SUBJECT STEP STEPS REQUIRED
ROME I REGULATION: STEP 1: Does Rome I (i) Check that Rome I Regulation in force in that forum country
WHEN PARTIES HAVE apply? - All member states plus UK except Denmark
CHOSEN GOVERNING
LAW Art 1 (ii) Does the matter fall within the material scope of Art 1?
a. forum court must be faced with conflict of laws; AND
b. case must relate to a “contractual obligation”; AND
c. must be a “civil and commercial” matter (interpreted broadly); AND
d. not excluded by Art 1(2)
Art 28 (iii) Does the matter fall within the temporal scope of Art 28?
a. Art 28 & Corrigendum: contract must be concluded on or after 17 December
2009
STEP 2: Have the parties Art 3(1): Contract governed by law chosen by parties if:
made an express choice (i) Express choice of law clause; OR
of law/ implied by terms
of contract or case (ii) Implied from all circumstances of the case
circumstances? a. standard form contract which is known to be governed by a particular system of
law; OR
Art 3(1) b. previous course of dealings between the parties under contracts containing an
express choice of law clause; OR
c. choice of jurisdiction clause unless compelling indications to contrary [N.B.
Recital 12: jurisdiction clause is just one of the factors to take into account]
[if YES to STEP 2 and (0) N.B. Recital 23: “As regards contracts concluded with parties regarded as
parties have chosen being weaker, those parties should be protected by conflict of law rules that are
governing law] more favourable to their interests than the general rules.”
STEP 3: Is it a Consumer (1) Consumer contracts [Art 6]:
[Art 6] or Employment a. Even if choice of law chosen per Art 3, Consumer contract will be governed by
[Art 8] contract where law of country where consumer has habitual residence if:
mandatory protections (i) it is a contract between a natural person outside his profession (consumer) and
can’t be overridden? professional (Article 6(1)); AND
(ii) the professional pursues his commercial activities in the consumer’s habitual
Is it a contract that falls residence (and the contract falls within that scope) (Article 6(1)(a)); OR
within Art 5-8 where (iii) the professional directs activities to several countries which include
special choice of law consumer’s habitual residence (and the contract falls within that scope) (Article
rules? [If not, then go to 6(1)(b))
STEP 5b. and apply Art
3(3) instead] b. BUT not a consumer contract if: (i) a contract for the supply of services where
the services are to be supplied to the consumer exclusively in a country other than
Recital 23 the one in which the consumer has his habitual residence (Article 6(4)(a)); (ii)
most contracts of carriage (other than a package holiday) (Article 6(4)(b)); (iii)
Art 6 (consumer) most contracts relating to rights in rem in immovable property (other than
timeshares (Article 6(4)(c)); (iv) various financial instruments (Article 6(4)(d))
Art 8 (employment)
(2) Individual Employment contracts [Art 8]:
Art 19 (habitual a. Employment contract governed by choice of law chosen by parties per Art 3
residence) AND employee still gets protections afforded to him by country where employee
habitually carries out his work in performance of the contract (Recital 36: even if
temporarily employed in another country)
STEP 4: now that (i) Art 12: the governing law applicable to the contract will govern:
Governing Law has been (a) Contractual interpretation; (b) performance required by the parties; (c)
decided apply Art 12 (i.e. consequences of breach, including the assessment of damages; (d) ways of
that country’s laws will extinguishing obligations and the prescription and limitation of actions; and (e)
generally apply to the consequences of nullity of the contract.
