Choice of Law
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35 Terms
Choice of law
Determines which country’s law applies to a dispute
Rome I
Applies to contracts entered on/after 17 Dec 2009
Rome II
Applies to torts where damage occurs on/after 10 Jan 2009
Contract step 1
Parties’ choice applies if valid
Express choice
Clearly stated governing law clause
Implied choice
Inferred from contract terms or circumstances
Timing of choice (contract)
Can be made at any time
Contract step 2 default
Use specific Rome I contract categories
Sale of goods
Seller’s habitual residence
Provision of services
Service provider’s habitual residence
Land contracts
Law where land is situated
Distribution contracts
Distributor’s habitual residence
Habitual residence (company)
Principal place of business
Contract step 3 fallback
Characteristic performance rule
Characteristic performance
Main obligation excluding payment of money
Contract step 4 override
Closest connection applies if clearly stronger link
Closer connection threshold
High threshold must be satisfied
Tort step 1
Parties’ choice applies if valid
Post-event choice (tort)
Always valid
Pre-event choice (tort)
Valid only if commercial and freely negotiated
Tort step 2
Common habitual residence rule
Common residence rule
If both parties in same country apply that law
Tort step 3 default
Law where damage occurs
Damage location
Place where injury or damage is sustained
Exclude event location
Not where act causing damage occurred
Exclude indirect consequences
Not where secondary effects occur
Tort step 4 override
Closest connection may override default rule
Closer connection (tort)
Apply law of country with stronger factual link
Product liability rule
Law where product marketed if conditions met
Product liability condition
Applies if parties not in same country
Product liability consumer location
Law where injured person lives
Product liability purchase location
Law where product was bought
Product liability damage location
Law where damage occurred
Exam structure contract
Choice → Category → Characteristic performance → Closest connection
Exam structure tort
Choice → Common residence → Damage → Closest connection