When entering into international commercial contracts, one of the key considerations is the choice of law that will govern the agreement. The choice of law can have significant implications in terms of the interpretation of the contract, the enforceability of its provisions, and the resolution of any disputes that may arise. Here are some principles to consider when making this important decision.
First, it is important to understand the difference between the governing law and the jurisdiction of the court or arbitrator that will be hearing any disputes related to the contract. The governing law is the law that will be applied by the court or arbitrator in interpreting the contract, while the jurisdiction is the legal authority of the court or arbitrator to hear the dispute. While the two are related, they are distinct concepts that should be considered separately.
When determining the governing law, the first step is to consider any relevant laws or regulations that may restrict the choice of law. For example, some countries may require that certain types of contracts be governed by domestic law, or may restrict the ability of parties to choose a foreign law to govern the agreement. It is important to carefully review the laws of the relevant jurisdictions to ensure compliance with any such requirements.
Once any restrictions have been considered, the next step is to evaluate the laws of the potential governing jurisdictions in terms of their suitability for the specific contract in question. This may involve a consideration of the legal framework, relevant case law, and any cultural or linguistic factors that may affect the interpretation of the contract. It may also involve consulting with legal experts in the relevant jurisdictions to obtain a more detailed understanding of the legal landscape.
Another factor to consider is the enforceability of the contract in the chosen jurisdiction. This may include a consideration of the local courts, arbitration procedures, and any relevant international treaties or conventions that may impact the enforceability of the contract. It may be prudent to choose a governing law that is consistent with the laws of the jurisdiction in which enforcement is most likely to occur.
Finally, it is worth considering the practical implications of the choice of law in terms of the ease of drafting and negotiation of the contract, as well as the cost of enforcing it in the event of a dispute. Depending on the specific circumstances of the contract, it may be beneficial to choose a governing law that is widely used and easily understood by all parties involved.
In summary, the choice of law in international commercial contracts is a complex and important decision that should be made carefully and in consultation with legal experts. By considering the relevant legal framework, cultural and linguistic factors, enforceability, and practical implications, parties can make an informed choice that will help them achieve their objectives and protect their interests in the event of a dispute.