claim)
(ii) N.B. s. 4 Civil Evidence Act 1972:
[N.B. subject to Art 9/Art If foreign law is to be applied in UK court then evidence of the foreign law can
21 and/or Art 3(3)/(4) only be presented by witnesses who possess the requisite degree of expertise in the
below] foreign law
,SUBJECT STEP STEPS REQUIRED
(iii) Art 1(3): governing law of the contract will NOT apply to “evidence and
procedure” [therefore English court will still apply CPR]
[If YES to STEP 3 i.e. it is (i) Art 9 [Overriding Mandatory Provisions of forum court]: regardless of law
a consumer/ employment applicable to the contract, forum court can decide for political/social/economic
contract] reasons to apply its own mandatory rules [e.g. UCTA etc] to the contract to
protect a PUBLIC interest
STEP 5a: applicable law a. construed more restrictively than Art 3(3) & (4) (per Recital 37) and rare
can still be overridden b. Art 9(2): mandatory rules of the forum court will trump everything else: (i)
by: (i) overriding governing law chosen by parties under Art 3; and (ii) mandatory rules of the
mandatory provisions of connected state under Art 3(3)
forum court [Art 9]; or
(ii) public policy of forum (ii) Article 21 [Public Policy of forum court]: the application of contract’s
court [Art 21] governing law may be refused if it “is manifestly incompatible with the public
policy of the forum”:
a. e.g. contract for an illegal purpose: bribery, slavery, prostitution
b. e.g. asked to enforce a contract with a country that is sanctioned)
[If NO to STEP 3 i.e. it is (i) Art 9 [Overriding Mandatory Provisions of forum court]: regardless of law
NOT a consumer/ applicable to the contract, forum court can decide for political/social/economic
contract] reasons to apply its own mandatory rules [e.g. UCTA etc] to the contract to
protect a PUBLIC interest
STEP 5b: applicable law a. construed more restrictively than Art 3(3) & (4) (per Recital 37) and rare
can still be overridden b. Art 9(2): mandatory rules of the forum court will trump everything else: (i)
by: (i) overriding governing law chosen by parties under Art 3; and (ii) mandatory rules of the
mandatory provisions of connected state under Art 3(3)
forum court [Art 9]; or
(ii) public policy of forum (ii) Article 21 [Public Policy of forum court]: the application of contract’s
court [Art 21]; or (iii) governing law may be refused if it “is manifestly incompatible with the public
“provisions of law that policy of the forum”:
cannot be derogated a. e.g. contract for an illegal purpose: bribery, slavery, prostitution
from by agreement” of b. e.g. asked to enforce a contract with a country that is sanctioned)
connected state [Art 3(3)
& 3(4)] (iii) Article 3(3) [and Recital 15]: Any choice of law might be subject to
“Provisions of law which cannot be derogated from by agreement” of a
connected state
a. can’t override mandatory principles of law of a connected state (“where all
other elements relevant to the situation at the time of the choice are located”):
e.g. if the parties/ goods/ payment/ currency are located in England (but the
contract is subject to foreign law)
b. mandatory principles of law that can’t be derogated from: (i) competition law;
(ii) restrictive practices; (iii) international carriage; and (iv) the protection of
individuals who merit special treatment by the law (e.g. employees and
consumers): e.g. s.27(2) UCTA 1977: UCTA will have effect notwithstanding any
contract term which purports to apply the law of any other country, where: (a) The
term imposed wholly/mainly for the purpose of evading UCTA; and/or (b) one
party is a consumer, and he was then habitually resident in the UK, and the
essential steps necessary for the making of the contract were taken there (by him or
by others on his behalf).
ROME I REGULATION: STEP 1: Does Rome I (i) Check that Rome I Regulation in force in that forum country
WHEN PARTIES HAVE apply? - All member states plus UK except Denmark
NOT CHOSEN
GOVERNING LAW Art 1 (ii) Does the matter fall within the material scope of Art 1?
a. forum court must be faced with conflict of laws; AND
b. case must relate to a “contractual obligation”; AND
c. must be a “civil and commercial” matter (interpreted broadly); AND
d. not excluded by Art 1(2)
Art 28 (iii) Does the matter fall within the temporal scope of Art 28?
a. Art 28 & Corrigendum: contract must be concluded on or after 17 December
2009
STEP 2: Have the parties Art 3(1): Contract governed by law chosen by parties if:
made an express choice (i) Express choice of law clause; OR
of law/ implied by terms
(ii) Implied from all circumstances of the case
,SUBJECT STEP STEPS REQUIRED
of contract or case a. standard form contract which is known to be governed by a particular system of
circumstances? law; OR
b. previous course of dealings between the parties under contracts containing an
Art 3(1) express choice of law clause; OR
c. choice of jurisdiction clause unless compelling indications to contrary [N.B.
