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College of Law, Sumer University

كلية القانون جامعة سومر

P-ISSN: 3081-1082
Researchers in the field of law

The issue of determining the law applicable to A recourse guarantee contract in private international relations

امير المعموري

Abstract

This study addresses the issue of determining the law applicable to a recourse guarantee contract in private international relations. A recourse guarantee contract is a type of contract with a distinctive nature, as it differs from other private contracts in that the two banks party to the contract cannot be situated in the same state; and even if we assume they are situated in the same state, there would be no need for a recourse guarantee in the first place; consequently, the international character is determined by the foreign element represented by the above assumption. The question of determining the law applicable to a recourse guarantee contract is a difficult one that has sparked considerable debate and disagreement in both legal scholarship and the judiciary, leading to a divergence of views in legal scholarship and judicial rulings regarding the resolution of the problem of determining the applicable law for such contracts. Solutions have varied and conflicted regarding the application of the law of the parties’ choice, the common domicile, or the law of the recourse guarantor; leaving the door open to judicial discretion whilst taking into account the nature and specificity of this contract as an international contract; as it is based on the recourse guarantor being in one state and the direct guarantor in another, and their connection to more than one legal system. The study reached a number of conclusions, the most important of which is that a recourse guarantee contract is an agreement containing a foreign element, namely the nationality of the guaranteeing bank and the recourse guarantor; like other contracts, a recourse guarantee contract is governed by the law of choice, and the parties cannot be deprived of their right to choose the law governing the contract. In the absence of a choice, the law of the state in which the recourse guarantor bank is situated is the applicable law, as it is the law of the state of the party performing the specific obligation under the contract, whilst the direct guarantor assumes the role of the client.

الكلمات المفتاحية: Virtual Currencies, Legal Nature, Bitcoin, Blockchain, Consensual Discharge of Obligations

اقرأ البحث

تحميل إشكالية تحديد القانون الواجب التطبيق على عقد الضمان المرتد في العلاقات الدولية الخاصة "دراسة تحليلية مقارنة" (Arabic)

معلومات النشر

كيفية الاقتباس

امير المعموري. "The issue of determining the law applicable to A recourse guarantee contract in private international relations". College of Law, Sumer University, %2026.