Abstract
The chapter provides essential background information on the official legal framework related to commercial contracts in Brazil, Russia, India, China and South Africa. Rather than focusing on the principles and rules applying to international commercial contracts (which are analysed in Part II of the volume), the chapter delves into the institutional infrastructure of BRICS countries. It therefore explores the legal traditions these countries are consonant with and the international models which inspired them, the organisation of the judicial system and the main sources of law, the fundamental traits of their contract law and conflict-of-laws rules, as well as their attitudes towards arbitration.
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Notes
- 1.
- 2.
On the dominance of English and US law in international contracting, see Roberts (2017), 270–272; on the preference of parties in international commercial contracts in arbitrating before the International Chamber of Commerce (ICC), headquartered in Paris, the London Court of International Arbitration (LCIA), the Singapore International Arbitration Center (SIAC), the Hong Kong International Arbitration Center (HKIAC), and the Swiss Chamber of Commerce (SCC), see Queen Mary University of London (2019), 9.
- 3.
Such as those carried out by Dezalay and Garth (1996).
- 4.
- 5.
UNIDROIT (1974), 2 (“The Committee […] considered that a general comparative study of the principal legal systems would be of considerable assistance in the preparation of the proposed Code of international trade law”).
- 6.
- 7.
See http://www.juriglobe.ca/eng/sys-juri/index-syst.php. Rather than adopting the view that mixed legal systems are mixture of civil law and common law (adopted by Palmer 2010), the University of Ottawa’s Juriglobe clearly embraces a broader notion of mixed jurisdictions, such as the one advocated by Örücü (2010). On these debates, see du Plessis (2019).
- 8.
Article 18 of the Brazilian Constitution.
- 9.
See Articles 25 and 125 of the Brazilian Constitution.
- 10.
See Article 22 (1) of the Brazilian Constitution.
- 11.
- 12.
Antunes Soares de Camargo (2003), 162.
- 13.
- 14.
- 15.
See Articles 104 and ff. of the Brazilian Civil Code, under the General Part.
- 16.
The Brazilian Civil Code deals with donations under Articles 538–564 in the Book on contracts; similarly, the BGB regulates donations under the title 4 of the division 8 (particular types of obligations) of Book II on the Law of Obligations. By contrast, donations are located in Book II of the Italian Civil Code, devoted to succession law.
- 17.
See Articles 113 and 422 of the Brazilian Civil Code. Cf. with § 242 BGB and Articles 1175 and 1375 of the Italian Civil Code.
- 18.
See Articles 462–466 of the Brazilian Civil Code; cf. with Articles 1351 and 2932 of the Italian Civil Code.
- 19.
See Article 157 of the Brazilian Civil Code and cf. with § 138 (II) BGB (but see also the doctrine of uncoscionability enshrined in § 2–302 of the US Uniform Commercial Code).
- 20.
See Article 478 of the Brazilian Civil Code; cf. with Article 1467 of the Italian Civil Code.
- 21.
- 22.
- 23.
Grebler (2005). Under Article 5 of the Introductory Act to Brazilian Law (Decree Law No 4657 of 1942), judges are required, in interpreting the law, “to pay attention to the′social purposes aimed at by the law and the needs of public welfare”. It should be stressed, however, that, more recently, with the enactment of Law No 13.874 of 2019, which amended the 2002 Civil Code, this social mindset has been mitigated, especially when it comes to business transactions. Under Article 421, as amended, the principle of pact sunt servanda and minimal intervention in private contracts shall prevail.
- 24.
Antunes Soares de Camargo (2003), 163.
- 25.
- 26.
See respectively Articles 9 (2) and 17 of the Introductory Act to Brazilian Law.
- 27.
- 28.
Costa and Tavares Paes (2019) no 2.3 (according to which the Brazilian 1996 Arbitration Act was also influenced by the Spanish Arbitration Act of 1988 and by the Inter-American Convention on International Commercial Arbitration, ratified with Decree No 1.902 of 1996).
- 29.
