ABSTRACT
There may be circumstances where the parties have made no express choice of law so that Art 3(1) permits the court to find that a choice has been ‘demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case’. The concept of looking at the conduct of the parties and seeking to determine their actual intentions as a matter of inference was well known to the common law. However, prior common law cases must be regarded with a degree of caution, having regard to Art 18 of the Rome Convention.104 Secondly, it is well established in European Community law that community treaties are to be interpreted in a manner consistent with policy objectives and not in accordance with the traditions of the legislation. The Giuliano and Lagarde report contains a number of instances where a choice of law might be inferred; examples might include: (a) where a standard form of contract is employed; (b) where there are previous dealings between the parties; (c) where a jurisdiction clause or arbitration clause has been used; (d) where a connected transaction includes an express choice of law; and (e) where a contract expressly incorporates the rules of a foreign legal system.
It is necessary to say a little about these possibilities.
