Tacit Choice of Law in International Commercial Contracts. An Analysis of Future Instruments of Developmental Organisations

This article examines the various regional and supranational organisations of emerging countries that could benefit from a codification of private international law rules. They include the Organisation for the Harmonisation of Business Law in Africa (OHADA), the African Union (AU) and the Association of Southeast Asian Nations (ASEAN). In addition, the article analyses the envisaged instruments that may be especially relevant in the context of the abovementioned organisations. These include the Preliminary Draft Uniform Act on the Law of Obligations in the OHADA Region, the proposed African Principles on the Law Applicable to International Commercial Contracts and the Asian Principles of Private International Law. More specifically, the article focusses on the provisions regarding the determination of the law applicable, particularly those rules relating to a tacit choice of law in international commercial contracts


Introduction
Regional and supranational organisations, particularly those of emerging countries, must realise how important it is for their members to cooperate and unite to compete in the context of the world's increasingly globalised economy and foreign relations. 1The harmonisation of aspects of private international law may play a significant part in the integration of the Member States of these organisations in international commerce.In this article the various regional and supranational organisations of emerging countries which could particularly benefit from a codification of private international law rules will be examined.They include the Organisation for the Harmonisation of Business Law in Africa, the African Union and the Association of Southeast Asian Nations.The article also analyses the envisaged instruments that may be especially relevant in the framework of the abovementioned organisations.More specifically, the article focusses on the provisions regarding the determination of the applicable law, particularly those rules relating to a tacit choice of law in international commercial contracts.All relevant issues are examined, including an analysis of the level of strictness for the criterion for a tacit choice of law and the factors that are relied upon.Special attention is given to the role of forum clauses in determining the existence of an implied choice of law since "the relationship between a choice of forum and a tacit choice of law is a contentious issue in private international law." 2 Although most legal systems recognise the possibility of a tacit choice of law, the concept remains confusing and is not clearly perceived. 3Most aspects relating to its determination are approached differently, leading to the unpredictability of decisions and legal uncertainty. 4The current author believes that the proposed instruments would be a welcome addition in addressing the uncertainties in determining the existence of a tacit choice of law while providing courts and legislators on various levels with guidance regarding this problematic aspect of private international law.

Introduction
The Organisation pour l'Harmonisation en Afrique du Droit des Affaires (the Organisation for the Harmonisation of Business Law in Africa) (OHADA), was established by the Treaty on the Harmonisation of Business Law in Africa of 17 October 1993. 5OHADA is a supranational organisation, comprising of seventeen Member States. 6Its mission is to "harmonize business Law in Africa in order to guarantee legal and judicial security for investors and companies in its Member States." 7

Party autonomy
Since its inception OHADA has adopted uniform acts 8 on wide ranging topics. 9In 2015 the Projet de Texte Uniforme Portant Droit Général des 5 See the history of OHADA at OHADA date unknown https://www.ohada.org/en/history/.See, also, Neels 2018 THRHR 467: "[T]he treaty was amended by the Treaty to Amend the Treaty for the Harmonization of Business Law in Africa (2008)."(Unofficial translation per www.ohada.org.)See, also, Mouloul Understanding OHADA 17-18.6   Member States of OHADA include Benin, Burkina Faso, Cameroon, the Central African Republic, Chad, the Comoros, Congo, Côte d'Ivoire, the Democratic Republic of Congo, Equatorial Guinea, Gabon, Guinea, Guinea Bissau, Mali, Niger, Senegal and Togo.See OHADA date unknown https://www.ohada.org/en/history/for the timeline of ratification and entry into force of the OHADA Treaty in Member States.Also see Neels 2018 THRHR 466; Mouloul Understanding OHADA 28.

