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Full Description
The application of mandatory rules in private international law of contracts is a controversial topic of growing international concern. Legislatures are increasingly intervening in private contracts in order to protect the economic interests of state, or the interests of vulnerable groups, such as consumers or employees. This thesis addresses two major contexts in which the application of mandatory rules arises, namely the restriction of party autonomy by the application of certain mandatory rules of a law, other than the chosen law, and the application of internationally mandatory rules of the forum, the proper law and, most controversially, of a third country.
Approaches of academic writing, case law, legislature, and treaties in England, Germany and Switzerland are compared and critically analysed. Paying also attention to the legal situation in South Africa, the analysis results to provide guidelines for the application of mandatory rules in private international law of contracts.
Contents
Contents: Application of mandatory rules in conflict settings - Private/public law - Restriction of party autonomy by application of mandatory rules - Art 3, 5, 6, 7 Rome Convention - Swiss IPRG - Internationally mandatory rules, lois d'application immediate or Eingriffsnormen of the lex fori, the lex causae or a third country - Public Conflict of Laws - Special Connection Theory - Lex loci solutionis rule - English public policy-comity rule - English common law - German and Swiss case law - Academic approaches.
