Understanding applicable law—a guide for dispute resolution practitioners
Understanding applicable law—a guide for dispute resolution practitioners

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

  • Understanding applicable law—a guide for dispute resolution practitioners
  • Cross-border considerations
  • What is meant by ‘applicable law’?
  • What rules apply to determine the applicable law?
  • Contractual dispute—parties agreed the applicable law
  • Contractual disputes—parties failed to agree the applicable law
  • Non contractual disputes—determining the applicable law
  • Hague Principles on Choice of Law in International Contracts
  • What impact does an English law clause have in the absence of a jurisdiction clause?
  • How do domestic courts apply the laws of another country?

This Practice Note explains what is meant by applicable law, also known as governing law, proper law or the choice of law ie the law used to determine the dispute between parties. The term does not include procedural law. The Practice Note sets out which applicable law regime applied by the courts of England and Wales, this will vary depending on whether the dispute is contractual or non-contractual and, if contractual, whether the parties agreed the applicable law through a choice of law clause and, if so, whether the agreement was varied after a contract has been entered into.

Cross-border considerations

Cross-border issues in disputes can arise very easily in a world where international travel, trade and communication is the norm. Contracts are concluded on a daily basis between parties operating on in different countries and different continents, goods and services are delivered across national borders and people have accidents in countries other than those in which they habitually live and work.

Where there is a cross-border element to a claim, there are three key questions for parties and their lawyers:

  1. in which country should the claim be commenced? (the jurisdiction question)

  2. which country’s laws will be applied by the court hearing the dispute? (the applicable law question)

  3. where can any judgment obtained be enforced? (the enforcement question)

These questions raise issues which are interrelated and should be

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