Burden of proof – cross-border data exchange

January 5, 2012 — Leave a comment

The continuous development in international communication media together with the never ending expansion of the global trade arena have impacted both positively and negatively on international contractual dispute resolution. It is common cause that once a dispute has been characterised as of a contractual nature and the lex fori has been established, the next step is to ascertain which law is the lex causa or so called “Proper Law” of the agreement.

This article is focused on the assertion of the proper law of an agreement, after it has been established that the lex fori is South African law, in situations where parties  electronically concluded an agreement and whilst doing so omitted to exercise their autonomy to record the law which they are intent on governing the agreement, alternatively in situations where one cannot establish whether the parties contemplated and tacitly implied that a specific legal system would govern the agreement at the time when their agreement was concluded when the lex fori was already established as South African law. Read the full paper here!

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