Recital 12: jurisdiction clause is just one of the factors to take into account]
[if NO to STEP 2 and (1) Consumer contracts [Art 6]:
parties have NOT chosen a. Consumer contract will be governed by law of country where consumer has
governing law] habitual residence if:
(i) it is a contract between a natural person outside his profession (consumer) and
STEP 3a: Is it a professional (Article 6(1)); AND
Consumer [Art 6] or (ii) the professional pursues his commercial activities in the consumer’s habitual
Employment [Art 8] residence (and the contract falls within that scope) (Article 6(1)(a)); OR
contract: determine the (iii) the professional directs activities to several countries which include
governing law consumer’s habitual residence (and the contract falls within that scope) (Article
6(1)(b))
Is it a contract that falls
within Art 5-8 where b. N.B. Recital 24: rules also apply to distance-selling: is the seller clearly
special choice of law soliciting “distance contracts” through a website? If yes, then Art 6(1)(a)/(b) can
rules? [If not, then go to still apply.
STEP 3b. and apply Art 4
instead] c. BUT not a consumer contract if: (i) a contract for the supply of services where
the services are to be supplied to the consumer exclusively in a country other than
Recital 23 the one in which the consumer has his habitual residence (Article 6(4)(a)); (ii)
most contracts of carriage (other than a package holiday) (Article 6(4)(b)); (iii)
Art 6 (consumer) most contracts relating to rights in rem in immovable property (other than
timeshares (Article 6(4)(c)); (iv) various financial instruments (Article 6(4)(d))
Art 8(2) (employment)
(2) Individual Employment contracts [Art 8]:
Art 19 (habitual a. First, apply Article 8(2): governing law is country in which (or, failing that,
residence) from which) the employee habitually carries out his work in performance of the
contract (Recital 36: even if temporarily employed in another country); IF CAN’T
ASCERTAIN, THEN
b. Second, apply Article 8(3): governing law is country where the place of
business through which the employee was engaged is situated; REGARDLESS
OF 8(2) & 8(3)
c. Third, notwithstanding 1 and 2 above, Article 8(4): BUT where it appears “from
the circumstances as a whole” that the contract is “more closely connected” with a
country other than that indicated above (under Articles 8(2) and (3)), the court
hearing the dispute must apply the law of that other country.
[if NO to STEP 2 (parties (0) Recital 19: “Where there has been no choice of law, the applicable law
have NOT chosen should be determined in accordance with the rules specified for the particular
governing law) and NO to type of contract”
STEP 3a (not an
employment/ consumer (1) If type of contract specified in Art 4(1)(a)-(h) then governing law is
contract)] dictated by that specific type of contract:
a. Sale of goods [Art 4(1)(a)]: Law of the country where the seller has its habitual
STEP 3b: Apply Art 4 if residence
it isn’t a Consumer/ b. Provision of services [Art 4(1)(b)]: Law of the country where the service
Employment contract to provider has its habitual residence
determine the governing c. A right in rem in immovable property/a tenancy of immovable property [Art
law 4(1)(c)&(d)]: Law of the place where the immovable property is situated/ But
Note: a tenancy of immovable property for temporary private use for a period of
Recital 19 no more than six consecutive months shall be governed by the law of the country
where the landlord has its habitual residence, provided that the tenant is a natural
Art 4(1)(a)-(h) person and has his residence in the same country
d. Franchise agreements [Art 4(1)(e)]: Law of the country where the franchisee
(i.e. the person being granted the franchise) has its habitual residence
e. Distribution agreements [Art 4(1)(f)]: Law of the country where the distributor
Art 4(2) has its habitual residence
f. Sale of goods by auction [Art 4(1)(g)]: Law of the country where the auction
takes place
,SUBJECT STEP STEPS REQUIRED
(1b) OR If type of contract: (i) NOT specified in Art 4(1)(a)-(h); or (ii) falls
into 2 categories:
a. First decide whether the contract either doesn’t fit in Art 4(1)(a)-(h) OR whether
it fits into more than one of the categories and then apply Recital 19 & Art 4(2):
(i) if the contract NOT specified in Art 4(1)(a)-(h): governing law is country
where the party required to effect the characteristic performance of the contract
has his habitual residence; OR
Art 4(4) [Giuliano-Lagarde Report: “characteristic performance” = NOT the payment of
money, but rather the performance for which the payment is due (e.g. the
delivery of goods or the provision of a service)]
(ii) If falls into 2 categories: (a) governing law is country where the party required
to effect the characteristic performance of the contract has his habitual
residence; AND (b) the characteristic performance of the contract determined by
Art 4(3) its centre of gravity.
