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REVISE WITH MCQs – REVISE SGS1 – 3 as 1 TOPIC SECTION B
SGS1 – CONFLICT OF LAWS (INTERNATIONAL CONTRACT) (1½)
1) In which jurisdiction might proceedings connected with the contract be brought? – Which
country’s courts have JURISDICITON?
2) Which country’s law govern the contract? – What country’s law is the GOVERNING LAW?
COURT WILL APPLY ENGLISH LAW TO DETERMINE
REGULATION (EC) 593/2008 (ROME I REGULATION)
DOES THE REGULATION APPLY = 2 CRITERIA
1) Material Scope (Art 1)
Is the court seised of the dispute faced with a conflict of laws?
If so, does the matter relate to a ‘contractual’ obligation (Art 2)?
If so, does the matter relate to a civil + commercial matter NOT excluded by Art 1:
AND
2) Temporal Scope (Art 28)
Contract must have been concluded on/after 17 December 2009
APPLY – STATE WHETHER ROME I APPLIES – IF NO TO ANY THEN DOES NOT APPLY
FREEDOM OF CHOICE – CHOICE OF LAW
CHOICE OF LAW IS MADE
Art 3(1): Contract governed by chosen law
o Choice can be EXPRESS or IMPLIED if ‘clearly demonstrated by the terms of the contract or
the circumstances of the case’ e.g.:
Standard form contract = Lloyd’s marine insurance policy
Previous course of dealing between parties with clause containing express choice but
has been omitted for reasons not indicating deliberate change
Recital 12 – Choice of Jurisdiction is a factor BUT does not necessarily mean English
Law applies
Any choice of law might be overridden by provision of law specified by Art 3(3) & Art 3(4):
o where all elements relevant to the situation indicate that laws of another county should be
applied
apply chosen law SUBJECT to mandatory provisions of relevant country’s law (e.g.
UCTA see Recital 15)
NO CHOICE OF LAW
Art 4(1) GENERAL RULE: Does contract relate to specified case under Art 4(1)(a)-(h):
o If YES = apply relevant provision
o If NO (or 2 or more) = apply following in order:
Art 4(2): Law of country where “characteristic performer” has its “habitual residence”
, “characteristic performer” defined in Giuliano-Lagarde report = person
performing an act for which payment is due
“habitual residence” = Art 19: place of central administration / principle place
of business (natural persons e.g. sole trader)
Art 4(3): Court has applied Art 4(1) or (2) but not satisfied that law is sufficiently
connected with key elements of contract
May apply another county’s law where circumstances it is ‘manifestly more
closely connected with another country’
Art 4(4): Country “most closely connected”
EXCEPTIONS ART 3 & Art 4 – BESPOKE RULES
Art 6: Consumer contracts
o Governed by law of county where consumer has habitual residence
Art 8: Individual employment contracts
o Operates to override law of county if parties have / have not made choice
FURTHER EXCEPTIONS (SUBJECT TO ENGLISH LAW if foreign law apply)
Art 9: Overriding mandatory provisions
o Ensures forum can apply mandatory rules – construed more restrictedly than Art 3(3)
and takes precedent
Art 21: Public policy
o Court can disapply foreign law if manifestly incompatible with that court’s public policy
SCOPE OF APPLICABLE LAW
Art 12
o Interpretation
o Extent of performances
o Consequences of breach: damages
o Limitation
o Consequences of nullity
, REVISE WITH MCQs
SGS2 – CONFLICT OF LAWS (INTERNATIONAL TORT) (3)
3) In which jurisdiction might proceedings connected with the tort be brought? – Which
country’s courts have JURISDICITON?
4) Which country’s law govern the tort? – What country’s law is the GOVERNING LAW?
COURT WILL APPLY ENGLISH LAW TO DETERMINE
REGULATION (EC) 864/2007 (ROME II REGULATION)
DOES THE REGULATION APPLY? = 2 CRITERIA
1) Material Scope (Art 1)
Is the court seised of the dispute faced with a conflict of laws?
