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Arraché au terme d’un compromis au sein du gouvernement de coalition, le projet de loi sur la conservation des données de connexion, qui pourrait être voté dès septembre 2015, suscite le scepticisme.

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In continuation of my previous work on the international attractiveness of contract laws in ICC arbitration, I have posted the draft of a new empirical study focusing on Asia (The Laws of Asian International Business Transactions). It is based on unpublished data provided by the main arbitral institutions active in that part of the world. The abstract reads:

The purpose of this Article is to assess the preferences of parties to Asian international business transactions when they choose the law governing their contracts. For that purpose, I conduct an empirical analysis of unpublished data of the four main arbitral institutions active in Asia (outside Mainland China) for years 2011 and 2012. I find that three laws dominate the Asian market for international contracts: English law, U.S. laws and, to a lesser extent, Singapore law.

The Article makes three contributions. First, it documents the regional variations in parties’ preferences: the laws which are successful in Asia are different from those which are in Europe. Secondly, it shows that, while English and U.S. laws might govern an equivalent number of transactions, they are chosen in very different circumstances. U.S. laws are typically chosen in transactions between a U.S. and an Asian party where the parties also agree to settle their dispute in the United States under the aegis of the international division of the American Arbitration Association. These are thus transactions where the bargaining power of the U.S. party was strong, and enabled that party to impose choice of a U.S. dispute resolution institution and of a U.S. law. By contrast, English law is chosen in transactions between parties of all nationalities, in the context of arbitration under the aegis of almost all institutions, in proceedings with their seat anywhere in Asia. English law appears to be the only law to be considered as attractive to international commercial parties operating in Asia and seeking an option other than the laws of one of the parties.

Finally, the Article seeks to explain the remarkable attractiveness of English law in Asia. It explores whether certain substantive rules of English law might be especially appealing to international commercial parties, and whether the fact that many Asian jurisdictions are former English colonies might play a role. It concludes that the most convincing reasons are the wide presence of Commonwealth educated lawyers in Asia, and the fear of the American way of law.

The article is forthcoming in the Washington International Law Journal (formerly Pacific Rim Law and Policy Journal). All comments welcome!

I have delayed reporting on the Hague Principles on choice of law in international commercial contract for exam reasons. The principles (and accompanying commentary) have not taken the form of a classic Hague convention, rather, it is hoped that they inspire practice. Bottom-up harmonisation, in other words. For the EU, the Rome I Regulation evidently already harmonises choice of law hence the principles must not be followed where Rome I applies. However in particular given the principles’ ambition to be applied by arbitral tribunals, they may have some effect in the EU, too.

I asked my students to compare the Principles with the Rome I Regulation. Such quick and dirty scan, without wishing to be complete, reveals the following: (I take a bullet-point approach such one might follow in an exam setting. = refers to similarities; ≠ to differences

• ≠ The Hague principles concern choice of law principles only. Rome I covers applicable law in the wider sense (it also determines applicable law if no choice of law has been made).
• ≠: The Principles apply to courts and arbitral tribunals. General consensus is that arbitral panels subject to the laws of an EU Member State as the lex curia are not bound by Rome I.
• ≠The Hague principles only apply B2B, not B2C. They deal with international ‘commercial’ contracts only. Famously Rome I includes and indeed pampers B2C contracts.
• Purely domestic contracts are covered by Rome I, with choice of law being corrected to a considerable degree. ≠ Hague principles: these do not cover purely domestic contracts because they are not ‘international’.
• = party autonomy and depecage are supported in both.
• = universal character: Parties may choose any law, they or the contract need not have any material link with that law.
• ≠ rules of law. Rome I probably allows choice of State law only (its recitals are inconclusive, as is its legislative history). Hague Principles: allows parties to opt for non-State law.
• Tacit choice of law is effectively dealt with the same in both.
• Scope of the chosen law: while more or less similar, one obvious ≠ is that the Hague Principles cover culpa in contrahendo. In the EU, this is subject to the Rome II Regulation.
• Article 11 of the Hague Principles allow for a wider remit for courts and tribunals to apply overriding mandatory law that is not that of the forum.
• Article 9(2): formal validity of the contract may be established by many a law that might have a bearing on it. Favor negoti, in other words: as in Rome I.

A fun exercise, all in all. I for one am curious how arbitral tribunals will approach the principles.

Geert.

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