b. Second, IF at this stage the governing can still NOT be determined using Art
4(1) or Art 4(2) tests, apply Article 4(4): Court can apply the law of the country
which is more manifestly “closely connected” to the contract
(2) Apply Article 4(3) “Get out clause” and decide whether there is a country
which is “manifestly more connected” to the contract [always apply even if
specified contract in Art 4(1) and Art 4(2) test on “characteristic performer”
done]:
(i) Where are the parties based? Where was the contract concluded? What
language is used for the contract? How and where (and in what currency) is
payment to be effected? Is there a jurisdiction clause? Where did breach occur?
(e.g. breach occurs in UK if payment was supposed to be made into an English
bank account) Where are the parties’ contractual obligations to be performed? Is
there a connected contract which is subject to a particular law (Recital 20)?
(ii) Molton Street Capital [2015]: courts take narrow approach to Art 4(3): the
cumulative weight of the factors connecting the contract to another country must
clearly and decisively outweigh the desideratum of certainty in applying the
relevant test in Article 4(1) or 4(2)
STEP 4: now that (i) Art 12: the governing law applicable to the contract will govern:
Governing Law has been (a) Contractual interpretation; (b) performance required by the parties; (c)
decided apply Art 12 (i.e. consequences of breach, including the assessment of damages; (d) ways of
that country’s laws will extinguishing obligations and the prescription and limitation of actions; and (e)
generally apply to the consequences of nullity of the contract.
claim)
(ii) N.B. s. 4 Civil Evidence Act 1972:
[N.B. subject to Art 9/Art If foreign law is to be applied in UK court then evidence of the foreign law can
21] only be presented by witnesses who possess the requisite degree of expertise in the
foreign law
(iii) Art 1(3): governing law of the contract will NOT apply to “evidence and
procedure” [therefore English court will still apply CPR]
[If YES to STEP 3 i.e. it is (i) Art 9 [Overriding Mandatory Provisions of forum court]: regardless of law
a consumer/ employment applicable to the contract, forum court can decide for political/social/economic
contract] reasons to apply its own mandatory rules [e.g. UCTA etc] to the contract to
protect a PUBLIC interest
STEP 5: applicable law a. construed more restrictively than Art 3(3) & (4) (per Recital 37) and rare
can still be overridden b. Art 9(2): mandatory rules of the forum court will trump everything else: (i)
by: (i) overriding governing law chosen by parties under Art 3; and (ii) mandatory rules of the
mandatory provisions of connected state under Art 3(3)
forum court [Art 9]; or
(ii) public policy of forum (ii) Article 21 [Public Policy of forum court]: the application of contract’s
court [Art 21] governing law may be refused if it “is manifestly incompatible with the public
policy of the forum”:
a. e.g. contract for an illegal purpose: bribery, slavery, prostitution
b. e.g. asked to enforce a contract with a country that is sanctioned)
,SUBJECT STEP STEPS REQUIRED
COMMON LAW RULES STEP 0: Do Common Common Law: applies to:
[TORT] Law rules apply: Choice (i) matters falling outside of the 1995 Act; or
of Law regime for tort (ii) Defamation claims falling within the scope of s.13 of the 1995 Act; or
(iii) any tortious act/ omission occurring before 1 May 1996 [NB these have
severe limitation issues now].
