Summary

Summary BPP - LPC - Advanced Litigation - High Distinction

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LPC - Legal Practice Course

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LPC - Legal Practice Course

Summary of all SGS notes and solutions, revision lectures and practice exam materials. These notes enabled me to achieve a high distinction in the advanced litigation elective.

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Uploaded on April 29, 2023
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Conflict of Laws (Contract)

Flowchart

, Step 1 – Does Rome I Regulation Apply

Requirements For Rome I Regulation to apply, both the (1) Material scope and (2) Temporal scope must be
satisfied.

For the material scope to be satisfied, all of the below requirements must be met:
Material Scope (1) The court must be faced with a conflict of laws (i.e. a choice between whether the dispute is to be
(Art 1) governed by, e.g., English or French law); and
(2) The case must relate to a contractual obligation; and
(3) The case is a civil and commercial matter which has not been excluded under Art 1.

Temporal The contract must have been entered into after Rome I came into force on 17 December 2009.
Scope (Art 28)

Step 2(a) – Have the Parties made a Choice of Law - YES (Art 3)

Express / Article 3(1) provides that a choice of law can be:
Implied (1) Express (as set out in the contract); or
(2) Clearly demonstrated by the terms of the contract or the circumstances of the case (implied).
DEAL WITH BOTH WHEN ANSWERING QUESTION

An implied choice of law will not be inferred lightly. It may be necessary to state in the exam that further
investigation will be required as to the parties’ intentions. However, if there is a preliminary issue being
heard by the court this will suggest that the parties disagree on the applicable law.
The court will consider a variety of factors when deciding whether the parties intended for a particular
Implied
law to apply:
• Some standard form contracts are known to be governed by a particular system of law.
• There may have been a previous course of dealing between the same parties which included
choice of law.
• There may be an exclusive choice of jurisdiction clause in the contract. Recital 12 provides that
this can be considered.

Different rules will apply for contracts which are:
• Consumer Contracts (Art 6); or
• Individual Employment Contracts (Art 8).
Limitations Any choice of law, whether express or implied will also be subject to Art 3(3) and Art 3(4).
Article 3(3) provides that where all the elements relevant to the contract are located in a country other
than the country whose law has been chosen, the choice of law will still apply but the contract will
also be subject to the overriding principles of the law of the other country (for example UCTA is an
overriding principle of English law).

Step 2(b) – Have the Parties made a Choice of Law - NO (Art 4)

Article 4 will apply, without prejudice to Articles 5 to 8 to determine the governing law of the contract
in situations where the parties have not made a choice of law under Art 3. Therefore, whilst Article 4
will be the starting point where there is no choice of law, the following Articles will take precedence
Article 4
over Article 4:
application
• Contract of Carriage (Art 5); or
• Consumer contract (Art 6); or
• Insurance contract (Art 7); or
• Individual employment contract (Art 8).

Initial Under Article 4(1)(a)-(h) there is a list of categories of contract and the corresponding governing law
Choice which will apply when the contract which is the subject of the dispute falls with one of those categories.
Article 4(1) Habitual Residence (Art 19).

, However, where the elements of a contract in question:
• Does not fall within one of the categories of contract set out within Art 4(1)(a)-(h); or
• Would be covered by more than one of the categories of contract at Art 4(1)(a)-(h).
THEN the contract will be subject to Art 4(2) which provides that the contract shall be governed by the
law of the country where the (1) characteristic performer of the contract has his (2) habitual
Alternative
residence.
Choice
Article 4(2) Characteristic Performer
The party which is providing the goods and services under the contract and is being paid to do so.

Habitual Residence – Article 19
Under Article 19(1) the habitual residence of a company shall be its place of central administration at the
time the contract was concluded

However, where it is clear from all the circumstances of the case that the contract is manifestly more
closely connected with a country other than indicated the country which applies following application of
Art 4(1) or Art 4(2), then the law of THAT country shall apply pursuant to Art 4(3).
Get Out
Clause Manifestly more Closely Connected
Article 4(3) The courts will have regard to all of the circumstances of the situation. They will only disregard the law
ALWAYS which applies through Art 4(1) or Art 4(2) where there is strong evidence pointing to the other country.
CONSIDER Recital 20 provides that when determining whether a country is manifestly more closely related to the
RELEVANCE country whose law applies under Art 4(1) or Art 4(2), account should be taken of the contract in question
has a very close relationship with another contract or contracts (i.e. similar contracts with other parties
which have a governing law).

