue”.6 Though the idea was not followed up at the
time, and its scope was limited to arbitration, it seems worthwhile, three
decades later, to continue the work undertaken while extending it to the judicial
litigation of international trade.
This paper will present the project envisaged by the Hague Conference as
follows: the purpose of the Hague Principles (1); their scope (2); the principal
rule of party autonomy (3); subsidiary rules applicable in the absence of choice
(4); exceptions to the application of conflict rules (mandatory rules, public
policy, exclusion of renvoi, etc.) (5); and a few final considerations by way of
conclusion (6).

II. – THE PURPOSE OF THE FUTURE HAGUE PRINCIPLES

Purpose – The purpose of the future Hague Principles is to serve as a

universal model of conflict rules applicable to contracts. To this end, the work
of the Conference is informed by a guiding concept: promoting the principle of
party autonomy.7
Target audience – Designed for uniform use worldwide, the future Hague
Principles are intended to govern contracts between professionals in the area of
international trade. They are thus aimed at all practitioners of international trade
law, whether contract writers, business lawyers, counsel specialising in
arbitration or in-house counsel. With international arbitrators especially inclined

6 O. LANDO, “Conflict-of-Law Rules for Arbitrators”, in Festschrift für Konrad Zweigert

zum 70. Geburtstag, J.C.B. Mohr (Paul Siebeck), Tübingen (1981), 157.
7 On this famous concept, and in particular on the relationship between the philosophy
of voluntarism and legal theory, see V. RANOUIL, L’autonomie de la volonté: naissance et
évolution d’un concept, PUF, Paris (1980).

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 Permanent Bureau of the Hague Conference on Private International Law

to incorporate a body of non-binding principles into their decision-making

process, the Conference’s goal is to develop a set of principles that can become
a useful tool in international arbitration.
On the other hand, the future Hague Principles will not apply to States
directly since, as instruments of “soft law”, they cannot be acceded to by States
(formally speaking). A fortiori, this means that State courts will not be bound to
implement this instrument: indeed, the Hague Conference is well aware that
judges will not apply the proposed Principles owing to their non-binding

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character.8 Yet, in strategic terms, the future Hague Principles may serve as an
example for legislators in countries where the legislative regime relating to the
law applicable to international contracts is non-existent, fragmentary or simply
awaiting reform. Only in those circumstances could the Hague Principles gain
in legal stature and be fully utilised by judges.
Thus the future Hague Principles should be considered as a preliminary
step in a comprehensive process of a convergence of standards which, further
in the future, could facilitate the adoption of an international convention on the
choice of applicable law in contractual matters within the Hague Conference.
Why a new instrument? – Unlike the many rules that exist at regional
level,9 there is no universal instrument relating to the law applicable to
contracts. On the basis of this finding, the Hague Conference proposes to invest
its reputation and more than 115 years’ experience in the service of gradual
unification of the rules in this area.10 The aim is thus to improve international
co-ordination of legal systems and in particular, to strengthen the legal
predictability of solutions through the principle of party autonomy. In more
modest terms, the future Hague Principles will also be designed to meet the
needs of legal practitioners and all parties involved in international trade who
lack legal information regarding the issues of applicable law.11

8 The replies to the Questionnaire have shown moreover that States do not consider soft
law useful for courts, see Prel. Doc. No 5 of February 2008, supra note 3, No 13, 6. For a
consideration of the normative character and effectiveness of that approach, see H. HARTNELL,
“Living La Vida Lex Mercatoria”, Unif. L. Rev. / Rev. dr. unif. (2007), 735 et seq.
9 See KRUGER, supra note 1.
10 Also taking into account the connection between court jurisdiction and applicable law,
the Hague Principles should be fully consistent with the 2005 Convention on Choice of Court
Agreements. Regarding this kind of parallel, see for instance Z. TANG, “The Interrelationship of
European Jurisdiction and Choice of Law in Contract”, Journal of Private International Law (2008),
35 et seq.
11 The questionnaire responses show that over two thirds of the Organisation’s Member
States that replied consider that a new instrument would be useful to assist parties to the contract,

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 Choice of Law in International Commercial Contracts: Hague Principles?

A long-standing idea – The international unification of conflict rules in

contractual matters is a project that has long interested the Conference. While
the traditional approach was a gradual progress which developed according to
different types of contract,12 the idea of a comprehensive convention on
contracts was submitted by Czechoslovakia in 1980.13 But after a prospective
study was conducted in 1983,14 the Members of the Conference considered
that the chances of ratification of such a convention were very slim.15 The
Conference now intends to give new impetus to this project by turning to a new

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methodology.
Innovative process – This is without doubt an innovative legislative method
for the Hague Conference, which to date has concentrated on the drafting and
implementation of conventions for States. It should be pointed out, however,
that international unification of law through instruments less binding than
international conventions was approved by the Member States of the Hague
Conference in 1980.16 There is accordingly no reason to doubt the approach’s
propriety in methodological terms.

judicial authorities or arbitration panels, see Prel. Doc. No 5, supra note 3.

