Conflict of contract laws: Difference between revisions
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==History== |
==History== |
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In England, until the middle of the 19th century, the [[court]]s generally applied the ''[[lex loci contractus]]''.<ref>[[J. H. C. Morris|J H C Morris]], The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 266.</ref><ref>This approach was also generally adopted in Scotland: A E Anton, ''Private International Law: A treatise from the standpoint of Scots law'', (Scottish Universities Law Institute), W Green & Son, Edinburgh, 1967, reprinted 1970, p 185. As to contract in conflict of laws in Scotland generally, see further the rest of chapter 7 ("Contract").</ref> |
In England, until the middle of the 19th century, the [[court]]s generally applied the ''[[lex loci contractus]]'' as the proper law.<ref>[[J. H. C. Morris|J H C Morris]], The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 266.</ref><ref>This approach was also generally adopted in Scotland: [[Alexander Anton|A E Anton]], ''Private International Law: A treatise from the standpoint of Scots law'', (Scottish Universities Law Institute), W Green & Son, Edinburgh, 1967, reprinted 1970, p 185. As to contract in conflict of laws in Scotland generally, see further the rest of chapter 7 ("Contract").</ref> |
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==Proper law== |
==Proper law== |
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===Express selection=== |
===Express selection=== |
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In England, as of 1984, when the parties express a clear intention in a [[Choice of law clause|choice-of-law clause]], this is generally the ''proper law''.<ref>J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 270.</ref> |
In England, as of 1 October 1983,<ref name=Morris1984preface>J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, p vii</ref> when the parties express a clear intention in a [[Choice of law clause|choice-of-law clause]], this is generally the ''proper law''.<ref>J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 270.</ref> |
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===Implied selection=== |
===Implied selection=== |
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In England, as of |
In England, as of 1 October 1983,<ref name=Morris1984preface/> when the parties have not used express words, their intention may be inferred from the terms and nature of the contract, and from the general circumstances of the case.<ref>J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 275.</ref> |
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===Closest and most real connection=== |
===Closest and most real connection=== |
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In ''Mount Albert Borough Council v Australasian etc Assurance Society Ltd'', it was held that, in default, the court has to impute an intention by asking, as just and reasonable persons, which law the parties ought to, or would, have intended to nominate if they had thought about it when they were making the contract.<ref>Mount Albert Borough Council v Australasian etc Assurance Society Ltd [1938] AC 224 at 240. J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 276.</ref> But see ''The Assunzione''.<ref>The Assunzione [1954] P 150 at 175. As to the effect this case, see J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN |
In ''Mount Albert Borough Council v Australasian etc Assurance Society Ltd'', it was held that, in default, the court has to impute an intention by asking, as just and reasonable persons, which law the parties ought to, or would, have intended to nominate if they had thought about it when they were making the contract.<ref>Mount Albert Borough Council v Australasian etc Assurance Society Ltd [1938] AC 224 at 240. J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 276.</ref> But see ''The Assunzione''.<ref>The Assunzione [1954] P 150 at 175. As to the effect this case, see J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 276, footnote 60.</ref> |
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===Dépeçage=== |
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Some legal systems provide that a contract may be governed by more than one law. This concept is referred to as [[dépeçage]].<ref>J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 528.</ref> |
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==References== |
==References== |
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*Petar Sarcevic (ed). International Contracts and Conflicts of Laws: A Collection of Essays. Graham & Trotman/Martinus Nijhoff. 1990. Passim. [https://books.google.com/books?id=ckJNAQAAIAAJ Google] |
*Petar Sarcevic (ed). International Contracts and Conflicts of Laws: A Collection of Essays. Graham & Trotman/Martinus Nijhoff. 1990. Passim. [https://books.google.com/books?id=ckJNAQAAIAAJ Google] |
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*[[Geoffrey Cheshire|Geoffrey Chevalier Cheshire]]. International Contracts. Jackson, Son & Company, printers to the University. Glasgow. 1948. Passim. [https://books.google.com/books?id=VMg4AQAAIAAJ Google] |
*[[Geoffrey Cheshire|Geoffrey Chevalier Cheshire]]. International Contracts. Jackson, Son & Company, printers to the University. Glasgow. 1948. Passim. [https://books.google.com/books?id=VMg4AQAAIAAJ Google] |
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*Henri Battifol. Les Conflits des Lois en Matière des Contrats: Etude de droit international privé comparé. Recueil Sirey. Paris. 1938. |
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*Adrian Briggs. "Contracts". The Conflict of Laws. Second Edition. Oxford University Press. 2008. Chapter 5. [https://books.google.co.uk/books?id=47VGAgAAQBAJ&pg=PA153#v=onepage&q&f=false Page 153] et seq. |
*Adrian Briggs. "Contracts". The Conflict of Laws. Second Edition. Oxford University Press. 2008. Chapter 5. [https://books.google.co.uk/books?id=47VGAgAAQBAJ&pg=PA153#v=onepage&q&f=false Page 153] et seq. |
