English Choice of Law in Contract Under the Rome I Regime: Is Flexibility Giving Way to Predictability?
| Author | Lora Izvorova |
| Pages | 33-38 |
2019 LSE LAW REVIEW 33
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English Choice of Law in Contract Under the Rome I
Regime: Is Flexibility Giving Way to Predictability?
Lora Izvorova*
Introduction
The Rome I Regulation (593/2008/EC) is the EU regulation which
governs the choice of law applicable to contractual obligations in civil and
commercial matters. It replaces the 1980 Rome Convention and effects important
structural changes to the rules for determining the applicable law, as well as the
exceptions to those rules (the ‘choice of law gateways’). Th e English courts’
application of the gateways in the Rome Convention has been criticised as
excessively flexible. While this view may be justified in relation to earlier cases
decided on the Convention, there has been a gradual movement towards a more
cautious judicial approach to both implied choice (Article 3) and the escape clause
(Article 4), which was partly crystallised and partly precipitated by the changed
architecture of these two provisions in the Rome I Regulation.
I. Implied choice
Article 3 Rome I
Article 3(1) Rome I stipulates that where the parties have not made an express
choice of law, courts may imply such a choice if it is ‘clearly demonstrated by the
terms of the contract or the circumstances of the case. This is a notable change
from Article 3 of the Convention which only required that a real choice be
‘demonstrated with reasonable certainty’.
(a)
Terms of the contract
The most compelling evidence of a real but unexpress choice is the inclusion of a
jurisdiction or arbitration clause as a contractual term. Jonathan Hill notes that in
such cases, English courts imply a choice o f the law of the forum ‘almost as a
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