See Article 39 (2) of the 1996 Arbitration Act, as well as de Albuquerque Cavalcanti Abbud (2009), 289–292.
- 30.
See, respectively, Articles 39 (2) and 2 (1)–(2) of the 1996 Arbitration Act. By contrast, designation of non-State law as the applicable law is not possible before ordinary courts: Gama (2011), 641.
- 31.
Slomp Aguiar (2011), 496.
- 32.
For quite a long time, Brazilian courts have deemed forum-selection clauses invalid, because of the alleged mandatory nature of procedural rules on judicial competence. In 2010, however, the Superior Tribunal of Justice (RESP 1.177.915/RJ, Terceira Turma, STJ, 13 April 2010) ruled that forum-selection clauses are generally valid. The rule is now enshrined in Article 63 of the 2015 Civil Procedure Code (enacted with Law No 13.105 of 2015).
- 33.
See Article 105 (1) (i) of the Brazilian Constitution and Article 35 of the 1996 Brazilian Arbitration Act. Before 2004 such competence was exclusively endowed to the Brazialian Supreme Federal Tribunal. See Celli & Espolaor Veronese, Brazilian report, no 1.
- 34.
Rosenn (1986), 513.
- 35.
Estrella Faria (2015), 220.
- 36.
Article 4 of the Introductory Act to Brazilian Law.
- 37.
- 38.
- 39.
Celli & Espolaor Veronese, Brazilian report, no 1.
- 40.
See above in the text. There is also some evidence of Brazilian arbitral tribunals applying the UPICC: Gama (2011), 648–653.
- 41.
See www.ccbc.org.br.
- 42.
- 43.
Article 15 (1) of the Russian Federation’s Constitution of 1993.
- 44.
Article 5 (2) of the Russian Federation’s Constitution. State legislation shall however conform to the Russian Federation’s Constitution and laws, according to Articles 15 (1) and 76 of the Russian Federation’s Constitution.
- 45.
Article 71, letter (n), of the Russian Federation’s Constitution; see also Article 3 (1) of the Russian Civil Code of 1994.
- 46.
Komarov, Russian report, no 1.
- 47.
On Russian law at the beginning of the Twentieth century, see Yefremova et al. (2014), 6–7; Osakwe (2008), 49; Oda (2007), 64–66 (also on the civil law influence on the 1832 Svod Zakonov); Ioffe (1985), 115. It should however be noted that Article 1 of the 1922 Civil Code provided that civil law rights were protected by law except “when they are exercised in contradiction with their socio-economic purpose” and that Article 17 of the same Code restricted foreign commercial transactions allowing only the state to engage in foreign trade.
- 48.
- 49.
On these developments, see Yefremova et al. (2014), 9.
- 50.
Yefremova et al. (2014), 10.
- 51.
- 52.
See respectively Articles 420–453 (in Part I) and 454–1063 (in Part II).
- 53.
Osakwe (2008), 27.
- 54.
See Articles 153–181 (on Rechtsgeschäfte) and 307–419 (on obligations) of the Russian Civil Code. See also Article 423 of the Code, devoted to onerous and gratuitous contracts. See also Oda (2007), 85–86.
- 55.
Komarov, Russian report, no 3.1.1.
- 56.
Cf., for instance, Articles 1 (3), 307 (3), 434.1 (2) of the Russian Civil Code.
- 57.
See Article 429 of the Russian Civil Code.
- 58.
See, respectively, Articles 434.1, 308.3 and 451 of the Russian Civil Code.
- 59.
- 60.
See respectively Articles 406.1 and 431.2 of the Russian Civil Code; see also Maggs (2009), 197–203.
- 61.
Information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation, No 158, 9 July 2013.
- 62.
Further criteria for special contracts are dictated in the second paragraph of the same article. On the influence played by European rules on this regard, see Orlov (2017).
- 63.
See Article 1193 of the Russian Civil Code.
- 64.
Law on the protection of consumers No. 2300–1 FZ of 1992.
- 65.
Law on the protection of competition No. 135 FZ of 2006.
- 66.
