12
Contract

The law on this topic has fairly recently been the subject of major legislation. Over the years the English courts built up a considerable amount of case law concerning contracts in the conflict of laws. This was especially so as regards the basic concept of the proper law of the contract, the law which governed most contractual issues. However, as regards some contractual issues, such as the effect of mistake, misrepresentation and illegality, and capacity to contract, there was either no, or only rather obscure, case law. The common law rules continue to govern contracts concluded before 1 April 1991 and to apply to certain issues which might arise out of contracts concluded after that date.


The Contracts (Applicable Law) Act 1990;
Rome Convention, 1980

On 1 April 1991 there entered into force the Contracts (Applicable Law) Act 1990, which enacted into United Kingdom law the Convention on the Law Applicable to Contractual Obligations, 1980 (the Rome Convention), concluded between the then member states of the European Community.1 This Convention was designed to achieve harmonisation of the relevant conflicts rules of the member states and was said to be a logical and necessary consequence of the Brussels Convention of 1968 on Jurisdiction and Judgments in Civil and Commercial Matters.2 It has also been argued that it introduces certainty into the rules of the conflict of laws. Whether one should accept these arguments and whether harmonisation or certainty will be achieved is a matter on which there is room for differences of opinion, especially as regards certainty.

____________________
1
For commentaries on the Act and the Convention, see A. V. Dicey and J. H. C. Morris, The Conflict of Laws, 13th edn (London, Stevens, 2000) 1195–1283; G. C. Cheshire and P. M. North, Private International Law, 13th edn (London, Butterworths, 1999), ch. 18.
2
See ch. 10 above. However, the Rome Convention is based on the voluntary agreement of the EC member states and is not derived from the obligation under Art. 220 of the Treaty of Rome, as is the case with the Brussels Convention.

-189-

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