Methodology

What’s the Methodology Behind CoLD?

In order to systematize diverse rules and case law decisions in a uniform manner, comparative law methodology is applied. A high-quality database is the result of comprehensive global research efforts on the topic of choice of law, and the ultimate goal is to add more data points to the main dataset. Information will be “in motion”, constantly updated and connected to the users.

Our specific objectives are the following:

To expand the scope of data collection to more African, Asian and Latin American countries.
To update the existing information.
To translate relevant data points into English.
To present the information in a systematic and orderly manner.
To design a user-friendly online platform as a sustainable data-sharing strategy.
To provide a comprehensive overview of national, regional, supranational, and international rules and approaches to choice of law.
To determine good practices which may be transferable to other jurisdictions, notably where a body of rules is not consolidated and courts have not adopted a position on a given choice of law issue.
To identify convergent trends in party autonomy across the five continents.
To forecast new directions regarding the future of transnational rules on conflict of laws.

Questionnaire

Besides displaying the relevant information on legal provisions and case law decisions, the main dataset on choice of law contains an analytical layer. The work is organized around a questionnaire designed to systematize standard answers about choice of law rules in various jurisdictions. It covers the following topics:

Codification of private international law: The first set of questions revolves around whether rules of private international law are codified and if there is any ongoing revision. Based on the response, further questions explore the role of the HCCH Principles in this context.
Party autonomy: This section focuses on the acceptance and implementation of the principle of party autonomy in international commercial contracts. It includes questions about the ability of parties to choose rules of law (non-State law) to govern their contract. This section also addresses whether parties can choose different laws to be applied for different parts of the contract (dépeçage).
Tacit choice: This part addresses whether a choice of law needs to be explicitly stated or if it can be made tacitly. Various scenarios are explored, such as the role of a choice of forum clause or an arbitration clause in indicating a tacit choice of law.
Mandatory rules and public policy: Questions in this section inquire about overriding mandatory provisions, their application, and the concept of public policy in commercial law.
Arbitration: This segment explores the authority of arbitral tribunals to apply the HCCH Principles and interpret mandatory provisions.
Absence of choice: Questions here deal with the legal framework (including the use of connecting factors by adjudicators) for situations where the parties have not chosen the applicable law to govern the contract.
Future guidance and revisions: The final part asks about the desirability of a future version of the HCCH Principles, the need for further guidance on topics surrounding applicable law in international contracts (e.g., in protecting weaker parties), and suggestions for other topics that might need revision or guidance.

Each section of the questionnaire is structured to branch out based on the responses to initial questions, leading to more specific follow-up questions. This structure aims to gather detailed and nuanced information about choice of law in international contracts from different jurisdictions.

Preamble

Is there a codification on choice of law?
1. Are these rules part of a private international law instrument?
2. Are these rules a consequence of a recent law reform?
  1. If a codification of private international law exists, is any revision of these rules under discussion?
  2. Could the HCCH Principles be expected to play a model role in this regard?
  3. If a revision is not under discussion, could the HCCH Principles be expected to play any role in interpreting, supplementing or developing rules of private international law?
  4. Are there similar established rules formulated by courts or other non-legislative bodies?
Do the courts have the authority to refer to the HCCH Principles as persuasive authority?
Party Autonomy and Freedom of Choice
Is the principle of party autonomy in respect of choice of law in international commercial contracts widely accepted in your jurisdiction?
More specifically, are the parties to an international commercial contract allowed to choose the law applicable to their contract?
Are the parties allowed to choose different laws for different parts or aspects of the contract? (See also Dépeçage)
Are the parties allowed to choose the applicable law with respect to only one part or aspect of their contract?
Are the parties allowed to make or modify a choice of law at any time?
1. May an internal modification of the agreement on the applicable law after the conclusion of the contract be valid even if a specific form is requested for the original choice?
2. May a choice of law or modification made after the conclusion of the contract have an impact on the rights of third parties?
Is a connection required between the chosen law and the parties or their transaction?
Are the parties prevented from choosing the law of a third country with which there is no connection (a “neutral law”)? Are there any published cases in your jurisdiction in which an agreement by the parties on the applicable law was not respected for lack of such a connection?
Are the parties allowed to choose non-State law (“rules of law”) to govern their contract?
Are there any particular requirements or restrictions with regard to the eligible rules of law?
Are the parties allowed to incorporate rules of law into their contract by way of reference? Are there any requirements for the effective incorporation of such rules?
Express and Tacit Choice
Does your jurisdiction require a choice of law to be made expressly?
Can a choice of law be made tacitly?
Is tacit choice of law clearly distinguished from the position where there is no choice of law?
Are clear criteria employed to examine whether there is a tacit choice of law?
1. May a tacit choice of law be deduced from the provisions of the contract?
2. May a tacit choice of law be deduced from the reference to legal provisions?
3. May a tacit choice of law be deduced from the reference to institutions of a particular jurisdiction?
4. May a tacit choice of law be deduced from the circumstances?
5. May a tacit choice of law be deduced from other criteria?
Does a choice of court or arbitral tribunal automatically indicate a tacit choice of law?
May a choice of court or arbitral tribunal be taken into account as one of the relevant factors in this regard?
May the parties choose non-State law tacitly?
Do the courts in your jurisdiction readily admit the existence of a tacit choice of law?
Is the notion of a tacit choice of law supported in legal literature?
Mandatory Rules
Is there a concept of “overriding mandatory mandatory rule provision” in your jurisdiction? (e.g., “a substantive law rule that applies irrespective of the law chosen by the parties”)
Do the courts in your jurisdiction apply overriding mandatory provisions of the law of the forum under certain circumstances? If the courts in your jurisdiction sometimes apply overriding mandatory provisions of the law of the forum, under which circumstances will this be the case?
Do the courts apply overriding mandatory provisions of other jurisdictions? Do the courts take into account overriding mandatory provisions of other jurisdictions?
Public Policy
Is “public policy” used in your jurisdiction in the context of cross-border legal relations?
Is there a particular notion or understanding of public policy with regard to the field of commercial law?
Do the courts exclude the application of a provision of the law chosen by the parties if the result of such application would be manifestly incompatible with the public policy of the forum?
Do the courts apply or take into account the public policy of a State whose law would be applicable in the absence of a choice of law?
Arbitration
Do arbitral tribunals have the authority to apply the HCCH Principles?
Do arbitral tribunals apply or take into account overriding mandatory provisions or the public policy of a law other than the law chosen by the parties? (See also Arbitrators vs. State judges)
Does the codification on arbitration, if any, include conflict of laws rules? Is any revision of the lex arbitri under discussion?
Absence of Choice
In the absence of a choice by the parties, does your jurisdiction provide a framework for identifying the applicable law?
Does the framework establish clear connecting factors to designate the applicable law?
1. Which are the most common connecting factors?
2. Among these, what is the most frequently relied upon by courts?
Is this connecting factor suitable to be considered a general default rule?
Are you aware of any recent arbitral award dealing with this issue?
Future Version of the HCCH Principles
Is a future version of the HCCH Principles covering the law applicable in the absence of a choice of law by the parties desirable?
Is further guidance on applicable law in international contracts providing protection to weaker parties necessary?
Are there other topics that should be considered for further guidance or revision of the HCCH Principles?
Should the HCCH Principles be incorporated into a new HCCH instrument? (See also Conventions (hard law))