The Influence of Politics and Legal Education on Choice of Law for International Contracts
This dissertation examines the influence of politics and legal education on choice of law for international contracts. The motivation for this study is to challenge the traditional approach of analyzing choice of law by highlighting the impact of areas exogenous to law in the judge’s decision-making process; as well as the importance of examining choice of law from a multi-disciplinary perspective. This motivation is achieved through the comparison of five jurisdictions belonging to a variety of geographical locations and legal traditions. They represent the common (U.S.) and civil law traditions (Venezuela), a mixed jurisdiction (Puerto Rico), an Arabic jurisdiction (Lebanon), and a European jurisdiction (England). Each one of these sample jurisdictions is examined in a chapter that includes the evolution of choice of law for international contracts, and the evaluation of the influence of legal education and politics in case law. When necessary, a historical background is included to clarify the previous aspects. Data have been collected from books, periodicals, online newspapers, blogs and reports, case law, interviews with university professors, judges and practitioners, and the offices of academic services from two universities. The investigation of each jurisdiction leads to a final comparative chapter in which overall and structural remarks are made. The struggle between certainty and flexibility, the interaction between judges and legislators, the expansion of flexible connecting factors, and the internationalization of commercial needs are some of the aspects evaluated under the overall comparisons. The abuse of discretionary power, the count of contacts as a choice of law method, the role of public policy in civil law traditions, and the relationships between presumptions and escape clauses, and lack choice and implied choice of law, are among the topics examined under the structural comparison section. The conclusion of this study is that judges belong to a society that shapes them and influences their decisions in ways that lawyers do not always consider when choosing the applicable law to international contracts. Two of the means by which society affects judges are legal education and politics; in this era of pluralism of the sources their impact can no longer be ignored.