7
OHADA date unknown https://www.ohada.org/en/general-overview/:"Harmonizing economic laws and improving the functioning of judicial systems in Member States were … necessary to restore investor confidence, facilitate trade between countries and develop a vibrant private sector."Also see Mouloul Understanding OHADA 8-17, 21-22; Neels 2018 THRHR 466.8   See Neels 2018 THRHR 466-477: "The Council of Ministers, consisting of the ministers of justice and finance of all the member states, may adopt uniform acts by unanimous decision of the member states present and voting …, which are then directly applicable in member states ... The Permanent Secretariat, the executive body of OHADA (located in Yaoundé, Cameroon), prepares the text of uniform acts for adoption by the Council of Ministers."See, for example, the Treaty to Amend the Treaty for the Harmonisation of Business Law in Africa (2008) arts 8 and 10.See, also, the Treaty to Amend the Treaty for the Harmonisation of Business Law in Africa (2008) art 20: "Judgments of the Common Court of Justice and Arbitration shall have the force of res judicata and shall be enforceable.On the territory of the States Parties, they shall be enforced under the same conditions as the decisions of national courts.In the same case, no decision inconsistent with the judgment of the connection to the parties or the contract may be chosen. 17The OHADA Preliminary Draft Uniform Act is also silent in respect of the choice of a non-State law. 18ticle 575(1) of the OHADA Preliminary Draft Uniform Act provides that the choice of law by the parties "shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case."Therefore the OHADA Preliminary Draft Uniform Act allows for an express choice, as well as a tacit choice of law. 19

Level of strictness of the criterion for a tacit choice of law
The level of strictness of the criterion under the OHADA Preliminary Draft Uniform Act requires the tacit choice to be "clearly demonstrated". 20Neels 21 is of the opinion that "[t]he word 'demonstrated' implies a procedural context which is not justified in a conflicts rule."Nevertheless, it appears that the OHADA Preliminary Draft Uniform Act sets a stringent test for an implied choice of law. 22

Indicators of a tacit choice
The OHADA Preliminary Draft Uniform Act allows a tacit choice to be inferred by "the terms of the contract" or "the circumstances of the case". 23his means that a court, in deciding whether the parties have made a tacit choice law, is not confined to the written agreement but may take account of considerations surrounding the contract.
The OHADA Preliminary Draft Uniform Act does not provide any examples from which a tacit choice of law may be inferred.Furthermore, there is also a lack of clarity in respect of the relationship between a choice of forum and a choice of law. 24 3 The African Union

Introduction
The Organisation of African Unity (OAU) was established on 25 May 1963, on the signature of the OAU Charter by delegates from 32 African countries. 25A further 21 States have gradually joined the ranks of the OAU. 26The primary objectives of the OAU were, inter alia, to eradicate the remaining remnants of colonialism from Africa, to promote the unity and solidarity of African States, to promote international cooperation in the framework of the United Nations, and to coordinate and intensify cooperation for the development of African States. 27The OAU achieved some success in this regard, particularly in providing much-needed aid to liberation movements28 and encouraging the development of regional economic communities. 29However, the OAU was not always successful in SAHO 2019 https://sahistory.org.za/-topic/organi-sation-african-unity-oau:In addition to the many challenges faced by the OAU "was the fact that its deference to state sovereignty affected the Organisation's efficacy in preventing and stemming conflict in its member states.The OAU's impenetrable respect for sovereignty and territorial integrity came at a cost; emerging dictatorships, coups and counter coups exacerbated political instability, and while Haile Selassie, Kwame Nkrumah, Abubakar Balewa and Sekou Toureformer founding fathers of the OAUwere overthrown (and murdered, in the case of Selassie), the OAU sat back and folded its hands."See Exploring Africa date unknown http://exploringafrica.matrix.msu.edu/?s=african+union&submit=Search: the OAU Charter established principles that impeded the prospect of unity.For example, the principle of the inviolability of inherited boundaries and the principle of non-inference in domestic affairs placed great obstacles to the idea of unity and Pan Africanism.Also see AU date unknown https://au.int/en/au-nutshell;SAHO 2019 https://sahistory.org.za/-topic/organi-sation-african-unity-oau.Since the inception of the OAU in 1963 one of its most important goals was the eradication of all colonial powers on the continent.However, by the mid-1990s, "the majority of the African states had shed their colonial administrations ... [T]he factors binding African states against a common external enemy were no longer present …" social, economic and political problems." 34The AU was officially established in 2002 by the Member States of the former OAU, with more comprehensive powers to promote African economic, social and political integration. 35e objectives of the AU are contained in article 3 of its Constitutive Act. 36he AU inter alia aims to achieve greater unity and solidarity among African countries; to accelerate the political and socio-economic integration of the continent; to promote and defend African common positions on issues of interest; to establish the necessary conditions that enable the continent to participate in the global economy; and to promote sustainable development at the economic, social and cultural levels, as well as the integration of African economies. 37Agenda 2063 further emphasises the AU's vision for the continent: [Agenda 2063] is the continent's strategic framework that aims to deliver on its goal for inclusive and sustainable development… [Its priorities include] social and economic development, continental and regional integration, democratic governance and peace and security amongst other issues aimed at repositioning Africa to becoming a dominant player in the global arena. 38ainst the backdrop of the AU's stated objectives, it is argued that: [t]he existence of a reliable transnational legal infrastructure in respect of international commercial law, including commercial private international law, 34 AU date unknown https://au.int/en/au-nutshell.See AU date unknown https://au.int/en/overview;SAHO 2019 https://sahistory.org.za/-topic/organi-sationafrican-unity-oau.

