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Rethinking Choice of Law in Cross-Border Sales

Rethinking Choice of Law in Cross-Border Sales
  • Year of publication 2018
  • 260 pages
Author:Gustavo Moser
Series:International Commerce and Arbitration (volume 27)
Category: Law Business and Commercial Law
Icon_printbook 978‐94‐6236‐846‐0 | hardcover | 1st edition | € 80,00 / $ 108,00 / £ 84,80
Icon_ebook 978‐94‐6274‐852‐1 | ebook | € 79,99

The governing contract law dictates and regulates the life of a contract. Despite its importance, little is known about the choice of law decision-making process. Is there (ir)rationality involved? How can we ascertain this? How can we improve these judgements?

Rethinking Choice of Law in Cross-Border Sales is an innovative, multi-disciplinary, and practice-oriented initiative to examine what factors determine the way contracting parties choose the law to govern their agreements. It presents evidence on how negotiators approach this topic, including the main drives and triggers of their decisions.

The book also invites readers to explore and understand the idiosyncratic world of contracting parties’ minds; a complex device of imperfections, cognitive limitations, and emotions. The book proposes alternatives and mechanisms to tackle, control or minimise the effects of cognitive errors within judgements. The author aims to offer both laymen and legal practitioners appropriate tools to facilitate more efficient outcomes.

Selected recommendations:

Rethinking Choice of Law in Cross-Border Sales is the book you want on your bookshelf, or on your desk, when you are up against a difficult choice of law matter, be it as counsel, arbitrator or judge. Prof. (em.) Ingeborg Schwenzer

Dr Moser is to be commended for a timely book which fills a gap in the readily available materials on the subject. Prof. Julian DM Lew QC

This is an exceptionally interesting and innovative book..The Rt Hon Lord Collins of Mapesbury 

Dr Moser has produced a very interesting and well researched book which explores an important legal question from a unique perspective... Dr. Michael Pryles AO PBM

Dr. Moser impressively explores choice of law both on a practical and theoretical level, resulting in a useful guide on this important subjectProf. Bernardo Cremades

It may be the most important thing that in-house commercial lawyers of any level of experience should read...it is a phenomenal work, unlike anything that I've seen on the subject... Michael McIlwrath

The usefulness of this book is beyond any doubt, as well as its originality. Prof. Diego. P. Fernández Arroyo

A must-read for academics and practitioners alike to better understand matters related to the choice of law. Prof. José Antonio Moreno Rodríguez

To read the complete list of recommendations in full, see: 'additional materials'.

Author's information

Gustavo Moser is a legal counsel at the London Court of International Arbitration (LCIA) and a subject coordinator at the Swiss International Law School (SiLS). Dr Moser obtained his PhD in International Commercial Law from the University of Basel, Switzerland, and has been working for over a decade with international dispute resolution in various legal roles worldwide. Dr Moser’s areas of expertise are cross-border dispute resolution mechanisms, uniform sales law (CISG), intellectual property law, economic analysis of law, and private international law.

Recommendations

"Rethinking Choice of Law in Cross-Border Sales is the book you want on your bookshelf, or on your desk, when you are up against a difficult choice of law matter, be it as counsel, arbitrator or judge."

Professor (em.) Ingeborg Schwenzer
University of Basel / Swiss International Law School (SiLS)

"Rethinking Choice of Law in Cross-Border Sales will be a useful tool to all those involved in choosing, determining and applying law and rules to international transactions. Dr Moser is to be commended for a timely book which fills a gap in the readily available materials on the subject."

Professor Julian DM Lew QC
Queen Mary University of London, School of International Arbitration

“This is an exceptionally interesting and innovative book, which has considerable success in seeking to use empirical data to explain why contracting parties choose particular laws, or no laws, or the CISG, to govern commercial contracts, and choose arbitration over litigation to settle their disputes.” 

The Rt Hon Lord Collins of Mapesbury
Essex Court Chambers

“Most writings on choice of law generally focus on the method of selecting the governing law and its application and scope [...] Rethinking Choice of Law in Cross-Border Sales is quite different." "Dr Moser has produced a very interesting and well researched book which explores an important legal question from a unique perspective. It offers interesting insights into contractors’ selection of the governing law of their contracts.”

