[1] See generally, Dicey & Morris, The Conflict of Laws (13th edn. Sweet & Maxwell, London, 2000), chap.32; R.Plender, European Contracts Convention (2nd edn., Sweet & Maxwell, London, 2001); P.M.North (ed.), Contract Conflicts (North Holland, 1982).
[2] Lord Wilberforce in the debate on the third reading of the Contracts (Applicable Law) Bill. HL Debs. Vol.518, col.438, 24 April 1990.
[3] Lord Mackay of Clashfern, L.C., in the same debate, ibid. col.440
[4] Young [1991] LMCLQ 320
[5] Mann [1991] 107 LQR 353
[6] Morse (1982) 2 YEL 107
[7] In fact, in his book (The Conflict of Laws, Clarendon Law Series, OUP 2002 at p.147) Adrian Briggs argues that if there is a justification for the new uniform law it must be this: that the greater the predictability of choice of law rules, the less will legal uncertainty impede the free movement of persons, goods, services throughout the Member States.
[8] Article 2 provides that 'Any law specified by this Convention shall be applied whether or not it is the law of a Contracting State'.
[9] See J.G.Collier, Conflict of Laws (2001), 192.
[10] Came into force on 1 March 2002
[11] According to A. Briggs (The Conflict of Laws, Clarendon Law Series, OUP 2002, at p.151), the defining characteristic of a contractual obligation will be that it was freely entered into with regard to another. The second aspect of the definition would require that the obligation be assumed in relation to another who can be identified, so that if the defendant had no idea who the other party is, the relationship is not contractual.
[12] According to the Giuliano-Lagarde Report (p.11), such questions are left to be decided by the law of the forum.
[13] Cheshire & North, Private International Law, 13th ed., p. 547.
[14] Morse (1982) 2 YEL 107 at 115.
[15] As far as England is concerned, it abolishes the ill-defined limit imposed by the common law to the effect that the choice must be "bona fide and legal''.
[16] The circumstance whereby the contract can be split up and its different parts can be subjected to different laws.
[17] J.G.Collier, Conflict of Laws (2001), 196.
[18] Briggs, supra at p.161 Common law also denied validity of an agreement to defer the actual choice of law to a date in the future.
[19] Ibid
[20] Morse (1982) 2 YEL 107 at 120.
[21] Armar Shipping Co Ltd v Caisse Algerienne [1981] 1 All ER 498.
[22] Young [1991] LMCLQ 320.
[23] It is quite likely that the choice of the term 'country' in the Convention makes little difference.
[24] Compagnie d'Armement Maritime SA v Compagnie Tunisienne de Navigation SA [1971] A.C. 572, 587 (per Lord Morris).
[25] It is not clear how these degrees of connection are to be assessed.
[26] The Assunzione [1954] 1 All ER 278, 289, 292 (per Singleton LJ)
[27] Jaffey [1984] 33 ICLQ 531, Williams [1986] 35 ICLQ 1.
[28] Morse (1982) 2 YEL 107 at 126.
[29] P.20. The Treaty provides that it can be relied on while it is interpreted.
[30] Cheshire & North, Private International Law, 13th ed., p. 570.
[31] It is the law of the habitual residence of the characteristic performer or, in the case of a body corporate or unincorporate, the law of the place of central administration. Where, though, the contract is entered into in the course of the trade or profession of the party who is to affect the characteristic performance, then the governing law is presumed to be that of the party's principal place of business.
[32] Collins [1976] 25 ICLQ 35 at 45-46.
[33] Morris, The Conflict of Laws, 5th ed., p.23.
[34] Kaye, The New Private International Law of Contract of the European Community, 1st ed., p. 453 Cf. Lando CMLR 1987 159 at 201.
[35] In such circumstances, the Treaty will have the effect of introducing three steps into a search for the applicable law that can be satisfied by just one step and by posing the question, namely, the question posed in Article 4 (1).
[36] Morse, [1992] 41 ICLQ 1 at 8.
[37] Lando CMLR 1987 159 at 184-185.
[38] This is the main factor that distinguishes Art.7 (1) from Art.3 (3).
[39] This has prompted UK, Germany, Ireland and Luxembourg to opt out of this provision.
[40] Morse (1982) 2 YEL 107 at 147.
[41] Dr. Alina Kaczorowska, Q & A Series- Conflict of Laws, 2nd ed., at 186.
[42] Williams [1986] 35 ICLQ 1 at 6.
[43]
Supra, at p. 325
[44] Mann, supra, at p.355.