This website uses cookies to ensure you get the best experience on our website. Learn more

Law Notes Conflict of Laws Notes

Choice Of Law In Contract Notes

Updated Choice Of Law In Contract Notes

Conflict of Laws Notes

Conflict of Laws

Approximately 333 pages

Conflict of Laws notes fully updated for recent exams in the UK. These notes cover all the major conflicts of laws cases and so are perfect for anyone doing a law degree in the UK or, given the international nature of this subject, these notes also make a great supplement for those studying law abroad.

These notes were formed directly from a reading of the cases and main texts and are vigorous, concise and very well written. Everything is conveniently split up by topic as you can see by the l...

The following is a more accessible plain text extract of the PDF sample above, taken from our Conflict of Laws Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:


Rome I Regulation: Scope

**PQs will be RIR cases (assume contracts entered into now). But there isn’t much case law on this, so lots of cases will be from Rome Convention (which have many similar provisions).

  1. Material scope: Civil and commercial matters: Art.1(1): ‘in situations involving a conflict of laws, to contractual obligations in civil and commercial matters’

    1. Apply BIRR case law definition of ‘civil and commercial matters’

    2. ‘Contractual obligations’: RIR does not indicate what this means; a broad European approach must be taken, i.e. an autonomous meaning (Re Bonacina).

      • Includes gifts and promises to give (GL Report1).

      • Consider Art.5(1) BIRR: the meaning of ‘contractual’ is likely to be interpreted consistently with the case law on Art.5(1) (Art.7(1)) BIRR.

    3. Exclusions (Arts.1(1)–(3)): RIR does not apply to:

      1. Revenue, customs or administrative matters (Art.1(1))

      2. Questions involving the status or legal capacity of natural persons (subject to Art.13)

      3. Obligations arising out of family relationships (Art.1(2)(b))

      4. Obligations arising out of matrimonial property regimes (Art.1(2)(c))

      5. Obligations arising under bills of exchanges, cheques, and promissory notes (Art.1(2)(d))

      6. **Arbitration agreements and agreements on choice of court (Art.1(2)(e))—probably the most important exclusion in practice

      7. Questions governed by the law of companies and other bodies corporate or unincorporated (Art.1(2)(f))

      8. In relation to contracts of agency, the question whether an agent is able to bind a principal to a third party (Art.1(2)(g))

      9. Constitution of trusts & relationship between settlors, trustees and beneficiaries (Art.1(2)(h))

      10. **Obligations arising out of dealings prior to the conclusion of a contract (Art.1(2)(i))

      11. Questions of evidence and procedure without prejudice to Art.18 (Art.1(3); always governed by lex fori).

    4. Exclusion of arbitration and jurisdiction agreements (Art.1(2)(e)): i.e. if parties agree to a contract, and a separate arbitration (or jurisdiction) agreement. The law of the underlying agreement may be governed by RIR, but the law governing the arbitration agreement would be governed by national law.

      • At common law, there is a strong presumption that the law governing the arbitration/jurisdiction agreement is the same as the law governing the underlying contract.

For arbitration, Lugano Convention covers it. For jurisdiction agreement in favour of MS, Art.25 BIRR covers.

  • Procedural/substantive: Fentiman: While EJAs form a separate contract, these are of a separate kind because it is a procedural question that is more appropraite to be dealt with outside the RIR, which looks more at issues of substantive law.

  1. Exclusion of obligations relating to dealings prior to conclusion of contract (Art.1(2)(i)): these are covered by Rome II Regulation (the equivalent for non-contractual obligations).

  1. Whether or not law of a MS: Art.2 provides that the law specified by RIR shall apply whether or not it is the law of a MS. Indeed the RIR applies regardless of the territorial connections of the parties and whether or not the contract or dispute has any connection with a Member State.

    1. Applies to England/Scotland: As a matter of UK law, the RIR will also be applied between England and Scotland.

Express and implied choice of law under RIR

  1. 3 steps to bear in mind:

    1. Express choice of law (Art.3)

    2. Implied choice of law (Art.3)

    3. Closest connection (Art.4)

  2. Express choice of law (Art.3)

    1. Art.3: ‘A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstnaces of the case.’

Justifying principle is party autonomy. See Recital (11): ‘The parties’ freedom to choose the applicable law should be one of the cornerstones of the system of conflict-of-law rules in matters of contractual obligations.’
  1. Clearest case is express choice of law provision: where parties have included provision e.g. ‘this contract shall be governed by English law’; or ‘any dispute arising out of this contract shall be denied according to English law’

  2. Incorporation of choice of law clause: whether a clause has or has not been incorporated into the contract.

    1. Might be governed by the putative law, i.e. the law which would govern if the contract or term were valid.

Problems: (1) pulling yourself up by your bootstraps; (2) complicated. So now courts seem to be applying a common-sense approach.
  1. But English law has adopted a more common sense approach with English law as the fallback position, e.g. in Lincoln National Life Insurance, if ‘putative law’ rules applied, Kansas law would have been the governing law instead. Cf. In Kingspan, Clarke J applied Danish law to decide whether the Danish choice of law clause had been incorporated.

    • Where no putative law can be identified, English law is the default position as the lex fori: The Lincoln.

  2. English law: Where English law is applied, normal contractual principles of offer and counter-offer will apply:

    1. E.g. Lincoln National Life Insurance v Employers Reinsurance

      • FACTS: Reinsurance contract. Broker got evidence that in his experience, contracts were always written on the basis of Kansas law. Contract was then sent to underwriter but they never sent it back. Question was, had there been any express choice of law?

      • HELD: Trite law that silence cannot amount to acceptance.

    2. Parties claim different express choice of law provisions? Iran Continental Shelf v IRI (each party had provided contractual deocumentation including an express choice of law provision; D had provided for the law of Texas and C for law of Iran; in the circumstances, it could not be said that the parties had made an express choice in favour of either Iranian or Texan law; at no point did either party unequivocally accept the other party’s terms. Therefore, Clarke LJ held that the...

Buy the full version of these notes or essay plans and more in our Conflict of Laws Notes.