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ROUGH DRAFT
CONFLICT OF LAWS
POSITION RELATING TO INTERNATIONAL CONTRACTS
UNDER VARIOUS SYSTEMS OF LAW
(Asst. Prof.)
INTRODUCTION
Conflict of laws is a complex topic that touches on practically every area of law. It is also
understood, as a set of procedural rules that determines which legal system and which
jurisdictions apply to a given dispute. The rules typically apply when a legal dispute has a
foreign element such as a contract agreed to by parties located in different countries. In any case
which involves a foreign element it may prove necessary to decide which system of law is to be
applied, either to the case as a whole or to a particular issue or issues. Such foreign elements may
be constituted by the central administration or headquarters of each of the parties being located
in different countries or by the fact that the site is located in a country different from the home
country of either of the parties. 1
International contracts are one such branch of conflict of laws that involves determining the
question as to which law is to be applied. For Eg- A dispute in contract which comes before the
Australian court may have foreign elements: one or both of the parties may be foreign, or the
making or performance of the contract, or its terms, may be connected with one or more foreign
countries. The general principle to this is that every international contract (i.e. a contract
containing one or more foreign elements) has a governing law, called the proper law of the
contract, by reference to which issues arising out of it are mainly, though not exclusively,
decided.2
The field of contracts in conflict of laws is important as contracts underlie many transactions in
trade and commerce. There are general rules of law applicable to all contracts and the common
law rules on choice of law in contract, have for most part, been superseded by the rules in The
Rome Convention that provides for the law applicable to contractual obligations, 1980. Position
relating to such contracts before 1980 is unstable for the reason that it was a phase when the
development and refinements in laws relating to international contracts begin to develop.3
1 Macmillan Inc v. Bishopsgate Investment Trust Plc [1996] 1 WLR 387, 3912 per Staughton LJ; Raiffeisen
Zentral Bank Osterreich AG v. Five Star Trading LLC [2001] QB 825 at 840 B to 841B.
2 Dicey, Morris & Collins, Conflict of Laws, 14th edn., para 32-064, (2006).
3 Dicey, Morris & Collins, Conflict of Laws, 14th edn., para 32-003, (2006); Robinson v. Bland (1760) 2
Burr. 1077; Allen v. Kemble (1848) 6 Moo P.C. 314.
RESEARCH METHODOLOGY
The proposed research study will be carried out with the help doctrinal research methodology
and the following resources will be taken into consideration:
1. Studying Primary and Secondary Sources (Books, Articles)
2. Library Research
TENTATIVE CHAPTERISATION
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Introduction
Position relating to International Contracts under various Systems of Law
A Three-Step Test To The International Contracts
The Law of the Country with Which the Contract is Most Closely Connected
Issues related to Formal & Essential Validity of a Contract
Interpretation of the Contract
Limitations on the Power to Choose the Proper Law
Conclusion
BIBLIOGRAPHY
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Dicey, Morris & Collins, CONFLICT OF LAWS, 14th edn., para 32-064, (2006).
Castel & Walker, CANADIAN CONFLICT OF LAWS, 6th edn., para 31.7, (2005).
R. Leflar, American Conflicts LAW 52 (3d ed. 1977)
J.G. Castel, INTRODUCTION TO CONFLICT OF LAWS, 4th edn., pg. 198 (2002)
Cheshire, North & Fawcett, Private International Law, 14th edn, p. 140., (2008)