International contracts and the choice of law
Degree GrantorUniversity of Canterbury
Degree NameDoctor of Philosophy
The choice of law dilemma for international contracts is the subject of this thesis. In Part A the concept of party autonomy is discussed and the traditional English approach considered. This involves a critical examination of the proper law doctrine. Part B considers the 'American Solution' with particular reference to the State of New York. Interest Analysis, New York legislation and common law are discussed. A criticism of the New York approach concludes this section. In Part C the limitations on party autonomy are considered in both the English and New York setting. In Part D four alternative proposals are canvassed. The lex loci contractus and the lex loci solutionis (the law of the place of contracting and the law of the place of performance) are briefly considered in an historical setting. These two theories contrast with the lex validatis (the law which validates) which an academic suggestion. Finally the European Convention on the Law Applicable to Contractual Obligations (1980) is chosen as a legislative proposal to resolve the choice of law dilemma for international contracts. Its provisions are stated and discussed. Parts A to D demonstrate that law to govern international contracts on both sides of the Atlantic is unsatisfactory. To date New Zealand has followed the English proper law doctrine. However it is submitted that the time for change has arrived. It is argued that New Zealand needs a law which advances conflict of laws goals, avoids present difficulties and which is in harmony with domestic contract law. Thus Part E considers such goals and the domestic and conflict of laws provisions of recent national contractual legislation. A legislative solution is then proposed and it is argued that if the proposals were adopted New Zealand would have gone a long way towards resolving choice of law issues for international contracts.