Law on electronic signature No. 63 FZ of 2011, amended in 2016, after Russia’s ratification in 2014 of the UNCITRAL Convention on the Use of Electronic Communications in International Contracts.
- 67.
- 68.
See Federal Constitutional Law on Commercial Courts in the Russian Federation No 1-FKZ of 1995. Many of the recent reforms affecting Russian judiciary were inspired by the need of improving Russia’s scoring on the World Bank’s Doing Business Report: see World Bank (2017).
- 69.
See Federal Constitutional Law on Courts of General Jurisdiction in the Russian Federation No 1-FKZ of 2011.
- 70.
The Supreme Court is the highest court on non-constitutional matters under Article 126 of the 1993 Constitution. Until 2014 the apex court of commercial courts was the Higher Commercial Court of the Russian Federation (originally provided by Article 127 of the 1993 Russian Federation’s Constitution), but the court was abolished by the Federal Constitutional Law on the amendment to the Russian Federation’s Constitution No 2-FKZ of 2014 and its functions were trasferred to the Supreme Court. On the reasons underlying such a choice, see Maggs et al. (2015), 63–68.
- 71.
- 72.
- 73.
Such power is provided by Article 126 of the Russian Federation’s Constitution. On such explanations, see Maggs et al. (2015), 26–27; Oda (2007), 17; Osakwe (2008), 52–53; Zhuikov (2009), 111–114. For a list of the Plenum’s opinions (in Russian), see http://www.supcourt.ru/documents/. According to Article 104 (1) of the Constitution, the Supreme Court has also the power of legislative initiative in the matter of its own jurisdiction.
- 74.
- 75.
Maggs et al. (2015), 31.
- 76.
Ibid.; see also Orlov (2019), 131.
- 77.
See Orlov and Yarkov (2017).
- 78.
Oda (2007), 30 (noting that in the past parties in international contracts used to choose arbitration in a third country, while now arbitration in Russia is a more frequent choice).
- 79.
Russian courts traditionally adopted a broad notion of Russian public policy under Article 1193 of the Civil Code (see above, footnote 62) and Article 36 of the Law on international commercial arbitration No 5338–1 of 1993 (according to which recognition or enforcement of foreign arbitral awards can be refused when the award is contrary “to the basic principles of Russian law”). The trend was partially reserved in 2013, when the Presidium of the Higher Commercial Court issued the Information Letter no 156 of 25 February 2013 on the application of the public policy exception by commercial courts, inviting them to narrowly interpret the public policy requirement. See Dozhdev (2020), Spiegelberger (2014).
- 80.
Law on international commercial arbitration No 5338-1 of 1993 and Law on arbitration no 382-FZ of 2015 (replacing the previous Law on arbitration in the Russian Federation no 102-FZ of 2002). The new 2015 law aims in particular at intensifying state supervision over arbitration in order to prevent distortions and abuses of arbitral law; on these developments, see Dozhdev (2020), Kotelnikov et al. (2019), Skvortsov and Kropotov (2018).
- 81.
See respectively https://mkas.tpprf.ru/en/, https://centerarbitr.ru/en/main-page/.
- 82.
- 83.
Komarov (2011).
- 84.
Article 58 of the 1982 Constitution. The Standing Committee of the NPC, besides the power of enacting laws, has also the power to issue mandatory interpretations of existing laws under Article 67 (4) of the Constitution.
- 85.
See Article 31 of the 1982 Constitution, as well as the 1990 Basic Law of the Hong Kong Special Administrative Region and the 1993 Basic Law of the Macao Special Administrative Region. On the Hong Kong and Macau’s legal systems, see Castellucci (2012).
- 86.
Chen (2016) 455 (who, among the sources of the Kuomintang code, cites, besides the BGB, “the Japanese Civil Code of 1896, […] the French Civil Code of 1804, the Swiss Civil Code of 1907 and the Swiss Code of Obligations of 1911, the Brazilian Civil Code of 1916, the Civi lCode of Soviet Russia of 1922, the Siamese Civil Code of 1923–1925, the Turkish Commercial Code of 1926, the draft Italian Commercial Code of 1925 and the never enacted Franco-Italian Code of Obligations and Contracts of 1927”); Fu (2011), 13–15; Zhang (2006), 29–30; Huang and Chen (1999), 38. While the Qing Code distinguished private from commercial law, the Koumintang Code treated them together: Chen (2016), 456.