Dr Michael Pryles AO PBM
Dispute Resolution Services Pty Ltd

"Dr. Moser impressively explores choice of law both on a practical and theoretical level, resulting in a useful guide on this important subject."

Prof. Bernardo Cremades
B. Cremades y Asociados

"It may be the most important thing that in-house commercial lawyers of any level of experience should read...it is a phenomenal work, unlike anything that I've seen on the subject..."

Michael McIlwrath 
Baker Hughes, GE

"The choice of the governing law is a fundamental decision in the formation of cross-border contracts, the potential of which is usually not fully exploited. Dr. Moser’s innovative inquest of how the parties make this decision - often excluding transnational rules and neutral frameworks - highlights the cognitive biases and limitations that frequently lead to the designation of suboptimal rules. Against this background, the analysis of the efficiency of the CISG to meet the parties’ expectations provides very important insights for more rational and strategic choice of law decisions.”

Professor Luca G. Radicati di Brozolo
Catholic University of Milan; partner ArbLit – Radicati di Brozolo Sabatini Benedettelli Torsello

"Dr Moser makes an important contribution to one of the most important issues of international contracting. Carefully building on previous research and using empirical methodology he opens up new avenues. Practitioners who engage in transborder transactions would be well advised to consult this book." 

Professor Stefan Vogenauer
Max Planck Institute for European Legal History

"Dr. Moser's book is an important contribution to one of the most important issues when faced with the negotiation, implementation, or resolution of a cross border contract. In addition, the book is a significant contribution to legal scholarship since Dr Moser's employed methodology clearly demonstrates the role and importance of empirical research for the analysis of key legal issues." 

Professor Petra Butler
Victoria University of Wellington

"Notwithstanding the amount of legal (hard and soft) sources providing for substantial solutions on international sales –and perhaps due to this very proliferation of rules– choice-of-laws issues are always present in the field. Moser’s book shows clearly these issues without falling in the usual theoretical preconceptions, often artificial. Conversely, it is much more interested in what happens in real business rather than in scholars’ speculations. As a consequence, the usefulness of this book is beyond any doubt, as well as its originality."

Professor Diego P. Fernández Arroyo
Sciences Po Law School

"Moser brings a fresh perspective to the study of choice of law in cross-border sales. He blends decision-making theory and empirical analysis to answer a question of great practical relevance: how and what factors shape the choice of governing contract law. For its multi-faceted approach, this book explains how choice-of-law decisions are made and how better, more efficient decisions could be made."

Justice Ruy Rosado de Aguiar Jr. (Ret.)
Superior Court of Justice, Brazil

"Rethinking Choice of Law in Cross-Border Sales is both innovative in its approach and comprehensive in that it does not only include a legal analysis but – equally important – factors such as psychology."

Professor Daniel Girsberger
University of Lucerne; Former Chairman of the Hague Conference on International Private Law Working Group on Choice of Law in International Commercial Contracts (2010-2015); Managing Editor of a forthcoming comparative global publication on the Hague Principles on Choice of Law in International Commercial Contracts

"A fresh look on the topic and a compelling case in favor of choosing uniform law instruments to govern international transactions... A must-read for academics and practitioners alike to better understand matters related to the choice of law."

Professor José Antonio Moreno Rodríguez 
National University of Asunción and Heidelberg Center of Chile; President of the Centro de Estudios de Derecho, Economía y Política (CEDEP)

"Gustavo Moser's book is a compulsory reading because the content is not just restricted to the traditional question of the choice of law applicable to contracts at the international level... By bringing economic aspects to the debate, the author shows the growing importance of interdisciplinarity. The book offers to legal professionals perspectives which, until recently, were ignored, but should be considered when choosing the governing contract law. The theoretical notions within the book are complemented by practical perspectives and critical analysis, and make this book a reference for academics and practitioners alike."

Professor Rachel Sztajn
University of São Paulo

"Rethinking Choice of Law in Cross-Border Sales is a must-have as well as a must-read for scholars and practitioners who have expertise in private international law. Definitely, it is a masterpiece of his great accomplishments.

Professor Gyooho Lee
Chung-Ang University School of Law

"Rethinking Choice of Law in Cross-Border Sales is an innovative book. It adopts a pragmatic approach which leads one to rethink the subject."

Professor Bénédicte Fauvarque–Cosson
Université Panthéon Assas, Paris II