Choice of Law to Determine the Validity and Effect of Contracts: A Comparison of English and American Approaches to the Conflict of Laws, Part I
John Prebble QC
Victoria University of Wellington - Faculty of Law; Institut für Österreichisches und Internationales Steuerrecht, Wirtschaftsuniversität Wien; University of Notre Dame Australia - School of Law
August 3, 2009
Cornell Law Review, Vol. 58, No. 3, 1973
Victoria University of Wellington Legal Research Paper No. 121/2014
The article examines and compares the American and English approaches to choice of law rules used to resolve issues involving the validity and effect of commercial contracts.
The author notes the different theoretical basis of each system. The English approach is a classificatory and jurisdiction-selecting method, whereas most American courts adopt the principles of interest analysis, which evaluates the specific conflicting rules and the interests of the different legal systems with a connection to the case are evaluated. This difference has led to apparently very different choice of law rules.
Part I of the article compares the rules of the two countries thematically, outlining the principles and approaches of the interest analysis, rule selection, jurisdiction selection, choice of law, true and false conflicts doctrine, and the claims of the lex fori. It then discusses approaches to party autonomy. Both countries will attempt to give effect to the intentions of the parties where this is express; however the English exceptions to this rule are narrower than the American ones. While American courts may look to considerations of policy and public policy, English courts are much more likely to strictly apply the rules attached to the legal category in question: in this case, contract.
Number of Pages in PDF File: 106
Keywords: Conflict of Laws, Choice of Law, Contract, Interest Analysis, Comparative Law
JEL Classification: K12, K39
Date posted: August 3, 2009 ; Last revised: September 23, 2014