- 87.
Huang and Chen (1999), 39.
- 88.
- 89.
Chen (2016), 460–461.
- 90.
All these codes were, despite their socialist inspiration, somehow modeled after the BGB: Chen (2016), 461.
- 91.
- 92.
On all these sources, see Janssen and Chau (2018), 447–455; DiMatteo and Wang (2018); DiMatteo (2018), 397–400; Fu (2011), 20; Shaohui (2008), Ling (2002), 37–38; Zhang (2000), 239–240. In 2006 China signed the United Nations Convention on the Use of Electronic Communications in International Contracts, although it never ratified it.
- 93.
See for instance Articles 466, 500, 509 and 558 of the Chinese Civil Code.
- 94.
Article 483 of the Chinese Civil Code.
- 95.
Article 500 of the Chinese Civil Code.
- 96.
Articles 577 and 578–580 of the Chinese Civil Code.
- 97.
See Article 157 of the Chinese Civil Code.
- 98.
Article 502 of the Chinese Civil Code; on the great deal of administrative supervision of contracts, including licensing and approvals, see Zhang (2000), 248–252, as well as Zhang & Dong, Chinese report, no 3.2.1.
- 99.
- 100.
- 101.
Tu (2016), 74–75.
- 102.
Article 41 of the 2010 Law confirms the criteria that were already embraced by Article 126 of the 1999 Contract Law and that are currently enshrined in Article 467 of the Chinese Civil Code.
- 103.
Tu (2016), 31.
- 104.
Article 5 of the Law on the Application of Law for Foreign-Related Civil Legal Relationships.
- 105.
Article 467 of the Chinese Civil Code. The rule has remained unaffected by the Chinese Foreign Investment Law of 2019.
- 106.
On this point, as well as for a survey of the historical precedents of the actual system, see Yu and Gurgel (2012).
- 107.
The Supreme People’s Court is a constitutional body under Article 127 of the Constitution. Local courts are mentioned by Articles 123–126 of the Constitution, but their concrete structure is set forth by Articles 17 and ff. of the 2011 Organic Law of the People’s Courts of the People’s Republic of China. On the Chinese judicial system, see Chen (2016), 187–195.
- 108.
See Article 11 of the Organic Law of the People’s Courts of the People’s Republic of China (“In the administration of justice, the people’s courts adopt the system whereby the second instance is the last instance”).
- 109.
See the China International Commercial Court’s website at http://cicc.court.gov.cn/html/1/219/193/195/index.html, as well as Fei (2020) and Sun (2020).
- 110.
Cf. Article 127 of the Constitution and Article 32 of the Organic Law of the People’s Courts of the People’s Republic of China.
- 111.
The Court itself declared that these texts are binding: see Article 5 of the 2007 Supreme People’s Court's Provisions on the Work Concerning Judicial Interpretation. The power to interpret the law was officially delegated by the NPC’s Standing Committee to the Supreme People’s Court in 1981: Resolution of the Standing Committee of the National People's Congress Providing an Improved Interpretation of the Law. For a detailed analysis of the types and effects of the Supreme People’s Court’s interpretations, see Qi (2020).
- 112.
Article 26, SPC’s Second Judicial Interpretation Concerning the Application of the Contract Law of China on 24 April 2009.
- 113.
Chen and DiMatteo (2018), 7.
- 114.
Article 2, SPC’s Detailed Implementing Rules on the Provisions of the Supreme People’s Court Concerning Work on Case Guidance, of 13 May 2015.
- 115.
Articles 9–10 of the SPC’s Detailed Implementing Rules on the Provisions of the Supreme People’s Court Concerning Work on Case Guidance. See also Liu (2019).
- 116.
