San Diego International Law Journal

Library of Congress Authority File


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This Comment explores the provisions of the Rome Convention and the advantages contracting parties can benefit from through knowledge of such provisions. The main focus of this Comment is English conflict of laws rules related to contractual obligations that are governed by the Rome Convention. England and its laws on international contracts have been chosen as the appropriate subject of this Comment for the following reasons. First, because international conventions and treaties do not apply to all countries but only to those who ratify them, it is easier to see how the rules of such conventions are applied by a particular ratifying country rather than by discussing the rules in abstract terms. England, as a part of the United Kingdom, is a signatory to the Rome Convention. Thus, the English courts application of the Rome Conventions rules is a representative source from which to examine the operation of international contract rules. Second, England is a popular choice for international contracting because of London's reputation as a leading world business player. And third, England acts as an excellent legal comparison to the United States because of the close connection between English common law and United States common law. This Comment consists of six parts. Part I introduces the complexities surrounding international contractual obligations and the conflict of laws rules provided by the Rome Convention to resolve such complexities. Part II describes the system of private international law for international contracts and the specific sources of English conflict of laws rules as they relate to contracts, with a focus on the Rome Convention. Part III explores English common law and conflict of laws rules related to international contracts in existence prior to the Rome Convention. Part IV examines relevant provisions of the Rome Convention in detail. The need for parties to include express choice of law clauses in their contracts is illustrated first by describing the complexity and uncertainty that result from applying the default rules in the absence of an express choice of law. These results are then contrasted with the clearer, more predictable results that follow from applying rules for contracts that contain choice of law clauses. Part V considers and compares United States conflict of laws with corresponding provisions in the Rome Convention for contracts containing choice of law clauses. This comparison illustrates why choice of law provisions are more likely to be upheld by courts under the Rome Convention than under similar United States laws. Part VI concludes that parties contracting under the Rome Convention should not rely on courts to determine their contracts' applicable law. Instead, parties should control the governance of their contracts by taking advantage of the Rome Convention's flexibility and predictability by including choice of law provisions in their contracts.