The right would apply either because it was chosen by the parties and the court critically considered the option, or because it is the law most closely related to the contract. In the absence of clear evidence to the contrary, the parties must be treated as if their objective was to refer to the national provisions and not to the contradictory provisions of the law they have chosen, and the reference to the legal order must refer to the substantive principles of law and not to the conflicting rules of law. The problem it raises is that if the treaty is bilateral and each party must perform from its own country, it would be difficult to determine which law of the country reflects the law of the place of performance. The elements of the contract may contain material links with many countries, each of which has the right to be taken into account. Injustice arises when the relevant law is the law of the place where the contract is concluded and has no real connection with the contract. In lord Esher`s well-known judgment in Chatenay v. Brazilian Submarin Telegraph Co, which has always been considered the principal authority of doctrine, the law of the lex loci solutionis was followed. In this case, X, a Brazilian citizen residing in Brazil, executes in Brazil a warrant for the purchase and sale of securities in Portuguese and in the manner determined by Brazilian law in favor of A a securities dealer operating in London. To the extent that the power of attorney is to be exercised in England (at least to the extent that it concerns third parties), it is regulated lex loci solutionis by English law.
If both parties in the same country have to comply with their contractual obligations, it is very likely that the court will treat the legal system of that country as the one with which the contract is most closely related. It is believed that this is the functional meaning to be attached in relation to the current evolution of the law, because there are serious disagreements on the right law to regulate. In the above case, therefore, great importance would be attached to the law of the place of performance as the applicable law of the contract, in particular if the contract is concluded in one country but is to be fully performed in another. In addition, the intention of the parties to choose the right law is in good faith and does not conflict with public order according to the “good law” of the agreement, must be presented to the court with appropriate evidence. This is consistent with the Supreme Court`s decision in Hari Shankar Jain v. Indira Gandhi, in which the Court ruled that a foreign law must be invoked like any other fact and must be proven by evidence from legal experts, since these are conclusive questions of evidence as questions of fact – if a party wishes to rely on the same thing. If the answer is confirmed after examination of the evidence, the agreement is subject to the applicable law of the contract. It is not in all circumstances that the contracting parties expressly want or choose the law governing their agreement. If a statement that the applicable law of this contract is English law makes an explicit choice visible, the courts have little difficulty in deciding the correct law of the contract. However, there is a problem when the intention of the parties is not expressly demonstrated in the contract.
If the object of the contracting parties is not expressed in words under the law governing the contract, their intention shall derive from the terms and nature of the contract and the general circumstances of the case, and the applicable law of the contract shall be determined by such intention derived from that intention. If the parties have chosen the law to govern their contract and the objective test is passed by that law, but it is a law that invalidates the parties` contract, the court will continue to apply the law regardless of its invalid effect. If they were to refer to the contract in question, the English courts and even the courts of other countries simply apply invalid laws, as ridiculous as it may seem. The application of the Lex loci Treaty to a more multifaceted principle – the treaty`s own law – was annulled by that judgment. It is apparent from the issues that led to that judgment that the decision of the Supreme Court of Mauritius was based on the lex loci solutionis, the place of performance rule and not on the place where the contract was concluded; Thus, the decision was rightly based on the strict approach of the lex loci solutionis theory, which was not adopted by the House of Lords. The Latin maxim lex loci contractus refers to the law of the place where the contract is concluded. One of the early proponents of this theory was Huber, who argued that contracts are entirely governed in form and content by the lex loci contractus and that the lex loci contractus does not predominate if the parties have a different position in mind. It can be said that Huber`s theory was the beginning of the search for good contract law; Or rather, it opened the door to this research. Robinson v. Bland was the first case to apply this theory, in which the court concluded that the general rule in such cases takes into account the place where the contract is concluded and not the place where the action is brought. Bose J.
noted that subjective theory can lead to strange results due to unrelated law and that there may be difficulties in enforcing the law if it is illegal or contrary to public order. A similar observation was made in British India Steam Navigation Co Ltd v. Shanmughavilas Cashew Industries, the court emphasized the law established in ista Foods and held that the choice of law must be in good faith and lawful and not contrary to public policy. And also noted that it may not be permissible to choose a completely disjointed law. Similarly, in Rabindra N Maitra v. Life Insurance Corporation of India, the Supreme Court of Calcutta upheld the same principle, noting that it would not be justified to choose a non-contiguous right in the contractual agreement between international parties, unless the law is also the appropriate law. With the exception of the terms of the contract, the principle of the objective does not offer any room for external consideration or circumstances. The consequence is the choice of a right which, unless this law is decided objectively, has nothing to do with the contract. By choosing a law for the sole purpose of validating an illegal contract, the parties can exercise their rights capriciously. This book provides detailed information on a variety of topics of private international law.
In the context of the researcher`s research, the book explains in detail the international treaties, their components, the problems and conflicts they contain. The book also deals effectively with the principle of contract law and many relevant case law. The writing style of the book is detailed, student-friendly, and easy to understand. None of this suggests that in today`s world, the issue of contract law is still legitimate, as many courts around the world still adopt the old classical and static theories to decide the option of the applicable law of a contract. However, the advent of the new approach helped to alleviate the possible and actual tensions that arose/could have arisen. If a dispute arises between the parties, the parties apply to a court of competent jurisdiction to resolve and settle the dispute, applying the applicable law of the contract. The question of the jurisdiction of such a court may arise in a case where the party agrees to submit to a court designated as the court of choice as exclusive jurisdiction and then brings an action in another court. In addition, the dispute may also arise if the contracting parties voluntarily agree on a law that governs their contract. In such cases, the question arises as to whether the Indian courts will allow the parties to choose a foreign law (with or without a foreign jurisdiction agreement).] These are the two concerns of this document. The first case to open the door to the modern approach to appropriate legal theory is P. & O.
Steam Navigation Co. v. Shand, the plaintiff, who had been appointed Chief Justice of Mauritius, took a ticket to England for his passage from Southampton to Alexandria and from Suez to Mauritius aboard the defendant`s steamships. A indemnification clause excluded the defendant`s liability for loss of or damage to passengers` luggage. The applicant`s luggage was lost in Egypt. Problems according to this theory arise when two parties from different countries conclude a contract in a completely different third country. In such scenarios, the country in which the contract is performed is chosen as the place of determination of contract law. In addition, the place of the contract may be fraudulently inserted into the contract in order to give effect to an otherwise invalid contract.
If the parties agree on the jurisdiction of a foreign court, but one of them subsequently sues in India, under what circumstances (if any) will the Indian court deny jurisdiction? Thus, when the contracting parties come from different countries, at least two legal systems are involved in the transaction, and the rules and guidelines of private international law come into play. .
- Posted by adriel
- On April 16, 2022