The ascertainment of the applicable law in the absence of choice in India and South Africa: a shared future in the BRICS

ABSTRACT India and South Africa have continued to embrace the traditional century-old principles of the English common law to identify the law that would govern an international contract. In the absence of codification of the rules of private international law of these jurisdictions, the principles on the subject are primarily judge-made. The governing law in these jurisdictions continues to be identified by the principle of the proper law of the contract. The application of the theory has been problematic for being overly flexible with little or no certainty when the parties have failed to expressly or impliedly designate a proper law for their contract. The courts invoke the test of the ‘closest and most real connection’. The paper identifies the inconsistencies in the principles on the subject in India and South Africa. It suggests plausible new approaches which may be adopted by the courts for the development of their private international laws.