See Article 4 of the SPC’s Provisions on How to Cite Laws, Regulations and Other Normative Documents in Judicial Judgments and Decisions, 26 October 2009, no 14.
- 117.
- 118.
Houzhi (1984), 520.
- 119.
- 120.
Notice of the Supreme People’s Court on the Handling by People’s Courts of Issues Concerning Foreign-related Arbitration and Foreign Arbitration no 18 of 20 August 1995, at http://cicc.court.gov.cn/html/1/219/199/201/701.html.
- 121.
See 全国仲裁机构累计处理案件逾260万件 标的额逾4万亿元.仲裁已成为解决民商事纠纷主渠道之一, a media report by the Ministry of Justice available at the official website www.moj.gov.cn/subject/content/2019-03/26/862_231600.html.
- 122.
See CIETAC, Introduction, at http://www.cietac.org/index.php?m=Page&a=index&id=34&l=en.
- 123.
See Section 40 of the 1996 Constitution of the Republic of South Africa.
- 124.
Section 2 of the 1996 Constitution.
- 125.
For instance, consumer protection law falls into the areas of concurrent national and provincial competence: see Schedule 4 of the 1996 Constitution.
- 126.
See Section 173 of the 1996 Constitution (“The Constitutional Court, the Supreme Court of Appeal and the High Court of South Africa each has the inherent power to protect and regulate their own process, and to develop the common law, taking into account the interests of justice”). Also see Section 39(2) of the 1996 Constitution, which the courts often refer to when developing the common law to ensure that it conforms to constitutional demands.
- 127.
- 128.
du Bois (2004).
- 129.
The emphasis on freedom of contract is evidenced, inter alia, by the little relevance that inequality of bargaining power plays under South African contract law, and by parties’ freedom in limiting their liability through exclusionary clauses: see du Plessis, South African report, nos 3.1.2, 5.1.2, 6.1.2, 7.2.1.
- 130.
- 131.
See for instance Wethmar-Lemmer (2016), 59.
- 132.
See Naudé and Lubbe (2001).
- 133.
- 134.
Neels and Fredericks (2006), 122–125.
- 135.
Oppong (2013), 133. The same author notes that South Africa has been one of the first African countries to have shown interest in private international law issues, since the first volumes of the Cape Law Journal (1884–1900—now South African Law Journal) already contained several articles on private international law issues: see Oppong (2007), 694.
- 136.
The leading case in this regard is South Africa’s Supreme Court of Appeal, Jones v Krok 1995 (1) SA 677 (A) 685.
- 137.
Section 1(3) of the Protection of Businesses Act 99 of 1978. Until the Schedule 4 of the Arbitration Act 15 of 2017 repealed from Section 1 the word ‘arbitral awards’, the same provision was applicable to foreign arbitral awards.
- 138.
See for instance Oppong (2007), 708–709.
- 139.
High Court, Tradex Ocean Transportation SA v MV Silvergate (or Astyanax) and Others, 1994 (4) SA 119 (D); High Court, Chinatex Oriental Trading Co. v Erskine, 1998 (4) SA 1087 (C); Supreme Court of Appeal, Richman v Ben-Tovim, 2007 (2) SA 283 (SCA).
- 140.
See Section 166 of the Constitution.
- 141.
- 142.
- 143.
van Huyssteen and Maxwell (2019), 34–35; Van der Merwe et al. (2012); du Bois (2004), 51–52; O'Regan (1999). South African courts’ openness to foreign legal sources is further strenghened by the constitutional provision authorizing courts to “consider foreign law” when interpreting the Bill of Rights (Section 39 (1) (c) of the 1996 Constitution).
- 144.
See Supreme Court of Appeal, Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue, 1992 (4) SA 202 (A) (per Hefer JA) at 219I-J; Supreme Court of Appeal, Tjollo Ateljees (Edms) Bpk v Small 1949 1 SA 856 (A) (Van den Heever JA), at 874.
- 145.
- 146.
- 147.
See Section 6 of the International Arbitration Act 15 of 2017.
- 148.
