2012 Fiscal Year Final Research Report
Functional Analysis on Overriding Mandatory Rules in the Sphere ofJapanese Conflict of Laws
| Project/Area Number |
22530044
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| Research Category |
Grant-in-Aid for Scientific Research (C)
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| Allocation Type | Single-year Grants |
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| Section | 一般 |
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| Research Field |
International law
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| Research Institution | Hokkaido University |
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Principal Investigator |
SHIMA Takuya 北海道大学, 大学院・法学研究科, 教授 (80377613)
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| Project Period (FY) |
2010 – 2012
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| Keywords | 国際私法 / 絶対的強行法規の理論 |
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| Research Abstract |
This research, mainly from a viewpoint of conflict of laws, focuses on the requirements for overriding mandatory rules and their application, the differences between overriding mandatory rules and the conflict of laws rules special for consumer contracts/labor contracts, the relationship between overriding mandatory rules and public order clauses. And then, it concludes that the application mechanism of overriding mandatory rules should be divided into the following two parts; the one is whether an alleged overriding mandatory rule requests to apply itself irrespective of an applicable law selected by normal choice of law rules; the other is to what geographic extent an overriding mandatory rule could be applied. The former one deals with the rule’s intent to apply itself to the relevant substantive legal issues, taking precedence over the applicable law. This part is categolised as a substantive laws matter, not as a conflict of laws one. On the other hand, the latter part is thought to be related to conflict of laws as well as substantive laws and therefore, it is important to discuss this part from a perspective of cooperation between substantive laws and conflict of laws.
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