제3국의 국제적 강행규정이 국제계약에 미치는 영향 - 영국 판례에 대한 비판적 검토 -

Party autonomy is not absolute. Although parties are empowered to choose the applicable law to a contract, a party’s freedom to choose is limited by rules of an overriding mandatory nature. Typical examples of the overriding mandatory rules that affect international contracts are competition law, foreign exchange regulations, and import and export regulations. Not only that, various types of U.S. sanctions and consumer and personal information protection laws that claim extraterritorial application also could be of an overriding mandatory character. These rules limit party autonomy’ to the contract in that they apply irrespective of the governing law of the contracts. Contexts in which overriding mandatory rules impose limits to party autonomy can be categorized into three situations: when the said rules are part of the (a) governing law of the contract (lex contractus); (b) law of the forum (lex fori); or (c) rules of a third country. Regarding (a) and (b) above, it has been widely accepted through legislation and legal literature that those rules do apply. However, in relation to the third category (c), rules of a third country, there is an ongoing debate as to whether the national courts should apply or consider those overriding mandatory rules and under what conditions. This undermines the parties’ intention and desire for predictability regarding what law should apply to their contracts. In this regard, it is worth examining the English law principles which consider third country mandatory rules, namely the public policy-comity rule and the illegality rule. This paper evaluates these rules and sets out practical implications under Korean law. In Korean law, as de lege lata and de lege ferenda, applying or considering third-country mandatory rules under private international law rules is preferable to applying or considering them under substantive law rules.