Intra-Regional Reform in East Asia and the New Hague Principles on Choice of Law in International Commercial Contracts

Abstract

The last two decades have seen East Asian States evince an increasing openness to private international law reform at the national level with Japan, China and the Republic of Korea making significant statutory amendments to their conflict of laws regimes. This openness is reflected in the longstanding, enduring bond that the Hague Conference shares with the East Asian region. Japan joined the Hague Conference in 1957 and Singapore, at the time of writing, had recently become its 9th Asian member (including Eurasian Turkey). It is hoped that an increased participation of Asian States in the Hague Conference will facilitate the development of new instruments that are better adapted to the needs of the region. This article examines one such instrument, the new Hague Principles on Choice of Law in International Commercial Contracts. The Hague Principles seek to serve as an international code of current best practice with respect to the recognition and limits of party autonomy in choice of law for international contracts. The article details the development, form and scope of the Hague Principles and their accompanying Commentary before exploring various best practice as well as innovative provisions. It offers a high-level comparison between the Hague Principles and the conflict of laws rules applicable in the Republic of Korea, China and Japan and raise the question of whether the Hague Principles may serve as a useful instrument for reform at a national or regional level within East Asia.

Keywords: Choice of law, comparative law, international commercial contracts, law reform, soft law, East Asia, Hague Conference on Private International Law, party autonomy, battle of forms, ordre public, overriding mandatory rules