12 H. VAN LOON, “Quelques réflexions sur l’unification progressive du droit international
privé dans le cadre de la Conférence de La Haye”, in Liber Memorialis François Laurent, J. ERAUW
e.a. (Eds.), 1141-1142.
13 Proposal of the Czechoslovakian Government, in “Suggestions from certain
Governments concerning the future work of the Conference”, Prel. Doc. No 10 of January 1980,
Actes & Documents de la Quatorzième session, Tome I, Miscellaneous matters, edited by the
Permanent Bureau of the Conference, Netherlands Government Printing Office, The Hague
(1982), No 18, I-158.
14 H. VAN LOON, “Feasibility study on the law applicable to contractual obligations”, Prel.
Doc. E of December 1983, Proceedings of the Fifteenth Session, Tome I, Miscellaneous matters,
edited by the Permanent Bureau of the Conference, Netherlands Government Printing Office, The
Hague (1986), No 36, 98.
15 Minutes No. 2 of the First Commission, ibid., 199-200.
16 “Recognizing that the use of certain methods of less binding effect than international
conventions is in certain cases of a kind to promote the easier adoption and more wide-spread
diffusion of common solutions, grants that the Conference, while maintaining as its principal
purpose the preparation of international conventions, may nevertheless use other procedures of
less binding effect, such as recommendations or model laws, where, having regard to the
circumstances, such procedures appear to be particularly appropriate”, Final Act of the Fourteenth
Session (25 October 1980), supra note 13, I-63. On this subject, see also G. DROZ, “La Conférence
de La Haye de droit international privé : traités internationaux ou lois modèles ?”, Revue
Internationale de Droit Comparé (1961), 507-521; id., “Conférence de La Haye de droit
international privé”, Répertoire de droit international, Dalloz (1998), No 15.

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Justification – Several facts justify the Conference’s preference for a non-

binding instrument. First of all, it is currently virtually impossible to achieve
agreement among States for a convention in this area.17 Many States, already
bound by regional instruments, do not feel a need to commit to a project on an
international scale. They also consider that certain specific substantive-law
conventions are adequate to settle all the issues.
This explains for example why, more than twenty-five years ago, the
preparatory work of the Hague Conference relating to the law applicable to

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contractual obligations was influenced by the adoption of the CISG.18 Yet the
scope of the CISG is lacking in many ways; in particular, it does not cover the
contract’s validity, its effects on title to the goods sold or the seller’s liability for
death or personal injury caused by the goods. The CISG governs solely the
formation of the contract of sale and the rights and obligations between the
seller and buyer arising out of that contract.19 In addition, international
contracts are not restricted to sales: what about contracts for services, which
represent an ever increasing portion of the market?20
Further, there are other arguments in support of recourse to a non-binding
instrument. First, such an instrument could be prepared by the Working Group
without the constraints and trade-offs inherent to the negotiation of treaties. The
instrument could therefore be developed gradually outside the conventional
circuit, benefiting from the objectivity and scientific qualities of the experts
involved and the solutions chosen. Secondly, the desirability of allowing the
option for parties to a contract choose a set of non-State-based rules, such as the
UNIDROIT Principles, as the applicable law could be reconsidered.21 Thirdly,
the non-binding nature of the future Hague Principles avoids any risk of conflict
of standards. For instance, the Member States of the European Union would not

17 In fact, this observation had already been made during the 1980s, see H. VAN LOON,
supra note 14, No 17, 103.
18 Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods
(UNCITRAL); see V. HEUZÉ, La vente internationale de marchandises : droit uniforme, LGDJ, Paris
(2000).
19 Arts. 4 and 5 of the CISG.
20 For global statistics on international trade in services, see the WTO’s website (general
information regarding the GATS) <www.wto.org/index.htm> [last consulted on 29 June 2010].
21 See, by contrast, the formulation of EU rules, which refer to the choice of a “law” and
seem, as a result, implicitly to exclude the lex mercatoria, see O. LANDO / P.A. NIELSEN, “The
Rome I proposal”, Journal of Private International Law (2007), Vol. 3, issue 1, 30-34. See,
however, Recitals 13 and 14 of Regulation (EC) No 593/2008 of the European Parliament and of
the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I), OJ L 177/6,
04.07.2008, 6.

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 Choice of Law in International Commercial Contracts: Hague Principles?

have to be concerned about a possible conflict with the Rome Convention22 or

the Rome I Regulation.23 Nor would there be interference with the Hague
Convention on the Law Applicable to International Sale of Goods, the Hague
Convention on the Law Applicable to Agency or the Convention on the Law
Applicable to Contracts for the International Sale of Goods.24 The future Hague
Principles are mainly intended to serve as a constant source of inspiration for
the gradual development of uniform rules with respect to the law applicable to
international contracts.

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III. – THE SCOPE OF THE FUTURE HAGUE PRINCIPLES

As noted above, the mandate conferred upon the Hague Conference is to

examine the issue of the law applicable to contracts for international commerce.
Application of the future instrument will accordingly be subjected to the
presence of two features: a contract’s international character, and its
commercial nature.
An international contract is usually defined as a contract having
connections to several legal systems. This may be because the contracting
parties have their habitual residences in different States, or that the place or
places of performance are not the same as those of the contracting parties’
residences, etc.
Like the approach adopted in the UNIDROIT Principles, it is contemplated
that the future Hague Principles would not lay down specific criteria for
defining the contract’s international character. On the contrary, the broadest
interpretation is to be recommended so as to exclude only those contracts in
which all the contractual elements are located within a single country.
Further along the lines of the UNIDROIT Principles, the restriction to
commercial contracts (or contracts between professionals) is in no way intended
to articulate the traditional distinction made between civil and commercial
transactions in some legal systems. The future Hague Principles would
accordingly contain no precise definition of a commercial contract.

22 The Rome Convention of 19 June 1980 on the Law Applicable to Contractual

Obligations entered into force on 1 April 1991, OJ No C 27, 26.01.1998, 34.
23 Rome I Regulation, supra note 21.
24 Hague Convention of 15 June 1955 on the law applicable to international sale of
goods, Hague Convention of 14 March 1978 on the Law Applicable to Agency, and Hague
Convention of 22 December 1986 on the Law Applicable to Contracts for the International Sale of
Goods.

