2022년 개정 국제사법 제45조 제4항의 해석에 관한 소고 - 독일연방대법원 및 영국항소법원 판결을 중심으로 -

It is common for the parties to include an applicable law provision in drafting a contract. This provision typically provides that a particular country’s law will apply regardless of conflict of laws principles. A choice of law provision or Korean Private International Law Article 45(1) gives the parties to a contract the opportunity to determine the governing substantive law themselves. The choice of the applicable law, however, requires a genuine international element in purely domestic situations. Where all other elements relevant to the situation are connected with one country only, the laws of that country which cannot be derogated from by agreement shall apply despite a choice of law of a different country(Article 45(4)). Similarly, both of the Rome Convention and Rome Regulation I stipulate almost same provisions at Article 3(3) respectively. The author introduces German highest court(Bundesgerichtshof – BGH) decision on the applicable elements of Rome Regulation I Article 3(3), which is the first case in Europe on the issue. The author comparing United Kingdom Appeal Court’s and Commercial Court’s Financial List’s decision on ISDA Master Agreement with the German case. The decision confirms that the English Courts, when asked to consider Article 3(3) in relation to financial products agreed on international standard form documentation such as an ISDA, are likely to hold that such agreements are made in an inherently international context. In the absence of any clear guidance on this issue from the Court of Justice of the European Union(CJEU). the author also argues that a flexible approach to the exception contained in Article 45(4) of Korean Private International Law should be interpreted in order to best serve commercial efficacy and the expectations of contracting parties.