Conference PaperPDF Available

Determining the Law Applicable to the Dispute Resolution of the International Commerce

Conference Paper

Determining the Law Applicable to the Dispute Resolution of the International Commerce

Abstract

Characteristics of the internet which is cheaper, faster and efficient, in fact, can motivate the business actors to do a transaction of the international sale of goods electronically (e-commerce). In line with establishing the ASEAN Economy Community 2015, creating the disputes among domestic business actors with foreign business actors from ASEAN countries can not be avoided. In the context of dispute resolution , the main problem faced a court to be solved – if the parties do not specify a choice of law clause in their contract - is the determination of the laws of any country relevant to apply. This study aimed to know the method that will be used by the judge or arbitrator to determine the applicable law to the dispute resolution of the international e-commerce. Theory used to analyze is the choice of law theories in International Private Law. While research methods used is a normative juridical research, namely through the library research to review the rules of positive law and legal principles. The approaches used are a statute approach and a conceptual approach. The results showed that law applicable clause as stipulated in Article 1 of the United Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) relevant to be applied to the dispute resolution of the international e-commerce. It is suggested that the substance of the Article can be used as a reference in a harmonization of International Commercial Law in ASEAN. Keywords: Determining, Law Applicable, Dispute Resolution, E-Commerce
PROCEEDING
INTERNATIONAL CONFERENCE
International Conference on Electronic-
Commerce Law
“E-Commerce Law in Asia: Opportunities
and Challenges”
Jointly organized by the Faculty of Law Brawijaya
University Indonesia, School of Law University of
Newcastle Australia, and Faculty of Law University
Kebangsaan Malaysia
Malang, 18th 19th November 2014
Speakers:
Prof. Sandeep Gopalan
Assoc. Professor Nazura Abdul Manap, PhD
Dr. Patricia Audrey
Dr. Sukarmi
Dr. Edmon Makarim
PROCEEDING, International Conference on-Electronic-Commerce Law
“E-Commerce Law in Asia Opportunities and Challenges”
Penyunting: Milda Istiqomah
ISBN:978-602-3090-76-1
Penerbit:
CV. Indo Legal Service
Jl. Simpang Piranha Atas Nomor 71, Malang
Hak cipta dilindungi Undang-Undang
DETERMINING THE LAW APPLICABLE TO THE DISPUTE RESOLUTION OF THE
INTERNATIONAL E-COMMERCE
Dr. Taufiqurrahman, S.H., M.Hum.
1
ABSTRACT
Characteristics of the internet which is cheaper, faster and efficient, in fact, can
motivate the business actors to do a transaction of the international sale of goods electronically
(e-commerce). In line with establishing the ASEAN Economy Community 2015, creating the
disputes among domestic business actors with foreign business actors from ASEAN countries
can not be avoided. In the context of dispute resolution , the main problem faced by a court to
be solved if the parties do not specify a choice of law clause in their contract - is the
determination of the laws of any country relevant to apply.
This study aimed to know the method that will be used by the judge or arbitrator to
determine the law applicable to the dispute resolution of the international e-commerce.
Theory used to analyze is the choice of law theories in International Private Law. While
research methods used is a normative juridical research, namely through the library research
to review the rules of positive law and legal principles. The approaches used are a statute
approach and a conceptual approach.
The results showed that law applicable clause as stipulated in Article 1 of the United
Nations Convention on Contracts for the International Sale of Goods 1980 (CISG) relevant to
be applied to the dispute resolution of the international e-commerce. It is suggested that the
substance of the Article can be used as a reference in a harmonization of International
Commercial Law in ASEAN.
Keywords: Determining, Law Applicable, Dispute Resolution, E-Commerce
A. INTRODUCTION
The presence of public information is believed to be one of the important agenda of the
people in the third millennium. It is characterized, among others, the use of the Internet is
increasingly widespread in various activities of h uman life , not only in developed countries
but also in developing countries, including Indonesia. This phenomenon in turn has put the
"information" as an economic commodity that is very important and beneficial.
The existence of the Internet as one of the institutions in the mainstream of modern
business culture is further reinforced by the rise of commerce electronically (e-commerce) are
predicted as "the future business". Fever e-commerce is not only a hit for the business
community in developed countries like the United States and European countries only, but has
spread various developing countries. e-commerce that was originally engaged in the retail trade
as a Compact Disc ( CD ) or book via the World Wide Web ( www ), but it's been gone fa r
reaching activities in banking and banking services which include among others "account
inquiries", "loan transaction", and so on.
Internet is more selected in the trade transaction because of its easiness, namely :
1. Internet as a very large public network (huge / wide spread network), like that is owned
by a public electronic network, that is cheap, fast, and ease of access;
1
University of Wijaya Putra, Email: taufiqurrahman@uwp.ac.id
2. Using electronic data as a medium to deliver the messa ge / data so it can be done
sending and receiving of information in an easy and concise, both in the form of
electronic data analog and digital.
In a future perspective, the practice of e-commerce is increasing, both in quality and
quantity along with the globalization of the economy and its global trade / free market, both
produced by the member countries of the World Trade Organization (WTO), Associatio n of
South East Asian Nations (ASEAN) and the Asia-Pacific Economic Cooperation (APEC).
As in conventional transactions that everything is carried out by using paper, the
possibility of disputes between parties to a transaction can not be avoided. The emergence of a
dispute between the parties in a transaction either "paper-based transaction" or " paperless-
based transaction" is normal and natural. This is because the parties are conducting e-commerce
transactions are also human being, which can not be separated from nature to forget and to be
selfish. Especially with the establishment of the ASEAN Economic Community will be in
2015, the emergence of e-commerce disputes between the Indonesian business actors with
foreign business actors from ASEAN countries can not be avoided.
In handling of the dispute resolution of the international e- commerce, where the
elements associated with the case, namely parties, object and execution of the contract are not
in the same country, the first problem to be solved is with regard to choice of law, the law
which should be applied in dispute settlement of international e-commerce. The issue of choice
of law will always appear in the international e-commerce dispute if the contract does not
explicitly contain a choice of law clause .
Based on these objective conditions, the research problem can be formulated as follows:
a. what is the significance of the choice of law by the parties in an international e-
commerce contract ?
b. what is the procedure of determining the law a pplicable in the absence of a choice of
law by the parties in international e-commerce contract ?
This study aimed to analyze the significance of the choice of law cla use in an
international e-commerce contract, and also to describe the procedure of determining the law
applicable in the absence of a choice of law clause in an international e-commerce contract.
This type of research used to gather and analyze materials is a normative law research.
While the approaches used in this study are a stat ute approach, a conceptual approach and a
case approach.
B. THEORETICAL FRAMEWORK
The study of theories of choice of law in this study are started from a cursory review of
the choice of law by the parties, or also known as choice of law clauses in international
commercial contracts.
2
As we know that the choice of law by the parties is a reflection of the
principle of party autonomy in International Private Law (IPL). Party autonomy is a principle
that reflects the will of the autonomy owned by the parties to determine the law applicable to
the international commercial contracts. In principle, the autonom y of the parties will be the
primary consideration in determining the law applicable. As the actualization of freedom
owned, the contracting parties can manifest in the form of freedom to determine the law
applicable to govern their contract.
2
A description of the theories of choice of law as a knife used in the analysis of this paper is quoted from
the work of Taufiqurrahman entitled "Karakter Pilihan Hukum, Kajian tentang Lingkup Penerapan T he United
Nations Convention on Con tracts for the International Sale of Goods 1980 (Character Choice of Law, Study on
the Scope of Application of the United Nations Convention on Contracts for the International Sale of Goods
1980)”, PT. Bayumedia, Surabaya, 2010.
This principle was first introduced by Dumoulin.
3
This principle emerged as a response
to dissatisfaction in the determination of the law applicable based on the objective linkage
points. He assumed that the points of objective linkage is too rigid and does not provide room
for the free will of the parties. Based on these facts, the adherents of subjective selection switch
on the will of the parties as the main linkage points in the determination of the law applicable
to the contract.