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 Permanent Bureau of the Hague Conference on Private International Law

It remains to be considered whether certain types of contract should not be

excluded entirely from the scope of the future Hague Principles, or be
addressed by specific provisions therein. It would be appropriate for instance to
raise this issue in relation to consumer contracts and contracts of employment
which are designed to protect the consumer 25 and employee respectively, and
which are subject to specific rules which are generally mandatory in nature.
More generally, the existence of manifestly unequal bargaining power between
the parties could justify excluding the future Hague Principles’ application.26

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For example, one might mention the case of authors or performers willing to
sign the first contract offered to them by publishing houses or record
companies. If such exclusion from the scope of the Principles were to be
considered, then the concept of unequal bargaining power would have to be
subject to a restrictive interpretation.
More generally, it will be necessary to determine whether solutions parallel
to the Hague conventions concerning contractual matters prevail or whether, on
the other hand, it might be contemplated that future discussions on the
instrument could include the aspects already reviewed and negotiated in
connection with those conventions.

IV. – THE CHOICE OF APPLICABLE LAW

(a) Party autonomy: concept

Party autonomy lies at the heart of the development of the future Hague
Principles. A provision for choice of law will surely be possible and even
encouraged by the Principles. In this respect, it needs to be recalled that the

25 On the subject of consumer contracts, the absence of specific rules in the 1955
Convention needs to be borne in mind along with the extract from the Final Act of the Fourteenth
Session (Proceedings of the Fourteenth Session, Tome II, Consumer sales, edited by the Permanent
Bureau of the Conference, Netherlands Government Printing Office, The Hague (1982), II-177 to
II-180), which contains a draft Convention relating to certain contracts of sale made by consumers.
However, that subject-matter was not included in the 1986 Convention. See also J. FAWCETT, J.
HARRIS and M. BRIDGE, International Sale of Goods in the Conflict of Laws, Oxford University
Press, Oxford (2005), 871.
26 For a definition of the weaker party, see, e.g., F. LECLERC, “rather than a permanent and
unchanging condition of one contracting party, relevant regardless of his or her partner’s
personality, the situation of weakness reflects a breach of equality between the parties to the
contract, a disparity of the opposing forces within the contractual relationship”, La protection de la
partie faible dans les contrats internationaux, Bruylant, Brussels (1995), No 2, 2; see also P. MAYER,
“La protection de la partie faible en droit international privé”, La protection de la partie faible dans
les rapports contractuels: comparaisons franco-belges, LGDJ, Paris (1996), 513.

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 Choice of Law in International Commercial Contracts: Hague Principles?

development of these Principles by the Hague Conference addresses a genuine

need to reinforce party autonomy throughout the world.
The leading role ascribed to party autonomy in the future Hague Principles
is effectively in line with the commonly-accepted approach of recognition of
choice of the law applicable to international contracts. This is apparent both
from the responses to the Questionnaire of January 2007 27 and in the most
recent developments in comparative law.28 Admittedly, while the basic
principle of party autonomy seems to have gradually gained acceptance in

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international commercial relations, the challenge for the future Hague Principles
is to achieve worldwide consolidation of the principle. Accordingly, a second
major challenge for the future instrument will be to measure the reach of party
autonomy and to identify certain norms that are not available to party
autonomy.

(b) The reach of party autonomy: a genuine freedom of the parties?

To what extent can parties benefit from freedom of choice? Should the future
Hague Principles restrict the parties’ choice to State-based laws, or should it
instead allow broader freedom of choice by extending the parties’ options to
non-State-based rules?
A definition of “non-State-based rules” is in order. While references to the
lex mercatoria, the “general principles of law” or “the principles of the law of
international trade” do not allow determination of the rules’ concrete
substance,29 a reference to the Principles of European Contract Law or the

27 Prel. Doc. No 5 of February 2008, supra note 3.

28 Rome I Regulation, supra note 21; on the other hand, the prospects for an opening
towards party autonomy as a connection in contractual matters in Brazil seem fairly poor, given
the divergent statutory initiatives pending before the Senate. Compare Bill No 243 of 2002, and in
particular Arts 31 to 33, with Bill No 269 of 16 September 2004, Dispõe sobre a aplicação das
normas jurídicas, available on the Brazilian Senate’s website at <http://www.senado.gov.br/sf/
publicacoes/diarios/pdf/sf/2004/09/16092004/29717.pdf> [last consulted on 29 June 2010], with
our thanks to Pr. L. Gama Jr.
29 For considerations regarding the lex mercatoria, see, e.g., F. DE LY, “Lex Mercatoria
(New Law Merchant): Globalization and International Self-Regulation”, Diritto del commercio
internazionale (2000), 555 et seq.; Ch. PAMBOUKIS, “La lex mercatoria reconsidérée”, Le droit inter-
national privé : esprit et méthodes, Mélanges en l’honneur de Paul Lagarde, Dalloz, Paris (2005),
635 et seq.; J.-M. JACQUET and P. DELEBECQUE, Droit du commerce international, 3rd ed., Dalloz,
Paris (2002), Nos. 162 et seq., 95 et seq.; O. CACHARD, Droit du commerce international, LGDJ,
Paris (2008), No 20, 9; J. BÉGUIN and M. MENJUCQ, Droit du commerce international, Litec, Paris
(2005), Nos 58 et seq., 53 et seq., and Nos 2701 et seq., 1047 et seq.; P.-A. GOURION, G. PEYRARD
and N. SOUBEYRAND, Droit du commerce international, 4th ed., LGDJ, Paris (2008), 89 et seq.

