高大法學論叢

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3 3 A New Vision of Law Governing the Application of Laws to Civil Matters Involving Foreign Elements - With Emphasis on Contracts Kuang-Ping Wu Abstract The Taiwanese private international law, "Act Governing the Choice of Law in Civil Matters Involving Foreign Elements ", was promulgated on June 6, After sixty-one years, the new "Act Governing the Choice of Law in Civil Matters Involving Foreign Elements " was amended and announced on 26 May 2010 and has been in effect since 26 May The reforms of choice of law in contracts are the most attractive part of this new Taiwanese private international law. There are three fundamental reforms in the new Taiwanese private international law: firstly, the intention of the parties for applicable law is only allowed express; secondly, where there is no express intention of the parties, the applicable law of Assistant Professor, Department of Law, Kainan University. Ph.D. in Law, Fu-Jen Catholic University. 3

4 the contract is the law which is most closely connected with the contract; finally, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his domicile. But there is no reform of special conflicts rules of employment contract and consumer contract in the new Taiwanese private international law. This article analyzes these reforms and offers suggestions on possible amendment. Besides, there are some court decisions related the issues of choice of law in contracts in the new Taiwanese private international law. This article comments on these court decisions also offers suggestions on related controversial issues. 4

6 Keywords: rigid general rules, express intention, flexible approaches, the law which is most closely connected, characteristic obligation, labor contract 6

7 7 G.C. Cheshire 1886~1978 A.D. 1 J.H.C. Morris 1910~1984 A.D. 2 1 The problem of ascertaining the applicable law is more perplexing in the case of contracts than in almost any other topic. Peter M. North James J. Fawcett, CHESHIRE AND NORTH PRIVATE INTERNATIONAL LAW, 448 (11th ed. 1987). 2 Contracts are almost infinitely various. It is unlikely that a mechanical choice of law rule that is appropriate for a contract to sell land will be equally 7

8 appropriate for, for example a contract of employment or a contract for the carriage of goods by sea. The problems that may arise are very numerous, as may be seen by looking at the Table of Contents of any book on the domestic law of contract. It is unlikely that a mechanical choice of law rule which is appropriate for essential validity will be equally appropriate for questions of offer and acceptance, capacity of parties, formalities, or illegality. J.H.C. Morris David McClean, THE CONFLICT OF LAWS, 319(5th ed. 2000). 8

10 autonomy of the parties l autonomie de la volonté Parteiautonomie 10

11 Mansfield William Murray, 1st Earl of 11

12 Mansfield 1760 Robinson v. Bland [1760] 1 Wm Bl 234 John Marshall 1755~1835 A.D Wayman v. Southard 23 U.S. 10 Wheat. 1 1 (1825) 1937 R v. International Trustee for the Protection of Bondholders A G [1937] AC 500 HL 1939 Vita Food Products Inc v. Unus Shipping Co. Ltd. [1939] A.C Pritchard v. Norton 106 U.S. 124 (1882) Convention on the Law Applicable to Agency, The Hague EC Convention on the Law Applicable to Contractual Obligations Regulation (EC) No of the European Parliament and of the Council of 17 June 2008 on the Law Applicable to Contractual Obligations Rome Regulation Convention on the Law Applicable to Agency, The Hague Convention on the Law Applicable to Contracts for International Sale of Goods, The Hague Convention on the Law Applicable to International Contract, The Mexico 12

13 13 applicable law clause choice-of-law clause Convention on the Law Applicable to Certain Rights in respect of Securities Held with an Intermediary, The Hague (a) (i) (ii) (iii) (i) (ii) (b) 13

14 das zweiseitige Rechtsgeschäft das einseitige Rechtsgeschäft das mehrseitige Rechtsgeschäft

20 rigid general rules 20

21 21 The proper law The most significant relationship 21

22 certainty simplicity predictability Sitz seat floating fixed Kaskaden Anknüpfung