Based on a subjective choice of law which it is based on the autonomy of the parties,
the contracting parties have the freedom to choose the law that will be used to regulate their
legal relationships. The contracting parties have the freedom to choose the substantive law of
a particular national legal system to address the gap. Moreover, the principle of party autonomy
also provide the best care efforts to protect the parties' ex pectations and create a form of legal
certainty universally recognized in across national borders transactions. Francis A. Gabor
length stated as follows :
4
“This common core is based on the universal recognition of party autonomy: that
contracting parties should enjoy the freedom to draft private contracts, selecting the
substantives law of a national legal system to fill in gaps. Party autonomy provides the
best safeguard for protecting the parties’ expectations and creating a universally
recognized from of legal certainty in transactions cutting across national boundaries”.
The principle of party autonomy is further developed by Friedrich Carl von Savigny.
He always argued about the "Sitz" in any le gal relations that occurred. According to Savigny,
choice of law especially in the form of voluntary subjection to a law order happen because it
has been selected by the lex loci executions . Choice of law as is especially the case in secret.
5
Furthermore, this principle is further developed by Mancini. According to him, party
autonomy is one of the three pillars of the International Private Law (IPL)-whole human
building, in addition to the principle of nationality and public order.
6
The freedom of the parties
to determine the law to their contractual relationships serve as the foundation of the entire
system of its IPL. The freedom of the parties to choose the law that they want is only limited
by the understanding of public order.
During its development, the doctrine of the law that gives freedom to choose the law
that will govern the contract made by the parties recognized in all legal systems. This is
confirmed by P etar Sarcevic which states : "It could be said that, in all legal systems, it is a
well-established principle that the parties are free , apart from on certain limitations, to choose
the which the law will govern Reviews their contract".
7
The same view was also expressed by Lando in 1970 who wrote that "Instant
confirmation of party autonomy is so accepted b y the countries of the world that it belongs to
the common core of the legal systems. Differences only exist concerning the limits of freedom
the parties".
8
Subjective theory in the determination of the law applicable to the contract which
3
Sudargo Gautama. 1998. Hukum Perdata Internasional Indonesia (International Private Law), Jilid II
Bagian 4 Buku ke-5, Alumni, Bandung, p.24
4
Francis A. Gabor. 1986. “Emerging Unification of Confliict of Laws Rules Applicable to The
International Sale of Goods: UNCIT RAL and The New Hague Conference on Private International Law”,
Northwestern School of Law, Journal of International Law and Business, 7 NW.J .INT’L & BUS 696, p.3
5
Sudargo Gautama, op.cit., p.25
6
Ibid.
7
Zeljko Matic, “The Hague Convention on the Law Applicable to Contracts for the International Sale of
Goods Rules on the law applicable”, in Petar Sarcevic (ed.). 1990. International Contract and Conflicts of Laws,
Graham & Trotman / Martinus Nijhoff, London/Dordrecht/Boston, p.56
8
O. Lando. 1976. ”Contract”, International Encyclopedia of Comparative Law, Vol.III, Tubingen,
Mouton, The Hague, Paris, p.3 quoted from Petar Sarcevic, “Choice-of-Issues Related to International Financial
Transactions with Special Emphasis on Party Autonomy and its Restrictio ns”, in Petar Sarcevic dan P. Volken
(ed.). 1991. International Contract and Payments, Graham & Trotman / Martinus Nijhoff,
London/Dordrecht/Boston, p.112
is based on the principle of party autonom y is essentially the same philosophical footing or at
least goes together with the classical theory of contract law that puts more emphasis on
individual freedom of contract.
9
The doctrine of choice of law in International Private Law (IPL), particularly with
respect to international transactions are orient ed to provide legal certainty for the parties.
According to Stanley E. Cox , there are three models the choice of law to be accommodated in
the IPL, namely unilateral choice of law, multilateral choice of law; and substantive choice of
law.
10
The unilateral choice of law emphasis on the sovereignty as the sole source of
legitimacy of any decision. According to this theory, the judicial forum to handle disputes
typically established itself as a domestic judicial, rather than an international court. The only
law that can be applied is the law of the forum.
In the view of unilateralist, the only law that can be applied is the law of the forum .
Therefore, the forum should not handle a case unless the relationships associated with the
litigation will make the application of the law of the forum can be maintained. Judges must be
held fully responsible for the content of the decision . He had to explain why or why suspend
the will of the legislature is responsible for setting the policy through judicial law-making
powers .
The unilateralist believe that forums can only improve their own policies when they
hear cases. Therefore, unilateralist wants the court takes jurisdiction over a case if the court can
apply the law of the forum with consciousness to the case. With regard to personal jurisdiction
, Stanley length stated as follows :
11
… The unilateralist approach to choice of law, therefore, should insist on limiting
personal jurisdiction to only those forums that have an interest in applying their own
law to a substantial portion of the underlying conduct involved in any litigation. The
policies behind personal jurisdiction and choice of law, in short, coextend under the
unilateralist approach.
This means that a unilateralist should disapprove of personal jurisdiction obtained by
methods such as temporary presence in the form or transacting business in the forum
unrelated to the litigation.
Presence and convenience may be appropriate ways to limit venue, but as justification
for the forum’s right to adjudicate, they establish no legitimacy for law-wielding power.
“Specific” jurisdiction is the only valid method of obtaining personal jurisdiction over
a defendant under a unilateral approach. Concormitantly, therefore, the unilateralist
rejects the notion that a disinterested third state can appropriately exer cise personal
jurisdiction.
The multilateralism choice of law assume that the special law (IPL) can be developed
through the observation of all sovereignty-sovereignty are concerned and therefore treat all
equally sovereign. The role of the court or arbitral is the main multilateral peace maker or
refereeing.
Friedrich Carl von Savigny known as a father of multilateral explained that the purpose
of the analysis of multilateralism is "discovering for every legal relation (case) that the legal
9
In the Indonesian legal system, the principle of freedom of contract contained in Article 1338 Burgerlijk
Wetboek (Code of Civil Law). This principle implies that the parties to a contract are free to determine the form,
manner and object of the contract entered into, on the basis of good faith in the implementation. Contracts ar e
made to be binding on the parties as the law.
10
Stanley E. Cox. 2001. “Commentary: Substantive, M ultilateral and Unilateral”, 37 Willamette Law
Review 171, download dari LexisNexis ™ Academic – Document dated January 23, 2007. Compare with Gene
R. Shrive. 1996. “Choice of Law and the Forgiving Constitution”, 71 Ind. L.J. 271 , p.271
11
Ibid., p.15
territory to which, in its proper n ature, it belongs or is subject (in the which it has its seat)”.
12
Different with the unilateralist who stopping their activities at the time of the law applicable of
forum found out, multilateralist requires the development of dispute whether a closer
relationship to the other jurisdictions. a choice has to be actually made between two or more
competing jurisdictions . Therefore, a multilateral approach is often referred to as the selecting
jurisdiction.
The main objective of multilateralism approach is the uniformity of the results of the
choice of law and predictability of results. In this context, concerns the way in which the
uniformity and predictability that goal is reached, there are two (2 ) approaches were used,
namely an objective approach and the subjective approach . In the perspective of the choice of
law, theory that uses an objective approach is also referred to as the Objective Choice of Law
Theory, while the theory of subjective approach is also referred to as the Subjective Choice of
Law Theory .
The Substantive Law of options beyond sovereignty emphasizes the fact that the pattern
of conflict. Domestic law which are not suitable to represent the sovereignty dispute is applied
in the IPL disputes. There is no reason that the main content of the law applicable to the IPL
dispute reflects the contents of a particular / national law. IPL should be the law in international
character .
In the view of the adherents of the theory of choice of substantive law, the trial judge
placed himself not as a domestic court, but an international court or interstate tribunal. Courts
/ arbitral required to adjudicate disputes implement a legal device that is designed for the IPL
applied outside the domestic context. IPL device is getting legitimacy of efforts to harmonize
the expectations formed from the inter-state system .
