3 - Does the use of common law contract models give rise to a tacit choice of law or to a harmonised, transnational interpretation?  pp. 37-61

Does the use of common law contract models give rise to a tacit choice of law or to a harmonised, transnational interpretation?

By Giuditta Cordero-Moss

Image View Previous Chapter Next Chapter



Before turning to how the various national laws may affect the interpretation and application of an international contract (which will be the subject of Part 3 of this book), some methodological questions must be addressed. Should an international contract be governed by a national law different from the one that inspired its drafting? Should an international contract be governed by a national law at all? Rather, should not an international contract be subject to a harmonised, transnational law? The thesis of this chapter is that the applicable law should be chosen according to the general conflict rules, even though this would lead to a situation where the contract is governed by a law different from the law that inspired it. Furthermore, the contract is ultimately subject to a state law, even though the underlying transaction is international. These two aspects are dealt with separately in Sections 1 and 2 below.

Does the drafting style imply a choice of the applicable law?

The first question regards the choice of the applicable law. An international contract is potentially governed by the laws of at least two different countries, those with which the legal relationship has a connection: these could be the countries where the parties have their respective place of business, the country where the contract is to be performed or other countries with which the contract had other connections.

U. Magnus , Staudingers Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebegesetzen, Einleitung zu Art 27ff EGBGB, Article 27–33 EGBGB, etc. (Sellier, 2002)