Course Hero Logo

Contracts outline.pdf - Contracts The proper law (Aki,...

Course Hero uses AI to attempt to automatically extract content from documents to surface to you and others so you can study better, e.g., in search results, to enrich docs, and more. This preview shows page 1 - 2 out of 4 pages.

A/Prof. Jeanne Huang1ContractsThe proper law (Aki, Valve):Presumption: the parties intended to refer the entirety of their obligations to one legalsystem onlyoExpress/implied choice of lawoObjective proper lawCan the lex fori prevail?oWhether as a matter of statutory construction, the statute was intended toapply irrespective of the governing law.Step One: Express selection of the proper law:The selection of a foreign legal system as the proper law of the contract and theincorporation of specific provisions of foreign lawas part of the terms of the contractThe expression of choice (Vita)oExplicitoAt the time of contractingoWhether the selection ought to be the result of the truly free choice of theparties§Rejection is possible where statute (assuming that the statute isengaged as a matter of its proper construction and notwithstanding thechoice of a law other than for that of the forum) permits review ofunfair or oppressive contractual terms§Support is possible consideringTolloLimits on choice§Only select a system that has a substantial, though not necessarilypredominant, connection with the contract (X,Vita Food Products,BHP Petroleum)§It is entirely open to the parties to a contract to select which system oflaw should applyvCommon business practicevA neutral body of lawvQualification: the intention is bona fide and legal, and providedthere is no reason for avoiding the choice on the ground ofpublic policy (Vita Food Products, Golden Acres Ltd)Step Two: Choice of law by inferenceAkai Pty Ltd: a choice of law can be inferred from the terms of the contract and thesurrounding circumstances (the objective framework of facts within which thecontract came into existence)Exclusive jurisdiction clause (strong indication,Lewis)Arbitration clause to arbitrate in a particular place (‘weighty’ factor)Technical language relevant to one country rather than another (Amin)Ace Insurance Limited: Where the parties have expressly chosen a governing law

Upload your study docs or become a

Course Hero member to access this document

Upload your study docs or become a

Course Hero member to access this document

End of preview. Want to read all 4 pages?

Upload your study docs or become a

Course Hero member to access this document

Term
One
Professor
N/A
Tags
lex fori, JEANNE HUANG

Newly uploaded documents

Show More

Newly uploaded documents

Show More

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture

  • Left Quote Icon

    Student Picture