According to adherents of this theory, the IPL is defined as "a unified system
established to resolve disputes arising from the fact that every municipal law may indicate
disagreements with other local legal system. This theory s eems very idealistic as it strives to
realize the existence of rules that can be applied to all existing legal system .
In harmony with the conditions that gave rise to the theory of choice Substantive Law ,
this theory aims to measure in substantive justice (substantive justice ) . Substantive justice that
has not been touched either in the Unilateral Choice of Law and The Multilateral Choice of
Law are greater accommodated within this Substantive Choice of Law. The parties from the
beginning has been able to figure out what would be the rights and obligations under the
position determined by the same substance that is applicable in all the countries in the world .
Proponents of this theory among Rabel, Zittelman and Jita highly influenced by
Friedrich Carl von Savigny’s thought. They have a basic assumption that the need for the
principles of the IPL are already accepted as a habit in the international arena and is considered
to be universal .
C. ANALYSIS
1. The Significance of a Choice of Law Clause to the Dispute Resolution of International
e-Commerce
The contracting parties when process of negotiating and signing a contract hope that
the implementation of the contract will not arise a dispute between them. However, although
all attempts have been made so that what has been agreed can be implemented, it does not
mean that it has been closed to the possibility of emerging a dispute between the parties .
12
Hannah L. Buxbaum, 2000. “Rethinking International Insolvency: The Neglected Role o f Choice of
Law Rules and Theory”, 36 Stan. J. Int’l. 23, p.39, quoted from Friedrich Carl von Savigny. 1980. A Treatise on
the Conflict of Laws 133 (William Guthrie T rans, 2nd ed.). see also Friedrich K. Juenger. 1993. Choice of Law
and Multistate Justice 10-27
Basically the parties are still human beings with all the advantages and disadvantages.
A variety of things that can allow the emergence of a dispute between them, which is due to
non-fulfillment of obligations b y either party as set forth in the contract, the fulfillment of
obligations by one party but not as agreed in the contract and imperfect obligations undertaken
by one parties. In short, as carefully as any business transactions (including the s ale of
international goods ) made, the possibility creating a disputes can not be avoided.
In connection with the settlement of international commercial disputes, both
conventionally and electronically, procedural issues must be resolved at first before touching
the substantive issues. One of the procedural issues that must be resolved first is the
determination of the law applicable.
13
The issue of choice of law is important to be solved in advance by a judge or arbitrator
because it relates to the applicability of the substantive law should be applied in resolving
disputes. Without preceded by solving the problems of choice of law, it is impossible for a
judge or arbitrator who handles can make a decision on the dispute in the international trade
fair for the parties .
To determine the law that can be applied to the international commercial transactions,
either conventionally or electronically, the judge or arbitrator will examine whether there is a
choice of law clause in its contract. The approach used b y the judge or arbitrator to determine
the law applicable is the subjective approach, namely taking into account the autonomous will
of the parties actualized in it’s a clause of choi ce of law. Under this approach , the law
applicable to the contract is the law chosen by parties.
The choice of law by the parties can b e described as the glasses. If it is used a green
monocle, then all objects will appear as green. Similarly, if the parties to a contract to choose
the law of international business a particular country, then the contract will be viewed in terms
of glasses and governed by law, the law of the chosen state .
Law chosen by the parties to be decisive in terms of assessing the validity of a contract
that is international. The selected law also specifies the terms and the timing of default and
what sanctions can be imposed on either party i n the event proved to be in default. In this
context, quite naturally when the UK Lawyer continues to provide advice to their clients for
always include a choice of law clause in his contract and choose English law as the "governing
law" of contracts made with foreign partners.
Institution of choice of law is becoming increasingly important these days along with
the rapid commercial transactions between parties from different countries. Moreover, in
international commercial transaction electronically, the presence of foreign elements in the
transaction is not only based on the involvement of the parties to a transaction, but also other
related parties, namel y the Internet Service Provider ( ISP ) who provide services as the
Internet.
Practical issues with regard to choice of law by parties is whether the contracting parties
actually have freedom freely without any restrictions at all in choosing a particular legal system
against the contract. Although th e nature of the choice of law by parties as a reflection of the
principle of party autonomy, this does not mean giving freedom freely to the parties to
determine which law applies to the contract . This is tantamount to human rights inherent in
every person . In exercising rights owned, one is limited by the rights attached to other people.
That is, one can not properly exercise their rights without notice and even detrimental to the
13
Procedural 'issues that arise in international commercial disputes in addition to the choice of law is the
choice of jurisdiction and choice of forum. The choice of jurisdiction in a contract specify which state jurisdiction
has the authority to decide upon the above dispute, while the choice of forum determines what the forums has the
authority to investigate the dispute.
interests / rights of others. This means that in per forming the contract choice of law is made,
the parties must observe the restrictions .
However, in principle, most of the existing legal system recognizes the limitations in
determining the law applicable to the contract by the parties. Things that are generally
recognized as a barrier in the C hoice of Law by the Parties which are: (1) the necessit y of a
real relationship (real connection) between the law chosen by the contract ; (2) The choice of
law must contain a bona fide , that is based on good faith for the purpose of certainty , protection
of fair and surer guarantee for the execution of the contract for the parties ; (3) is not intended
for smuggling law ; (4) does not conflict with the rules that are forced (mandatory rules) , one
of which is contrary to public order (public policy) .
Despite the lack of similarity in the provision limits to the parties to choose the law
applicable to the contract between the national legal systems of countries with one another, but
must not be a conflict between the law chosen by the rules of legal coercive forums that deal
with disputes the (lex forum) agreed upon by all the existing legal system . It is also implicit in
the British court decision in the case of Vita Food Products Inc. , v . Unus Shipping Co. Ltd.
(1939) A.C. 277 which states :
14
"The fact that the parties have chosen a foreign law, whether or not accompanied by the
choice of a foreign tribunal, shall not, where all the other elements r elevant to the situation
at the time of the choice are connected with one country only, prejudice the application of
rules of the law of that country which cannot be derogated from by contract, hereinafter
called "mandatory rules".
Some restrictions were developed in the IPL to establish the validity of a choice of law
by the parties are as follows :
15
a. choice of law is limited mainly to be executed only in the legal agreement (contract). In
contract law itself, contract law is not entirely permissible, but there is a type of contract
that should not be entered into the choice of law, for example in the employment contract
;
b. choice is restricted by law and must not conflict with the interests of the state , public
interest, public interest or public order. Public order is an emergency brake to stop the
implementation of foreign laws and also an emergency brake on the use of the autonomy
of the parties are too freel y. Maintaining public order that the la w chosen by the parties
is not contrary to human joints in law and society judge ;
c. choice of law may not lead to smuggling law. The choice of law must be made fairly and
in good faith, no special pick a particular legal system for the purpose of smuggling other
regulations. In other words, the legal system chosen is the legal system that does have a
certain relationship with the contract in question .
The parties in determining the law applicable to the contract can be done in a manner
expressly (express choice of law) or by implied choice of law. This view was expressed by
Zeljko Matic.
16
Another opinion expressed by Petar Sarcevic distinguishing choice of law
within three (3 ) forms, namely : (1) the choice of law expressly; (2) the implied choice of law;
and (3) no choice law.
17
A different opinion was also expressed by Sudargo Gautama stating that there are four
kinds of law choice in IPL, namely : (1) expressly or in so many words (uitdrukkelijk met zovele
14
David McClean. 2000. Morris: The Conflict of Laws, Sweet & Maxwell Ltd. London, p.330
15
Sudargo Gautama. 1985. Pengantar Huku m Perdata Internasional Indonesia (Introduction to
International Private Law of Indonesia), Cet.V, Binacipta, Bandung, p.169. (herein after Sudargo Gauta ma I)
16
Zeljko Matic, op. cit., p.56.
17
Petar Sarcevic, op. cit., p.111
woorden); (2) secretly (stilzwijgend); (3) is considered (vermoedelijk ); and (4) a hypothetical
(hypothetische partiwijl).
18
Mentioning no choice as a form of choice of law by the parties to t he sales contract by
Petar Sarcevic above would be too much. This is based on an objective fact that the choice of
law (no choice) in the contract the parties have not opted to be enforced in a legal contract.