As to the criteria for denying recognition/enforcement, see Section 18 of the International Arbitration Act 15 of 2017.
- 149.
- 150.
- 151.
Cf. http://www.cajacjhb.com and http://www.shiac.org/CAJAC/index.aspx. See also du Plessis, South African report, n 1.2.
- 152.
See Article 1 (1) of the Indian Constitution of 1950.
- 153.
See Article 246 (1)–(3) of the Constitution.
- 154.
Article 248 of the Constitution.
- 155.
Cf. the Schedule Seven of the Constitution, ‘Union list’, nos 41–42; ‘State list’, no 26; ‘Concurrent list’, nos 7 and 13. Similarly, the power to provide for stamp duties on written instruments, including contracts, is shared between the Union and the States: see the Schedule Seven of the Constitution, ‘Union list’, no 91; ‘State list’, no 63. Although lack of the stamp does not affect the validity of a contract, written contracts cannot be presented as evidence in court unless they are duly stamped: Bhadbhade (2012), 105–106.
- 156.
- 157.
See Article 372 (1) of the Indian Constitution.
- 158.
- 159.
See respectively Sections 3, 25, 16, 18 of the Indian Contract Act.
- 160.
See Sections 25 (1), letter (b) and 27 of the Indian Contract Act. Under English law, past consideration is not good (Eastwood v Kenyon [1840] 11 Ad & E 438) and agreements in restraint of trade are valid if they are reasonably justified (Shearson Lehman Hutton Inc v MacLaine Watson & Co. Ltd [1989] 2 Lloyd’s Rep. 570, 615).
- 161.
For instance, in the silence of the Indian Contract Act and in line with the English common law, Indian courts have held that both perpetual agreements and exclusionary clauses are valid and enforceable (although there is a presumption against perpetual bonds and exclusionary clauses are restrictively interpreted): see Bhadbhade, Indian report, nos 5.12 and 7.1.2. See also, more in general, Bhadbhade (2012), 68.
- 162.
Balganesh (2016), 680–682; see also Bhadbhade, Indian report, no 1.
- 163.
See Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co. Ltd [1915] AC 847 (establishing a four pronged test to distinguish penalties from liquidated damages clauses); Cavendish Square Holding BV v Talal El Makdessi (El Makdessi) and ParkingEye Ltd v Beavis [2015] UKSC 67 (replacing the Dunlop criteria with a proportionality test).
- 164.
Bhai Panna Singh v Bhai Arjun Singh, AIR 1929 PC 179 (per Lord Atkin).
- 165.
Fateh Chand v Balkishen Das [1964] 1 SCR 515; AIR 1963 SC 1405; Maula Bux v Union of India [1970] 1 SCR 928. See Bhadbhade, Indian report, no 7.2.3, as well as Swaminathan (2018).
- 166.
- 167.
See also the Special Relief (Amendment) Act, 2018, whose Section 3 introduced specific performance as a general remedy.
- 168.
The Act was amended in 2015 and in 2019.
- 169.
The Act repealed the preexisting Consumer Protection Act 1986.
- 170.
Noronha (2010), 4–6, 71–74.
- 171.
Choice of non-state law, by contrast, is explicitly allowed in international arbitration by Section 28 (1) (b) of the Arbitration and Conciliation Act, 1996: Khanderia (2018b).
- 172.
Bhadbhade (2012), 63.
- 173.
See Commercial Courts, Commercial Division and Commercial Appellate Division of the High Courts Act, 2015, as well as Ramani Garimella and Ashraful (2019).
- 174.
See Articles 124–147 (on the Supreme Court), 214–232 (on High Courts), 233–237 (on subordinate courts) of the Indian Constitution, as well as Bhadbhade (2012), 32, 36–37.
- 175.
See Article 32 of the Indian Constitution.
- 176.
- 177.
See Article 141 of the Indian Constitution. Even the obiter dicta of the Indian Supreme Court are considered to be binding: Commissioner of Income-Tax v Vazir Sultan and Sons AIR 1959 SC 814.
- 178.