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UNIDROIT Principles relating to international commercial contracts cannot be

considered imprecise or uncertain. Indeed, the latter lays down rules specific to
the governance of international trade contracts, thereby codifying essential
rules.30
It is widely recognised that disputes arising out of commercial contracts
referred to arbitration may be subject to non-State-based rules selected by the
parties.31 The situation is different before judicial authorities. Judges are bound
by the law and may not, in principle, apply rules that are not an integral part of

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the legal system they are subject to. In addition, the courts consider principles
incomplete, as opposed to domestic legal systems governing the issues in a
more comprehensive fashion.32 It should be noted, however, that the courts
ought to be able to interpret and supplement a set of principles of contract law
in the same way as they interpret and supplement domestic law, especially
since application and interpretation of the Incoterms, for instance, does not
seem problematic to them. This implies that it is at least possible for domestic
courts to consider application of an instrument that tends towards principles and
that is not part of the domestic law.
The question of freedom of choice would be worded differently if the
Hague Conference were working towards a convention on the law applicable
to commercial contracts. It is interesting to note that the draft Regulation on the
Law Applicable to Contractual Obligations issued by the European Commission
in 2005 allowed parties the option to choose principles and rules of substantive

30 In support of this solution: “the application of rules, admittedly private in origin but
codified, such as the UNIDROIT principles, seems to be a far more suitable practice for the arbitrator
who finds recourse to an a-national rather than a State-based law to be more appropriate in the
case in point: such rules can be easily consulted, and are precise and suited to international trade.
The arbitrator needs, however, to apply them in a reasoned and reasonable way, when the
circumstances warrant it”, BÉGUIN and MENJUCQ, supra note 29, No 2712, 1058.
31 Art. 28(1) of the UNCITRAL Model Law; Art. 46 of the Arbitration rules of the
Netherlands Arbitration Institute; Art. 42(1) of the ICSID Convention; Art. 3(1) of the Arbitration
Rules of the Milan Chamber of Commerce; Art. 1496, para. 1 of the Code of Civil Procedure
(France); Art. 1054(2) of the Code of Civil Procedure (Netherlands); Art. 1051 of the Code of Civil
Procedure (Germany); Art. 187(1) of the Federal Act on private international law (Switzerland). See
also Prel. Doc. No 22 C, supra note 2, 4, and LANDO and NIELSEN, supra note 21, 31.
32 P.E. NYGH, “The reasonable expectations of the parties as a guide to the choice of law
in contract and in tort”, Collected Courses of the Hague Academy of International Law (1995),
Vol. 251, 307-309; H.J. SONNENBERGER, in Münchener Kommentar zum BGB, Vol. 10, 4th ed.,
Munich (2006), Introduction, Nos 267 et seq.; D. MARTINY, in Münchener Kommentar zum BGB,
Vol. 10, 4th ed., Munich (2006), Art. 27, Nos 28 et seq.; J. KROPHOLLER, Internationales Privatrecht,
6. Auflage, pub. Mohr Siebeck, Tübingen (2006), 464-465.

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 Choice of Law in International Commercial Contracts: Hague Principles?

contract law recognised at the international or Community level.33 This would

have included the UNIDROIT Principles and the Principles of European Contract
Law while excluding the term lex mercatoria, considered too imprecise.34 The
text eventually adopted by the European Parliament and Council in June 2008
only allows the parties to choose a “law”, which implicitly eliminates the option
to choose other than State-based rules.35 The main justification given to such a
restriction is that internationally recognised principles of contract law have been
created by private working groups that were not established by States.36

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In the case at hand, the discussion concerns the inclusion of an option to
choose a law that is not State-based in the future Hague Principles. Owing to
their non-binding nature, which particularly (almost exclusively) targets
practitioners and arbitrators, it is difficult to understand why non-State-based
rules should be excluded from the scope of the future Hague Principles. It
should be emphasised that the UNIDROIT Principles and other similar
instruments grant broader coverage of the law of contracts than several
domestic legal systems, all the more so since these neutral Principles have been
developed (and are updated) precisely for the purposes of international
transactions 37 and not for domestic situations. For the reasons mentioned, it
seems desirable a priori not to exclude from the outset the applicability of non-
State-based rules through the future Hague Principles.

33 Draft Regulation of the European Parliament and of the Council on the law applicable
to contractual obligations (Rome I), COM (2005) 650 Final.
34 LANDO / NIELSEN, supra note 21, 31-32; D. BUREAU and H. MUIR WATT, Droit
international privé, Vol. 2, Partie spéciale, PUF, Paris (2007), 304.
35 Art. 3(1), Rome I Regulation, supra note 21. For a critique of that solution, considered
as the “weak point” of the Rome I Regulation, see F. MARRELLA, “The New (Rome I) European
Regulation on the Law Applicable to Contractual Obligations: What has Changed?”, The ICC
International Court of Arbitration Bulletin (2008), 107.
36 LANDO / NIELSEN, supra note 21, 34 and R. WAGNER, Der Grundsatz der Rechtswahl
und das mangels Rechtswahl anwendbare Recht (Rom I-Verordnung), Praxis des Internationalen
Privat- und Verfahrensrechts (2008), 379.
37 Another advantage is that the Principles are more easily understood and accessible for
parties than a choice of State-based law that is, for reasons of neutrality, entirely unrelated to their
legal situation, M.J. BONELL, “Die Unidroit-Prinzipien der internationalen Handelsverträge: Eine
neue Lex Mercatoria?”, Zeitschrift für Europarecht, internationales Privatrecht und Rechts-
vergleichung (1996), 153.

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(c) The absence of connection between the legal situation and the law
chosen

The freedom of choice envisaged for the future Hague Principles does not imply
that a connection is required between the chosen law and the commercial
transactions of the parties. The theory of localisation, which excludes the
chosen law when it is unrelated to the location of the contractual situation’s
elements, is still applied by several legal systems. According to its supporters,

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this approach prevents the evasion of an otherwise applicable law (fraude à la
loi).
However, regard must be had to the efficiency which results from the
principle of party autonomy and the fact that, in practice, parties are likely to
choose a neutral law because they are unable to agree on an application of
either of their own legal systems. Accordingly, parties ought to be permitted to
choose a law unrelated to the legal situation.38 In addition, relinquishing the
theory of localisation is supported by the most recent conventions and
legislation relating to the law applicable to contracts.39
For instance, Article 7(1) of the Hague Convention on the Law Applicable
to International Sale of Goods promotes the parties’ freedom without requiring
any connection between the chosen law and the transactions. There is also a
similar provision in the Hague Convention on Choice of Court Agreements,
though it relates only to choice of the court and not of the law applicable to the
contract. Likewise, neither the EU instruments relating to applicable law,
whether the Rome Convention or the Rome I Regulation, nor the Inter-
American Convention on the Law Applicable to International Contracts 40
require a connection between the chosen law and the contractual situation.
Moreover, the new Section 1-301 of the revised version of the Uniform
Commercial Code rules out the requirement of a “reasonable connection” in
international contracts.41 Accordingly, the future Hague Principles ought to