Those contracting intentionally or not does not intend to choose the law that will apply to the
contract. Similarly, the choice of law is considered (vermoedelijk) and hypothetical
(hypothetische partiwijl) propounded by Sudargo Gautama, the parties from the beginning is
not willing to choose the law that will govern the contract made. Not by the law chosen by the
parties, but by a judge or arbitrator.
19
Unlike the no choice of law, choice of law expressly, choice of law secretly and choice
of law hypothetically contain the will of the parties to choose the law that will govern the
contract made. Therefore , the description of the shape or the way the choice of law by the
parties is more focused on the form of the choice of law expressly and and implied choice of
law.
The contracting parties in performin g their choice of law explicitly faced with several
options, namely :
20
( 1 ) the national law of the judge (lex fori) and foreign law;
( 2 ) the national law of the person concerned and the law of the state where the people dwell;
( 3 ) between the national laws of those concerned and the law of the state where the goods
are located becomes object of legal relations;
( 4 ) between the national laws of those concerned and the law of the state where the relevant
legal act performed (lex loci actus);
( 5 ) the law of the country where a civil agreement born (lex fori contractus) and the law of
the country in which the execution of this agreement (lex loci solutionis).
Besides faced with several options as mentioned above , the parties should also consider
some factors that can not be ruled out . In thi s regard, Ravi C. Tennekoon states that there are
six factors that must be considered by the parties in determining the choice of law, namely :
21
(1) the freedom to choose the law that will be enforced ;
(2) certaint y and expectations regarding the desired results based on legal documents in
question ;
(3) the sophistication of the legal system are selected ;
(4) language ;
(5) liti gation forum ; and
(6) the introduction and understanding of the legal system chosen .
Unlike the strictly choice of law, in the choice of law in secret, the parties do not
explicitly specify a choice of law clause in their contract. Choice of law made by the use of
terms used in the contract. On this choice of law, judges are given the space to seek the will of
the parties that is implied in the contract.
With regard to implied choice of law, there are different views. One of them who deny
the existence of an implied choice of law is PM North. He asks the question whether a choice
can be made by means other than strict contractual provisions :
22
18
Sudargo Gautama I, op.cit., p.173
19
Ibid.
20
Ibid.
21
Sutan Remy Sjahdeni. 1997. Kredit Sindikasi, Proses Pembentukan dan Aspek Hukum (Synd ication
Credit, Establishing Process and Legal Aspect), Grafiti, Jakarta, p.110-111, quoted from Ravi C. Tennekoon.
1991. The Law and Regulation of International Finance, Butterwoths, London, p.17-24
22
Ibid., h.112, dikutip dari P.M. North, supra n.3, p. 156
“How far is an ‘inferred’ really to be regarded as a choice at all ? Should there continue
to be this division into express choice, inferred choice and no choice ? Is the second not really
the third, but one where identification of the most closely connected law may be relatively
easy”.
In connection with the statement, Petar Sarcevic commented that purpose only
alternative to express the choice is no choice not only practiced in some countries, but also the
law. An example is Article 24 paragraph (1) the Turkish PIL Act (Act No. 2675 on the
International Private and Procedural Law of 22 M ay 1982, Official Gazette No.17701 ) states
that the law applicable is the law chosen is by the parties.
23
Conversely those who accept the existence of inf erred choice as a choice of law states
that the implied choice of law is a special category of choice of law (a special category of
choice of law). Furthermore, they state :
“ In the United States, for example, inferrense is recognized and offerred special treatment
by the courts : ‘The presence of a choice-of-court clause … and the presence of other factors
in the contract may lead a court to conclude that the parties made an implied choice of
law’”.
24
The existence of a choice of court clause in the contract that was made showed that they
secretly have determined its legal options. If the contract mentioned in the trial option is Jakarta
District Court, means secretly the parties have chosen the Indonesian law as the law applicable
(the law applicable) on the contract they made.
The existence of different views on the form of the implied choice of law t also appeared
in the Hague Conference on Private International Law, held in 1985. From the diverse views,
the Hague Conference on Private International Law finally adopted the fifth view, namely, that
the contract is made should be clearly indicated by the terms of the contract and the relationship
of the parties is viewed as a whole. Receipt of the fifth view shows that the view that accepts
the existence of "an implied choice" as a law choice to get international recognition.
Choice of law by the parties of this fact has given assurance to them of the law that will
apply to disputes arising out of or in connection with the execution of the contract . However,
the certainty of the law is by no means all parties , or at least one of the parties can predict the
outcome (predictability) for the implementation of the contract .
This is understandable because of the substance of the law chosen by the parties based
on the principle of autonomy of the Parties are very well known by only one party, but the
other party is foreign. That could happen if the substantive law chosen is the law of one of the
contracting parties. Moreover, the parties are equally foreign to the law to be applied in
resolving disputes between them when in their contract to choose the law of another country .
2. Determining the law applicable in the Absence of a Choice of Law by the Parties
The method of determining the law applicable is based on the choice of law by the judge
or arbitrator if the parties can not determine the choice of law in contracts made, either
expressly or tacitly. It is in fact, a case of this kind has not been lifted to the surface in
cyberspace, in which the international commercial contracts electronically (e-commerce) not
to include a clause on its legal options. However, based on the objective fact that the
international trade in conventional contracts during this still met the contract does not include
a choice of law clause, then it will someday be possible.
Considering this condition, attempts to do is to return to the sources of international
trade law and regulations. One of the sources of international trade law can be referenced with
23
Ibid.
24
Ibid., quoted from E.F. Scoles and P. Hay. 1982. Conflict of Laws, St. Paul, Minnesota, p.63 3
regard to international trade transactions electronicall y is the UNC ITRAL
25
Model Law on
Electronic Commerce with Guide to Enactment 1996 (UNCITRAL E-Commerce). The model
law has been adopted by several states to make domestic law on electronic commerce. Among
these are Malaysia (Digital Signature Act 1997), Singapore (Electronic Transaction Act) and
other countries.
Ignaz Seidl-Hovenveldern qualify the works of international organizations, new lex
mercatoria, as the International Convention. This assessment is based on the authority and
legitimacy of these organs to remove it.
26
As an example of which is the UNCITRAL. This
institution, in accordance with the Resolution of the UN General Assembly 21202 (XX) dated
December 20, 1965, having the main task to increase the progressive harmonization and
unification of the Law of International Trade.
In the same position with the International Convention on the new lex mercatoria can
be a source of international trade law. This refers to Article 38 paragraph (1) The Statute of the
International Court of Justice, which states that t here are several sources of formal law that
may be used in international dispute resolution, namely: (a) International convention; (b)
Agreement in simplified form; (c) Customary international law; (d) General principle of l aw;
dan (e) Subsidiary means for the determination of rules of law.
27
With regard to the determination of the law applicable, the UNCITRAL E-Commerce
is just not set up at all. The model law is more focused on the recognition of the media used in
the transaction, the data message. In terms of "data message", the information created, received,
stored electronically, optical or similar means including, but not limited to EDI, e-mail,
telegram, telex and telecopy legally recognized as having validity. When they find a device
that is capable of transferring information, the model law is expected to respond to the
development of these technologies.
Although a model law does not formulate on determining of the law applicable to the
e-commerce contract, but it has laid the foundation in order modification with respect to time
and place of the occurrence of contract. The model law has set the time and place of delivery
and acceptance is communicated electronically as follows :
28
(1) Unless otherwise agreed between the originator and the addressee, the dispatch of a
data message occurs when it enters an information system outside the control of the
originator or of the person who sent the data message on behalf of the originator;
(2) Unless otherwise agreed between the originator and the addressee, the time of receipt
of a data message is determined as follows:
(a) if the data message has designated an information system for the purpose of
receiving data message, receipt occurs:
(i) at the time when the data message enters the designated information system; or
(ii) if the data message is sent to an information system of the addressee that is not
the designated information system, at the ti me when the data message is
retrieved by the addressee;
(b) if the addressee has not designated an information system, receipt occurs when the
data message enters an information system of the addressee.
