Applicable law in non-contractual disputes

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This Overview considers the applicable law regimes when determining the applicable law in a non-contractual dispute.

For guidance on other aspects of determining the applicable law, see:

  1. •

    Applicable law principles—overview

  2. •

    Determining applicable law in contractual disputes—overview

The applicable law is only one consideration when dealing with a cross border dispute. For an insight into the various considerations, see: Cross border considerations—checklist.

How applicable law is determined

The applicable law regime applied by the courts of England and Wales (English courts) to determine the applicable law in non-contractual disputes will depend upon the date on which the harmful event complained of occurred and whether the proceedings fall within the relevant regime:

  1. •

    1 January 2020 onwards—UK Rome II, Regulation (EC) 864/2007 on the Law Applicable to Non-contractual Obligations (UK Rome II)

  2. •

    11 January 2009 to 31 December 2020 at 11 pm—Regulation (EC) 864/2007, Rome II (UK only) which applies in the UK to transitional provisions under Article 66 of the Withdrawal Agreement. For guidance, see Practice Note: Brexit post implementation period—considerations for dispute resolution practitioners, specifically, main

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Latest Dispute Resolution News

Arbitration—restraining arbitration proceedings pending a removal application or procedural challenge (A v B & another)

Arbitration analysis: In this decision, the Commercial Court refused to stay or restrain two London Court of International Arbitration (LCIA) arbitrations pending determination of applications under sections 24 and 68 of the Arbitration Act 1996 (AA 1996). Party A had sought what it described as a ‘stay’ under CPR 3.1(2)(g), contending that the arbitrations should not proceed while the court considered an application to remove the sole arbitrator and a serious irregularity challenge. Mr Justice Butcher held that CPR 3.1(2)(g) applies only to court proceedings and cannot be invoked to stay arbitral proceedings. Properly characterised, the relief sought was an injunction restraining further pursuit of the arbitrations. The judge doubted whether the court had jurisdiction to grant such relief, given s 1(c) (the principle of non-intervention) and s 24(3), which expressly permits arbitral proceedings to continue while a removal application is pending. In any event, even if such jurisdiction existed, it could only be exercised in exceptional circumstances (for example, where continuation would be vexatious, oppressive or unconscionable), and no such circumstances were made out. The decision underlines the strict limits on judicial intervention in ongoing arbitrations and confirms that the mere existence of s 24 or s 68 applications / challenges will not justify interrupting the arbitral process. Practitioners should note the court’s clear refusal to assume any supervisory role over arbitral procedure prior to an award. Written by Oliver Browne, partner, at Paul Hastings (Europe) LLP.

Data by any other name—Court of Appeal reverses Upper Tribunal’s ruling on the protection of ‘personal data’ (DSG v ICO)

Information Law analysis: In this case, the Court of Appeal unanimously allowed the appeal brought by the Information Commissioner’s Office (ICO), holding that it is sufficient that data which has been subjected to unauthorised or unlawful processing by a third party still constitutes personal data from the perspective of the data controller, even if it is pseudonymised ‘in the hands of’ the data controller and therefore anonymised ‘in the hands of’ the attacker. Accordingly, the court held, the data controller is required to take ‘appropriate technical and organisational measures’ (ATOMs) to protect that personal data against such hackers, even where those third parties cannot themselves identify the individuals to whom the data relates. Even though this judgment is under the Data Protection Act 1998 (DPA 1998), this decision is significant as it confirms, in terms equally applicable to the United Kingdom General Data Protection Regulation, Assimilated Regulation (EU) 2016/679 (UK GDPR), that the scope of the security obligation is not diminished merely because stolen or exfiltrated data would be anonymised in the hands of the third party with unlawful access. This development expands and makes more pressing the obligation on controllers to assess and guard against a broader range of threats—including ransomware, data destruction, and bulk exfiltration, regardless of the attacker's capacity to re-identify data subjects. Written by Adelaide Lopez, senior associate at Wiggin LLP.

Foreign law disputes—non-compliance with CMC order risked loss of foreign law defence (Direct Investments Ltd (a company in receivership incorporated in the British Virgin Islands) v Mittal-Goenka)

Dispute Resolution analysis: The court held that the defendants, having pleaded Swiss and UAE law, were required to particularise the specific foreign law principles relied upon before any expert evidence would be permitted. They had failed to comply with an earlier case management order requiring such particularisation and had not appealed or sought to vary it. The court rejected the argument that the claimant should instead plead foreign law first, holding that sequencing is a matter of case management and that the burden lies on the party seeking to displace the presumption of similarity. The Supreme Court’s decision in FS Cairo (Nile Plaza) LLC v Brownlie did not constrain that discretion. Although the court could have excluded reliance on Swiss and UAE law altogether, it granted the defendants a short, final opportunity to particularise, failing which the foreign law issues would fall away.

HCCH publishes 2025 annual report highlighting private international law developments

The Hague Conference on Private International Law (HCCH) has published its 2025 annual report, detailing the establishment of two new Experts’ Groups addressing private international law issues related to Digital Tokens and Carbon Markets. During the reporting period, HCCH’s membership expanded to 92 with the admission of Rwanda; additionally, Guatemala and Qatar received invitations to join and Indonesia applied for membership. The report also highlighted 19 new signatures, accessions or ratifications of HCCH conventions alongside the publication of the fifth editions of its Service and Evidence Handbooks.

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