The Validity of Choice-of-Law Clause in International Contract
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Abstract
This academic article aims to generate knowledge and understanding related to the issue of validity of choice-of-law clause, which is of great importance. It does not only effect the law applicable to contract, but may also impact the rights and obligations between the parties. This is a result of the difference of substantive law in each country. However, it is widely recognized that the choice-of-law clause is separated from other parts of the contract, based on the doctrine of severability. Regarding the problem of which law should be applied for the validity of choice-of-law clause, there are still differing opinions among legal scholars, which can be categorized into four approaches: the lex fori approach, the express intent approach, the default law approach and judicial discretion approach. Under Thai’s conflict of laws system, the issue of validity of choice-of-law clause may be unclear because the Conflict of Laws Act B.E. 2481 does not specifically address this matter, and there is no clear precedent in Thai jurisprudence as well. Additionally, there is no explanation relating to the validity of the choice-of-law clause in legal textbooks. Therefore, if the amendment of the Conflict of Laws Act B.E. 2481 occurs in the future, the doctrine of severability should be recognized within Thai’s conflict of laws on the contract system.
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References
Beale, J. H. (1910). What Law Governs the Validity of a Contract. III. Theoretical and Practical
Criticisms of the Authorities. Harvard Law Review, 23(4), 260-272.
Blom, J. (1978). Choice of Law Methods in the Private International Law of Contract Part I.
The Canadian Yearbook of International Law, 16, 230-275.
Born, G., & Kalelioglu. C. (2021). Choice-of-Law Agreements in International Contracts.
Georgia Journal of International & Comparative Law, 50(1), 44-118.
Chumporn Pachusanond. (1984). The Legal Framework Supporting the Law Chosen by the
Parties in Contract between Public and Private Sector. Chulalongkorn Law Journal, 9(1),
-95.
Commentary on the Principles on Choice of Law in International Commercial Contracts. (2015).
The Hague Conference on Private International Law Permanent Bureau.
Conflict of laws Act B.C. 2481 (1938). (1938, March 20). Royal Thai Government Gazette.
No. 55. pp. 1021-1036.
Coyle, J. F., & Drahozal, C. R. (2019). An Empirical Study of Dispute Resolution Clauses in
International Supply Contracts. Vanderbilt Journal of Transnational Law, 52(2), 323-386.
Daraporn Thirawat. (1987). Party Autonomy in Contract. Thammasat University.
Dicey, A. V., & Morris, J. H. C. (1973). On the Conflict of Laws (9th ed.). Sevens & Sons Ltd.
Dicey, A. V., & Morris, J. H. C. (1993). On the Conflict of Laws Vol. II (12th ed.). Sweet &
Maxwell.
Gruson, M. (2003). Governing Law Clauses Excluding Principles of Conflict of Laws.
The International Lawyer, 37(4), 1023-1036.
James, L. C. (1959). Effects of the Autonomy of the Parties on Conflict of Laws Contracts.
Chicago-Kent Law Review, 36, 34-59.
Kanung Luchai. (2002). Direction of Thai’s Conflict of Laws on Contract. Dhurakijpundij Law
Journal, 2(2), 47-57.
Lando, O. (1964). The Proper Law of the Contract. Scandinavian Studies in Law, 8, 107-201.
Lando, O. (1976). International Encyclopedia of Comparative Law: Vol. III. Contracts.
Tubingen.
Lehmann, M. (2008). Liberating the Individual from Battles between States: Justifying Party
Autonomy in Conflict of Laws. Vanderbilt Journal of Transnational Law, 41, 381-434.
Lorenzen, E. G. (1921a). Validity and Effects of Contracts in the Conflict of laws (Part I).
Yale Law Journal, 30(6), 565-580.
Lorenzen, E. G. (1921b). Validity and Effects of Contracts in the Conflict of Laws (Part II).
Yale Law Journal, 30(7), 655-673.
Mills, A. (2018). Party Autonomy in Private International Law. Cambridge University Press.
Nygh, P. (1999). Autonomy in International Contracts. Clarendon Press.
Ogunranti, A. O. (2017). The Scope of Party Autonomy in International Commercial Contracts:
A New Dawn? [LL.M. Thesis]. Schulich School of Law, Dalhousie University.
Prasit Pivavatnapanich. (2023). Private International Law (6th ed.). Thammasat University Press.
Rabel, E. (1958). The Conflict of Laws: A Comparative Study, Vol. I, Introduction: Family Law (2nd ed.). The University of Michigan Press.
Rabel, E. (1960). The Conflict of Laws: A Comparative Study, Vol. II, Foreign Corporations:
Torts: Contracts in General (2nd ed.). The University of Michigan Press.
Reese, W. L. M. (1960). Contracts and the Restatement of Conflict of Laws, Second. The
International and Comparative Law Quarterly, 9(4), 531-541.
Richardson, S. M. (1988). International Contracts and the Choice of Law [LL.D. Thesis].
University of Canterbury.
Spiro, E. (1984). The Proper Law of the Contract and Renvoi: Further Comments on the Amin
Rasheed Shipping Case. The International and Comparative Law Quarterly, 33(1), 199-202.
Wolff, M. (1950). Private International Law (2nd ed.). Clarendon Press.