25
United Natiosn Commission on International Trade Law (UNCITRAL) is a specialized agency of the
United Nations (UN) established based on United Nations General Assembly Resolution 2205 (XXI) on December
17, 1966
26
Huala Adolf, 1997. Hukum Ekonomi Internasional (International Law of Economy), Rajawali, Jakarta,
p.102 quoted from Cf.N.G. Onuf “Further Thoughts on a New Source of International Law”, quoted by Ignaz
Seidl-Hohenveldern, 1986. “General Course on Public International Law”, III Recueil des Cours 55
27
Ignaz Seidl-Hohenveldern, International Economic Law, 2nd revised edition, Martnus Nijhoff
Publishers, Netherlands, 1989, h.31-37
28
Article 15 of the UNCITRAL E-Commerce
The above provisions in principle asserts that the timing of the delivery of electronic
communications (data message) is when the data message enters an information system outside
the control of the originator.
29
This means that the supply occur or become effective at the time
the data message enters an information system outside the control from the addressee.
30
While
the determination of the time of receipt of an electronic communication is hung on the
availability of information systems owned by the addressee .
Referring to the definition of an information system as set forth in Ar ticle 2 letter (c)
Model Law , which is a " designated information system " is " a particular system that is used
to create, send, store or processing data message" .
If the addressee (in this case is the receiver of information transmitted) has designated
information system, it offers in the form of a data message sent by the originator (in this case
is the sender of information) are considered acceptable at the time the digital signature enters
the designated information system. Thus, although the addressee do not have read the receipt
that is sent by the originator, acceptance is considered to occur at the time the e-mail may have
entered the information system designated addressee.
Conversely, if the addressee does not have a designated information system, then the e-
mail sent by the originator is received at the time of digital signature entering the information
system of the addressee. Time of receipt of the data message sent by the originator is at the
time of the addressee have obtained and read the e-mail sent. This means that for the addressee
have not received or r ead the e-mail from the originator, the acceptance of the e-mail has not
happened yet.
Data message is considered delivered at the place where the originator has a business
position and is considered to be r eceived at the place where the addressee has more than one
legal domicile, the domicile is the place that has the closest relationship to the transaction in
question, or where that is not having ties to the transaction in question, which is the seat of the
primary law. Conversely, if the originator or the addressee does not have a permanent legal
status, the reference used is the place where they used to be.
With no regulation of law choice in the model law is by no means a solution to the case
relating to the determination of the law applicable stalled altogether. In this case, the alternative
attempt is to refer international conventions that are more common. As noted earlier, the
UNCITRAL Model Law on Electronic Commerce is a model law that specifically regulate
trade using electronic means. This means that the model law is an international convention that
is specific . Therefore, special provisions are not set, then it is reasonable to use the provisions
of a general nature. In this context, the meaning of the general provisions governing
international trade is "The United Nations Convention on Contracts for the International Sale
of Goods 1980" (hereinafter referred to CISG).
CISG includes material aimed at the formation of international contracts negates the
purpose of the law of a particular country in international sales contracts and to facilitate the
parties in the event of conflicts of law system. CISG applies to contracts for the sale of goods
made between the parties having places of business are in different countries. This is confirmed
in Article 1 of CISG, namely :
(1) This Convention applies to contract of sale of goods between parties whose place of
bisness are in different states:
(a) when the States are Contracting States, or;
29
Article 2 (c) asserts that “originator” of a data message means a person by when, or on whose behalf,
the data message purports to have been sent or generated prior to storage, if any, but it does not include a person
acting as an intermediary with respect to that data message.
30
Article 2 (d) of the UNCITRAL E-Commerce asserts that “addressee” of a data message means a
person who is intended by the originator to receive the data message, but it does not include a person action as an
intermediary with respect to with data message.
(b) when the rules of private international law lead to the applic ation of the law of a
Contracting State.
(2) The fact that the parties have their places of business in different States is to be
disregarded whenever this fact does not appear either from the contract or from any
dealings between, or from information disclosed by, the parties at any time before or at
the conclusion of the contract.
(3) Neither the nationality of the parties nor the civil or commercial character of the parties
or of the contract is to be taken into consideration in determining the application of this
Convention.
Based on the foregoing, the entering into force of CISG is not a citizen of the parties to
a transaction or a civil or commercial nature of the parties, but a place of business of the parties.
The place of business must be located in different countries, in which these countries are States
Parties or, if the rules of private international law (IPL) lead to the enactment of the law of a
State Party.
Formulation as set forth in Article 1 paragraph (1) of the CISG indicates that it imposes
itself to govern the contract of sale of goods internationally. In the context of choice of law,
this provision contains two aspects are closely re lated to each other, the procedural aspe cts of
the choice of law and substantial aspect of law choice.
31
Procedural aspects associated with the choice of law provision in the next paragraph
that the international character limit only relates to the place of business of the parties. While
the substantial aspects of the choice of law associated with the enforceability of these
instruments to the contract of sale of goods internationally to the parties who come from
countries participating in the Convention . In other words, this legal ins trument can serve as a
substantial law governing international commercial contracts are made.
Basing the provisions of Article 1 paragraph (1) (a) above, the CISG automatically
applies to contracts of sale of goods made by and between parties whose places of business in
different States, when these countries are the contracting Parties to the CISG. Unlike the
procedure of law choice conducted conventionally, the choice of law which was introduced by
the CISG refers to the enactment of substantive rules contained in the CISG itself.
Substantive law chosen as the law governing the contract is not conducted by the judge
/ arbitrator by or based on the rules of the IPL and is not conducted by the parties through the
choice of law clause, but it is established by the pr ovisions of the convention alone (choice of
law by regulation). This suggests that the CISG introduces a new method of choice of law, the
rules of autonomy choice of law.
31
This provision is accommodated in Article 1 of Convention on the La w Applicable to Contract on
International Sale of Good concluded by Hague Conference on International Private Law on December 22, 1986
clearly states : “This Convention determines the law applicable to contracts of sale of goods (a) between parties
having their places of business in different States; (b) in all other cases involving a choice between the laws of
different States, unless such a choice arises solely from a stipulation by the parties as to the applicable law, even
if accompanied by a choice of court or arbitration.”.
In add ition, it is also contained in Article 1 of United Nations Conventio n on the Use of Electronic
Communications that stating : ““(1) This Convention applies to use of electronic communications in connection
with the formulation or performance of a co ntract between parties who places of business are in different States.
(2) The fact that the parties have their places in different States is to b e regarded whenever this fact does not
appear either from the contract or from any dealings between the parties or for information disclosed by the parties
at any time before or at the conclusion of the contract”. It means that conventions apply to all electronic
communications exchanged between parties whose places of business are in different States when at least one
party has its place of business in a Contracting State (Art.1). It may also apply by virtue of the parties' choice.
Contracts concluded for personal, family or household purposes, such as those relating to family law and the la w
of succession, as well as certain financial transactions, negotiable instruments, and documents of title, are
excluded from the Convention's
The autonomy choice of law is not very dependent on the activity of the judge /
arbitrator and the parties to impose a particular substantive law, but based on the formulation
of the convention directly enforce substantive rules of the CISG. Throughout the two main
requirements are formulated or specified by the convention met in a transaction made b y the
parties, namely : (1) has a place of business in different countries; and (2) the different countries
in which the place of business of the parties are the contracting state, the transaction is
automatically subject to the substantive rules of the CISG without having to wait for a choice
of law by the judge / arbitrator or the parties. Even if the objective facts, especially in the
resolution of disputes over the international sale of goods where the role of the judge / arbitrator
remained dominant to enact substantive rules of the CISG to the dispute faced before going on
the subject of his case, It can not be said that the choice of law was done by the judge / arbitrator.
The choice of law is established by convention (choice of law by regulation) as defined in
Article 1 (1) (a) of C ISG. The role of the judge / arbitrator only what has been formulated by
the Convention, which impose substantive rules of the CISG to contracts of sale of goods made
by and between parties whose places of business in different States, that when States are the
contracting states..
