CHOICE OF LAW IN THE EUROPEAN UNION: PROCEDURE, EVIDENCE AND JUDICIAL DISCRETION CHUKWUMA OKOLI

RESEARCH QUESTIONS 1. Does the exclusion of matters of evidence and procedure threaten the aims of legal certainty and uniformity? - See Article 1(3) of Rome I and Rome II 2. How has the Court of Justice of the European Union contributed to the aims of legal certainty in interpreting the escape clause?

PROCEDURE Interlocutory Proceedings – injunction, summary judgment, forum non conveniens, place of performance under the European jurisdiction rules. Allied Irish Bank Plc and others v Diamond and others [2011] IEHC 505 i.threshold or preliminary issue? – ii.procedure versus substance iii.When can the applicable law be a threshold issue? Fortress Value Recovery Fund I LLC & ors v Blue Skye Special Opportunities Fund L.P & ors [2013] EWHC 14 (Comm) – i.Legal certainty and settlement of disputes ii.When can the applicable law be determined definitively?

PROCEDURE - CONTD Good Arguable Case CPR Rules – good arguable case CPR Practice Direction 6B (c) – good arguable case at ex parte stage – tilting in favour of English law – forum shopping?

EVIDENCE Proof of Foreign law in English Courts – Foreign law must be proved as a matter of fact – where foreign law cannot be proved or it cannot be established that it is different from English law, English law applies OPO v MLA, (“OPO”) [2014] EWCA Civ 1277 [108 – 111] (Matter for the forum) Overturned on appeal but not on proof of foreign law - James Rhodes v OPO [2015] UKSC 32 [121] – Lord Neuberger Lady Christine Brownlie v Four seasons Holdings Incorporated [2015] EWCA Civ 665 (Matter for the forum – Common law position on proof of foreign law defended – no reference to the CJEU)

JUDICIAL DISCRETION Article 4 of the Rome I and Rome II – consistent approach – Recital 7 Intercontainer Interfigo SC v Balkenende Oosthuizen BV & Anor [2009] ECR I-9687– Vague decision? Schlecker v Boedeker (C-64/12) [2014] 2 W.L.R. 45 – Employment contract i. Evaluating the Significance of Connecting Factors – not necessarily numerical Ii. Some factors more important than others Haeger & Schmidt GmBH v Mutuelles du Mans assurances IARD (MMA IARD) and others [2014] WLR (D) 441 – Contract of Carriage of Goods and Commercial Contract – i.applies Schlecker ii.Reference to Rome I - Recital 20