38 In support, see MARTINY, supra note 32, Art. 27, No 22 and the citations.
39 P. NYGH, Autonomy in International Contracts, Clarendon Press, Oxford (1999), 58-60.
40 Inter-American Convention of 17 March 1994 on the Law Applicable to International
Contracts.
41 Section 1-301 of the Uniform Commercial Code provides that: “(c) Except as otherwise
provided in this section:
(1) an agreement by parties to a domestic transaction that any or all of their rights
and obligations are to be determined by the law of this State or of another State is effective,
whether or not the transaction bears a relation to the State designated; and
(2) an agreement by parties to an international transaction that any or all of their
rights and obligations are to be determined by the law of this State or of another State or country is

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 Choice of Law in International Commercial Contracts: Hague Principles?

adopt the principle of autonomy without requiring a particular connection, in

order to make them consistent with internationally-accepted practice.
However, the law chosen by the parties may be set aside by means of the
public policy exception or by mandatory rules, to the extent necessary to
prevent any evasion of laws.42

(d) The explicit or implicit nature of the choice

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Subsequent discussions should also lead to a decision on whether an implicit
choice of the applicable law is admissible. While an explicit choice
indisputably reflects the parties’ intent, one may wonder about the importance
to be afforded an implicit choice. In other words: at what point can the parties
be deemed to have expressed their intent?
Some international instruments developed by sister organisations of the
Hague Conference or by the Conference itself, contain criteria for formal
validity relating to the expression of intent. This is the case of the UNCITRAL
Model Law on international commercial arbitration,43 and of the Hague
Convention on Choice of Court Agreements.44 For their part, the regional
instruments designating the law applicable with respect to international
contracts refer to the formation criteria contained in the various national laws
according to the circumstances at the time the contract was made.45
The Permanent Bureau’s direction would be to encourage explicit choices,
noting in its provisions that written choice-of-law agreements would naturally
be preferred. Likewise, account should be taken of the exponential use of
electronic communications in international contractual relations. The provision
should be supplemented by the phrase “in writing or by any other means of

effective, whether or not the transaction bears a relation to the State or country designated.”
Also S. SYMEONIDES, American Private International Law, Kluwer International, Alphen
aan der Rijn (2008), No. 432 in fine, 199-200.
42 See infra, point 5.
43 Art. 7 (regarding arbitration agreements) of the UNCITRAL Model Law of 1985 on
international commercial arbitration, amended in 2006.
44 Art 3 c) of the Hague Convention on Choice of Court Agreements. Compare with the
definition of “agreement in writing” contained in the Hague Convention of 23 November 2007 on
the International Recovery of Child Support and Other Forms of Family Maintenance.
45 Art. 9 of the Rome Convention of 19 June 1980; Art. 11 of the Rome I Regulation; Art.
13 of the Inter-American Convention of 17 March 1994 on the Law Applicable to International
Contracts.

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 Permanent Bureau of the Hague Conference on Private International Law

communication that renders the information accessible so as to be usable for

subsequent reference.” 46
An overview of the existing instruments indicates that an implicit choice of
applicable law is permitted. In some cases implicit choice is contemplated
restrictively. For instance, the Inter-American Convention on the Law
Applicable to International Contracts provides that “[t]he parties’ agreement on
this selection [of applicable law] must be express or, in the event that there is no
express agreement, must be evident from the parties’ behaviour and from the

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clauses of the contract, considered as a whole.” 47 The provision invites a two-
fold analysis: subjective (behaviour of the parties) and objective (clauses of the
contract). Australian case-law uses a similar solution.48
However, assuming that the choice results with certainty from either the
provisions of the contract or the circumstances of the case, the Rome I
Regulation seems to be more flexible than the Inter-American Convention.49
Quebec, a civil-law province of Canada, requires for its part only that the
designation be inferred with certainty from the terms of the contract, without
having the circumstances of the deed analysed.50 Likewise, the United States,
without admitting hypothetical choices of law, considers that a reference to a
State-based law or institutional-specific rules may constitute a valid choice.51

46 Art. 9(2) of the United Nations Convention of 23 November 2005 on the use of
electronic communications in international contracts, <www.uncitral.org/uncitral/en/
uncitral_texts/electronic_commerce/2005Convention.html> [last consulted on 29 June 2010].
47 Art. 7 of the Inter-American Convention on the Law Applicable to International
Contracts <www.oas.org/DIL/CIDIPV_convention_internationalcontracts.htm> [last consulted on
29 June 2010].
48 Akai Pty Ltd v. People’s Insurance Co Ltd (1996) 188 CLR 418 (High Court of Australia);
P. NYGH / M. DAVIES, Conflict of Laws in Australia, 7th ed., LexisNexis Butterworths, Chatswood
(2002), No 19.4 360-362.
49 Art. 3 of the Rome I Regulation; compare with the Rome Convention, which is phrased
more restrictively: “The choice must be expressed or demonstrated with reasonable certainty by
the terms of the contract or the circumstances of the case”, Art. 3 of the Rome Convention of 19
June 1980 (emphasis added). For a description of the background to adoption of the Rome I
Regulation, see WAGNER, supra note 36, 378.
50 “A juridical act, whether or not it contains any foreign element, is governed by the law
expressly designated in the act or the designation of which may be inferred with certainty from the
terms of the act”, Art. 3111, para. 1 of the Civil Code of Quebec.
51 “But even when the contract does not refer to any state, the forum may nevertheless be
able to conclude from its provisions that the parties did wish to have the law of a particular state
applied. So the fact that the contract contains legal expressions, or makes reference to legal
doctrines, that are peculiar to the local law of a particular state may provide persuasive evidence
that the parties wished to have this law applied. On the other hand, the rule of this section is

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 Choice of Law in International Commercial Contracts: Hague Principles?