24 locus regit actum 1953 Vertragsschluss Vertragsleistung

27 Peter M. North inferred intention Peter M. North, PRIVATE INTERNATINAL LAW PROBLEMS IN COMMON LAW JURISDICTION, 105 (1st ed.1993). 20 see, e.g., Amin Rasheed Corp. v. Kuwait Insurance 27

28 Co., [1983] 3 W.L.R. 241; Akai Pty Ltd v. People s Insurance Co. Ltd, (1996) 141 ALR

29 conflicts justice justice of private international law Internationalprivatrechtliche Gerechtigkeit propriety is defined not in terms of the content of that law or the quality of the solution it produces, but rather in geography or spatial terms Symeon C. Symeonides, Private International Law at the End of the 20 th Century: Progress or Regress? General Report, in PRIVATE INTERNATIONAL LAW AT THE END OF THE 20 TH CENTURY: PROGRESS OR REGRESS?, 44( Symeon C. Symeonides ed., 2000); see also 29

30 spatially best solution Symeon C. Symeonides, CODIFYING CHOICE OF LAW AROUND THE WORLD: AN INTERNATIONAL COMPARATIVE ANALYSIS, 246-7( 1st ed.2014) Gerhard Kegel, Paternal Home and Dream Home: Traditional Conflict of Laws and the American Reformers, 27 AM. J. COMP. L., 615-7(1979)

31 proper law doctrine proper law doctrine objective theory 150 Westlake

33 characteristic performance Charakteristische Leistung prestation caractéristique 33

34 Adolf F. Schnitzer Frank B. Vischer Vischer Vischer 26 Peter M. Nortrh, The EEC Convention on the Law Applicable to Contractual Obligations 1980 : Its Main History and Features, ESSAYS IN PRIVATE INTERNATIONAL LAW, 41( Peter M. North ed.,1993). 27 Frank B. Vischer, The Concept of Characteristic Performance, in ON PROGRESSIVE UNIFICATION OF PRIVATE INTERNATIONAL LAW, 514(Alegria Borrás, Andreas Bucher, Teun Struycken, and Mochel Verwilghen eds.,1996)

35 Hans Ulrich Jessurun D Oliverira, Characteristic Obligation in the Draft EEC Obligation Convention, 25 AM. J. COMP. L., ( 1977). 35

36 standard contract contract of adhesion

37 hard and fast elusive

38 Article 4 (1) To the extent that the law applicable to the contract has not been chosen in accordance with article 3, the contract shall be governed by the law of the country with which it is most closely connected. Nevertheless, a severable part of the contract which has a closer connection with another country may by way of exception be governed by the law of that other country.(2) Subject to the provisions of paragraph 5 of this Article, it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion of the contract, his habitual residence, or, in the case of a body corporate or unincorporate, its central administration. However, if the contract is entered into in the course of that party's trade or profession, that country shall be the country in which the principal place of business is situated or, where under the terms of the contract the performance is to be effected through a place of business other than the principal place of business, the country in which that other place of business is situated.(3) Notwithstanding the provisions of paragraph 2 of this Article, to the extent that the subject matter of the contract is a right in immovable property or a right to use immovable property it shall be presumed that the contract is most closely connected with the country where the immovable property is situated.(4) A contract for the carriage of goods shall not be subject to the presumption in paragraph 2. In such a contract if the country in which, at the time the contract is concluded, the carrier has his principal place of business is also the country in which the place of loading or the place of discharge or 38

39 ~ ~ the principal place of business of the consignor is situated, it shall be presumed that the contract is most closely connected with that country. In applying this paragraph single voyage charter-parties and other contracts the main purpose of which is the carriage of goods shall be treated as contracts for the carriage of goods.(5) Paragraph 2 shall not apply if the characteristic performance cannot be determined, and the presumptions in paragraphs 2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country. 39

