English Private International Law

The course is based on the lectures Roman Khodykin delivered at Queen Mary University of London. It gives a concise account of the key issues that arise in determining the applicable law in England. Having completed the course, participants will understand how an English court determines the applicable law and will also gain an insight into how courts in the European Union do so. Despite Brexit, the United Kingdom continues to follow the European approach to determining the applicable law. In particular, before Brexit the EU Rome I Regulation on the law applicable to contractual obligations and the Rome II Regulation on the law applicable to non-contractual obligations applied directly in England. After Brexit, the United Kingdom adopted the Law Applicable to Contractual and Non-Contractual Obligations (Amendment etc.) (UK Exit) Regulations 2019, which incorporated Rome I and Rome II into the domestic law of the United Kingdom. The course covers the key legislative provisions as well as the leading cases on private international law. Course programme Lecture 1: General principles of English private international law Introduction. Temporal application of the rules of English private international law. The problem of characterisation in private international law. Renvoi. Public policy / ordre public. Overriding mandatory provisions / super-mandatory rules. Lecture 2: The law applicable to contracts. Party autonomy: choice of law by the parties to a contract. Express choice and choice clearly demonstrated. Indirect choice of law. Implied and inferred choice of law. Choice of law arising from the terms of the contract and the circumstances of the case. The applicable law in related transactions. Choice of lex mercatoria by the parties. Splitting the applicable law (dépeçage). Validity of the choice-of-law agreement. Limits on party autonomy. The applicable law in the absence of choice or where the choice-of-law agreement is invalid / unenforceable. The general rule and its exceptions under Article 4 of the Rome I Regulation. Matters governed by the law applicable to the contract. Lecture 3: The law applicable to torts. Scope of the Rome II Regulation. The basic approach to tort claims. The Private International Law (Miscellaneous Provisions) Act 1995. The double actionability rule. Rome II: rules on torts. Concurrent claims. Party autonomy: can the parties choose the law applicable to a tort? Lecture 4: The law applicable to non-contractual obligations and the personal law of a legal entity. The law applicable to specific torts (e.g. product liability and environmental damage). The law applicable to unfair competition and restrictions of competition. Restitution and unjust enrichment in private international law. Culpa in contrahendo: fault in the conclusion of a contract. Defamation. Scope of the law applicable under the Rome II Regulation. The personal law of a legal entity: analysis of the main approaches. Matters governed by the personal law of a legal entity. Organisations with limited legal personality.