Dean Symeon C. Symeonides (Willamette University – College of Law) has posted The Hague Principles on Choice of Law for International Contracts: Some Preliminary Comments  on SSRN.

This Article discusses The Hague Principles on Choice of Law for International Contracts, a new soft-law instrument recently adopted by the Hague Conference of Private International Law.

The Principles will apply to “commercial” contracts only, specifically excluding consumer and employment contracts. For this reason, the Principles adopt a decidedly liberal stance toward party autonomy, exemplified inter alia by a strong endorsement of non-state norms. Such a liberality would be unobjectionable, indeed appropriate, if a contract’s “commerciality” alone would preclude the disparity of bargaining power that characterizes consumer and employment contracts. The fact that — as franchise contracts illustrate — this is not always the case makes even more necessary the deployment of other mechanisms of policing party autonomy. The Principles provide these mechanisms under the rubric of public policy and mandatory rules, but their effectiveness is not beyond doubt.

The Principles are intended to serve as a model for other international or national instruments and as a guide to courts and arbitrators in interpreting or supplementing rules on party autonomy. Like other international instruments, the Principles are as good as the consensus of the participating delegations would allow. But the real test of success for these Principles depends not on academic approbation but on their reception by contracting parties, courts, and arbitrators. While it is too early to tell whether the Principles will pass this test, there is reason for optimism.

In any event, and regardless of whether they will be widely accepted, the Principles will enrich the quality of the international discourse by providing a guiding light in the search for proper solutions to the problems encountered in honoring, and defining the limits of, contractual choice of law in international contracts. This alone would be a significant contribution to the advancement of the art and science of law-shaping.

The Article is forthcoming in the American Journal of Comparative Law (Vol. 61, 2013) and, in French, in the Revue critique de droit international privé.

Wenliang Zhang has published Recognition and Enforcement of Foreign Judgments in China: A Call for Special Attention to Both the “Due Service Requirement” and the “Principle of Reciprocity” in the last issue of the Chinese Journal of International Law.

Nowadays, recognition and enforcement of foreign judgments in China is gaining in practical significance. However, a “great wall” seems to have been erected against recognition and enforcement of foreign judgments in China. To make a breakthrough, the essentials for achieving recognition and enforcement of foreign judgments in China must be unveiled from a practical perspective rather than for purpose of purely theoretical analyses. Investigation into the representative cases in this regard shows that there are two requirements that are of Chinese courts’ first and foremost concern, namely the “principle of reciprocity” and the “due service requirement”. Special attention should be paid to both requirements informing the aforesaid cases. Satisfaction of these two requirements may well bring an anticipated recognition and enforcement of foreign judgments in China. As a necessity, applicants and foreign courts must enrich their knowledge of the Chinese law and judicial practice in this respect.

See below for an announcement regarding an extremely interesting conference on Non-State Law next week in Washington, DC

Symposium of the International Legal Theory Interest Group, titled “The Rise of Non-State Law”
May 2, 2013, 8:30 a.m. – 5:15 p.m.
ASIL Headquarters, Tillar House – 2223 Massachusetts Avenue, NW
Washington, DC 20008

Trends in legal philosophy, international law, transnational law, law & religion, and political science all point towards the increasing role played by non-state law in both public and private ordering. Indeed, numerous organizations, institutions, associations and groups have emerged alongside the nation-state, each purporting to provide their members with rules and norms to govern their conduct and organize their affairs. This International Legal Theory Interest Group Symposium aims to explore this Rise of Non- State Law by bringing together experts on international law, transnational law, legal theory and political philosophy to consider the growing impact of non-state law.

For full details, see this announcement (ASIL Flier).

On the basis of a ‘Letter of Employment’ dated 10 July 2004 and drafted in English, Mr Las, a Netherlands national resident in the Netherlands, was employed as Chief Financial Officer for an unlimited period by PSA Antwerp, a company established in Antwerp (Belgium) but part of a multinational group operating port terminals whose registered office is in Singapore. The contract of employment stipulated that Mr Las was to carry out his work in Belgium although some work was carried out from the Netherlands.

When he was dismissed, Mr Las challenged the validity of the Letter of Employment on the ground of a 1973 Belgian Decree on Use of Languages, which provides:

Article 1 – This decree is applicable to natural and legal persons having a place of business in the Dutch-speaking region. It regulates use of languages in relations between employers and employees, as well as in company acts and documents required by the law.

Article 2 – The language to be used for relations between employers and employees, as well as for company acts and documents required by law, shall be Dutch.

Article 10 – Documents or acts that are contrary to the provisions of this Decree shall be null and void. The nullity shall be determined by the court of its own motion. (…) A finding of nullity cannot adversely affect the worker and is without prejudice to the rights of third parties. The employer shall be liable for any damage caused by his void documents or acts to the worker or third parties.

Is this Belgian Decree contrary to the freedom of movement of workers in the European Union?

Yes it is, the Grand Chamber of the European Court held on April 16th in Anton Las v. PSA Antwerp NV (case C 202/11).

This is because “such legislation is liable to have a dissuasive effect on non Dutch speaking employees and employers from other Member States and therefore constitutes a restriction on the freedom of movement for workers.”

Of course, the Court held, the “objective of promoting and encouraging the use of Dutch, which is one of the official languages of the Kingdom of Belgium, constitutes a legitimate interest which, in principle, justifies a restriction on the obligations imposed by Article 45 TFEU.”

But this legislation is not proportionate to those objectives. ” [P]arties to a cross-border employment contract do not necessarily have knowledge of the official language of the Member State concerned. In such a situation, the establishment of free and informed consent between the parties requires those parties to be able to draft their contract in a language other than the official language of that Member State.”

Ruling:

Article 45 TFEU must be interpreted as precluding legislation of a federated entity of a Member State, such as that in issue in the main proceedings, which requires all employers whose established place of business is located in that entity’s territory to draft cross-border employment contracts exclusively in the official language of that federated entity, failing which the contracts are to be declared null and void by the national courts of their own motion.