CHOICE OF LAW PROVISIONS—A REJOINDER
| Date | 01 July 1977 |
| DOI | http://doi.org/10.1111/j.1468-2230.1977.tb02434.x |
| Published date | 01 July 1977 |
442
THE
MODERN
LAW
REVIEW
[Vol.
40
court,6 that court might feel constrained by the wording of the
legislation, or by its view
of
the requirements of Atlantis public
policy, to hold that the legislation is applicable, whatever the proper
law might otherwise be. However that may be, it is undesirable to
say that such a limitation in a choice
of
law clause is nugatory, thus
requiring the application of an Atlantis rule to defeat the intentions
of the parties even in wholly inappropriate circumstances.
A.
J.
E.
JAFFEY.*
CHOICE OF LAW PROVISIONS-A REJOINDER
‘rHE
idea that a provision in a concession contract is nugatory
if
it
seeks to limit the application
of
the proper law by reference to the
terms
of
the contract itself is,
no
doubt, startling. There are cer-
tainly a number of concession contracts, creating or regulating
valuable interests, which contain clauses of this type, and it is right
that lawyers, particularly academic lawyers, should look for a con-
ceptual framework which can give some meaning and effect to the
words which the parties have chosen.
In
his comment
on
my article
Mr. Jaffey has undertaken this task but
I
find the result more
courageous than convincing.
I
Mr. Jaffey starts his analysis by making the point, about which
there can be
no
dispute, that in the English law of conflict a con-
tract need not have a single proper law governing all issues which
may arise. From that vantage point he draws the conclusion that
the clause under consideration should be construed as a choice of
Atlantis law for issues other than the validity of the contract. This
yields a situation in which there is
no
express choice
on
the issue of
validity
“so
that the proper law governing that issue will be the
law of the country which
is
most
1
closely connected with the con-
tract as regards that issue.”
In
this context he then canvasses the
possibility that the proper law might turn out to be the law
of
the
investor’s country.
Up to this point
I
have no difficulty in following the argument,
although it involves a construction
,of
the clause which the Govern-
ment of Atlantis would almost certainly find surprising, if not per-
verse. However, if,
on
the issue of validity, objective criteria are
applied it is surely not open to question that Atlantis is the country
with which the contract has the closest connection. Mining conces-
sions are normally granted within the framework of a scheme of
6
Or arbitrators required to deal with the case
in
the same way
as
an Atlantis
court would. (See the arbitration provisions referred to in
(1976)
39
M.L.R.
at
p.
628).
*
Senior Lecturer in Law, University
of
Exeter.
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