36
The Constitutive Act of the African Union (2000) refers to the fact that it was "inspired by the noble ideals which guided the founding fathers … and generations of Pan-Africanists in their determination to promote unity, solidarity, cohesion and cooperation among the peoples of Africa and African States."37 See the Constitutive Act of the African Union (2000) art 3. Also see AU date unknown https://au.int/en/au-nutshell;AU date unknown https://au.int/en/overview;SAHO 2019 https://sahistory.org.za/-topic/organi-sation-african-unity-oau:"Established as a means to correct the flaws in its predecessor, the AU has reconsidered its objectives to reflect the concerns of postcolonial Africa.Among those concerns was the imperative to counter low economic growth brought about by over-reliance on neocolonial trade with America and Europe through establishing intra-continental trade which would, theoretically, strengthen Africa's entry into the global economic system.The AU has thus shifted its focus paradigmatically from state-centric economic control towards the goal of inter-African trade with the inclusion of the private sector."

Introduction
The purpose of the African Principles on the Law Applicable to International Commercial Contracts may be understood from the preamble, which provides that the "instrument sets forth general principles for determining the law applicable to international commercial contracts." 42As previously mentioned, the Principles are intended as a model law, suitable for national, regional and supranational legislative instruments in Africa. 43They are also intended to be used "by African courts in the interpretation, supplementation and development of the rules of private international law of contract."

Party autonomy
Subject to certain limitations under the Principles, 45 the parties have a wide discretion in selecting a law to govern their agreement. 46Article 3 of the Principles establishes the parties' freedom to choose the law applicable to their contract. 47The parties may choose "the law applicable to the whole contract or to one or more aspects of parts thereof" 48 and "different laws for different aspects or parts of the contract." 49Furthermore, the parties are permitted to choose a law that does not have any connection to the parties or their transaction 50 and the parties may subsequently modify a choice of law. 51The Principles also authorise a direct choice of non-State law. 52herefore, maximum freedom is provided to the contracting parties in selecting a law to govern their agreement.
Article 5(1) of the Principles provides: "A choice of law, or any modification of a choice of law, can be made expressly or tacitly."53Therefore, parties may exercise their choice by means of an express choice of law, or a choice of law may be inferred.The level of strictness of the criterion under the Principles entails that the tacit choice "must be manifestly clear from the provisions of the contract, the circumstances of the case, or both." 54The Principles therefore support a strict test in this regard. 55 3.1.1.4Indicators of a tacit choice The Principles allow a tacit choice of law to be inferred from "the provisions of the contract, the circumstances of the case, or both." 56This means that one is not confined to the written agreement, but may take account of considerations surrounding the contract in deciding whether the parties have made a tacit choice of law. 57Furthermore, the Principles make it clear that either the provisions or the circumstances may conclusively indicate a tacit choice of law. 58 The Principles do not mention the factors from which a tacit choice of law may be inferred.However, given that the Principles require that the tacit choice "must be manifestly clear", a single factor would probably not be sufficient to determine that the parties designated a law to govern the contract.Article 5(3) of the Principles reaffirms this by providing that "[a]n agreement between the parties to confer jurisdiction on a court or an arbitral tribunal to determine disputes under the contract is not in itself equivalent to a choice of law." 59 The Principles therefore clearly provide that a choice of forum will not automatically indicate a choice of the law of that forum.According to article 5(4), "[a]n agreement between the parties to confer jurisdiction on a court or a localised arbitral tribunal may be taken into account in the determination of a tacit choice of law." whether the APPIL should allow the parties to choose a law that bore no connection to the parties or their transaction. 96The final text appears to be a compromise in this regard.Paragraph 4 of article 3(2) provides: "No connection is required between the law chosen and the parties or their transaction unless the law of the forum provides otherwise." 97ragraph 1 of article 3(3) provides: "A choice of law, or any modification of a choice of law, can be made expressly or appear clearly … ". 98 Therefore, the APPIL permits the parties to exercise their choice by means of an express choice of law, or a tacit choice of law may be inferred.
4.1.1.3Level of strictness of the criterion for a tacit choice of law In respect of the level of strictness, the criterion under the Asian Principles of Private International Law requires the tacit choice to "appear clearly". 99he APPIL therefore advocates a strict test in determining the existence of a tacit choice of law.

