Lloyd's Maritime and Commercial Law Quarterly

Professor Francis D Rose

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THE LAW GOVERNING INTERNATIONAL CONTRACTUAL DISPUTES IN THE ABSENCE OF EXPRESS CHOICE BY THE PARTIES

Ardavan Arzandeh*

This article examines how, in the absence of the parties’ express stipulation, the governing law of an international contract is to be ascertained under the Rome I Regulation. In particular, it seeks to analyse the consistency and cogency in the current academic views, under UK law, on the interpretation of Art.3(1) and Art.4 of the Regulation. The assessment of these accounts highlights that a fairly settled and coherent framework for the construction of Art.3(1) has been arrived at. However, the same observation cannot be made about Art.4. As this article seeks to demonstrate, academic opinion is divided (and, hence, points to inconsistent approaches) on the interpretation of that provision. This article attempts to address this confusion. Accordingly, its key contribution is to advance a reasoned case in favour of adopting the general framework which the ECJ employed, for the interpretation of Art.4’s predecessor provision under the Rome Convention, in Intercontainer Interfrigo SC (ICF) v Balkenende Oosthuizen BV.

* Lecturer in Law, University of Bristol. I am grateful to my colleagues Professor Jonathan Hill and Professor Harry McVea and the journal’s anonymous referees for their helpful comments on an earlier draft of this essay.

The following abbreviations are used:

Anton: PB Beaumont and PE McEleavy, Anton’s Private International Law, 3rd edn (W Green, Edinburgh, 2011);

Briggs, PILEC: A Briggs, Private International Law in English Courts (Oxford University Press, Oxford, 2014);

Dicey, 13th edn: Collins et al (eds), Dicey & Morris on The Conflict of Laws, 13th edn (Sweet & Maxwell, London, 2000);

Dicey, 14th edn: Collins, et al (eds), Dicey, Morris and Collins on The Conflict of Laws, 14th edn (Sweet & Maxwell, London, 2006);

Dicey, 15th edn: Collins et al (eds), Dicey, Morris and Collins: The Conflict of Laws, 15th edn (Sweet & Maxwell, London, 2012);

ECJ: Court of Justice of the European Union, previously Court of Justice of the European Communities;

Guliano & Lagarde Report: Report on the Convention on the Law Applicable to Contractual Obligations [1980] OJ C282/1;

Hill, 3rd edn: J Hill, International Commercial Disputes in English Courts, 3rd edn (Hart, Oxford, 2005);

Hill & Chong: J Hill and A Chong, International Commercial Disputes: Commercial Conflict of Laws in English Courts, 4th edn (Hart, Oxford, 2010);

McParland: M McParland, The Rome I Regulation on the Law Applicable to Contractual Obligations (Oxford University Press, Oxford, 2015);

Rogerson: P Rogerson, Collier’s Conflict of Laws, 4th edn (Cambridge University Press, Cambridge, 2013);

Rome Convention: EEC Convention on the Law Applicable to Contractual Obligations (1980);

Rome I: Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) [2008] OJ L177/6.

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