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Law Applicable to Contracts Under English Common Law, Rome Convention on the Law Applicable to Contractual Obligations 1980 - Essay Example

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This paper is divided into two parts. The first part of the paper examines the English common law conflict of laws rules in the context of contract law. The second part of the paper examines the 1980 Convention and the Rome I Regulation and demonstrates how they have both transformed the English common law on the conflict of law rules relative to the applicable law of the contract…
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Law Applicable to Contracts Under English Common Law, Rome Convention on the Law Applicable to Contractual Obligations 1980
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Download file to see previous pages It also had to be enforceable otherwise the courts could ignore the parties’ choice of the law applicable to the contract.4 The courts would also refuse to uphold an express choice of law clause if it merely appointed an applicable law upon the occurrence of a specific event.5 Under the common law, the applicable law is applied or implied by the courts in cases where the parties have not expressly selected the proper law of the contract.6 In doing so, the courts will look for evidence of the intention of the parties by reference to the facts and circumstances of the case. Intention will be implied from facts such as the parties’ nationalities, the place where the contract was concluded, the monetary currency in the contract’s transaction, the place for payment and evidence of a forum preference.7 The fact that the common law looks first for an express choice, failing which, they then look for an implied choice is a manifestation of the significance of party autonomy in English contract law. It is only when both methods for determining the law applicable to the contract have failed that the English courts under the common law will attempt to determine the law applicable to the contract by reference to an objective view of the facts and the circumstances. Essentially, the courts will seek to identify the law that is most closely connected to the contract. As Singleton LJ noted: One must look at all the circumstances and seek to find what just and reasonable persons ought to have intended if they had thought about the matter at the time when they made the contract.8 It is important to note here, that even where the courts are taking an objective view of the facts and circumstances in determining the...
The English common law has established a long tradition of contractual freedom and the freedom to choose pursuant to the concept of party autonomy. Certainly, the common law does not permit party autonomy to function at all costs. There are limitations and those limitations,however, were the exception rather than the rule. With the implementation of the Rome Convention 1980, the English common law was superseded by an approach to party autonomy that basically treated party autonomy as the exception rather than the role. Although the Article 3(1) of the Rome Convention 1980 purports to confer upon parties the freedom to choose the law applicable to their contracts, the 1980 Convention sets out constraining and abortive provisions such as the mandatory laws, consumer contracts, and employment contracts. Rome I Regulation forces, even more, changes on the English tradition of party autonomy calculated to erode the freedom of choice. In the final analysis, it would appear that party autonomy is only relevant where the parties are either professionals or businessmen. Even then, the Rome I Regulation ensures that the law is chosen for the parties in so many different circumstances that arguably, party autonomy is not a part of the Rome I Regulation. ...Download file to see next pagesRead More
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