The choice of the law of the parties is generally confirmed by the courts of countries with developed legal systems. In particular, the Rome I Regulation provides that an explicit choice of law must be respected by the courts of all EU Member States (with the exception of Denmark).1 It follows that the introduction of an applicable law clause will allow the parties to obtain certainties: they know what right is likely to be applied to determine issues relating to their rights and obligations arising from the treaty. This in turn allows them to confidently analyse their legal situation. The general rule of Rome II is that the law applicable to non-contractual obligations is the law of the country where the damage/loss occurs. There are a number of circumstances in which this general rule will be repealed.9 The most important situation under the existing legal clauses is that the parties may agree, in accordance with Article 14 of Rome II, to “submit their non-contractual obligations to the right of their choice.” With regard to the right to make this decision, the following points must be taken into account: england`s legal situation is far from being resolved, however, since a complaint is pending before the Supreme Court of the United Kingdom. The Supreme Court decision, if it comes, will be the principal English legal authority for the applicable law of an arbitration agreement. An example of a clause that tries to do this is this: Note how this graph really helps, both the company and the user. The user can easily find out what laws would apply to their case, while Spotify retains incredible control over the choice of law globally. 2 In accordance with the 1996 Arbitration Act, recognition and enforcement may be denied if “the arbitration agreement was not valid under the law to which the parties submitted it or, if it was not given, is valid under the law of the country where the award was rendered.” The High Court in Kabab/Kout confirmed that the term “law to which the parties submitted it” extends to explicit choice and tacit choice. United Nations Convention on Treaties. This agreement is not subject to the conflict of laws rules of a jurisdiction or to the United Nations Convention on International Goods Contracts, the application of which is expressly excluded.
Under seat law, the approach taken by English courts when asked to determine this issue is also that adopted by the English courts. While the convention will provide much-needed security and will generally be useful to small businesses that in the past have difficulty arguing for their laws against powerful customers, some uncertainties remain. In particular, where a contract appears to contain elements of several specific categories, the Tribunal will again be confronted with the selection of the applicable legal system. As a general rule, they are responsible for choosing the law of the country in which the party is “obliged to perform the characteristic performance of the contract” having its usual residence – in the case of companies, this is the case when they have their administration. However, the Tribunal has an omission, since “in all the circumstances of the case, it appears that the contract is clearly more closely related to another country,” the law of that other country must apply. Even if this test does not pass, the courts will return to the traditional test of the selection of the country with which the contract is most closely linked. Nor is the choice of “implicit” law entirely excluded, as the courts may imply clarity of choice when the courts of a given country obtain exclusive jurisdiction for the contract, when this is only one consideration.