1. International Commercial Law Choice of Governing Law
University of Oslo
Giuditta Cordero Moss, Ph.D., Dr.Juris
Professor, Oslo University

2. Conflict of laws International transactions:
Between parties having place of business in different states (CISG art. 1.1)
Involving a choice between the law of different countries (Rome Convention art. 1.1)
Transaction has a foreign element (French CPC art 1492)
More than one national law seem to be applicable

3. Mechanisms for cross-border contracts
Conflict rules (PIL) determine the law of what country governs
Conflict rules are part of each country’s own law
EU has harmonised conflict rules
Norway has own conflict rules

4. Mechanisms for cross-border contracts, cont.
Judge applies his own conflict rules
First step: identify forum
Then: apply conflict rule
So: conflict rule determines what country’s substantive law governs the contract

5. Choice of Forum Civil procedure of the judge International Instruments
Bruxells regulation
Lugano Convention
Hague Convention?

6. Choice of forum II Defendant’s forum Place of performance …
Exhorbitant fora
Exclusive fora
Forum chosen by the parties

7. Application of conflict rules
FIRM OFFER
Forum: Lugano convention, art. 2 or 5.1
Governing Law:
Italian subcontractor: Italian law
English subcontractor: English law
FORCE MAJEURE
Forum: Lugano convention, art. 2 or 5.1
Governing Law:
Italian supplier: Italian law
English supplier: English law

8. Party Autonomy
The vast majority of PILs allow parties to choose the governing law
Two possible effects:
Incorporation of the chosen law in the contract
Choice of governing law

9. Effects of Party Autonomy
Domestic contracts:
Incorporation (e.g. Art. 3 Rome Convention)
International contracts:
Choice of law (e.g. Art. 1.1 Rome Convention)
Limitations (e.g. Art. 7 Rome Convention)

10. Exercise of Party Autonomy
Expressed choice or demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case
Severability

11. How to Choose Governing Law
No need to choose a connected law
Identify particularly favourable law (difficult):
What protection/remedy is most likely to be needed
What law provides that protection/remedy
Avoid the other party’s law (not always necessary)
Choose a law particularly developed in the area
Choose a stable law which is sufficiently known
Choice of Lex Mercatoria is not equivalent to choice of law

12. Closest Connection
Lacking parties’ choice
Too vague

13. Closest Connection- Rome Convention
Art. 4.2 Presumption:
Habitual residence/place of business
Characteristic performance
Art. 4.5 Exception:
Characteristic performance cannot be determined
Circumstances as a whole show closer connection

14. Applicable Law – Certain Contracts
Immovable property
Carriage of goods
Consumer contracts
Employment contracts

15. Governing Law – Scope of Application
Interpretation of the contract
Performance of the contract
Consequences of non-performance
Consequences of invalidity
Termination
NOT choice of law rules