Indicators of a tacit choice
The APPIL allows a tacit choice of law to be inferred by "the provisions of the contract or the circumstances". 100This means that one is not confined to the written agreement but may take account of considerations surrounding the contract in deciding whether the parties have made a tacit choice of law.
The APPIL is silent in respect of the factors from which a tacit choice of law may be inferred.However, in the light of the strict threshold in the APPIL the current author is of the opinion that a single factor would probably not be sufficient to determine that the parties designated a law to govern the contract.Paragraph 2 of article 3(3) substantiates this view by providing that " [a]n agreement between the parties to confer jurisdiction on a court or an arbitral tribunal to determine disputes under the contract is not in itself equivalent to a choice of law." 101 The APPIL therefore clearly provides that a choice of forum will not automatically indicate a choice of the law of that forum.

Concluding remarks
The abovementioned envisaged instruments of developmental organisations provide sufficient clarity regarding the law applicable to an international commercial contract, specifically those provisions dealing with a controversial and often confusing aspect of choice-of-law, namely the determination of a tacit choice of law.
The instruments generally recognise the principle of party autonomy in international commercial contracts.In giving effect to this important doctrine, all three instruments provide the parties with broad freedom in selecting the law applicable to their agreement.In the absence of an express choice of law, the instruments allow for the determination of a tacit choice of law.
Regarding the level of strictness of the criterion for inferring such a choice of law, the OHADA Preliminary Draft Uniform Act requires the tacit choice of law to be "clearly demonstrated".The proposed African Principles provide that the tacit choice of law "must be manifestly clear", while the APPIL requires the choice to "appear clearly".Although the African Principles contain perhaps the highest threshold in this regard, all instruments provide for a sufficiently high level of strictness.The current author supports a strict test for the determination of a tacit choice of law, as this "will limit the court's discretion in determining the existence of a tacit choice of law, thereby promoting legal certainty and predictability of decision."102 The position in all instruments is that a court must examine the terms of the contract and the circumstances of the case in searching for a tacit choice of law.None of the instruments provides a list of factors to be considered in inferring a choice of law.However, it may be argued that the stringent 101 See art 3(3)(2).Also see Takasugi and Elbalti "Asian Principles of Private International Law" para 19.18 and note 43.The APPIL copies verbatim the wording of the Hague Principles in this regard.
thresholds would not permit a court to conclude the existence of a tacit choice of law from the presence of a single factor.The current author supports this position, as a court must be sure as to the existence of the real intentions of the parties (albeit a tacit intention).
The OHADA Preliminary Draft Uniform Act does not address the role of forum clauses and a tacit choice of law.However, the proposed African Principles and the APPIL are rather clear on the matter.Both instruments provide that a forum clause "is not in itself equivalent to a choice of law".Therefore, the presence of a forum clause will not automatically indicate a choice of law of that forum.The current author supports this view and recommends that the OHADA Preliminary Draft Uniform Act incorporates a similar provision. 103 The introduction of the proposed international instruments (whether binding or in the form of a soft law instrument) would go a long way in contributing to legal certainty and the predictability of decisions in the Member States of the organisations where these instruments may find application.Neels 104 correctly holds that: The existence of a reliable transnational legal infrastructure in respect of international commercial law, including commercial private international law, is a prerequisite for investor confidence, inclusive economic growth [and]  sustainable development….
The adoption of these instruments, or their use in the interpretation, supplementation or development of the rules of private international law will provide an opportunity for these organisations to compete in the context of the globalised economy.Member States of these emerging organisations will undoubtedly benefit from a codification of this nature, which will 103 Bouwers Tacit Choice of Law in International Commercial Contracts 245: "A choice of forum or arbitral tribunal for dispute resolution and the choice of law applicable to the contract should be distinguished.This is justified on the ground that the parties may have chosen a particular forum because of its neutrality, experience, convenience, or expertise and not necessarily for the application of its domestic law.
In any event, the forum will determine the law of the contract in terms of the applicable rules of private international law.Parties who submit to a court or tribunal's jurisdiction do not intend thereby that the forum should abandon its choice of law process and mechanically apply the lex fori.Although it is a relevant factor in the determination of a tacit choice of law, the inference that a court draws in a particular case should depend on all the circumstances surrounding the agreement.A choice of court or localised arbitral tribunal should therefore not on its own be taken to indicate a choice of law by the parties."

