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Conflict of Laws and Arbitral Discretion - The Closest Connection Test by Hayward, Benjamin (5th January 2017)

6 A Proposed Closest Connection Test—The (Modified) Art 4 Rome Convention Rule

From: Conflict of Laws and Arbitral Discretion: The Closest Connection Test

Benjamin Hayward

From: Oxford Legal Research Library (http://olrl.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 27 May 2020

Subject(s):
Stateless applicable law — Rome Convention — Rome I Regulation and choice of law — Contractual obligations — Legal risk in multi-state transactions — Applicable law in multi-state transactions

Chapter 5 recommended the closest connection test as the basis for reforming conflicts of laws in international commercial arbitration. This chapter analyzes six distinct variations of the closest connection test. It then proposes a (modified) Art 4 Rome Convention rule as the specific basis for reform. The three modifications recommended are: addition of the word ‘clearly’ or ‘manifestly’ to the original text of Art 4(5) Rome Convention, to confirm the strength of the Art 4(2) Rome Convention characteristic performance presumption; substitution of a power to apply rules of law, for the power to apply only law, to facilitate the <i>lex mercatoria</i>’s application in cases involving evenly distributed connecting factors; and substitution of the case criterion for the original contract criterion, as the matter to which the applicable (rules of) law must be connected.

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