This approach was indeed followed in the case of Sonat Exploration Co. v.
Cudd Pressure Control Inc.52
It can thus be observed that there is no consensus in comparative private
international law on the forms of admissibility of implied choice, even within
the broader civil law and common law families.
The arbitration rules relating to determination of the parties’ implicit choice
are no more unified. The term “implicit” sometimes appears in the provision

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relating to applicable law.53 However, the phrases “designated by the parties”
or “in the absence of agreement” are far more common, and it is difficult to
determine whether they encompass an implicit statement or agreement of the
parties.54 The issue seems deliberately left to the arbitrators’ discretion.
For his part, Mr Lando proposes that the choice should be made expressly
or at least arise clearly from the contents of the contract or the parties’
behaviour.55
The Permanent Bureau, wishing to develop principles that will provide
legal stability and predictability, and encouraging the parties to state explicitly
the law to which any disagreements among them will be subjected, questions
the necessity of preserving the parties’ implicit choice. Nevertheless, if implying
the parties’ intent were to be accepted, an international interpretation of that
concept would be recommended.56

(e) Dépeçage (severability)

Dépeçage is defined as the separation of the elements making up the legal

situation so as to subject them to the application of several different normative

inapplicable unless it can be established that the parties have chosen the state of the applicable
law. It does not suffice to demonstrate that the parties, if they had thought about the matter, would
have wished to have the law of a particular state applied”, Restatement of the law, Second,
American Law Institute, ALI Publishers, St. Paul (1971), Vol. 1, para. 187, commentary a., 561-562;
SYMEONIDES, supra note 41, No 450, 209.
52 Sonat Exploration Co. c. Cudd Pressure Control, Inc 271 S.W.3d 228 Tex., 2008.
53 Art. 21 of the Arab Convention on commercial arbitration (Amman, 14 April 1987).
54 Art. VII of the European Convention on International Commercial Arbitration of 21
April 1961; Art. 33 of the UNCITRAL Arbitration Rules; Art. 28 of the UNCITRAL Model Law; Art.
28 of the International Arbitration Rules of the American Arbitration Association.
55 O. Lando, supra note 6, 174.
56 A. DICEY / J. MORRIS / L. COLLINS, The Conflict of Laws, Vol. 2, 14th ed., Sweet &
Maxwell, London (2006), Rule 203, No 32-080, 1567 (regarding the Rome Convention).

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 Permanent Bureau of the Hague Conference on Private International Law

systems.57 In restrictive fashion, some authors require that dépeçage, in order to

be lawful, relate to contractual transactions that are clearly severable.58 But on
the basis that dépeçage is by nature a form of accomplishing party autonomy,59
it seems preferable for the future Hague Principles to allow the parties the
opportunity to use this device unrestrictedly.60 This solution would be entirely
consistent with the general spirit of the project. The parties would be required,
however, to be consistent in the solutions they set up, having regard to the
norms selected and to the contract itself:61 such freedom to sever the elements

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of the contract should not be a source of disputes.62 The Group of Experts is
invited to suggest precisely what ought to be decided in this respect.

57 P. LAGARDE, “Le dépeçage en droit international privé des contrats”, Rivista di diritto
internazionale privato e processuale (1975), No 1, 649.
58 J.-M. JACQUET, see “Contrats”, Répertoire de Droit international, Dalloz (1998), Nos 56
and 57, 13. According to Bernard Audit, this restrictive view is inspired “by the concern to observe
the statutory establishments and the fear of imbalance between the parties”, B. AUDIT, Droit
international privé, 5th ed. (2008), No 821, 685.
59 Dépeçage is a “form of accomplishment of contractual intent”, LAGARDE, supra note 57,
No 4, 652. Compare: “dépeçage is simply a manifestation (or the logical conclusion) of the
principle of party autonomy”, R. PLENDER, The European Contracts Convention: The Rome
Convention on the Choice of Law for Contracts, 2nd ed., London, Sweet & Maxwell (2001), No 5-
17, 100-101; M. EKELMANS, “Le dépeçage du contrat dans la Convention de Rome du 19 juin 1980
sur la loi applicable aux obligations contractuelles”, Mélanges offerts à Raymond Vander Elst,
Tome I, Nemesis, Bruxelles (1986), 247.
60 Dépeçage is in fact permitted by several instruments, including in particular the
Resolution of the Institute of International Law on “The Autonomy of the Parties in International
Contracts Between Private Persons or Entities” (“the parties may choose the law to be applied to
the whole or one or more parts of the contract”, Art. 7 of the Resolution, Basel Session 1991,
Revue critique de droit international privé (1991), 198), the Rome Convention of 19 June 1980
and the Rome I Regulation (“the parties can select the law applicable to the whole or a part only
of the contract”, Art. 3(1)). As regards arbitration, see RADIC, supra note 2.
61 J. FAWCETT / J. CARRUTHERS, “Choices must be logically consistent”, Cheshire, North and
Fawcett: Private international law, 14th ed., Oxford University Press, Oxford (2008), 691. Cf. “the
only limit of dépeçage is one of practice: the application of several laws to a single contract should
not rupture its consistency”; J.-M. JACQUET, supra note 58, No 55, 13; “when the contract is
severable the choice must be logically consistent, i.e., it must relate to elements in the contract
which can be governed by different laws without giving rise to contradictions. For example, an
‘index-linking clause’ may be made subject to a different law; on the other hand, it is unlikely that
repudiation of the contract for non-performance would be subjected to two different laws, one for
the vendor and the other for the purchaser. Recourse must be had to [the rule applicable in the
event of choice] if the chosen laws cannot be logically reconciled”, M. GIULIANO / P. LAGARDE,
“Report concerning the convention on the law applicable to contractual obligations”, Official
Journal of the European Communities, 31 Oct. 1980, No C 282, 17.
62 Regarding the discussions of this matter in connection with the 1986 Convention, see
Proceedings of the Extraordinary Session of October 1985, Diplomatic Conference on the law

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 Choice of Law in International Commercial Contracts: Hague Principles?

