By Oyetola Muyiwa Atoyebi, SAN
INTRODUCTION
Every sovereign state exists with varying applicable substantive and procedural laws which govern its contractual transactions within and outside the state. So, the concept of choice of law in international law which involves conflicting laws administered under different judicial systems has led to sovereign states adopting peculiar procedural laws when faced with it. This conflict is not only evident in the determination of the court with jurisdiction but also extends to the law to be applied by the court and the enforcement of the resultant decision of the court.
MEANING OF CHOICE OF LAW IN CONTRACT
The choice of law in a contract is the provision that allows parties to a contract to agree that a particular country’s laws will be used to interpret the contract, even if the contract was executed in a different country.
Furthermore, this Choice of law clause is evident in cross-border contracts and the primary purpose of such clause is to have a prima facie agreement and avoid uncertainty over the law that would govern any disputes that may arise out of the relationship created by the contract.[1]
CHOICE OF LAW IN PRIVATE INTERNATIONAL CONTRACT
Due to the different state laws that parties are subject to, a dispute arising from international contracts gives rise to conflict of law. Premised on this, parties who wish to enter into cross-border contracts are usually advised to include a choice of law clause in their contract or an independent choice of law agreement, and the effect of a choice of law clause or agreement is to prevent a conflict of law in the event that a dispute arises from the contract. It also lends a sense of ease to the parties as it affords parties the privilege of choosing a law best suited to their collective interest.
FEATURES OF CHOICE OF LAW IN INTERNATIONAL CONTRACTS
SCOPE AND LIMITATION OF CHOICE OF LAW
As earlier stated, choice of law is subject to limitations in various jurisdictions, some codified, and others customary, with some jurisdictions totally excluding certain forms of contract from the purview of choice of law.
Uruguay a South American country is an example of a country that fully exempts certain contracts such as contracts concerning immovable property situated within its borders. The Swiss rules also provide that contracts involving consumers must be governed by the law of “residence of the consumer” in order to protect unsuspecting consumers from misinformed choices.
Furthermore, service contracts are also precluded from the scope of choice of law in countries such as China, Tunisia, and Oregon. It is worth noting that the reason for these exclusions is to protect the most vulnerable party in the contract. For instance, the limitation to employment contracts in Uruguay allows for the employee and not the employer to choose the applicable law between the place of employment or residence. The Quebec Codification in Article 3119 also provides that insurance contracts must be governed by Quebec laws to protect the insured.
One major elementary exemption from the concept of choice of law worthy of mention is “Capacity” which in Several conventions including the 1955 Hague Sales Convention, the Hague Agency Convention, the Hague Contracts Principles, and the Mexico City Convention exempt parties from choosing applicable law regarding capacity or invalidity of a contract due to incapacity meaning that parties that lack the capacity to a contract in their state of residence cannot vest capacity on themselves by opting for another law.
CONCLUSION
In practice, the effect of choice of law is usually that a court might have to be subjected to apply judiciously, the substantive rule of another country. However, courts in their specific jurisdictions are still largely allowed to employ their procedural rules irrespective of the substantive law applicable.
SNIPPET:
The choice of law in a contract is the provision that allows parties to a contract to agree that a particular country’s laws will be used to interpret the contract.
KEYWORDS: Choice of law, Party autonomy, international contracts, Conflict of law.
AUTHOR: Oyetola Muyiwa Atoyebi, SAN
Mr Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of O. M. Atoyebi, S.A.N & Partners (OMAPLEX Law Firm).
Mr. Atoyebi has expertise in and a broad knowledge of Law Practice and this has seen him advise and represent his vast clientele in a myriad of high-level transactions. He holds the honour of being the youngest lawyer in Nigeria’s history to be conferred with the rank of Senior Advocate of Nigeria.
He can be reached via atoyebi@omaplex.com.ng
CONTRIBUTOR: Pwaveno B. Ditto
Pwaveno is a member of the Dispute Resolution Team at OMAPLEX Law Firm. She also holds a commendable legal expertise in Law Practice.
She can be reached via pwaveno.ditto@omaplex.com.ng
[1] Tochukwu Martins Itumo “Nigeria: Analysing Nigeria’s Choice of Law Regime for Cross-Border Contracts”
[2] Franco Ferrari & Fernández Arroyo (eds.): “The Continuing Relevance of Private International Law and New Challenges” (forthcoming 2019). , Available at SSRN: https://ssrn.com/abstract=3359988 accessed on 14th June, 202
[3] Sopamena, Ronald. (2022). Choice of Law in International Business Contracts. Balobe Law Journal. 2. 45. 10.47268/balobe.v2i2.1062.
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