n South African Law Journal - To override, and when? A comparative evaluation of the doctrine of mandatory rules in South African private international law




The focus of this article is on the relationship between the mandatory rules of the forumand an express choice of (foreign) law in a contract. The approach suggested by this articlewould be to cater for mandatory rules at the exclusionary stage of the conflict process. This would require the forum notionally to accept the choice of foreign law for the purposes of the proper law inquiry. The effect of application thereof on the forum's public policy, given the circumstances of the case, would then be tested. In order to justify an override of party autonomy, peremptory municipal (or domestic) laws of the forum should only be applied to override an express choice of law when application of the foreign law would demonstrably prejudice a fundamental tenet of the forum's public policy. This inquiry would involve consideration of factors such as the extent to which the foreign law does, or does not, give effect to the same broad policy considerations as the domestic statute in question, the proximity of the contractual relationship to the forum, and any other relevant considerations unique to the parties.


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