STEP 1: Does the cause (i) If YES then English law will apply and can stop here.
of action arise in a. N.B. if a foreign defamatory statement also published/disseminated in UK, then
England? C could in principle pursue a claim under UK defamation law
STEP 2: Is it a case (i) Must be a defamation claim as defined in 1995 Act s.13(2):
involving defamation “any claim for libel or slander or for slander of title, slander of goods or other
claims falling within the malicious falsehood and any claim under the law of Scotland for verbal injury”
scope of s.13 of the 1995
Act? Now go to step 3 if it is a defamation claim: Double actionability rule (applied in
flexible way following exceptions) will apply to defamation claims
Or, STEP 2a: Does the Severe limitation issues so will be very rare now.
cause of action arise
abroad pre-1 May 1996?
STEP 3: Does the cause (i) Phillips v Eyre: Two limb double actionability test to succeed with an
of action pass the double action in tort in England for a wrong committed abroad:
actionability test? (a) the tort must be actionable under the law of the forum (i.e. if committed in
England) (the ‘lex fori’):
- BUT exception in Red Sea Insurance (where the C could not sue the D directly
Phillips v Eyre under the law of the forum (HK insurance law) but could sue directly under the law
of the place of the tort (Saudia Arabia): a case may be governed by the law of the
Red Sea Insurance country which has the most significant relationship with the occurrence and the
parties
Boys v Chaplin
(b) the tort is “not justifiable” (i.e. it gives rise to some form of civil liability) under
the law of the place where the tort occurred (the ‘lex loci delicti’)
- BUT exception in Boys v Chaplin (where there were grounds for departing from
the general rule because both parties were normally resident in England and were
only temporarily present in Malta. Unfair that because accident happened to occur
in Malta, that the C couldn’t claim a certain head of damage that wasn’t available
in Maltese law): “double actionability rule” should be applied in a flexible manner
and UK court can disapply 2nd limb entirely if there were “clear and satisfactory
grounds” for doing so
* If both limbs satisfied then English Court applies English law to the dispute
*
There is a flexible exception to double actionability rule under BOTH limbs (per
Red Sea Insurance [1st limb] & Boys v Chaplin [2nd limb]) when “clear and
satisfactory grounds” to disapply (based on the concept of “the most significant
relationship”)
PRIVATE 0. Private International 1995 Act applies to:
INTERNATIONAL LAW Law (Miscellaneous (i) govern torts (excluding defamation (when CL rules apply) where the events
(MISCELLANEOUS Provisions) Act 1995 giving rise to the damage occurred between 1 May 1996- 11 January 2009; and
PROVISIONS) ACT 1995 apply: Choice of Law (ii) torts post-11 January 2009 which fall outside Rome II but remain within the
regime for tort scope of 1995 Act (except for defamation but including other tortious cases
arising “out of violations of privacy and rights relating to personality” (i.e. this is
excluded from Rome II by Art 1(2)(g)) so these are covered by 1995 Act by
implication)
ROME II STEP 1: Does Rome II (i) Check that Rome II Regulation in force in that forum country
REGULATIONS: WHEN apply? - All member states plus UK except Denmark [Art 1(4)]
PARTIES HAVE
AGREED TO Art 1 (ii) Does the matter fall within the material scope of Art 1?
