Rethinking choice of law in cross-border sales / Gustavo Moser.

Format:

Book

Author/Creator:

Moser, Gustavo, author.

Series:

International Commerce and Arbitration

Language:

English

Subjects (All):

Conflict of laws--Foreign trade regulation--Decision making.

Conflict of laws.

Export sales contracts--Decision making.

Export sales contracts.

Physical Description:

1 online resource (262 pages)

Edition:

1st ed.

Place of Publication:

The Hague, The Netherlands : Eleven International Publishing, [2018]

Summary:

This book explores the complex process of selecting governing laws in cross-border sales and international commerce. It examines how contracting parties make decisions about applicable laws, emphasizing cognitive limitations and emotional factors that influence these choices. The author discusses mechanisms to mitigate errors in judgment and improve decision-making. The book provides insights into the application of transnational legal principles, such as lex mercatoria, the Unidroit Principles, and the CISG, and their interaction with national laws. It offers practical tools for legal practitioners and laymen to navigate the intricacies of international contract law, aiming to facilitate efficient and informed outcomes in global transactions. The intended audience includes legal professionals, academics, and individuals involved in international business and dispute resolution. Generated by AI.

Contents:

Intro

Preface

Table of Contents

Acknowledgments

Introduction

1 Choice of Law in Practice - Empirical Studies

1.1 Efforts to Reveal Parties' Preferences

1.1.1 Previous Studies on Choice of Law Decision-Making Processes

1.1.1.1 Pre-2008 Studies: Pioneering Initiatives

1.1.2 Post-2008 Studies: Innovative Works

1.1.2.1 Studies on Choice of Law

1.1.2.2 Studies on CISG Opt-Outs

1.1.3 Screening the Results or What Have We Learned from These Studies?

1.1.3.1 Overlaps and General Trends

1.1.3.2 The Foundations for a Global Study

1.2 A Global Empirical Survey

1.2.1 Survey Goals

1.2.2 Respondent Profile

1.2.3 Method

1.2.4 Survey Results

1.2.4.1 Legal Considerations

1.2.4.2 Economic Considerations

1.2.4.3 Most Desirable Substantive Law: Features

1.2.4.4 National Law

1.2.4.5 CISG

1.2.4.6 National Law or the CISG: What Is the Most Legally and Economically Advantageous Solution?

1.3 Comparative Analysis

1.3.1 Summary of the Findings

1.3.2 Weighting of Practical and Legal Considerations and the 'Black Box'

2 The Unexplored World of Contracting Parties' Minds

2.1 Rational Choices

2.1.1 Compensatory Strategy and Maximization of Benefits

2.1.2 Deductive Logic and Cognitive Limitations

2.2 Intuition

2.2.1 Heuristics

2.2.2 Affect

2.2.3 The 'Ice Cream Flavour' Dilemma

2.3 Global Empirical Survey on Choice of Law

2.3.1 Highlights of the Survey Results

2.3.1.1 Rational Choices

2.3.1.2 Intuitive Responses

3 Market Distortions and Imperfections: The 'Stage' of the Art

3.1 Bounded Rationality

3.1.1 Market Players

3.1.2 Opportunistic Behaviour

3.1.3 Contractual Incompleteness

3.1.3.1 Why a Complete Contract Can Be Costly

3.1.3.2 When Less Is More?

3.2 Asymmetric Information

3.2.1 Contractual Gaps.

3.2.1.1 Costs of Anticipating Events

3.2.1.2 Description Costs

3.2.1.3 Costs of Enforcing Provisions and the 'Would Have Wanted' Approach

3.2.2 Asymmetry Inter Partes

3.2.2.1 Particular Knowledge or Expertise of the Party Regarding the Goods

3.2.2.2 Counterparty's Knowledge of the Potential Governing Contract Law

3.2.2.3 Strategic Informational Asymmetry

3.3 Bargaining Power

3.3.1 Playing 'at Home', Playing 'at the Opponent's Home' or Playing at a 'Neutral Field': The So-Called 'Arm-Wrestling'

3.3.2 Substantial Relationship to the Parties or the Transaction

3.3.2.1 The Resort to a Third Jurisdiction's Law - A Trojan Horse?

3.3.2.2 Uniform Contract Laws - A Way Out?

3.4 Transaction Costs

3.4.1 Unknown or Less Familiar Governing Contract Law

3.4.2 Cost of Learning

4 Choosing the Right Audience, or the Jurisdictional Conundrum

4.1 Studies on Choice of Forum

4.1.1 SIA International Arbitration Studies

4.1.2 Pace Law School CISG Database

4.1.3 The Global Empirical Survey on Choice of Law

4.2 Choice of Court Agreements

4.2.1 The Hurdles of Choosing a State Court Jurisdiction

4.2.1.1 Cost and Convenience

4.2.1.2 Risk of Bias or Partiality

4.2.1.3 Political and Economic Uncertainties

4.2.2 The Hague Convention on Choice of Court

4.2.2.1 Main Features

4.2.2.2 A Synergy with Choice of Law?

4.3 Arbitration Agreements

4.3.1 A 'Go to' Option in Cross-Border Sales

4.3.1.1 The Application of the Law on an 'As Is' Basis

4.3.1.2 The 'Middle of the Road' Archetype

4.3.2 Arbitration Agreements and Choice of Law: Potential Interplay

5 Parties' Main Concerns and the Efficiency of Transnational Legal Standards

5.1 Legal and Economic Considerations: Choices - Who's Who?

5.1.1 Predictability of Rules

5.1.1.1 Degree of Certainty

5.1.1.2 Accessibility.

5.1.1.3 Intelligibility

5.1.1.4 Complexity of Structure

5.1.2 Legal Neutrality

5.1.2.1 Rules Not Identified or Associated with the Contracting Parties

5.1.2.2 Commercially-Focused 'Physiology'

5.1.3 Legal Flexibility

5.1.3.1 Commitment to Freedom of Contract

5.1.3.2 Degree of Flexibility: How Far Can We Go?

5.1.4 Mandatory Provisions: Unwelcome Surprises?

5.1.5 Legal Interpretation

5.1.5.1 Hermeneutic Tools

5.1.5.2 Conduct of the Parties and Trade Usages

5.1.6 Body of Case Law

5.1.6.1 To Be Settled or Not?

5.1.6.2 Interpretation of Legal Rules

5.1.7 Provisions on Performance

5.1.7.1 Delivery of Goods

5.1.7.2 Exemptions

5.1.8 Remedies Available: Gateways

5.1.9 Provisions on Damages

5.1.9.1 Setting out the Features of a Defaulting Scenario

5.1.9.2 Statements and Commands on Damages and Calculation

5.1.10 Statute of Limitations: A Time-Bar Conundrum?

5.1.11 Gap-Filling Mechanisms: Default Rules and Safeguards

5.2 Future Research

Conclusion

Bibliography

Index.

Notes:

Includes bibliographical references and index.

Description based on print version record.

Part of the metadata in this record was created by AI, based on the text of the resource.

Description based on publisher supplied metadata and other sources.

ISBN:

9789462748521

9462748527

OCLC:

1124601466