Applicable law—common law (contract)
Applicable law—common law (contract)

The following Dispute Resolution practice note provides comprehensive and up to date legal information covering:

  • Applicable law—common law (contract)
  • Requirement for a proper law of a contract
  • When is the common law applied?
  • Common law rules—three stage enquiry
  • Express choice of law
  • Implied choice of law
  • System of law with the closest and most real connection
  • Chosen law must be the law of a country

This Practice Note sets out when the common law applies in respect of contract claims. It considers what the common laws are and how they are applied.

For an understanding of the other applicable law regimes that may apply when determining the applicable law under contract or tort, see Practice Note: Understanding applicable law—a guide for dispute resolution practitioners.

Requirement for a proper law of a contract

The rationale for the need for there to be a proper law of a contract was explained in the dictum of Lord Diplock in when he said this:

‘My Lords, contracts are incapable of existing in a legal vacuum. They are mere pieces of paper devoid of all legal effect unless they were made by reference to some system of private law which defines the obligations assumed by the parties to the contract by their use of particular forms of words and prescribes the remedies enforceable in a court of justice for failure to perform any of those obligations …’

When is the common law applied?

When determining the applicable law for contract claims there are a number of potential applicable law regimes and the regime that is applied by the courts will depend on a number of factors. For proceedings in which the contract was entered into prior to 1 April 1991, the common law will apply. For contracts entered into after

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