Oiling the machine: overriding mandatory provisions and public policy in the Hague Principles on Choice of Law in International Commercial Contracts

Journal article

Art. 11 of the Principles on Choice of Law in International Commercial Contracts, adopted by the Council of the Hague Conference in March 2015 contains provisions governing the relationship between the system of law1 chosen by the parties under Art. 2(1) (the “chosen law”) and the laws and policies of other systems. It provides as follows:

1. These Principles shall not prevent a court from applying overriding mandatory provisions of the law of the forum which apply irrespective of the law chosen by the parties.

2. The law of the forum determines when a court may or must apply or take into account overriding mandatory provisions of another law.

3. A court may exclude application of a provision of the law chosen by the parties only if and to the extent that the result of such application would be manifestly incompatible with fundamental notions of public policy (ordre public) of the forum.

4. The law of the forum determines when a court may or must apply or take into account the public policy (ordre public) of a State the law of which would be applicable in the absence of a choice of law.

5. These Principles shall not prevent an arbitral tribunal from applying or taking into account public policy (ordre public), or from applying or taking into account overriding mandatory provisions of a law other than the law chosen by the parties, if the arbitral tribunal is required or entitled to do so.

In brief summary, therefore, the first and third paragraphs address the relationship between the chosen law and certain laws and policies of the forum, the second paragraph addresses the relationship between the chosen law and certain laws of legal systems other than the forum, the fourth paragraph addresses the relationship between the chosen law and the certain policies of the legal system whose laws would have applied but for the parties’ choice under Art. 2(1) and the fifth paragraph addresses the limits of the application of the chosen law in arbitration proceedings.

Authors: Dickinson, A

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Oxford University Press
• Journal: Uniform Law Review More from this journal
• Volume: 22
• Issue: 2
• Pages: 402-421
• Publication date: 2017-06-23
• Acceptance date: 2017-04-27
• DOI: 10.1093/ulr/unx024
• EISSN: 2050-9065
• ISSN: 1124-3694