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Advanced Introduction to Private International Law and Procedure

Peter Hay

Advanced Introduction to Private International Law and Procedure addresses some key questions through a comparative overview of legal systems, contrasting Anglo-American common law and the civil law approach of the European Union.
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What Law Applies?

Peter Hay


As mentioned earlier (see 1.2.1), choice of law rules (also “conflicts rules”) may be contained in international conventions. This is the case, for instance, when a convention does not itself contain a substantive rule of law (as “when may a contract be avoided?” in the CISG), but refers to a national law (“the law of the support creditor’s habitual residence”). The Hague Conference on Private International Law has drafted a great number of conventions containing directly applicable rules (for instance, in the Service of Documents Convention: see 3.9) and choice of law rules. Member States of the Conference are free to sign and then put into force conventions proposed by the Conference, or later to accede to one or the other of them. The success of these conventions has been mixed; some have been signed and put into effect by a great many states, others by only a handful. The Service Convention is an example of the former; the Conventions on the Applicable Law in Agency30 and the Administration of Estates of Deceased Persons31 are examples of the latter, with four and three ratifications, respectively. Some conventions are signed by contracting states, but never put into effect. An example is the Trust Convention of 1985,32 which the United States signed in 1988, but never ratified. The last example also demonstrates that it is a matter of national constitutional law when a convention becomes effective as domestic law (in the American example, not upon signing, but only upon consent to...

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