Abstract
(VOLTAR)Julia Krautter RomeiroThe thesis deals with the subject of tacit (implied) choice of law in the practice of international contract law. Tacit choice of law is relevant when the parties of an international contract have not chosen the determining law explicitly. It has to be examined then, which law might be the governing law in the individual case. The leading question hereby is under which circumstances a conclusion can be drawn doubtlessly with respect to the law chosen by the parties.
In Europe, this problem is amicably solved for contractual relationships by a treaty, which was accepted by almost all Member States of the EU – the Convention on the Law applicable to Contractual Obligations of June 19th 1980 (hereinafter, Rome I). The different national courts should apply the same national law for the same facts of a case. This is important especially against the background of increasing competition the national legislator has to face due to growing cross-border commerce.
The importance of the issue of tacit choice of law is growing due to the increasing internationalisation of business connexions. It is relevant for the practice as not in every international contract the parties choose a law explicitly, while the conditions of the contract or the circumstances of the case point to a specific intent of the parties with respect to the determining law. Especially for forensic advocacy the tacit choice of law is very important.
This thesis aims at illustrating on one hand the implementation of the tacit choice of law according to Rome I through the French, English and German jurisdiction and on the other hand the implementation of the tacit choice of law of the Restatement of Conflict of Laws Second in the US-American law highlighting the single indices for a tacit choice of law.
Regarding the tacit choice of law in the US, the Restatement Second will be examined and it will be analysed, under which circumstances the US jurisdiction assumes a tacit choice of law in the practice. Moreover, it will be analysed if and how the Restatement Second is implemented in the practice with respect to the regulation of the tacit choice of law and leads to the same result as the Rome I, which is implemented in the practice by the European Union Member States.
Furthermore, the legal categorisation and dealing of tacit choice of law will be discussed, especially under the new aspect of the European changes of international contract law. Only by means of new laws in this field, the issue of tacit choice of law recently experienced again special timeliness.