Basing on Article 1 paragraph (1) (a) of CISG, the judge or arbitrator may impose CISG
as the law applicable if the parties do not specify a legal option in the contract is made. This
can be done by a judge or arbitrator if one or both of the contracting parties are from countries
participating CISG. Even more that, if the law chosen by the parties to refer to the contracting
states of the CISG, CISG applies as the law chosen automatically.
When the state of one of the parties or both of the contracting parties is not as
participants in the CISG, then the judge or arbitrator using the rules of IPL to determine the
law applicable to the contract. The method of determining the law applicable is traditionally
done by basing on an objective approach and approach relationships/interests.
Basing on this approach, the determination is based on objective factors, among others
: a place made an agreement, the execution of the agreement, the citizenship of the parties,
domicile of the parties and the position of the forum as well as the relationships of these factors.
The judge or arbitrator that the law seeks to combine the linkage objective points. Actually, the
points of linkage of this objective will of the parties is also contained in it, but will not directly
affect the determination of the law applicable.
Some doctrine creating in approaches of objective, relation/interest and subjective in
development of choice of law are doctrine of “lex loci contractus”, “lex loci solutionis”,
“proper law of the contract", "center of gravity", “vested rights”, " the most characteristic
connection to the contract" and“the governmental interest analysis”.
32
Determining the law
applicable based on such doctrines showed that inefficiency, uncertainty, unpredictability
and complexity are conditions that generally accompanies the choice of law using conventional
means.
Although the parties have determined choice of law in their contract, as long as the law
chosen is not reflect the international character, then in principle the law chosen not provide
32
Analyzing detailed on choice of law doc trines can be read in Taufiqurrahman "Karakter Pilihan
Hukum, Kajian tentang Lingkup Penerapan The United Nations Convention on Contracts for the International
Sale of Goods 1980 (Character Choice of La , Study on the Scope of Application of the United Nations Convention
on Contracts for the International Sale of Goods 1980)”, PT . Bayumedia, Surabaya, 2010. See Sukarmi, 2005.
“Tanggung Jawab Pelaku Usaha atas Kerugian Konsumen yang Disebabkan oleh Perjanjian Baku (Standard
Contract dalam Transaksi Elektronik (The Business actors Liability to the Consumer's Injury Caused by Standard
Contract on Electronic Transaction)”, Disertasi, Program Pascasarjana Universitas Padjajaran, Bandung. See also
“Choice of Law” at <http://en.wikipedia.org/wiki/Choice_of_law>
optimal benefit for either part. Moreover, in determining the law applicable using an objective
approach and the relationship or interest, the above conditions increasingly faced by the parties.
The conditions are thus considered to be less in tune with the demands and needs of the
business.
The condition above reinforce the truth of the substantive choice of law analysis. As
the classification of the choice of law made by Stanley E. Cox, who split into three models the
choice of law, namely th e unilateral choice of law, multilateral choice of law and substantive
choice of law, unilateral choice of law and multilateral choice of law highlight aspects of
sovereignty not touching side of justice. As adherents of the view choice of substantive law,
substantially, the ones selected to be applied in the settlement of international disputes faced
not reflect a sense of justice. Although the substance of the law relating to international trade
transactions, but the orientation of its formation solely to meet national interests.
Choosing for the national law as the law applicable in international dispute resolution,
both on the basis of a ch oice of law clause and on the basis of application the IPL rules using
an objective approach and relationship / interests approach, principally the existence of the law
chosen is strange to one side or even both sides. The assurance given by a subjective approach
to the choice of law has not been touched in an optimal sense of justice between the parties.
Similarly, for the judge / arbitrator, the certainty of the law chosen b y the parties itself
don’t provide easy of implementation. They have to learn at first bec ause the substance of the
law chosen is foreign to them. The difficulties encountered by the judge / arbitrator is even
greater if the choice of law approach employed is an objective approach or approaches of
interest. That is, the parties do not specify a choice of law explicitly in their contract. The judge
or arbitrator have a difficulty in determining the substance of the law chosen. They do not have
the certainty of the law applicable and can not predict the rights and obligations that should be
borne because he did not know about the law at all.
As method of determining the law applicable in the conventional procedural, CISG also
accommodate the express choice of law, the silent choice of law and no choice of law. Three
choice of procedural law existing actually does n ot have a significant impact on the existence
of the CISG as the law applicable. Even the express choice of law r ecognized in the CISG as
contained in Article 6 of the CISG, but substances contained in the firm 's choice of law differ
from one another .
According to the rules of IPL, when the parties to a contract to choose the designated
state law (A) as the law applicable to contracts made, then the domestic law of State A is exactly
what will be used by the judge or arbitrator to decide upon on a dispute between the pa rties.
Unlike the CISG, although the parties have chosen the law of designated State as the law
applicable to the contract made, it does not mean that judge or arbitrator will automatically
enact a domestic law of the State to decide disputes that occur betwe en them. Moreover, the
country where the legal system is designated as the law applicable have ratified or acceded to
CISG or the contracting states of CISG, the judge / arbitrator will actually enforce the CISG.
This is in accordance with the provisions contained in Article 1 paragraph (1) (b) jo. Article 7
of CISG.
In addition, although CISG accommodates principle of party autonomy as contained in
the IPL rules, but between them contains a somewhat different meaning. Differences
substances contained in this principle due to the different approaches used.
In general, the approach used in the application of the principle of party autonomy is
based on the rules of the IPL is a "opting-in", while the approach to be accommodated in the
CISG is a "opting -out". If the approach of "opting-in " the party seeking t o attach themselves
to the CISG should formulate his will expressly mentioned in the contract (clause choice of
law, in contrast with the approach of " opting -out " of the parties that are not expressly stated
not to be bound by the CISG are deemed to be willing to bind themselves to the CISG.
Therefore, by opting-in approach, judge or arbitrator bound by domestic law of State
A in his contract if the parties expressly choose the law of Country A as the law governing their
contract. Instead, based on the approach of opting-out, Judge or Arbiter automatically enforces
the CISG as the law applicable to the settlement of a dispute between the parties unless they
are expressly stated in the contract rejection or exclusion into force of the CISG .
Although the parties to the contract have chosen the national laws of Country A, does
not mean the domestic law of State A, which is valid for that State is the State Parties to the
Convention. According to Article 1 paragraph (1) (a) of CISG, the law applicable is the CISG.
Provisions as contained in Article 1 paragraph (1) (a) of CISG indirectly accommodate the way
the choice of law "no-choice”. The parties whose different places of business of the contracting
states to CISG that did not formulate explicitly in the contract is deemed to have opted CISG
as the law governing the contract.
Similarly, the inferred choice recognized its existence based on the rules of the IPL does
not have a significant impact on the implementation of a particular country's legal system with
the introduction of the CISG. Under rules adopted by the IPL as the Hague Conference in 1986
in Article 7 paragraph (1) of the Convention on the Law Applicable to Contracts for the
International Sale of Goods that contracts made must be clearly demonstrated by the terms of
the contract and the relationship of the parties seen as a whole. For example , if the contract
was made the parties select the jurisdiction (choice of jurisdiction) Germany , then based on
the rules of the IPL is considered the parties tacitly choose German domestic law as the law
applicable to the contracts they make. Therefore , the judge or arbitrator wi ll use the Germa n
domestic law to resolve disputes that occur between them in connection with the execution of
the contract. This does not apply to the CISG . Although the contract contained a choice of law
secretly with the choice of jurisdiction , namely Germany , does not me an German domestic
law applicable . Considering Germany is one of the countries that have ratified the Convention
, it is very possible that the law applicable is the CISG .
Tabel 1 : Classification of the Choice of Law based on Approach, Doctrine and Goal to
the Law Applicable
No.
