Volume 20, Issue 3 (2016)
CLR 2016, 20(3): 27-55 |
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Vahdati Shobeyri S H, Afzalimehr M. Conceptual Change in the Criteria of Ditermination of Applicable Law on Contracts in Private International Law. CLR 2016; 20 (3) :27-55
URL: http://clr.modares.ac.ir/article-20-3782-en.html
URL: http://clr.modares.ac.ir/article-20-3782-en.html
1- Master of IP Law, Qom University, Qom, Iran
2- Assistant Professor, Faculty of Law and Political Sciences, Islamic Azad University of Karaj, Alborz, Iran
2- Assistant Professor, Faculty of Law and Political Sciences, Islamic Azad University of Karaj, Alborz, Iran
Abstract: (11028 Views)
Determination of applicable law in contracts is done with two main methods: objective and subjective. Objective theory in a new consideration results in restrictive comment of party autonomy. Objective test, which is recognized as the legal positivism, declares the solely privilege of the rule of government, which is the source of rights and assignment of parties, controls the contract, and determines the validity or nullity of the contracts too.
On the other hand, there are national conflicts of rules that confer the freedom of choice to the parties and determine the frames of this freedom by making specific limitations to protect the fundamental interest of the government or the weaken contracting party. Base of this limitation is also the superiority of governments for making the order of society by regulating the mandatory, protective and supervisory rules, which in some cases are not able to tolerate the foreign law, in conflict of fundamental interest and goals of the society. From economic aspects, in contracts, which are the economic tools of transfer of investment, it is important to pay attention to the economic gravity center of the contract. It would be possible by applying the objective theory in determination of the proper law, which has the closest connection with the contract.
On the other hand, there are national conflicts of rules that confer the freedom of choice to the parties and determine the frames of this freedom by making specific limitations to protect the fundamental interest of the government or the weaken contracting party. Base of this limitation is also the superiority of governments for making the order of society by regulating the mandatory, protective and supervisory rules, which in some cases are not able to tolerate the foreign law, in conflict of fundamental interest and goals of the society. From economic aspects, in contracts, which are the economic tools of transfer of investment, it is important to pay attention to the economic gravity center of the contract. It would be possible by applying the objective theory in determination of the proper law, which has the closest connection with the contract.
Received: 2016/05/3 | Accepted: 2016/12/20 | Published: 2016/12/27
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