Application of Mandatory Rules in the Private International Law of Contracts: A Critical Analysis of Approaches in Selected Continental and Common Law

ISBN-13: 9783631551769 / Angielski / Miękka / 2010 / 368 str.

Schäfer, Kerstin Ann Susann

Opis

The application of mandatory rules in private international law of contracts is a controversial topic of growing international concern. Legislatures are increasingly intervening in private contracts in order to protect the economic interests of state, or the interests of vulnerable groups, such as consumers or employees. This thesis addresses two major contexts in which the application of mandatory rules arises, namely the restriction of party autonomy by the application of certain mandatory rules of a law, other than the chosen law, and the application of internationally mandatory rules of the forum, the proper law and, most controversially, of a third country.
Approaches of academic writing, case law, legislature, and treaties in England, Germany and Switzerland are compared and critically analysed. Paying also attention to the legal situation in South Africa, the analysis results to provide guidelines for the application of mandatory rules in private international law of contracts.

Spis treści

Contents: Application of mandatory rules in conflict settings - Private/public law - Restriction of party autonomy by application of mandatory rules - Art 3, 5, 6, 7 Rome Convention - Swiss IPRG - Internationally mandatory rules, lois d'application immediate or Eingriffsnormen of the lex fori, the lex causae or a third country - Public Conflict of Laws - Special Connection Theory - Lex loci solutionis rule - English public policy-comity rule - English common law - German and Swiss case law - Academic approaches.

O autorze

Kerstin Schäfer began her law studies at the University in Heidelberg in 1992. She continued to study at the University of Lausanne and obtained her degree for the first state exam at the University in Göttingen. She registered at the University of Cape Town in 1998 and obtained her PhD degree in 2003, after which she obtained her degree for the second state exam in Hamburg. Since then the author has been working as a lawyer in Hamburg and Munich.