If so, does the matter relate to a ‘non-contractual’ obligations (Art 2)?
If so, does the matter relate to a civil + commercial matter NOT excluded by Art 1(2):
Art 1(2)(g): excludes defamation – common law applies instead (s13 PIL 1995
Act)
AND
2) Temporal Scope (Art 31 + 32)
Event giving rise to damage must have occurred on or after 11 January 2009
APPLY – STATE WHETHER ROME II APPLIES – IF NO TO ANY THEN DOES NOT APPLY
FREEDOM OF CHOICE – CHOICE OF LAW
CHOICE OF LAW IS MADE
Choice can be EXPRESS or IMPLIED with ‘reasonable certainty’ by circumstances
Art 14(1)
o Choice of law made after the event if both parties agree = valid + applies
o Choice of law made before the event (underlying protection):
parties must be pursuing commercial activity; AND
choice is binding if freely negotiated (can be assumed – unless told otherwise)
o N.B. consumer / employee cases = parties only able to agree choice of law after the event
giving rise to cause materialises
Art 14(2) + Art 14(3): where all elements indicate that laws of another county should be applied
o apply chosen law SUBJECT to mandatory provisions of relevant country’s law
Art 6(4) + 8(3) – No choice permitted:
o Unfair competition / Restriction of competition / IP infringement
NO CHOICE OF LAW
Art 4
o Art 4(2): Where C + D habitually reside (Art 23 – “Habitual residence”) in same county =
that countries’ laws govern dispute
o Art 4(1): GENERAL RULE: Law in which the damage occurs
, Irrespective of where the events giving rise to the damage occur
Irrespective of where the indirect consequences of the event occur
N.B. Recital 17: “Where Damage occurs”:
o PI – where injury sustained
o Damage to property – where property was damaged
o Art 4(3) (Get out clause)
Where it is clear from all circumstances that tort was ‘manifestly more closely
connected with another county’ = that country’s law can apply
POSSIBLE EXCEPTIONS TO ART 4 – HIGHLY EXAMINABLE WITH APPPLICATION KEY
Art 5 (Recital 20) = product liability (damage caused by a product) – operates without prejudice
to Art 4(2)
o Art 5(1)(a) – (c): Laws of country in which the product was marketed will apply;
o Defence: If (a) – (c) do not apply and D manufacturers can argue that they could not
reasonably foresee that their product was marketed in specific country = then may apply
own country’s laws that apply
o Art 5(2): Get out clause
Art 7 (Recital 24) = environment damages – effectively provides C choice:
a) Law under Art 4(1) (i.e. where damage occurs); OR
b) Law of country in which the event giving rise to damage occurred
ADDITIONAL CONDISDERATIONS – ALWAYS APPLY AT END (SUBJECT TO ENGLISH LAW if foreign
law apply):
Art 16: overriding mandatory provisions – subject to law of forum(e.g. UCTA)
Art 26: Court can disapply foreign law if manifestly incompatible with that court’s public policy –
subject to law of forum on public policy
IF FOREIGN LAW APPLIES = SUBJECT TO PROVISIONS OF ENGLISH LAW under Art 16 + Art 26
IF ENGLISH LAW APPLIES = Art 16 + Art 26 apply by default
Art 17 (Recital 34): discretion to take into account rules on safety + conduct ‘in county which
were in force at the place and time of the event giving rise to liability arose’
SCOPE OF APPLICABLE LAW
Art 15 + Art 22
o Basis & extent of liability
o Limitation / Division of liability (e.g. contributory negligence)
o Damages
o Limitation
o Burden of Proof
FORUM SHOPPING
Factors
o Cost of commencing / pursing proceedings (fees of local lawyers)
o Availability of CFAs
o Availability of interim orders (e.g. Security for costs / Injunctions)
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