Classification
of Law Choice
Approach
Doctrine
1
Unilateral
Choice of Law
Territorial /
Sovereignty
Local Law,
Vested Rights,
Comity
2
Multilateral
Choice of Law
Objective
Relation /
Interest
Subjective
Lex Loci
Contractus,
Lex Loci
Solutionis,
Proper Law,
The Most
Charracteristic
Connection,
The Most
Significance
Relation,
Governmental
Analysis
Party Autonomy
3
Substantive
Choice of Law
Uniformity
in
Substance
The Best
Substantive Law
4
Autonomy
Choice of Law
Uniformity
in Subtance
and
Procedure
Modificated Party
Autonomy
(by Opting-Out
approach)
Furthermore, in the case of the absence of a choice of law (no choice) by the parties
that do not meet the qualifications as set forth in Article 1 paragraph (1) (a) jo. Article 10 CISG,
which has a place of business (place of business) or dwelling habit ( habitual residence ) in the
State party (contracting states), the appointment of the law made by the rules of the IPL.
Conversely, if both parties or one party has its place of business in Contracting States then it
automatically will apply the CISG (opting-out).
Appointment of the law based on the rules of the IPL is performed using the legal
qualifications of judge or arbiter (lex forum). When the IPL based on the rules of the law of
the forum pointed to the Contracting States, then automatically it can be applied CISG as the
law applicable to the dispute (Article 1 paragraph (1) (b) of CISG). Conversely, if, under the
rules of the IPL of the law refers to the law of the forum state is not Participants (non-
contracting states), then the law applicable is the domestic law of the designated country.
It is difference with the determination of the law applicable using conventional means,
determining the law applicable as accommodated in Article 1 paragraph (1) of CISG seems to
be to ensure certainty, predictability, simplicity and efficiency to the parties. S ubstances
contained CISG formulated by jurists from various countries is no longer reflect the particular
country's national interests , but rather reflect the interests of all countries. The method to
determine the law as accommodated in Article 1 paragraph (1) (b) of CISG imposing its
substance of CISG itself as the law applicable is very responsive to meet the demands and
needs of the business actors. Wherever the flow of goods movement is not expected to pose a
serious problem for the party. Legal barriers which is often experienced by business actors in
international commercial transaction due to the diversity of national laws that apply at least be
minimized .
D. CONCLUSION
Based on th e above analysis, it can be concluded that choice of law by the parties in
international e-commerce contract has a significance both for the parties and the
judge/arbitrator, namely there will be a guarantee of the legal certainty of the law applicable to
the contract in dispute resolution. In addition, determining the law applicable as stipulated in
Article 1 of CISG relev ant to be applied to the dispute resolution of the int ernational e-
commerce in case there is no clause of law choice in the contract.
It is recommended to the legislative that the substance as stipulated in Article 1 of
CISG can be used as a reference in a harmonization of International Commercial Law in
ASEAN, especially in determining the law applicable to the dispute resolution of international
e-commerce.
REFERENCES
Books
Taufiqurrahman, 2010. Karakter Pilihan Hukum, Kajian tentang Lingkup Penerapan United
Nations Convention on Contracts Sale of Goods (CISG) 1980 (Character of Law Choice,
Study on Application Scope of United Nations Convention on Contracts Sale of Goods
[CISG] 1980 ), PT. Bayumedia, ISBN 978-602-8255-48-0
Adolf, Huala, 1997. Hukum Ekonomi Internasional (International Law of Economy), Rajawali,
Jakarta Bryan A. Garner. (ed.). 1999. Black’s Law Dictionary, Seventh Edition, West
Group, St. Paul, Minn.
Carlo H. Mastellone, "Choice of Law and Dispute Resolution Clauses", in Dennis Campbell.
1996. Structuring International Contracts., Kluwer Law International, London-The
Hague-Boston
Sudargo Gautama.. 2002. Hukum Perdata Internasional Indonesia (International Private Law
of Indonesia), Jilid III Bagian 2 Buku ke-8, Alumni, Bandung
_______1998. Hukum Perdata Internasional Indonesia (International Private Law), Jilid II
Bagian 4 Buku ke-5, Alumni, Bandung
_______, 1985. Pengantar Hukum Perdata Internasional Indonesia (Introduction to
International Private Law of Indonesia), Cet.V, Binacipta, Bandung
Hannah L. Buxbaum, 2000. “Rethinking International Insolvency: The Neglected Role of
Choice of Law Rules and Theory”, 36 Stan. J. Int’l. 23
Ignaz Seidl-Hohenveldern, 1989. Inter national Economic Law, 2nd revised edition,
Martnus Nijhoff Publishers, Netherlands
Juenger, Friedrich K., 1993. Choice of Law and Multistate Justice 10-27
McClean, David, 2000. Morris: The Conflict of Laws, Sweet & Maxwell Ltd. London, p.330
O. Lando. 1976. ”Contract”, International Encyclopedia of Comparative Law, Vol.III,
Tubingen, Mouton, The Hague, Paris
Richard Gwyne etc. "Governing Law and Dispute Resolution" in Dennis Campbell (Ed.). 1996.
Structuring International Contract, Kluwer Law International, London-The Hague-
Boston
Sjahdeni, Sutan Remy, 1997. Kredit Sindikasi, Proses Pembentukan dan Aspek Hukum
(Syndication Credit, Establishing Process and Legal Aspect), Grafiti, Jakarta, p.110-111,
quoted from Ravi C. Tennekoon. 1991. The Law and Regulation of International Finance,
Butterwoths, London, p.17-24
Sukarmi, 2005. “Tanggung Jawab Pelaku Usaha atas K erugian Konsumen yang Disebabkan
oleh Perjanjian Baku (Standard Contract dalam Transaksi Elektronik (The Business
actors Liability to the Consumer's Injury Caused by Standard Contract on Electronic
Transaction)”, Disertasi, Program Pascasarjana Universitas Padjajaran, Bandung.
Zeljko Matic, “The Hague Convention on the Law Applicable to Contracts for the International
Sale of Goods Rules on the law applicable”, in Petar Sarcevic (ed.). 1990. International
Contract and Conflicts of Laws, Graham & Trotman / Martinus Nijhoff,
London/Dordrecht/Boston
Articles :
Ar. Gor Seyda Dursun, 2012. “A Critical Examination of the Role of the Party Autonomyin
International Commercial Arbitration and As Assessment of Its Role and Extent”, Yalova
Francis A. Gabor. 1986. “Emerging Unification of Confliict of Laws Rules Applicable to The
International Sale of Goods: UNCITRAL and The New Hague Conference on Private
International Law”, Northwestern School of Law, Journal of International Law and
Business, 7 NW.J.INT’L & BUS 696
Faculty of Law University of Oslo, 2012. “Party Autonomy, Choice of Law, Wrap Contract”,
<http://www.duo.uio.nobitstreamhandle10852344308014.pdfsequence=1>
Gene R. Shrive, Gene R. 1996. “Choice of Law and the Forgiving Constitution”, 71 Ind. L.J.
271
Horatia Muir Watt, 2010. “Party Autonom y, in International Contracts : from the Makings of
a
Jane Kaufman Winn & Jens Houbold, Electronic Promises : Contract Law Reform and E-
Commerce in a Comparative Perspective”
<http://www.law.washington.eduDirectorydocsWinnElectronic_Promises_Revised.pdf
>
Mychael Pryles, Limits to Party Autonomy in Arbitral Procedure” <http://www.arbitration-
icca.orgmedia012223895489410limits_to_party_autonomy_in_international_commerci
al_arbitration.pdf>
Mythto the Requirements of Global Governance” . Science po Law School
<http://www.columbia.educualliancePapersArticle_Horatia-Muir-Watt.pdf>
Mo Zhang, 2008. “Party Autonomy and Beyond : An International Perspective of Contractual
Choice of Law”, Tempel University Beasley School of Law, Legal Series Research
Paper Series, Research Paper No. 2008-44
<http://papers.ssrn.comsol3papers.cfmabstract_id=1084331>
Okuma Kazutake, 2005. “Arbitration and Party Autonomy”, The Seiman Law Review, Vol. 38,
No.1 <http://www.seinan-gu.ac.jpjurahome04pdf38013801okuma.pdf>
Robert Johnson, Party Autonomy in Contract Specifying Foreign Law, 7 Wm. & Mary L.