GOVERNING LAW a. forum court must be faced with conflict of laws; AND
b. case must relate to a “non- contractual obligation”; AND
-[Art 2: tort/delict/unjust enrichment/agency/ pre-contractual culpability]
c. must be a “civil and commercial” matter (interpreted broadly); AND
d. not excluded by Art 1(2)
-[Art 1(2)(g): all violations of privacy and rights relating to personality, including
Art 31 defamation]
, SUBJECT STEP STEPS REQUIRED
(iii) Does the matter fall within the temporal scope of Art 31?
a. Art 31 & Art 32: “Events giving rise to damage” must occur on or after 11
January 2009
STEP 2: Have the parties (i) Art 14(1): parties may agree to submit non-contractual obligations to the
made an express/implied law of their choice after the event giving rise to the tortious damage occurred;
choice of law, OR
before/after the event a. Any choice of law must be either: (a) express; or (b) “demonstrated with
and not for an excluded reasonable certainty by the circumstances of the relevant case”; AND
type of claim? b. N.B parties can NOT choose law for: (a) unfair competition & acts restricting
free competition (Art 6(4)); and (b) infringement of IP (Art 8(3))
Article 14 -NB parties can choose law for: (a) Product liability (Art 5); and (b) environmental
damage (Art 7)
c. N.B. choice of law will NOT be upheld by the courts if it prejudices the rights of
third parties (Article 14(1))
(ii) Art 14(1): parties may agree to submit non-contractual obligations to the
law of their choice before the event giving rise to the tortious damage occurred
a. Provided that both parties are: (a) pursuing a commercial activity [N.B. NOT
consumers/employees]; and (b) freely negotiated the choice of law: AND
b. Any choice of law must be either: (a) express; or (b) “demonstrated with
reasonable certainty by the circumstances of the relevant case”; AND
c. N.B parties can NOT choose law for: (a) unfair competition & acts restricting
free competition (Art 6(4)); and (b) infringement of IP (Art 8(3))
-NB parties can choose law for: (a) Product liability (Art 5); and (b) environmental
damage (Art 7)
d. N.B. choice of law will NOT be upheld by the courts if it prejudices the rights of
third parties (Article 14(1))
*In the absence of a binding choice Art 4 applies*
STEP 3: Now that the (i) Art 15: the governing law applicable to the non-contractual obligations will
governing law has been govern:
decided then apply Art (a) basis and extent of any liability (i.e. who is at fault)
15 and 22 (i.e. that - BUT in assessing D’s conduct, forum court has discretion to take into account
country’s laws will rules of safety and conduct in force at the place and time where the tortious act
generally apply to the was committed [Art 17 & Recital 34]
claim) subject to Recital (b) grounds for division of/exemption from liability/limitation (e.g. force
33, Art 17 & Recital 27 majeure/ contributory negligence)
(c) nature and assessment of damage/remedy
- BUT forum court can take into account all C’s relevant circumstances & actual
losses (medical care etc) IF the road traffic accident takes place in a state different
to C’s habitual residence [Recital 33]
(d) limitation periods
(ii) Art 22: Burden of proof: forum court has to apply its own rules on proof
and evidence [therefore English court will still apply CPR]
(iii) N.B. s. 4 Civil Evidence Act 1972:
If foreign law is to be applied in UK court then evidence of the foreign law can
only be presented by witnesses who possess the requisite degree of expertise in the
foreign law
STEP 4a: Now that the (i) Article 14(2): Any choice of law might be subject to “Provisions of law
governing law has been which cannot be derogated from by agreement” if all the elements at the time of
decided then apply the tortious event are located in a different country to the law chosen
Article 14(2) “Provisions a. can’t override mandatory principles of law of a connected state (“where all
of law which can’t be other elements relevant to the situation at the time of the choice are located”): e.g.
derogated from by if the parties/ goods/ payment/currency are located in England (but the parties
agreement” of connected have chosen to be subject to foreign law)
state b. mandatory principles of law that can’t be derogated from: (i) competition law;
(ii) restrictive practices; (iii) international carriage; and (iv) the protection of
Art 14(2) individuals who merit special treatment by the law (e.g. employees and
consumers): e.g. UCTA 1977: UCTA renders void contractual terms which seek to
exclude/ restrict liability for death/personal injury caused by negligence
