Application of the theory of proper law to contractual relations with the foreign element

Čolović, Vladimir (2015) Application of the theory of proper law to contractual relations with the foreign element. Strani pravni život (4). pp. 51-66. ISSN 0039-2138

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Abstract

The theory of proper law is a product of the Anglo-Saxon doctrine of the 18th and 19th centuries and is applied, among other things, to determining the applicable law in contractual relations with the foreign element when the party autonomy is absent. This theory is grounded not only in the close connection between contracts and a particular country, but also in the intention of the parties which must be included in the elements of the contractual relations. This theory cannot be defined without the aforesaid elements. The article analyses the relation of the theory of proper law to other theories applied to cases when the parties have not chosen the applicable law, such as the center of gravity theory and the theory of characteristic obligation. In this regard, we shall analyse provisions of the most important sources of EU law in this area, such as the Rome Convention and Regulation 593/2008, and examine legal provisions of individual states outside the EU related to this area. The author concludes that the theory of proper law provides the most leeway for choosing the applicable law compared to the other theories.

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