Law Applicable to Contracts Under English Common Law, Rome Convention Essay

Law Applicable to Contracts Under English Common Law, capital of Italy Convention on the Law Applicable to Contractual Obligations 1980 - Essay ExampleIt similarly had to be enforceable otherwise the courts could ignore the parties choice of the legal philosophy applicable to the contract.4 The courts would also refuse to save an express choice of uprightness clause if it merely appointed an applicable law upon the occurrence of a specific event.5 Under the common law, the applicable law is applied or implied by the courts in cases where the parties stick out not expressly selected the proper law of the contract.6 In doing so, the courts will look for evidence of the intention of the parties by reference to the occurrences and circumstances of the case. Intention will be implied from facts such as the parties nationalities, the place where the contract was concluded, the monetary currency in the contracts transaction, the place for payment and evidence of a forum preference.7 The fact that the common law looks first for an express choice, failing which, they then look for an implied choice is a verbalism of the significance of society familiarity in English contract law. It is only when both methods for determining the law applicable to the contract have failed that the English courts under the common law will attempt to fix the law applicable to the contract by reference to an verifiable view of the facts and the circumstances. Essentially, the courts will seek to direct the law that is most closely connected to the contract. As Singleton LJ noted One must look at all the circumstances and seek to find what just and reasonable persons ought to have intended if they had thought intimately the matter at the time when they made the contract.8 It is important to note here, that even where the courts are taking an objective view of the facts and circumstances in determining the... The English common law has established a bulky tradition of contractu al freedom and the freedom to choose pursuant to the concept of party autonomy. Certainly, the common law does not permit party autonomy to function at all costs. There are limitations and those limitations,however, were the censure rather than the rule. With the implementation of the Rome Convention 1980, the English common law was superseded by an approach to party autonomy that basically treated party autonomy as the exception rather than the role. Although the Article 3(1) of the Rome Convention 1980 purports to confer upon parties the freedom to choose the law applicable to their contracts, the 1980 Convention sets out constraining and inconstant provisions such as the mandatory laws, consumer contracts, and employment contracts. Rome I Regulation forces, even more, changes on the English tradition of party autonomy calculated to erode the freedom of choice. In the final analysis, it would get on that party autonomy is only relevant where the parties are either professionals or businessmen. Even then, the Rome I Regulation ensures that the law is chosen for the parties in so many different circumstances that arguably, party autonomy is not a part of the Rome I Regulation.