1. International Commercial Law Choice of Governing Law
University of Oslo
Giuditta Cordero Moss, Ph.D., Dr.Juris
Prof.ass., International Commercial Law,
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. Private International Law
Applicable law is determined by choice of law rules
Private International Law is a part of each national law
The court always applies the private international law of its own country
An arbitral tribunal applies the PIL of the country where it is seated, unless the parties or the applicable arbitration rules request otherwise
May lead to forum shopping – harmonisation of PIL is a goal

4. 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

5. 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)

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

7. 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

8. Closest Connection
Lacking parties’ choice
Too vague

9. 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

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

11. 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