41 Schnitzer Schuldort Vischer 41

42 Vischer Schnitzer Vischer Vischer Vischer

43 43 Vischer

44 Cheshire and North

45 45 result-oriented conflicts rules règles de conflit coloration matérielle

46 Article 6 (1) This Article applies to a contract the object of which is the supply of goods or services to a person ( the consumer ) for a purpose which can be regarded as being outside his trade or profession, or a contract for the provision of credit for that object. (2) Notwithstanding the provisions of Article 3, a choice of law made by the parties shall not have the result of depriving the consumer of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence: - if in that country the conclusion of the contract was preceded by a specific invitation addressed to him or by advertising, and he had taken in that country all the steps necessary on his part for the conclusion of the contract, or - if the other party or his agent received the consumer s order in that country, or - if the contract is for the sale of goods and the consumer travelled from that country to another country and there gave his order, provided that the consumer s journey was arranged by the seller for the purpose of inducing 46

47 ~ the consumer to buy. (3) Notwithstanding the provisions of Article 4, a contract to which this Article applies shall, in the absence of choice in accordance with Article 3, be governed by the law of the country in which the consumer has his habitual residence if it is entered into in the circumstances described in paragraph 2 of this Article. (4) This Article shall not apply to: a. a contract of carriage; b. a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other than that in which he has his habitual residence. (5) Notwithstanding the provisions of paragraph 4, this Article shall apply to a contract which, for an inclusive price, provides for a combination of travel and accommodation

48 Vischer

49 Article 6 (1) Notwithstanding the provisions of Article 3, in a contract of employment a choice of law made by the parties shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice. (2) Notwithstanding the provisions of Article 4, a contract of employment shall, in the absence of choice in accordance with Article 3, be governed: a. by the law of the country in which the employee habitually carries out his work in performance of the contract, even if he is temporarily employed in another country; or b. if the employee does not habitually carry out his work in any one country, by the law of the country in which the place of business through which he was engaged is situated; unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case the contract shall be governed by the law of that country. 49

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51 coerced uninformed See Symeon C. Symeonides, THE AMERICAN CHOICE-OF-LAW REVOLUTION: PAST, PRESENT AND FUTURE 408(1st ed. 2006). 51

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58 This Agreement shall be construed in accordance with the laws of Ireland, without regard to principles of conflicts of laws

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61 Article 3 (2) The parties may at any time agree to subject the contract to a law other than that which previously governed it, whether as a result of an earlier choice under this Article or of other provisions of this Convention. Any variation by the parties of the law to be applied made after the conclusion of the contract shall not prejudice its formal validity under Article 9 or adversely affect the rights of third parties. 61

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89 no-protection havens 47 forum selection clause Peter Nygh, AUTONOMY IN INTERNATIONAL CONTRACTS 141( 1st ed. 1999). 48 Id. at

99 Chih-Wen Wang (2008). The Revision of Conflicts Rules for Obligation, Taiwan Law Review, 158, Hou-Cheng Lee (2010). Act Governing the Choice of Law in Civil Matters Involving Foreign Elements, 1st ed., Taipei: Wunan Kuang-Ping Wu (2004). The Theory of Characteristic Performance in Private International Law, Law Journal, 196,

100 Kuang-Ping Wu (2005). A Study on the Current Development of Choice of Law by Conflicts Rules in Private International Law: From the Views of Conflicts Justice and Material Justice, Hsuan Chuang Law Journal, 3, Kuang-Ping Wu (2005). The Interaction of the Principle of Autonomy of the Parties and the Principle of Freedom of Contract: A Study on the Relationship between Conflicts Rule and Substantive Rule( ), Property and Economic Law Journal, 5, Kuang-Ping Wu (2013). Characteristic Obligation of A Juridical Act and the Most Closely Connected Law Ruling

101 101 Lau Su Tze No. 55, Taiwan Law Review, 235, Yih-Shan Lin (2004). Private International Law and Cases, 4th ed., Taipei: Yih-Shan Lin Tse-Tung Ko (1993). A Study of the New Developments of the Applicable Law of Contracts from Methodologies of Private International Law and A Brief Comment on the Laws of Cross-Straits, National Taiwan University Law Journal, 23:1, Tse-Tung Ko (2010). Private International Law, 4th ed., Taipei: Angle Han-Bao Ma (2004). Private International Law, 1st ed., Taipei: Han-Bao Ma. 101

