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Commercial choice of law in context : looking beyond Rome
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Penadés-Fons, Manuel (2015) Commercial choice of law in context : looking beyond Rome. The Modern Law Review, Volume 78 (Number 2). pp. 241-295. doi:10.1111/1468-2230.12115
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Official URL: http://dx.doi.org/10.1111/1468-2230.12115
Abstract
English courts are frequently criticised for their flexible approach to the finding of implied choice and the use of the escape clause in the context of the Rome I Regulation/Convention on the law applicable to contractual obligations. This paper argues that such criticism is misplaced. Based on empirical evidence, the article shows that those choice of law decisions are directly influenced by their procedural context and respond to the need to balance the multiple policy issues generated by international commercial litigation. In particular, English decisions need to be assessed in light of three distinct factors: the standard of proof required at different stages of the procedure in England, the national policy to promote England as a center for commercial dispute resolution and the incentives to export English law in certain strategic industries. The use of implied choice and the escape clause to achieve these ends constitutes a legitimate practice that does not frustrate the aims of the EU choice of law regime.
| Item Type: | Journal Article | ||||
|---|---|---|---|---|---|
| Subjects: | K Law [Moys] > KF Common Law, British Isles > KF England and Wales K Law [Moys] > KW European Union Law |
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| Divisions: | Faculty of Social Sciences > School of Law | ||||
| Library of Congress Subject Headings (LCSH): | Conflict of laws -- Contracts -- Great Britain, Contracts -- Great Britain, Commercial law -- Great Britain | ||||
| Journal or Publication Title: | The Modern Law Review | ||||
| Publisher: | Wiley-Blackwell Publishing Ltd. | ||||
| ISSN: | 0026-7961 | ||||
| Official Date: | 2 March 2015 | ||||
| Dates: |
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| Volume: | Volume 78 | ||||
| Number: | Number 2 | ||||
| Page Range: | pp. 241-295 | ||||
| DOI: | 10.1111/1468-2230.12115 | ||||
| Status: | Peer Reviewed | ||||
| Publication Status: | Published | ||||
| Access rights to Published version: | Open Access |
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