V. – THE RULES APPLICABLE IN THE ABSENCE OF CHOICE BY THE PARTIES

It is premature to make any claims on the reach of the future Hague Principles.
If they are to be comprehensive, it would be desirable to provide for rules
applicable in the absence of choice of law by the parties.63 A few lines of
investigation that might lead to the drafting of subsidiary rules, if so desired, are
set out below.

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(a) The introductory chapeau

At a first stage and for the sake of clarity, it could be useful to include an
introductory chapeau which would state that the rule applicable in the absence
of choice consists of a general principle subject to an exception – the general
principle being that the law applicable in the absence of choice would be that
with the closest connections to the contract.

(b) Phrasing of the subsidiary rule

In the second stage, the rule applicable in the absence of choice could provide
that determination of the applicable law would be based on a presumption in
favour of the law of the habitual residence of the party who is required to
provide the characteristic performance.64 The rule established might then be
supplemented by a list of specific contracts by subject-matter: for sale,
distribution, insurance, finance, real estate, transport, etc.
In effect, the addition of a provision relating to specific contracts rather than
mere commentaries following the written rule seems more suitable. This is why
the Conference could include in the future Hague Principles a number of
connections that would apply to each broad type of commercial contract.65

applicable to sales contracts, edited by the Permanent Bureau of the Conference, Netherlands
Government Printing Office, The Hague (1987), Nos 50-54, 725.
63 For an outline of the various methods used in arbitration matters when the parties have
not designated an applicable law, see LANDO, supra note 6, 164-169.
64 The rule could be phrased as follows, for instance: “In the absence of choice, the law
applicable to the contract shall be the law of the location of habitual residence of the party that
shall provide or ought to have provided the characteristic performance.”
65 Compare with Sections 189 to 197 of the Restatement, Second, as described by
S. SYMEONIDES, supra note 41, No 490, 226-227. The reference to a list of specific contracts is also
used in the European Community rules, in particular Article 4 of the Rome I Regulation. For the
background to adoption of that provision, see WAGNER, supra note 36, 381 et seq. On the other
hand, Article 9 of the Inter-American Convention on the Law Applicable to International
Contracts does not provide for specific clauses by class of contracts.

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 Permanent Bureau of the Hague Conference on Private International Law

That methodology, together with the number and type of contracts concerned,
will naturally require analysis and consideration within the Working Group.

(c) The exception clause

At a third stage the inclusion of an exception clause is contemplated whereby

the law designated by the rule applicable in the absence of choice by the parties
will not be applicable, by way of exception, where the characteristic

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performance cannot be determined or where it appears that, owing to the
circumstances as a whole, the contractual situation has a closer connection with
another legal system.
Function – The function of this exception clause would be to determine the
law having the closest connection to the legal situation: it would then be
considered, as it is by Mr Lagarde, as a form of expression of the principle of
proximity.66 Unlike a fixed connection, such a solution would offer the
advantage of granting primacy to a flexible determination, which would allow
the judge or arbitrator to adapt the solution to each case. It could also apply to
situations that the Conference, when setting out a specific connection, could
not have foreseen at the time of drafting the future Hague Principles.67
The exception clause should not, however, affect the parties’ expectations.
It is for this reason that it would be applied only where the contracting parties
have not chosen the applicable law.68 In addition, as its name implies, the
exception clause would only apply on a remedial basis: its purpose would be to

66 P. LAGARDE, Le principe de proximité dans le droit international privé contemporain,

Recueil des cours de l’Académie de droit international de La Haye (1986-I), t. 196, 9 et seq.
67 Compare with Article 4(4) in fine of the Rome I Regulation, supra note 21: “Where the
law applicable cannot be determined pursuant to paragraphs 1 or 2, the contract shall be
governed by the law of the country with which it is most closely connected.”
68 Swiss, Quebec and Belgian rules all take care to specify that the exception clause is
never applicable when the law is designated in a legal instrument, see Swiss Federal Act on
private international law of 18 December 1987, Feuille Fédérale, 12 January 1988 [1988.I.5],
Revue critique de droit international privé (1988), 409, website of the Federal authorities of the
Swiss Confederation: <http://www.admin.ch/ch/f/rs/c291.html> [last consulted on 29 June 2010];
Quebec Law of December 14, 1991 codifying private international law as the tenth Book of the
Civil Code of Quebec (Arts 3076-3168), available on the website of the Ministry of Justice
<www.justice.gouv.qc.ca/english/sujets/glossaire/code-civil-a.htm> [last consulted on 29 June
2010]; Belgian Act of 16 July 2004 establishing the Code of private international law, Moniteur
Belge 27 July 2004, 57344; Revue critique de droit international privé (2005), 154, text available
on the website of the Ministry of Justice (search by adoption date=16 July 2004):
<http://www.ejustice.just.fgov.be/loi/loi.htm> [last consulted on 29 June 2010].

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 Choice of Law in International Commercial Contracts: Hague Principles?

remedy excessively rigid application of the connection rule deemed valid in the
absence of choice.
However, unlike certain domestic legislations, the arbitrator or judge
would not be required to demonstrate the absence of close connections
between the legal situation and the law designated by the rule to be applied in
the absence of choice (negative proof): it would suffice for the award or
judgment duly to establish that the connections to another system are stronger
(affirmative proof).

