Advanced Commercial Litigation - High Distinction

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)