Rev.37 (1966)
<http://scholarship.law.wm.educgiviewcontent.cgiarticle=3090&context=wmlr>
Stanley E. Cox. 2001. “Commentary: Substantive, Multilateral and Unilateral”, 37 Willamette
Law Review 171, downl oad from LexisNexis ™ Academic – Document, dated January
23, 2007
Taufiqurrahman, 2014. “Paradigm of Universalistic Particularism to Reform the Indonesian
Economic Law in the Framework of Establishing the 2015 ASEAN Economy
Community”, The Law Department of the Bucharest University, Juridical Tribune
Journal, Volume 4, Issue 1, June 2014, ISSN 2247-7195, e-ISSN-L 2248 0382, ISSN-
L 2247-7195
_______, 2012. “The Significance of Accession to the United Nations Convention on Contracts
for the International Sale of Goods 1980 for Indonesia”, The Law Departm ent of the
Bucharest University, Juridical Tribune Journal, Volume 2, Issue 2, December 2012,
ISSN 2247-7195, e-ISSN-L 2248 0382, ISSN-L 2247-7195
Univertesi Hukuk Fakultesi Dergisi
<http://www.yalova.edu.trFilesUserFiles838_Dursun.pdf>
Legislation :
UNCITRAL Model Law on Electronic Signatures (2001)
UNCITRAL Model Law on Electronic Commerce (1996) with additional article 5 bis as
adopted in 1998
United Nations Convention on the Use of Electronic Communications in International
Contracts (New York, 2005)
Convention on the Law Applicable to Contract on International Sale of Good (1986)
United Nations Convention on Contract for the International Sale of Goods (1980)
Internet :
http://europa.eu/epso/doc/en_lawyling.pdf
http://www.uncitral.org/uncitral/uncitral_texts/electronic_commerce.html
http://en.wikipedia.org/wiki/Choice_of_law
http://www.dundee.ac.ukcepmlpgatewayfiles.php%3Ffile%3DCAR-11_6_508934278.pdf
http://www.emarketservices.comclubsemsprodE-Business%20Issue%20-
Applicable%20law%201%281%29.pdf
http://www.emarketservices.comclubsemsprodE-Business%20Issue%20-
Applicable%20law%202.pdf
http://www.gupea.ub.gu.sebitstream207730791200656.pdf
ResearchGate has not been able to resolve any citations for this publication.
Article
Full-text available
A reality that cannot be denied that the laws of Indonesia applicable today, especially regarding international trade transactions, are less conducive to the changes. This can be understood because the law that in fact is a legacy of the Dutch colonial government has not been changed at all, but the dynamics of the community continue to run endlessly. Changes in society increasingly run quickly along with the progress achieved in the field of Science and Technology, particularly Information and Communication. Such an objective conditions will in turn lead to new legal issues in the community, namely the absence of law and the emergence of the legal gap between what the law in book with what the law in action. The increasingly complex legal issues in related to be the establishment of an ASEAN Economic Community (AEC) of 2015. The theory used to analyze is the Jeremy Bentham's Legislation Theory and the Theory of Legal Development from Mochtar Kusumaatmadja. While the research method applied is normative legal research methods with the statute, and conceptual approaches. The analysis shows that the convergence paradigm namely universalistic particularism is appropriate used in law reform in Indonesia. In addition, in order to provide a clear direction of Indonesian economic law reform efforts in the context of the establishment of 2015 AEC, it is necessary to establish the Indonesian Economic System in the national legislation.
Article
The entry into force of the new Rome I Regulation on the law applicable to contractual obligations (EC n° 593/2008) provides the opportunity to reflect on the makings of the myth of party autonomy (the empowerment of private actors to choose the governing law, and indeed the competent forum for dispute resolution). This article aims to shed light on the way in which the law has accredited freedom of choice as the foundational principle of a whole parallel world of private transnational ordering. The interests thus served, ostensibly those of a purported community of merchants, do not necessarily encourage adequate regulation of cross-border economic transactions in the field of trade or investment. Since it would be unrealistic and indeed to an extent undesirable to challenge the inexorable trend towards contractualisation of private international law, it is suggested that a better path would be to consider that the evident lack of accountability and transparency in the legal principles governing private economic activity beyond state borders might be filled by turning to emerging principles of good governance, designed to satisfy the requirements of democracy in (equally necessary but equally problematic) public decision-making processes now taking place in supranational institutional settings without government.
Article
As a popular choice of law doctrine, party autonomy allows the parties in international contracts (or foreign contracts) to choose governing law of particular jurisdiction they prefer. Premised on freedom of contract, this doctrine has evolved in many ways since it was introduced in the 1600's and has become an internationally accepted principle governing choice of law in contracts. In international community, the doctrine of party autonomy has been adopted and applied through the rule-based framework or mechanism. But the acceptance of party autonomy in the United States is intertwined with interest or policy analysis so closely that it is often quite difficult for the parties to predict the ultimate outcome of the choice of law they have made. In addition, the interest and policy analysis based American choice of law approaches and the choice of law rules so developed in the US hardly have any general application internationally. Also, the connection requirement has rendered the US contractual choice of law in discordance with international common practice. In fact, both interest analysis and connection requirement are not necessarily needed with regard to the choice of law by the parties. Choice of law should be ruled based and the rules should be intended to maximize the individual or private welfare rather than the state interest.
Article
Solutions to the problem of international bankruptcy are generally framed as either universalist (arguing that international bankruptcies should be administered in a single forum) or territorialist (arguing in favor of multiple local bankruptcies). This article seeks to expand this debate by using traditional conflicts theory to examine the problem of cross-border bankruptcy. It analyzes the current regime under which cross-border bankruptcies are administered in U.S. courts, concluding that this regime operates as a multilateralist (jurisdiction-selecting) regime. Concluding that multilateralism is an appropriate method for resolving choice-of-law issues in international insolvency, the article analyzes some possible refinements to the current system. It argues that a more pointedly multilateralist approach would better serve the goals of the international bankruptcy regime.
Emerging Unification of Confliict of Laws Rules Applicable to The International Sale of Goods: UNCITRAL and The New Hague Conference on Private International Law
  • A Francis
  • Gabor
Francis A. Gabor. 1986. "Emerging Unification of Confliict of Laws Rules Applicable to The International Sale of Goods: UNCITRAL and The New Hague Conference on Private International Law", Northwestern School of Law, Journal of International Law and Business, 7 NW.J.INT'L & BUS 696, p.3
UN) established based on United Nations General Assembly Resolution 2205 (XXI) on December 17 Rajawali, Jakarta, p.102 quoted from CfFurther Thoughts on a New Source of International Law
  • N G Onuf
25 United Natiosn Commission on International Trade Law (UNCITRAL) is a specialized agency of the United Nations (UN) established based on United Nations General Assembly Resolution 2205 (XXI) on December 17, 1966 26 Huala Adolf, 1997. Hukum Ekonomi Internasional (International Law of Economy), Rajawali, Jakarta, p.102 quoted from Cf.N.G. Onuf "Further Thoughts on a New Source of International Law", quoted by Ignaz Seidl-Hohenveldern, 1986. "General Course on Public International Law", III Recueil des Cours 55 27 Ignaz Seidl-Hohenveldern, International Economic Law, 2 nd revised edition, Martnus Nijhoff Publishers, Netherlands, 1989, h.31-37 28 Article 15 of the UNCITRAL E-Commerce REFERENCES Books Taufiqurrahman, 2010. Karakter Pilihan Hukum, Kajian tentang Lingkup Penerapan United Nations Convention on Contracts Sale of Goods (CISG) 1980 (Character of Law Choice, Study on Application Scope of United Nations Convention on Contracts Sale of Goods [CISG] 1980 ), PT. Bayumedia, ISBN 978-602-8255-48-0
International Economic Law, 2 nd revised edition
  • Ignaz Seidl-Hohenveldern
Ignaz Seidl-Hohenveldern, 1989. International Economic Law, 2 nd revised edition, Martnus Nijhoff Publishers, Netherlands