القانون الواجب التطبيق على العقد التجاري الدولي في فلسطين رسالة ماجستير

Abstract

The subject of this study concerns the science of conflict of laws in international commercial contracts, and the aim of this study is to determine the law applicable to the merits and form of these contracts, whether the dispute relating thereto, before the national courts or international arbitration in Palestine. It is known that the principle of autonomy, of the parties in choose the contract law , is a common principle in the doctrine of international private law, but this principle is represented by two theories, namely: the subjective theory and the objective theory. The standard distinction between the concept of party autonomy principle, according to each of the two theories is, the situation of the will in the face of the law of contract. If the origin is, subjection the international contractual relationships, to the rule of law by the choice of law rules, according to the traditional approach of conflict, which dates back to the doctrine of Savigny in the nineteenth century, which is based on the analysis of the international 238 private relationships, to research on the law applicable in the matter, but it is not the only approach prevailing to determine the applicable law in the scope of international relationships. The doctrine of private international law, acknowledged, the need for a unilateral approach that prevailed in the thirteenth century, which is based on the analysis of competing laws to govern the legal relationships after the disclosure of the content of these laws and determine the scope of application. This led to the phenomenon of the multiplicity of approaches in contemporary private international law. The realization of a unilateral approach, reflected in subjection the international commercial contracts to so- called the national material rules in international private law, which designed specifically to regulate these contracts in response to international consideration necessitated by the nature of the private international law relationships. Similarly, the contracts subject to so-called overriding mandatory rules, to protect the best interests of the Community. On the other hand, it was necessary in this study, to exposure to the possibility of subjection the international commercial contracts to so-called “lex mercatoria”, a separate section of the law for the organization of international commercial relationships. This law derives its provisions from multiple sources including: usages and customs established in the international markets, international trade conventions, model laws, model contracts, the awards of international commercial arbitration and others.