The International Market for Contracts -- The Most Attractive Contract Laws

50 Pages Posted: 11 Feb 2014  

Gilles Cuniberti

University of Luxembourg; Universite du Luxembourg - Faculty of Law, Economics and Finance

Date Written: February 10, 2014

Abstract

The aim of this Article is to contribute to a better understanding of the international contracting process by unveiling the factors which influence international commercial actors when choosing the law governing their transactions.

Based on the empirical study of more than 4,400 international contracts concluded by close to 12,000 parties participating in arbitrations under the aegis of the International Chamber of Commerce, the Article offers a method of measuring the international attractiveness of contract laws. It shows that parties’ preferences are quite homogenous and that the laws of five jurisdictions dominate the international market for contracts. Among them, two are chosen three times more often than their closest competitors: English and Swiss laws.

The Article then inquires which features made these laws more attractive than others and seeks to verify whether the postulate that international commercial parties are rational actors is true. It concludes that while some parties might have the resources to study the content of available laws before deciding which one to choose, others have no intention of investing such resources and are happy to rely on cheaper means to assess the content of foreign laws, including proxies. Furthermore, some parties suffer from cognitive limitations, the most important of which being the fear of the unknown and the correlative need for selecting a law resembling their own. Finally, unsophisticated parties might not fully appreciate the extent of their freedom to choose the law governing their transaction and might wrongly believe that it is constrained by largely irrelevant factors such as the venue of the arbitration.

Keywords: Private International Law, Choice of Law, Contracts, International Commercial Arbitration, Legislative Competition

Suggested Citation

Cuniberti, Gilles, The International Market for Contracts -- The Most Attractive Contract Laws (February 10, 2014). Northwestern Journal of International Law & Business, Vol. 34, 2014, Forthcoming; University of Luxembourg Law Working Paper No. 2014-2. Available at SSRN: https://ssrn.com/abstract=2393672

Gilles Cuniberti (Contact Author)

University of Luxembourg ( email )

Faculté de Droit
4, rue Alphonse Weicker
Luxembourg, 2721
Luxembourg

Universite du Luxembourg - Faculty of Law, Economics and Finance ( email )

4 rue Alphonse Weicker
Luxembourg, L-2721
Luxembourg

Paper statistics

Downloads
600
Rank
34,127
Abstract Views
2,603