The traditional approach of English private international law to the problem of the period of time within which an action may be brought has been to characterize statutes of limitation as procedural, on the ground that they only bar the remedy and do not extinguish the right. Thus, where an action was brought in an English court to enforce an obligation arising from a contract which was governed by a foreign law, the court applied the English statute of limitations, and not that of the proper law of the contract; and thus dismissed the action if the English period had expired, even though the foreign period had not expired1; and conversely allowed the action if it had been brought within the English period, but beyond the foreign period2. Similarly, a foreign judgment dismissing an action as time barred did not prevent a subsequent English action on the same claim3. The only established exception, where an English court would apply a foreign rule on limitation, was in the case of a claim based on a proprietary right to a piece of land or a chattel4. The “specificity” test, that a limitation rule is substantive if it is specifically aimed at a particular type of claim, e.g. fatal accident claims, which has been adopted by some American courts5, was never adopted in England, though it received some acceptance in Scotland6. It was also well established that the fact that the relevant foreign law characterized its own limitation rule as substantive for choice of law purposes was irrelevant7.

The traditional English approach was, of course, diametrically opposite to that accepted in Continental European countries, which characterize time bars as substantive8. The Continental view was, moreover, adopted in the EEC Convention on the Law Applicable to Contractual Obligations, which was opened for signature at Rome on 19 June 1980 and has been signed but not ratified by the United Kingdom,