헤이그 국제상사계약 준거법 원칙

초록

In 2015, Hague Conference on Private International Law finally approved “Hague Principles on Choice of Law in International Commercial Contracts”(hereinafter, the “Principles”) and issued its official commentary on them. The Principles have fully adopted the principle of party autonomy, which is considered to be the most practical solution for conflict of laws in international contracts. Therefore, they allow the parties to choose a neutral law which has nothing to do with them and their transactions, and provide a practical solution for “battle of forms” matter. Both courts and arbitral tribunal are invited to apply the Principles, which is the first ever attempt in legal instruments. All articles have been drafted for use by courts and arbitral tribunal. Nonetheless, the Principles set out the limits on the general autonomy principles. The most important limitations to party autonomy are contained in Article 11. Article 11 addresses limitations resulting from overriding mandatory rules and public policy (ordre public). This article examines each provision of the Principles, compares them with Korean private international law and arbitration law, and tries to shed light on a few things to be reflected on the Korean relevant laws. The Principles provide rules only for situations in which the parties have made a choice of law (express or tacit) by agreement; they do not provide rules for determining the applicable law in the absence of party choice. This limitation of the scope of the Principles does not preclude the Hague Conference from developing rules at a later date for the determination of the law applicable to contracts in the absence of a choice of law agreement. From Korean perspective, there are only a few articles to be taken into account for adoption into Korean laws because Korean laws either already contain most articles of the Principles or would be similarly interpreted with them. Particularly, our position should be more clarified as for Article 3 (rules of law), Article 6 (agreement on choice of law and battle of forms), and Article 11 (overriding mandatory rules and public policy). The Principles’ positions over the three articles should be more carefully examined and determined whether we would adopt fully or partially them or not.

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