102 Long-Sjue Chen (2012). Global Choice-of-Law Rules under the Chinese Thinking, 1st ed., Taipei: Wunan Long-Sjue Chen, Chao-Ching Hsu, & En-Wei Lin (2007). Private International Law: Back-Looking and Forward-Looking for Choice-of-Law Theories, 1st ed., Taipei: Hanlu Rong-Chwan Chen (2010). The New Autonomy on Private International Law: Principle of Autonomy of the parties in the New Act of 2011, Taiwan Law Review, 186, Rong-Chwan Chen (2012). The New Development of Private International Law: Character and Application of the New Act of 2011, Taiwan Law Review, 200,

103 Ming-Ruu Tseng-Chen (2004). Principles of Private International Law: Kind of Conflicts Rules, 5th ed., Taipei: Sharing Tie-Zheng Liu & Rong-Chwan Chen (1996). Private International Law, 1st ed., Taipei: Sanmin Tie-Zheng Liu & Rong-Chwan Chen (2003). Private International Law, 2nd ed., Taipei: Sanmin Tie-Zheng Liu & Rong-Chwan Chen (2004). Private International Law, 3rd ed., Taipei: Sanmin Tie-Zheng Liu & Rong-Chwan Chen (2008). Private International 103

104 Law, 4th ed., Taipei: Sanmin Tie-Zheng Liu & Rong-Chwan Chen (2010). Private International Law, 5th ed., Taipei: Sanmin Lai-Kun Lai (2001). The Structure of Contemporary Private International Law, 1st ed., Taipei: Lai-Kun Lai Yuan-Cheng Su (2002). Private International Law, 5th ed., Taipei: Wunan D Oliverira, Hans Ulrich Jessurun(1977). Characteristic Obligation 104

105 105 in the Draft EEC Obligation Convention. American Journal of Comparative Law, 25, Kegel, Gerhard (1979). Paternal Home and Dream Home: Traditional Conflict of Laws and the American Reformers. American Journal of Comparative Law, 27, Morris, J.H.C. McClean, David (5th ed. 2000). THE CONFLICT OF LAWS. London: Sweet & Maxwell. North, Peter M. Fawcett, James J. (11th ed. 1987). CHESHIRE AND NORTH PRIVATE INTERNATIONAL LAW. London: Oxford University Press. North, Peter M. (1st ed.1993). PRIVATE INTERNATINAL LAW PROBLEMS IN COMMON LAW JURISDICTION. London: Kluwer Law International. Nortrh, Peter M. (1993). The EEC Convention on the Law Applicable to Contractual Obligations 1980 : Its Main History and Features. In: Peter M. North ed., ESSAYS IN PRIVATE INTERNATIONAL LAW (London: Oxford University Press.). Nygh, Peter (1st ed. 1999). AUTONOMY IN INTERNATIONAL 105

106 CONTRACTS. London: Oxford University Press. Symeonides, Symeon C. (2000). Private International Law at the End of the 20th Century: Progress or Regress? General Report. In: Symeon C. Symeonides ed., PRIVATE INTERNATIONAL LAW AT THE END OF THE 20TH CENTURY: PROGRESS OR REGRESS?. London: Kluwer Law International. Symeonides, Symeon C. (1st ed. 2006). THE AMERICAN CHOICE-OF-LAW REVOLUTION: PAST, PRESENT AND FUTURE. Boston: Martinus Nijhoff Publishers. Symeonides, Symeon C. (1st ed.2014). CODIFYING CHOICE OF LAW AROUND THE WORLD: AN INTERNATIONAL COMPARATIVE ANALYSIS. New York: Oxford University Press. Vischer, Frank B. (1996). The Concept of Characteristic Performance. In: Alegria Borrás, Andreas Bucher, Teun Struycken, Mochel Verwilghen eds., ON PROGRESSIVE UNIFICATION OF PRIVATE INTERNATIONAL LAW (The Netherlands: Kluwer Law International). 106

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