Lecture 7: Principles of
Applicable Law: Choice of Law
Methodology
Key Reading:
T Hartley, International Commercial Litigation (CUP; 3rd edn, 2020) Chapter 21
J Hill and M Shúilleabháin, Clarkson and Hill’s Conflict of Laws (Oxford University
Press; 5th edn; 2016), Chapter 4 (especially paras 4.1-4.6)
On the notion of choice of law and applicable law generally and the principles
underpinning, recall the reading for the first lecture in J Hill and M Shúilleabháin,
Clarkson and Hill’s Conflict of Laws (Oxford University Press; 5th edition; 2016),
Chapter 1.
Case Law:
Anton Durbeck v Den Norske Bank [2005] EWHC 2497
Key Topics of the Lecture:
What is meant by applicable law?
What are the steps in identifying applicable law?
The notion of “characterisation” in the conflict of laws; what is it that is
“characterised”?
Relevant connecting factors to the determination of applicable law;
How is foreign law proven before the English courts?
How is the applicable law determined? What rules are applied?
Why will EU law continue to be particularly important in the determination of
applicable law?
Lecture 7: Principles of Applicable Law: Choice of Law Methodology 1
, What is meant by applicable law?
Why is applicable law significant?
The applicable law may be relevant at different stages of the proceedings.
Substantive stage
the trial on the merits of the case
Jurisdictional stage
when establishing jurisdiction
when applying the common law rules of jurisdiction, one party may argue
that there are complex issues of foreign law () which – on the application of
the forum non conveniens principle – would suggest that the English courts
should stay its proceedings in order to a foreign court.
⚖️ Royal Sun Alliance v MK Digital [2006] 2 All ER (Comm) 145
Example:
An English seller, Bikes for You, enters into a contract with a
German buyer, Cycles 123, for the sale of bicycle parts. The
German buyer has a storage facility in France, to which the
English seller is to deliver the parts. The English seller delivers
the parts, but half of them are faulty; the German buyer then
seeks to sue in England (the domicile of the defendant), alleging
breach of contract. What law should apply?
What are the steps in identifying
applicable law?
Introduction to Choice of Law Rules:
Lecture 7: Principles of Applicable Law: Choice of Law Methodology 2
, Definition: Choice of law rules are legal principles used to determine the
applicable law in a transnational legal dispute.
Role: These rules aim to connect a dispute with a legal system using specific
criteria known as connecting factors.
Types of Connecting Factors:
Personal Factors: Includes domicile, habitual residence of individuals, or the
place of incorporation for companies.
Transactional and Location-Based Factors:
Place of a transaction (e.g., where a contract was signed).
Place of an event leading to a dispute (e.g., location of a tort).
Place of damage (e.g., where loss or harm occurred).
Contractual Factors:
Place where a contract is made.
Parties' intentions, usually evidenced in contractual clauses like choice of
law agreements.
Mechanics of Rule Application:
Emphasis on Party Autonomy: The primary principle is allowing parties to
select the applicable law, within certain legal boundaries.
Fallback Mechanism: In the absence of an explicit choice by the parties, the
rules aim to find the law of the country most closely connected to the dispute,
based on an array of connecting factors.
Scope and Application of Applicable Law
Function of Private International Law (PIL) Rules:
Objective: PIL rules facilitate the identification of both the appropriate legal
forum and the governing law for resolving disputes.
Characterisation or Classification Process:
Objective: Distinguishing between applicable law and forum law.
Commercial Context: Differentiation in rules for jurisdiction and applicable
law, depending on whether the obligation is contractual or non-contractual.
Lecture 7: Principles of Applicable Law: Choice of Law Methodology 3
Applicable Law: Choice of Law
Methodology
Key Reading:
T Hartley, International Commercial Litigation (CUP; 3rd edn, 2020) Chapter 21
J Hill and M Shúilleabháin, Clarkson and Hill’s Conflict of Laws (Oxford University
Press; 5th edn; 2016), Chapter 4 (especially paras 4.1-4.6)
On the notion of choice of law and applicable law generally and the principles
underpinning, recall the reading for the first lecture in J Hill and M Shúilleabháin,
Clarkson and Hill’s Conflict of Laws (Oxford University Press; 5th edition; 2016),
Chapter 1.
Case Law:
Anton Durbeck v Den Norske Bank [2005] EWHC 2497
Key Topics of the Lecture:
What is meant by applicable law?
What are the steps in identifying applicable law?
The notion of “characterisation” in the conflict of laws; what is it that is
“characterised”?
Relevant connecting factors to the determination of applicable law;
How is foreign law proven before the English courts?
How is the applicable law determined? What rules are applied?
Why will EU law continue to be particularly important in the determination of
applicable law?
Lecture 7: Principles of Applicable Law: Choice of Law Methodology 1
, What is meant by applicable law?
Why is applicable law significant?
The applicable law may be relevant at different stages of the proceedings.
Substantive stage
the trial on the merits of the case
Jurisdictional stage
when establishing jurisdiction
when applying the common law rules of jurisdiction, one party may argue
that there are complex issues of foreign law () which – on the application of
the forum non conveniens principle – would suggest that the English courts
should stay its proceedings in order to a foreign court.
⚖️ Royal Sun Alliance v MK Digital [2006] 2 All ER (Comm) 145
Example:
An English seller, Bikes for You, enters into a contract with a
German buyer, Cycles 123, for the sale of bicycle parts. The
German buyer has a storage facility in France, to which the
English seller is to deliver the parts. The English seller delivers
the parts, but half of them are faulty; the German buyer then
seeks to sue in England (the domicile of the defendant), alleging
breach of contract. What law should apply?
What are the steps in identifying
applicable law?
Introduction to Choice of Law Rules:
Lecture 7: Principles of Applicable Law: Choice of Law Methodology 2
, Definition: Choice of law rules are legal principles used to determine the
applicable law in a transnational legal dispute.
Role: These rules aim to connect a dispute with a legal system using specific
criteria known as connecting factors.
Types of Connecting Factors:
Personal Factors: Includes domicile, habitual residence of individuals, or the
place of incorporation for companies.
Transactional and Location-Based Factors:
Place of a transaction (e.g., where a contract was signed).
Place of an event leading to a dispute (e.g., location of a tort).
Place of damage (e.g., where loss or harm occurred).
Contractual Factors:
Place where a contract is made.
Parties' intentions, usually evidenced in contractual clauses like choice of
law agreements.
Mechanics of Rule Application:
Emphasis on Party Autonomy: The primary principle is allowing parties to
select the applicable law, within certain legal boundaries.
Fallback Mechanism: In the absence of an explicit choice by the parties, the
rules aim to find the law of the country most closely connected to the dispute,
based on an array of connecting factors.
Scope and Application of Applicable Law
Function of Private International Law (PIL) Rules:
Objective: PIL rules facilitate the identification of both the appropriate legal
forum and the governing law for resolving disputes.
Characterisation or Classification Process:
Objective: Distinguishing between applicable law and forum law.
Commercial Context: Differentiation in rules for jurisdiction and applicable
law, depending on whether the obligation is contractual or non-contractual.
Lecture 7: Principles of Applicable Law: Choice of Law Methodology 3
