International Construction Law Review
CHOICE OF LAW IN CONSTRUCTION CONTRACTS: THE VIEW FROM ENGLAND*
PHILIP BRITTON
LLB, BCL, Director, Centre of Construction Law, King’s College, London
“One day the very idea of nationality will seem as impossibly primitive as dynastic warfare or the divine right of kings; first the unification of continents, then the global rule of the almighty corporations, like institutions from space, then perhaps space itself and finally plain common-sense will reduce it to a hobby for antiquarians or re-enactment societies.”
JAN MORRIS1
A. INTRODUCTION
Objective and scope
A construction project and its contracts may have potential relationships with a number of different (and differing) legal systems, yet in order to define the parties’ rights and obligations each contract needs, if possible, to be assigned to one alone. This article therefore explores from an English standpoint the practical and legal issues that arise where such a project has contracts that have, or may have, one or more international elements. The phrase “or may have” is not just a linguistic flourish.2
One of the main reasons, if not the main reason, why parties do or should make a conscious and express choice of law is to provide a virtually certain solution to the key question: what is the legal background against which the parties’ conduct related to the contract should be viewed?
As we shall see, this is by no means the only legal question that may arise, though it is perhaps the most obvious one. And in this context “international elements” has a much wider meaning than “from more than one State”: it means with factual links to more than one territory, each such territory having an identifiable and distinct set of legal rules in the relevant area.3
So a
* The article derives from a paper presented to the King’s College Construction Law Association Inaugural Conference, June 2000; it is in memory of Alex Britton MIStructE (1907–1996), sometime Director, John Laing Construction Ltd and Managing Director, John Laing (Research and Development) Ltd.
1 Jan Morris, Trieste and the Meaning of Nowhere
(2001) at p. 116; thanks to Tom Southern for making this available.
2 What in another context Diplock LJ called “gratuitous philological exhibitionism”: United Dominions Trust (Commercial) Ltd
v. Eagle Aircraft Services Ltd
[1968] 1 WLR 74, CA, at 82 (referring to his earlier use of the word “synallagmatic” to apply to a contract).
3 See also the similar definition of international in Article 1 of the UNCITRAL Model Law on International Commercial Arbitration (1985), though this talks only about states in the traditional sense of nation-states, also covering situations in which the parties themselves declare that the subject-matter of an arbitration agreement relates to more than one country (Art 1(3)(c)). Interestingly, neither State nor country is defined, nor the possible difference between the two terms. The Rome Convention on choice of law in contract applies where there is a choice between “the laws of different countries” (Art 1(1)), which Art 19 defines as to refer to the individual constituent territories of states like the UK, where these have different bodies of law governing contractual relations.
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