Renvoi’s Exclusion in the Hague Principles on Choice of Law in International Commercial Contracts

Abstract

The party autonomy is a universal and indisputable principle of modern private international law. According to numerous studies, the vast majority of international commercial contracts include provisions on the choice of law applicable to this agreement. Nevertheless, the doctrinal problems of the conflict-of-laws party autonomy not only do they not disappear, but also continue to multiply, and those aspects of them that have not previously caused controversy are actualized, in particular, the combination of renvoi and the choice of law by the parties to the relationship. Despite its complexity and even controversial nature, the renvoi institute “penetrates” into the acts of lex mercatoria, including those devoted to the party autonomy in international transactions. The Hague Principles on Choice of Law in International Commercial Contracts enshrine article 8 “Exclusion of renvoi”, where the latter seems to be prohibited, but at the same time allowed in specified cases. The article presented examines the question of what does that formulation mean — the prohibition of renvoi or its permission? It is hypothesized that article 8 establishes precisely permission if the parties have explicitly expressed their intention to do so. An overview of various national and international acts containing similar provisions is provided as evidence. In the work, methods of comparative jurisprudence, comparative analysis, contextual interpretation of the law, formal logic, and retrospective analysis were used. It is underlined the fundamental aim of private international law is to achieve justice and international uniformity of decisions, and its successful implementation involves the use of the entire range of conflict-of-laws tools, including the renvoi mechanism. It cannot be argued that renvoi has a detrimental effect on the choice of applicable law, but at the same time it must be remembered that its unrestricted application may violate the reasonable intentions of the parties. However, the functioning of renvoi and the possibility of its harmonious combination with the party autonomy should be considered as a rule, not as an exception.