47
See art 3(1) in Neels 2021 Unif L Rev 430: "A contract is governed by the law chosen by the parties.inNeels 2021 Unif L Rev 430: "The choice may be made or modified at any time.A choice or modification made after the contract has been concluded does not prejudice its formal validity or the rights of third parties."52 See arts 4, 6 and 7 in Neels 2021 Unif L Rev 430, 432-433.Also see Neels and Fredericks 2018 Stell LR 351.Art 4(1) provides: "A choice of one or more of the instruments is recognised on the same level as the choice of the law of a country: (a) the UNIDROIT Principles of International Commercial Contracts; (b) a treaty, as defined in the United Nations Convention on the Law of Treaties; (c) the Uniform Customs and Practice for Documentary Credits; (d) any instrument issued under the auspices of a regional economic integration organisation or international, supranational or regional intergovernmental organisation."PER / PELJ 2023(26) 11 3.1.1.3Level of strictness of the criterion for a tacit choice of law Fredericks 2011 De Jure 106: "A strict test for the existence of tacit or implied agreements is supportedto allow readily deduced tacit or implied agreements leads to unpredictability of decision and legal uncertainty and undermines the conflicts rule that applies in the absence of a choice of law.It may therefore be considered to use an even stricter formulation than these in the examples cited, namely that the tacit or implied agreement must be 'manifestly clear'."Also see Neels and Fredericks 2011 De Jure 108-109.56 See art 5(2) in Neels 2021 Unif L Rev 431.57 Also see Neels and Fredericks 2011 De Jure 107-108.58 Also see Neels and Fredericks 2011 De Jure 107.59 See art 5(3) in Neels 2021 Unif L Rev 431.
Common Court of Justice and Arbitration may be subject to enforcement on the territory of the State Party."AlsoseeMouloulUnderstanding OHADA 26-28.Obligations Dans L'espace OHADA (Preliminary Draft Uniform Act on the Law of Obligations in the OHADA Region) was concluded. 10tle IV of the OHADA Preliminary Draft Uniform Act regulates matters relating to private international law. 11 this regard Chapter 1 of Title IV contains general provisions, 12 while Chapter 2 regulates the law applicable to contractual obligations.13Article566 of the OHADA Preliminary Draft Uniform Act provides: "This Title applies, in situations involving a conflict of laws, to contractual and non-contractual obligations relating to civil and commercial matters."The OHADA Preliminary Draft Uniform Act is intended to be of universal application.According to article 571, "[t]he law designated by this Title applies even if this law is not that of a State in the OHADA area."Subject to certain limitations 14 the OHADA Preliminary Draft Uniform Act recognises the principle of party autonomy.
9See OHADA date unknown https://www.ohada.org/en/.These include the Uniform Act Organising Simplified Recovery Procedures and Measures of Execution (1998); the Uniform Act on Contracts for the Carriage of Goods byRoad (2003); the Uniform in post-colonial Africa.30Alack of available resources or capabilities to facilitate cooperation in Africa's economic problems, deficiencies in respect of institutional infrastructure, corruption and political instability were some of the glaring challenges to the raison d'être of the OAU.31As a result the OAU was forced to recognise its own ineffectiveness, "not only in terms of facilitating economic development, but also with respect to addressing Africa's continual and seemingly intractable conflicts, for which its own Charter was to blame."32In1999 an Extraordinary Summit of Heads of State and Government of the OAU was held in Sirte, Libya.33During the Summit the Sirte Declaration was issued, "calling for the establishment of an African Union, with a view, inter alia, to accelerating the process of integration [of] the continent to enable it to play its rightful role in the global economy while addressing multifaceted 24See Neels 2018 THRHR 470.25SeeAU date unknown https://au.int/en/overview;AU date unknown https://au.int/en/au-nutshell;SAHO 2019 https://sahistory.org.za/article/africanunion-au;SAHO 2019 