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*Christopher M V Clarkson and Jonathan Hill. "Contractual obligations". The Conflict of Laws. Fourth Edition. Oxford University Press. 2011. Chapter 4. [https://books.google.co.uk/books?id=fWOcAQAAQBAJ&pg=PA203#v=onepage&q&f=false Page 203] et seq. |
*Christopher M V Clarkson and Jonathan Hill. "Contractual obligations". The Conflict of Laws. Fourth Edition. Oxford University Press. 2011. Chapter 4. [https://books.google.co.uk/books?id=fWOcAQAAQBAJ&pg=PA203#v=onepage&q&f=false Page 203] et seq. |
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*[[A. V. Dicey|Dicey]]. "Contracts: General Rules" and "Particular Contracts". A Digest of the Law of England with Reference to the Conflict of Laws. London. 1896. Chapters 24 and 25. [https://books.google.co.uk/books?id=2KcNAAAAYAAJ&pg=PA540#v=onepage&q&f=false Page 540] et seq. |
*[[A. V. Dicey|Dicey]]. "Contracts: General Rules" and "Particular Contracts". A Digest of the Law of England with Reference to the Conflict of Laws. London. 1896. Chapters 24 and 25. [https://books.google.co.uk/books?id=2KcNAAAAYAAJ&pg=PA540#v=onepage&q&f=false Page 540] et seq. |
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*[[Joseph Story]] and [[Isaac F. Redfield|Isaac F Redfield]]. "Foreign Contracts". Commentaries on the Conflict of Laws. Sixth Edition. Little, Brown and Company. 1865. [https://books.google.co.uk/books?id=mqYNAAAAYAAJ&pg=PA290#v=onepage&q&f=false Page 290] et seq. |
*[[Joseph Story]] and [[Isaac F. Redfield|Isaac F Redfield]]. "Foreign Contracts". Commentaries on the Conflict of Laws. Sixth Edition. Little, Brown and Company. 1865. [https://books.google.co.uk/books?id=mqYNAAAAYAAJ&pg=PA290#v=onepage&q&f=false Page 290] et seq. |
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Revision as of 05:48, 30 January 2024
| Conflict of laws and private international law |
|---|
| Preliminaries |
| Definitional elements |
| Connecting factors |
| Substantive legal areas |
| Enforcement |
In the conflict of laws, the validity and effect of a contract with one or more foreign law elements will be decided by reference to the so-called "proper law" of the contract.
History
In England, until the middle of the 19th century, the courts generally applied the lex loci contractus as the proper law.[1][2]
Proper law
Express selection
In England, as of 1 October 1983,[3] when the parties express a clear intention in a choice-of-law clause, this is generally the proper law.[4]
Implied selection
In England, as of 1 October 1983,[3] when the parties have not used express words, their intention may be inferred from the terms and nature of the contract, and from the general circumstances of the case.[5]
Closest and most real connection
In Mount Albert Borough Council v Australasian etc Assurance Society Ltd, it was held that, in default, the court has to impute an intention by asking, as just and reasonable persons, which law the parties ought to, or would, have intended to nominate if they had thought about it when they were making the contract.[6] But see The Assunzione.[7]
Dépeçage
Some legal systems provide that a contract may be governed by more than one law. This concept is referred to as dépeçage.[8]
References
- ^ J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 266.
- ^ This approach was also generally adopted in Scotland: A E Anton, Private International Law: A treatise from the standpoint of Scots law, (Scottish Universities Law Institute), W Green & Son, Edinburgh, 1967, reprinted 1970, p 185. As to contract in conflict of laws in Scotland generally, see further the rest of chapter 7 ("Contract").
- ^ a b J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, p vii
- ^ J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 270.
- ^ J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 275.
- ^ Mount Albert Borough Council v Australasian etc Assurance Society Ltd [1938] AC 224 at 240. J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 276.
- ^ The Assunzione [1954] P 150 at 175. As to the effect this case, see J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 276, footnote 60.
- ^ J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 528.
Further reading
- Nikitas Hatzimihail. "Contracts" Preclassical Conflict of Laws. Cambridge University Press. 2021. Chapter 9.3.1. Page 285 et seq.
- Wolff, "Hong Kong's Conflict of Contract Laws: Quo Vadis?" (2010) 6 Journal of Private International Law 465
- Tetley and Wilkins. International Conflict of Laws: Common, Civil, and Maritime. International Shipping Publications. 1994. Page 237. See also passim. Google
- Lectures on the Conflict of Laws and International Contracts. University of Michigan Law School. 1951. Passim. Google
- Petar Sarcevic (ed). International Contracts and Conflicts of Laws: A Collection of Essays. Graham & Trotman/Martinus Nijhoff. 1990. Passim. Google
- Geoffrey Chevalier Cheshire. International Contracts. Jackson, Son & Company, printers to the University. Glasgow. 1948. Passim. Google
- Henri Battifol. Les Conflits des Lois en Matière des Contrats: Etude de droit international privé comparé. Recueil Sirey. Paris. 1938.
- Adrian Briggs. "Contracts". The Conflict of Laws. Second Edition. Oxford University Press. 2008. Chapter 5. Page 153 et seq.
- Christopher M V Clarkson and Jonathan Hill. "Contractual obligations". The Conflict of Laws. Fourth Edition. Oxford University Press. 2011. Chapter 4. Page 203 et seq.
- J H C Morris. "Contracts" The Conflict of Laws. Second Edition. Stevens and Sons. 1980. Chapter 13. Page 209 et seq.
- Dicey. "Contracts: General Rules" and "Particular Contracts". A Digest of the Law of England with Reference to the Conflict of Laws. London. 1896. Chapters 24 and 25. Page 540 et seq.
- Joseph Story and Isaac F Redfield. "Foreign Contracts". Commentaries on the Conflict of Laws. Sixth Edition. Little, Brown and Company. 1865. Page 290 et seq.
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