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Conflict of contract laws

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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.[1][2]

Proper law

Express selection

In England, as of 1984, when the parties express a clear intention in a choice-of-law clause, this is generally the proper law.[3]

Implied selection

In England, as of 1984, 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

References

  1. ^ J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 266.
  2. ^ 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").
  3. ^ J H C Morris, The Conflict of Laws, Third Edition, Stevens and Sons, London, 1984, ISBN 0-420-46890-0, p 270.

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
  • 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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