https://sahistory.org.za/-topic/organi-sation-african-unity-oau.The 32 countries include Algeria, Benin, Burkina Faso, Burundi, Cameroon, the Central African Republic, Chad, Congo, Côte d'Ivoire; Democratic Republic of the Congo, Egypt, Ethiopia, Gabon, Ghana, Guinea, Liberia, Libya, Madagascar, Mali, Mauritania, Morocco (withdrew in 1984, protesting the membership of Western Sahara, but rejoined the African Union in 2017), Niger, Nigeria, Rwanda, Senegal, Sierra Leone, Somalia, Sudan, Tanzania, Togo, Tunisia and Uganda.See Wikipedia 2023 https://en.wikipedia.org/wiki/Organisation_of_African_Unity:"It gave weapons, training and military bases to rebel groups fighting white 29 See SAHO 2019 https://sahistory.org.za/-topic/organi-sation-african-unity-oau.These include "the Economic Community of West African States (ECOWAS), the South African Development Coordinating Commission (SADCC) [the forerunner of the Southern African Development Community or SADC], the North Africa-Greater Area Free Trade Area and the Central Africa-Economic Community of the Great Lakes Countries.Eventually, attempts at creating a continental body for economic development led to the establishment of the African Economic Commission through a treaty signed in Abuja, Nigeria in 1991.The Abuja Treaty contained a blueprint for full continental economic integration."For a further discussion of the various initiatives and achievements of the OAU, see AU date unknown https://au.int/en/aunutshell.32 The Research Centre for Private International Law in Emerging Countries at the University of Johannesburg has as its principal project the drafting of the following proposed model laws: the African Principles on Jurisdiction in International Civil and Commercial Cases, the African Principles on the Law Applicable to International Commercial Contracts, and the African Principles on the Law Applicable to Non-Contractual Obligations.40TheproposedAfricanPrinciples of Commercial Private International law may facilitate sustainable economic growth on the continent, thereby contributing to the realisation of the objectives of the AU.41The African Principles on the Law Applicable to International Commercial Contracts is discussed below.The first draft of the African Principles was published in 2021, and is used for the purposes of the current study.
44Stell LR 348-349: "A few years ago, interest in the project was expressed by the African Union.The Office of the Chief State Law Advisor (International Law) at the South African Department of International Relations and Cooperation ('DIRCO') has always been highly supportive of the project.We therefore approached DIRCO with the request to facilitate the formal recognition of the project by the African Union.DIRCO and the research centre remain in contact in this regard."Alsosee Neels 2021Unif L Rev 426; Fredericks  Contractual Capacity 190.See, generally, Neels and Fredericks 2018 Stell LR 347- 356.
39 Neels and Fredericks 2018 Stell LR 348.40 See Neels and Fredericks 2018 43 See para 2 of the preamble in Neels 2021 Unif L Rev 428.44 See para 3 of the preamble in Neels 2021 Unif L Rev 429.Also see para 4 of the preamble in Neels 2021 Unif L Rev 429: "They may be used by arbitral tribunals in Tacit Choice of Law in International Commercial Contracts: The Position in Indonesian, Malaysian and Singaporean Private International Law" 2019 CILSA 109-125 Bouwers 2021 Unif L Rev Bouwers GJ "Tacit Choice of Law in International Commercial Contracts: An Analysis of Asian Jurisdictions and the Asian Principles of Private International Law" 2021 1 Unif L Rev 14-42 Bouwers Tacit Choice of Law in International Commercial Contracts Bouwers GJ Tacit Choice of Law in International Commercial Contracts: A Chen and Goldstein 2017 J Priv Int L Chen W and Goldstein G "The Asian Principles of Private International Law: Objectives, Contents, Structure and Selected Topics on Choice of Law" 2017 J Priv Int L 411-434 Davidson 2004 SYBIL Davidson PL "The ASEAN Way and the Role of Law in ASEAN Economic Cooperation" 2004 SYBIL 165-176 Fredericks Contractual Capacity Fredericks EA Contractual Capacity in Private International Law (Dr Jur thesis University of Leiden 2016) 104Neels 2021 Unif L Rev 426.