Bhadbhade (2012), 66 (also for the specification that the precedent value of High Courts’ judgments does not derive from any enactment).
- 179.
Balakrishnan (2008).
- 180.
Bhadbhade (2012), 70.
- 181.
Bhadbhade (2012), 70 (“One reaches the appropriate report or case from its citation given in books. More often, general digests and manuals or those compiled for particular subjects are useful in locating cases”).
- 182.
Halberstam and Reimann (2014), 14; Bhadbhade (2012), 45, 66. See also http://lawcommissionofindia.nic.in. It must be noted that, among the law commissions existing in former British colonies, the Indian one is the one whose proposals are least incorporated in the law: see the comparative analysis carried out by Hammond (2016), 178.
- 183.
Indian Law Commission, Report no. 246. Amendments to the Arbitration and Conciliation Act 1996, August 2014, at http://lawcommissionofindia.nic.in/reports/Report246.pdf.
- 184.
See Section 2 (1) letter (e) and Section 6 of the Arbitration and Conciliation (Amendment) Act, 2015.
- 185.
See Arbitration and Conciliation (Amendment) Act, 2019 and Narang (2020).
- 186.
See Section 48 of the Arbitration and Conciliation Act, 1996 (the Section, however, applies only to awards from states which ratified the NY Convention; other Sections deal with the enforcement of awards stemming from countries that are not parties to the NY Convention).
- 187.
See, respectively, Bathia International v Bulk Trading SA & Anr AIR 2002 SC 1432; Venture Global Engineering v Satyam Computer Services Ltd & Anr AIR 2008 SC 1061 (allowing vacating foreign arbitral awards as if they were domestic ones); Phulchand Exports Ltd v OOO Patriot (2011) 10 SCC 300, para. 16 (equating ‘public policy’ with the notion of ‘patent illegality’).
- 188.
Videocon Industries Ltd. v Union of India (2011) 6 SCC 161 (holding that parties’ choice of arbitration under English law excludes the application of the Indian Arbitration and Conciliation Act 1996 and jurisdiction over the dispute by Indian courts); Shri Lal Mahal Ltd v Progetto Grano SpA (2014) 2 SCC 433, paras. 27–30 (overruling the equation between ‘public policy’ and ‘patent illegality’). On all these developments, see Kumar et al. (2017).
- 189.
- 190.
See http://icadr.nic.in.
- 191.
- 192.
See https://mcia.org.in.
- 193.
Seehttps://www.siac.org.sg/2014-11-03-13-33-43/about-us/siac-india-representative-offices and http://www.iccindiaonline.org. In 2009 the London Court of International Arbitration established a subsidiary in India called LCIA-India, but shut it down in 2016: http://www.lcia-india.org.
- 194.
Chandru and Kumar (2019).
- 195.
China ratified the CISG in 1986, Russia in 1990, Brazil in 2013: see https://uncitral.un.org/en/texts/salegoods/conventions/sale_of_goods/cisg/status.
- 196.
While three countries—Brazil, India and South Africa—were members of the GATT since 1948 and then became members of the WTO in 1995, China adhered to the WTO only in 2001 and Russia in 2012: see https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm.
- 197.
Cf. Chinese Contract Law Act of 1999) and India Information Technology Act, 2000.
- 198.
- 199.
India and Russia ratified the Convention in 1960, South Africa in 1976, China in 1987, and Brazil in 2002: https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbitral_awards/status2.
- 200.
Cf. the Brazilian Arbitration Act 1996, the Russian International Commercial Arbitration Law of 1993 and Domestic Arbitration Law of 2015, the South African International Arbitration Act 15 of 2017, and the Indian Arbitration and Conciliation Act, 1996.
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Infantino, M. (2022). Commercial Contract Law in the BRICS: A Comparative Overview. In: Mancuso, S., Bussani, M. (eds) The Principles of BRICS Contract Law. Ius Gentium: Comparative Perspectives on Law and Justice, vol 102. Springer, Cham. https://doi.org/10.1007/978-3-031-00844-3_2
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