Applicable law Flashcards
(6 cards)
what is meant by ‘applicable law’?
the law to be applied in cross-border disputes (also called choice of law)
how may the applicable law be determined?
- Agreement between parties
- The court
The court will apply different regimes based on the type and date of the dispute. If the regime does not apply, they will apply the common law.
what regime is applied by the court when determining the applicable law to a contractual claim? Describe the regime.
Rome I Regulation / UK Rome I
1. Governing law clause in contract
2. No clause = country of party performing the obligations
how have the regimes changed?
Regimes previously EU Regulations. Now assimilated EU law (i.e. so part of domestic law). Principles fundamentally the same. Below applies post-2009.
what regime is applied by the court when determining the applicable law to a tortious claim? Describe the regime.
Rome II Regulation / UK Rome II
Applicable law is that of the country where the damage occurs. Exceptions:
o Parties have a common habitual residence; or
o The tort is more closely connected with another country
what is the common law regime?
If the Rome etc provisions do not apply, the court will apply the common law approach (rare):
1. Is there an express choice of law?
2. No - should a choice of law be implied?
3. No - what system of law has the closest and most real connection?
