International Construction Law Review
THE RIGHT LAW FOR CONSTRUCTION? CHOICE OF LAW AND EUROPEAN REFORM
PHILIP BRITTON*
LLB, BCL, Visiting Professor, Centre of Construction Law and Dispute Resolution King’s College London
“Unless you’re a scientist, it’s much more important for a theory to be shapely than for it to be true.”
CHRISTOPHER HAMPTON1
Introduction: choice-of-law issues
When a construction project has factual links with more than one legal system, which of those legal systems should—or will—apply to the parties’ relationships, so as to decide the legal issues which may then arise? For this purpose “factual links” could mean, for example, the place of the works, the nationality (or place of incorporation or registration) of the parties (or of one particular party), the place where damage, loss or injury occurred or was suffered: all are potential “connecting factors”, which could lead to a relevant legal system. By “apply” we mean those substantive principles of law which will determine the parties’ rights, obligations and linked legal remedies; and the sources, concepts and language leading to such legal outcomes.2
In a construction setting, “the legal issues which may then arise” between the parties may be framed in law in many different ways: in common law terminology, most usually in contract, tort or on a restitutionary basis (e.g.,
* Philip Britton, LLB, BCL, is a former Director, now Visiting Professor, Centre of Construction Law and Dispute Resolution, King’s College London: e-mail philip.britton@kcl.ac.uk. The article is an extended and updated version of the eighth Michael Brown lecture (King’s College London, 6 September 2007). It is respectfully dedicated to the memory of Professor R F V Heuston (1923–1995), who in the 1960s at the University of Southampton enlivened tort lectures by describing visits to sites where events had led to significant case law, especially in his native Ireland. He delightedly reported that the gap in the hedge in Bridge Road, Navan (An Uaimh), Co Meath, which in 1905 allowed the four-year-old Laurence Cooke to climb down an embankment, then lose a leg on a railway turntable, was still there at least half a century later, despite what Cooke v. Midland Great Western Railway of Ireland [1909] AC 229 (HL(I)) suggests. The line, and Navan station, closed to passengers in 1963 but still has regular zinc ore goods trains.
1 Christopher Hampton, The Philanthropist—A Bourgeois Comedy (London: Faber (1970)), scene II.
2 The law then chosen to determine the substantive dispute may be called the “proper law”, “governing law” or (as in the Rome Convention and more recent EC measures) “applicable law”—all these phrases refer to the same idea.
[2008
The International Construction Law Review
348