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List of elements – It would be desirable for the closest connections to be
based on a combination of several locating factors. The future Hague Principles
would not claim, however, to establish any ranking among the variety of
elements to be taken into account. It would then be up to the arbitrator or judge
to evaluate the circumstances and draw up his or her own set of locating
factors.

VI. – THE LIMITS OF APPLICATION OF CONFLICT RULES

Party autonomy and freedom of choice are subject to certain restrictions.

Compliance with the forum’s international public policy and the application of
mandatory rules will therefore prevail over the law selected by the parties
where necessary. The precise determination of those limits, however, will be
one of the most difficult tasks for the Working Group.

(a) Mandatory rules and public policy

Difficulty of definition – Despite similar effects on the determination of the

applicable law, mandatory rules and public policy should be distinguished.
On the one hand, the concept of mandatory rules is not delimited by strict
definition criteria. These are laws which, owing to their nature and their
content, are of direct application. A famous dictum by Franceskakis describes
them as “laws, the observation of which is required to safeguard the country’s
political, social and economic organisation.” Their distinctive character lies in
this concept of organisation, for example the rules repressing anti-competition
clauses.69 In addition, the application of mandatory rules is “a necessary

69 Ph. FRANCESKAKIS, “Lois d’application immédiate et droit du travail : l’affaire du comité

d’entreprise de la Compagnie des wagons-lits”, Revue critique de droit international privé (1974),
275. See also Ph. FRANCESKAKIS, “Quelques précisions sur les lois d’application immédiate et leurs
rapports avec les règles de conflits de lois”, Revue critique de droit international privé (1966), 1.

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 Permanent Bureau of the Hague Conference on Private International Law

supplement, without which recourse to party autonomy cannot be justified.” 70

These may be either rules of the forum or foreign mandatory rules (when they
are related to the situation).
On the other hand, the method of mandatory rules should be distinguished
from the public-policy exception. As stated by Mr Mayer, “the method of
mandatory rules is a device for designation of the applicable law, based on
consideration of the mandatory rules’ aims, whereas the public-policy exception
tends to exclude the foreign law otherwise applicable, owing to the latter’s

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contents”.71
Public policy, for its part, refers to all the fundamental values of a
community and its legal system, and for that reason, it is “necessary to reserve
for the judge the option to set aside a [foreign] law, the contents of which are
unacceptable.” 72 This is why the Hague Conference would plan to include
among the future Hague Principles the standard-form provision that it has
coined in the context of other instruments. That provision would specify that
“The application of one of the laws specified by these Principles may be refused
only where such application would be manifestly incompatible with public
policy (ordre public).” 73
Assertion of public-policy protection must necessarily be preceded by a
comparison between the law applicable to the contract and the law of the
forum.74 Application of the foreign law should have as its effect a breach of the
public policy of the forum or of the country where the arbitration award will be
enforced. A mere difference between the two laws cannot be sufficient to
dismiss the law chosen.75 However, as an exception to the principle of party
autonomy, that provision’s interpretation ought to be restrictive.

(b) The issue of renvoi

Renvoi – The renvoi technique is not a restriction of the parties’ designation of

the applicable law: contractual obligations are a matter where, traditionally, this

70 P. MAYER, see “Lois de police”, Répertoire de droit international, Dalloz, Paris (1998),
No 26, 4.
71 Ibid., No 27, 4.
72 H. BATIFFOL / P. LAGARDE, Traité de droit international privé, t. 1, 8e éd., LGDJ, Paris
(1993), 569.
73 Cf., for instance, Art. 17 of the Hague Convention of 14 March 1978 on the Law
Applicable to Agency, available on the Hague Conference website at <www.hcch.net>.
74 BATIFFOL / LAGARDE, supra note 72, 569.
75 DICEY / MORRIS / COLLINS, supra note 56, Rule 210, No 32-230, 1627.

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 Choice of Law in International Commercial Contracts: Hague Principles?

mechanism has no relevance.76 This solution is justified by the fact that in the
case of a choice of law, implementation of renvoi would result in thwarting the
parties’ legitimate expectations: the contracting parties’ intent is undoubtedly to
choose a substantive rule and not to consider the renvoi virtually imposed by
the conflict rules of the State-based systems involved. Accordingly, the principle
of legal security, and correspondingly the observance of party autonomy,
require that bypassing of the designated law cannot be an option.
Finally, the co-ordinating function of the renvoi is made pointless in this

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case by the aim of the future Hague Principles, which is to serve as a model law
and, eventually, to fashion the international co-ordination of solutions through
the uniformisation of private international law. It is in fact for this same reason
that most of the Hague Conventions rule out the use of renvoi in the resolution
of conflicts of law with a provision that has now become traditional: “the term
‘law’ means the law in force in a State other than its choice of law rules.” 77

VII. – CONCLUSION

The utility of a global instrument relating to the choice of law in international

contracts has been taking shape in the preparatory work and consultations
conducted by the Permanent Bureau of the Hague Conference for many years.
Party autonomy in international contractual relations would be greatly
strengthened by the establishment of such an instrument.
The main purpose of this publication is to bring to light the discussions that
have been conducted within the Permanent Bureau in preparation for the
meetings and other exchanges of the Working Group on the choice of the law
applicable to international contracts. This bold project is hereby entering the
key phase of discussion and development of a draft instrument, which, it is
hoped, will benefit from the suggestions and observations of any and all
interested parties.78

mim

76 NYGH, supra note 32, 324.

77 J. DERRUPPÉ, Le renvoi dans les conventions internationales, Juris-Classeur de droit
international, fasc. 532-3 (1993), No 7, 3. See, e.g., Art. 12 of the Hague Protocol of 23 November
2007 on the Law Applicable to Maintenance Obligations, available on the Hague Conference
website at <www.hcch.net>.
78 The authors would be glad to receive any comments or observations at the following e-
mail address: <secretariat@hcch.net>.

Rev. dr. unif. 2010 903