Litigation and Applicable Law

Which country's law applies to decide the dispute?

Definition of “Applicable law”

The law stipulated in a contract to determine a dispute.

What happens when there is no valid governing law clause?

The law to be applied will be determined in accordance with relevant regulation, convention, legislation, or common law rules.

Where does Rome I apply?

In all member states except Denmar.

What happened to Rome I after Brexit?

It was converted into UK law. Now known as UK Rome I.

What are the EU’s general principles of applicable law.

1. displaces national conflict of law rules

2. excludes ‘renvoi’

3. party autonomy

4. applicable law in the absence of choice

5. habitual residence

What is renvoi?

When Rome I designates the law of a particular country as applicable, the court applies only the country’s substantive law. NO BACK AND FORTHS!

What is excluded from Rome I Regulations?

1. revenue, customs, administrative matters

2. legal capacity of natural persons

3. family law

4. bills of exchange, cheques, and promissory notes and other negotiable instruments

5. arbitration agreements and agreements on the choice of court

6. corporate law

7. agency

8. trusts

9. pre-contractual matters

10. evidence & procedure

Applicable Law in the absence of choice - sale of goods

the law of the country where the SELLER has his habitual residence.

Applicable Law in the absence of choice - auction sales

the law of the country where the AUCTION takes place, if this can be determined.

Applicable Law in the absence of choice - services

the law of the country where the SERVICE PROVIDER has his habitual residence.

Applicable Law in the absence of choice - franchise agreements

the law of the country where the FRANCHISEE has his habitual residence.

Applicable Law in the absence of choice - distribution agreements

the law of the country where the DISTRIBUTOR has his habitual residence.

Applicable Law in the absence of choice - land & tenancies

the law of the country in which the PROPERTY is situated.

Applicable Law in the absence of choice - holiday lets

the law of the country where the LANDLORD has his habitual residence.

Applicable Law in the absence of choice - financial markets

agreements made in regulated financial markets are governed by the law REGULATING THE MARKET.

Applicable Law in the absence of choice - default

law of the country of the habitual residence of the party with characteristic performance.

Specific Types of Contracts that have distinctive rules on applicable law

• contracts of carriage (goods and passengers)

• consumers

• insurance

  • employment

T/F - A court may have jurisdiction, but still apply foreign law to decide the case

TRUE