Choice of Law to Determine the Validity and Effect of Contracts: A Comparison of English and American Approaches to the Conflict of Laws, Part II

Abstract:     
The article continues the author’s examination of American and English approaches to choice of law rules used to resolve issues of validity and effect of commercial contracts. Part II should ideally be read in conjunction with Part I of the article by the same name.

Part II discusses the rules that the American and English courts apply where there is no choice of law clause in the contract at issue. It discusses the significant contacts rule applied by courts in both countries, noting that the English approach divides cases into three categories that differ from the American approach. Part II then goes on to consider the significance of renvoi, which generally has no place in contract disputes in American or English courts. The article also touches on more unorthodox theories of foreign choice of law rules.

The article concludes by tracing the differences of the two systems and arguing that the interest analysis which has developed in the United States is generally a superior system to the English one, because it allows the results of the decision to be taken into account. Interest analysis recognises that the significance of conflict of law issues goes beyond the mere theoretical. Commercial parties will argue over conflict issues only when they believe that they will be favoured by a different jurisdiction. The rules used to select the correct jurisdiction may also determine the outcome of the case. It is important that the conflict of law rules acknowledge this reality.

Number of Pages in PDF File: 99

Keywords: Conflict of Laws, Contract, Comparative Law, Choice of Law

JEL Classification: K12

Accepted Paper Series