Lloyd's Maritime and Commercial Law Quarterly
THE FORMATION OF INTERNATIONAL CONTRACTS
By Adrian Briggs*
One of the more notoriously intractable problems of the modern conflict of laws arises in a contractual dispute where the defendant, sued in respect of an alleged breach, contends that there was no contractual obligation between him and the plaintiff in respect of which the claim may have been made. This may arise in one of two ways. The defendant may argue that the contract between the parties—the existence of which is admitted on all sides—did not contain the term allegedly broken. In such a case it is clear that an English court looks to the proper law of the contract, and uses that law to define the terms of that admitted contract. The parties have joined issue not on the question of whether there is a contractual relationship between them, but upon either the identity of the proper law or the contents of that contract as they will be determined by that proper law. It is part of the dogma of English conflict of laws that the isolation of the proper law of a contract is a matter for rules of English law but that, once this has been determined, that law operates to define the obligations (if any) undertaken by the parties. Thousands of cases have been decided according to this simple and clear pattern.
If, however, the defendant makes a more fundamental objection, the position is—astonishingly—much less clear. If the defendant chooses to contend that there was between the parties no contractual obligation at all, it must at least be clear that the applicable rules are not necessarily those which apply whenever it is argued that there is a contract between the parties.1 Put another way, if the defendant alleges that there is no voluntary obligation owed to the plaintiff, it is far from obvious that the right course is to apply rules, more or less modified, which apply when there is admitted to be a voluntary obligation between the parties. Equally, it would be inappropriate to apply rules which have been framed upon the footing that there is no voluntary obligation between the parties. Rather, a separate and independent set of rules seems desirable, and it is to the identification of these that this paper attends.
It comes as a surprise to newcomers that this issue has received little attention in the English courts.2 It may be that there will in fact be little attention in the future.
* Follow of St. Edmund Hall, Oxford.
1. See Dicey & Morris on The Conflict of Laws, 11th edn. (1987), (hereafter “Dicey & Morris”) Rule 181; Cheshire & North, Private International Law, 11th edn. (1987), 474–479, for the standard English academic view. Australian law (which has no substantial additional case law of its own) is to the same effect: Sykes & Pryles, Australian Private International Law, 2nd edn. (1987), 558.
2. Albeko Schuhmaschinen A.G. v. Kamborian Shoe Machine Co. Ltd. (1961) 111 L.J. 519; The Parouth
[1982] 2 Lloyd’s Rep. 351; Britannia Steamship Ins. Assn. Ltd. v. Ausonia Assicurazioni S.p.A. [1984] 2 Lloyd’s Rep. 98; Mackender v. Feldia A.G. [1967] 2 Q.B. 590; The Atlantic Emperor
[1989] 1 Lloyd’s Rep. 548.
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