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Week 11 International Aspects of contract law (UN Convention on Contracts…

- - - - Lord Simond set out the test for the “proper law” to interpret any contract. The first limb (or, more properly, the first test, since he set out two alternative tests) was “the system of law by reference to which the contract was made”.
        
        first Bonython test – the subjective, choice of law test – will be applied in the first instance. So most internet retailers have put this matter beyond doubt, by including a choice of law clause in their standard “terms and conditions” which must be acknowledged by the customer in the course of the transaction.
    - - This test asks which jurisdiction is the one “with which the transaction has its closest and most real connection.” This is a question of fact, and it is objective
- - - - Where parties have not specifically chosen a jurisdiction, Article 4 steps in. Surprise! It very closely echoes the second Bonython test! Article 4 states that if the parties have not chosen a jurisdiction, the contract shall be governed by the law of the country with which it is most closely connected.
    - - does contain some good provisions for the protection of consumers. First, regardless of what the parties may agree to under Article 3, the consumer cannot be deprived of any consumer protections which they would have if their home nation’s law applied.
    - - Article 3 of the Rome Convention looks rather like the first Bonython test. It begins A contract shall be governed by the law chosen by the parties. It then states that the choice must be stated with “reasonable certainty” either in the contract itself, or the choice must emerge with reasonable certainty from the circumstances of the case
- - - - The High Court of Australia has never decided a contract on the basis of the UNIDROIT principles. Neither has the Queensland Supreme Court.
- - - - Valve Case