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Paper Information

Journal:   JOURNAL OF LAW AND POLITICS   spring 2018 , Volume 14 , Number 35 #b00495; Page(s) 81 To 116.

Criteria for determining the Applicable Law if Silence in International Business Contract

Author(s):  piri Hamidreza, ALMASI NAJADALI
When the parties have not made an explicit or even implicit choice of law in their contracts, different legal systems have taken into account various criteria for determining the applicable law. However, it seems, these criteria are merely circumstantial evidence and adjudicative bodies and courts in addition to those criteria will also examine more objective and tangible factors that are involved in the contract. In this paper, it is tried to explain the importance and function of these factors in determining the applicable law. Keeping that explanation in mind, this paper will suggest most appropriate and closest factor for determining the applicable law in various circumstances. To this end, relevant rules regarding the choice of law in the Iranian legal system as well as the 1980 Rome Convention on the Law Applicable to Contractual Obligations are discussed by using analytical methods. As a result, it can be concluded that in each case after reviewing the above criteria, it is necessary to make distinction between objective and subjective criteria and to identify of key indicators such as the format of the contract, the place of signing the contract, the place of the implementation of the contract and so on in order to determine the law governing the contract. In conclusion it can be asserted that each of these indicators which has more significant relationship in the contract can be used to determine the applicable law. Obviously, each of these indicators may have different values. Therefore it is not possible to make a general rule and extend it to all forms of contracts without considering all relevant factors and circumstances.
Keyword(s): The Regulation (EC) No 593/2008,Article 968 of the Iranian Civil Code,parties silence about the choice of applicable law,determining the applicable law in commercial contracts,conflict of law
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