Lloyd's Maritime and Commercial Law Quarterly
THE CONTRACTS (APPLICABLE LAW) ACT 1990
James Young *
1. Introduction
I regard this Bill as unfortunate and unnecessary. It brings into English law the effect of a European Convention in an area which in English law is perfectly satisfactory, has been controlled by the judges and is now to be set into the cement of statutory legislation.1
… [T]his Bill will preserve the principles of our complex rules for contract, and the Convention will create a harmonious set of such rules throughout the European Community; in other words, the other member states which ratify the Convention will have the benefit of the same principles as those which the courts of this country have worked out … over the years.2
These contrasting viewpoints demonstrate the differing receptions which have greeted the enactment of the EEC Convention on the Law Applicable to Contractual Obligations (the “Rome Convention”).3 The focus of this comment is to ask whether the Convention is best characterized as bringing the benefits of the common law to the European civilians or the unnecessary, and potentially harmful, meddling with English rules and their pollution by alien concepts.
The Contracts (Applicable Law) Act, which received the Royal Assent on 26 July 1990, enabled the United Kingdom to ratify the Convention, which was opened for signature in 1980, but was only to come into force after its ratification by seven states. The United Kingdom’s ratification was the seventh and thereby brought the Convention into force on 1 April 1991.4 The Act gives the force of law to the Convention,5 subject to reservations permitted by the Convention, and also makes provision for related provisions6 to come into force.
* Lecturer, Cardiff Law School, University of Wales.
1. Lord Wilberforce in the debate on the third reading of the Contracts (Applicable Law) Bill, H.L. Debs., Vol. 518, col. 438, 24 April 1990.
2. Lord Mackay of Clashfern, L.C., in the same debate, ibid., col. 440.
3. There are numerous commentaries on the Convention. See Ian Fletcher, Conflict of Laws and the European Community (1982), Chap. 5; D. Lasok and P. Stone, Conflict of Laws in the European Community (1987), Chap. 9; Lando, “The EEC Convention on the Law Applicable to Contractual Obligations” (1987) 24 C.M.L.R. 159; Morse, “The EEC Convention on the Law Applicable to Contractual Obligations” (1983) 3 Y.E.L. 107; P.M. North (ed.), Contract Conflicts. The EEC Convention on the Law Applicable to Contractual Obligations: A Comparative Study (1982) (hereafter “North”). 185, 188–190; Williams, “The EEC Convention on the Law Applicable to Contractual Obligations” [1981] LMCLO 251.
4. S.I. 1991 No. 707, which also brought into force the Luxembourg Convention (see infra, fn. 6).
5. The Convention is reproduced as Sched. 1 of the Act.
6. The Luxembourg Convention, enabling Greece to accede to the Convention and providing for Greek to become the eighth authentic language of the Convention (Sched. 2 of the Act) and the Brussels Protocol (Sched. 3), providing for references on interpretation to the European Court of Justice.
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