List factors in favour of each jurisdiction.

As a last resort, if the governing law of the contract cannot be determined by after applying Art 4(1) and
Catch-all Art 4(2), then the contract will be governed by the law of the country with which it is most closely
Article 4(4) connected.
Recital 21 provides that account should be taken of the contract in question has a very close relationship
with another contract or contracts (i.e. similar contracts with other parties which have a governing law).

Step 2(b)(i) – Consumer Contract – Art (6)

General Article 4 states that it is “… without prejudice to Articles 5 to 8…” It is therefore subject to Articles 5, 6, 7
and 8.
Article 6 will therefore be used to ascertain the applicable law of the contract when the conditions of Article
6(1) are satisfied.

Article 6(1) applies to a contract concluded by a natural person for a purpose which can be regarded as
being outside his trade or profession with another person acting in the exercise of his trade or
profession, provided that:
• The professional pursues its commercial or professional activities where the consumer has their
habitual residence (Art 6(1)(a));
No Choice OR
of Law
• By any means, the professional directs such activities to that country or to several countries including
that country (Art 6(1)(b))
AND
• The contract falls within the scope of such activities.
If the above requirements are satisfied and the parties have not made a choice of law, the contract will be
subject to the law of the country where the consumer habitually resides.

, Choice of Where the contract satisfies the requirements of being a consumer contract under Article 6(1) but the parties
Law have made a choice of law under that contract, Article 6(2) provides that a choice of foreign law would not
deprive the consumer of the protection afforded to him by provisions of English law that cannot be derogated
from by agreement.

Exclusions Article 6(4) also designated certain consumer contracts which are excluded from its scope. CONSIDER

Recital 24 considers contracts which are concluded at a distance, such as over the internet.
Distance When determining whether a professional solicits the conclusion of a distance contract via its website, the
Contracts use of particular language and currency are NOT factors which will be taken into account. The court will look
(Internet) to all other circumstances such as whether the website provides international dialling codes or invites
consumers to fax an order.
However, a website which simply offers information to potential consumers but which then refers consumers
to a local agent or distributor for the conclusion of the contract does not seek to conclude a distance contract.

Step 2(b)(ii) – Individual Employment Contract – Art (8)

Article 4 states that it is “… without prejudice to Articles 5 to 8…” It is therefore subject to Articles 5, 6,
General 7 and 8.
Article 8 will therefore be used to ascertain the applicable law of the contract when the contract is an
individual employment contract.

Where there is no choice of law under the contract, Article 8(2) provides that the contract will be
No Choice of governed by the law of the country in which the employee habitually carries out their work in
Law – initial performance of its contract.
Choice The country where the work is habitually caried out shall not be deemed to be changed if the employee
is temporarily employed in another country.
Recital 36 provides that work carried out in another country can be regarded as temporary if the
employee is expected to resume working in the country of origin after carrying out their tasks abroad.

No Choice of Where the applicable law cannot be determined pursuant to Article 8(2), Article 8(3) provides that the
Law – individual employment contract should be governed by the law of the country where the place of
Alternative business through which the employee was engaged is situated.
Choice

No Choice of Article 8(4) provides that where it appears from the circumstances as a whole that the contract is more
Law – Get Out closely connected to a country other than the country indicated from either Art 8(2) or Art 8(3), the
law of THAT country will apply. ALWAYS CONSIDER.

Where the parties to the individual employment contract have made a choice of law, Article 8(1)
Choice of Law provides that a choice of foreign law would not deprive the client of the protection afforded to him by
provisions of English law that cannot be derogated from by contract.

Step 3 - Conclude

Conclusion State which law governs the contract and why.

English law Where there are strong arguments that English law should govern the contract, Article 9 (overriding
mandatory provisions) and Article 21 (public policy) will be irrelevant as the English court will be applying
English law.

Where there are strong arguments that a Foreign law should govern the contract, any English court hearing
Foreign law a claim which is subject to that foreign law may apply mandatory rules of English law (pursuant to Article
9) or disapply the foreign law if it is manifestly incompatible with English public policy (Article 21).

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