Choice of Law

Introduction In English litigation relating to contracts, choice of the applicable substantive law is now governed largely by EC Regulation 593/2008 on the Law Applicable to Contractual Obligations, which is usually referred to as the Rome I Regulation. 1 By Art 24(1) the Regulation replaces the Rome Convention 1980, 2 which was given the force of law in the United Kingdom (UK) by the Contracts (Applicable Law) Act 1990. The Regulation applies to contracts concluded after its entry into application on 17 December 2009, and the Convention remains applicable in the UK to contracts concluded between 1 April 1991 and 16 December 2009. 3 In most respects, the Regulation closely resembles the Convention, and, in general, case-law decided under the Convention remains reliable in relation to corresponding provisions of the Regulation. 4 This Chapter focusses on the Regulation, but important departures from the Convention will be noted. 5

By Art 1(1), the Rome I Regulation applies, in situations involving a confl ict of laws, to contractual obligations in civil and commercial matters, but it does not apply, in particular, to revenue, customs or administrative matters. 6 By Art 2, any law specifi ed by the Regulation must be applied whether or not it is the law of a member state. Article 22(1) adds that where a state, such as the UK, comprises several territorial units, each of which has its own rules of law in respect of contractual obligations, each territorial unit (such as England and Wales; Scotland; and Northern Ireland) is to be considered as a country for the purposes of identifying the law applicable under the Regulation. 7 Thus, from an English viewpoint, the Regulation is equally applicable whether the foreign connection is with another European Union (EU) country (such as France), or with a country external to the EU, such as the US, or even with another part of the UK, such as Scotland. Moreover, it is clear from Art 3(3) that the Regulation applies even where the only foreign element arises from a choice of law agreed to by the parties and the situation is otherwise exclusively connected with a single country, as where a contract concluded in England between English residents and requiring all performances to take place in England contains a clause choosing French law as governing the contract.