PP209
Analítico de Periódico
MARSHALL, Brooke
The Hague Choice of Law Principles, CISG, and PICC : a hard look at a choice of soft law / Brooke Marshall
The American Journal of Comparative Law, v.66 n.1 (Spring 2018), p.175-217
DIREITO INTERNACIONAL PRIVADO, DIREITO COMERCIAL INTERNACIONAL, CONTRATO INTERNACIONAL
The Hague Principles on Choice of Law in International Commercial Contracts are “soft” private international law rules. They empower parties to choose either state law or soft “rules of law” to govern their contract, regardless of whether they litigate or arbitrate. This Article investigates the relationship between the Hague Principles and two sets of rules of law that parties may choose: the UNIDROIT Principles of International Commercial Contracts (PICC) and the United Nations Convention on Contracts for the International Sale of Goods (CISG). It makes three principal claims. First, the nature of the Hague Principles and their relationship with the PICC or the CISG give rise to several normative ambiguities which need clarification. Second, since the Hague Principles do not limit the parties’ ability to divide their contract at a choice of law level (horizontal dépeçage), parties can influence not only which rules of law govern the contract but also their content. This is undesirable as a matter of principle. It may also facilitate results which the PICC and the CISG do not intend. Third, the Hague Principles provide that the law that the parties purportedly chose determines whether the parties agreed on a choice of law. They also provide a mechanism which designates the law that the parties purportedly chose in standard contract terms. Applied to rules of law, the suitability of these provisions is questionable: alternatives should be explored.