Intra-regional reform in East Asia and the new Hague Principles on Choice of Law in International Commercial Contracts

The last two decades have seen East Asian States evince an increasing openness to private international law reform at the national level. The Republic of Korea was the harbinger in this regard with Law Number 6465 of the Act amending the Conflict of Laws Act taking effect in 2001. Japan followed suit with the Act on General Rules for Application of Laws taking effect in 2007. The People’s Republic of China has since made significant advances. China’s Law on the Application of Law to Foreign-related Civil Relations entered into force in 2011 and has recently been supplemented by the Supreme People’s Court Interpretation I on the Foreign-related Civil Relations Law, which entered into force on 7 January 2013. In light of these developments, commentators have called for further dialogue and reform with a view to facilitating increased intra-regional and international engagement. One commentator recently emphasised the importance of developing private international law rules reflecting common values in the region and doing so in parallel with various instruments of the Hague Conference on Private International Law. This prescient observation reflects the longstanding, enduring bond that the Hague Conference shares with the East Asian region. Japan became a Member of the Hague Conference in June 1957; China in July 1987 and the Republic of Korea in August 1997. Beyond East Asia, the Hague Conference has a growing presence in the Asia Pacific, highlighted by the opening of its new regional office in Hong Kong in 2012 and the recent membership of Singapore as the 9th Asian member of the Hague Conference (including Eurasian Turkey). It is hoped that an increased participation of Asian States in the Hague Conference will facilitate the development of new instruments that are better adapted to the needs of the region. This article will examine one such instrument, the new Hague Principles on Choice of Law in International Commercial Contracts (“the Hague Principles”), the endorsement of which is expected shortly. The Hague Principles seek to serve as an international code of current best practice with respect to the recognition and limits of party autonomy in choice of law for international contracts. The article will detail the development, form and scope of the Hague Principles and their accompanying Commentary before exploring various best practice provisions and innovative provisions. It will offer a high-level comparison with the conflict of laws rules applicable in the Republic of Korea, China and Japan and, in doing so, raise the question of whether the Hague Principles may be a useful instrument for reform at a national or regional level within East Asia.