CHOICE OF LAW IN CONTRACT UNDER THE ROME CONVENTION: THE APPROACH OF THE UK COURTS

摘要

The core provisions of the Rome Convention on the law applicable to contractual obligations are deceptively simple: a contract is governed by the law chosen by the parties (Article 3(1)); to the extent that the parties have not made a choice, a contract is governed by the law of the country with which it is most closely connected (Article 4(1)). However, within these provisions there are a number of problems. First, Article 3 provides that the parties' choice may be either express or 'demonstrated with reasonable certainty from the terms of the contract or the circumstances of the case'. This gives rise to potentially difficult questions about what constitutes an express choice and uncertainty as to the dividing line between, on the one hand, cases where the parties have made a choice (albeit not an express one) and, on the other, cases where the parties have not made a choice at all. Secondly, the general principle in Article 4 is supplemented by a presumption (in paragraph 2), which may, in certain circumstances, be disregarded (under paragraph 5). The operation of the presumption is problematic and the relationship between Article 4(2) and Article 4(5) controversial.