¹ Although the cases considered will be primarily those of England and the Canadian common law jurisdictions, the laws of Australia and New Zealand are substantially similar, largely because of the influence in this area of the Privy Council. Thus the Vita Foods case, infra note 7, the Mount Albert case, infra note 54, and the Bonython case, infra note 55, are respectively among the leading Canadian, New Zealand, and Australian cases. For a general discussion of the Canadian law, see 2 Castel, J.G., Canadian Conflict of Laws 513–43 (1977).Google Scholar

² See Willes, J.’s consideration of the lex loci contractus and lex loci solutionis rules in Lloyd v. Guibert , L.R. 1 Q.B. 115, 122–26 (Exch. Ch. 1865).Google Scholar

³ See Dicey and Morris on the Conflict of Laws 1107–9 (9th ed. 1973). They are characterized as substantive only if they operate to “extinguish the right” rather than “bar the remedy.”

⁴ Sayers v. Intern. Drilling Co. N.V., [1971] 1 W.L.R. 1176 (G.A.). See infra note 87 and accompanying text.

⁵ An express choice of law was rejected as “mala fide” in Golden Acres Ltd. v. Queensland Estates Pty. Ltd., [1969] Qd. R. 378 (S.C.), but the reasoning is open to question: see infra note 17 and accompanying text. It was also rejected in Queensland Estates Pty. Ltd. v. Collas, [1971] Qd. R. 75 (a related case), but the issue there was characterized as not being one for the proper law of the contract in any case.

⁶ Robinson v. Bland, 2 Burr. 1077, 1078 (K.B. 1760), per Lord Mansfield: “The law of the place can never be the rule, where the transaction is entered into with the express view to the law of another country, as the rule by which it is to be governed.” (Emphasis in the original.) He cited Huber and Voet.

⁷ [1939] A.C. 277 (P.C.).

⁸ Ibid., 289–90.

⁹ Ibid., 290.

¹⁰ Ibid.

¹¹ Ibid., 290–91.

¹² In re Claim by Heibert Wagg & Co., [1956] Ch. 232, 341 (1955), Per Upjohn, J.

¹³ Boissevain v. Weil, [1949] 1 K.B. 482, 491 (CA.), per Denning, L.J. (The decision was affirmed, [1950] A.C. 307.)Google Scholar See also the remarks of LordDenning, M.R. in The “Fehmarn,” [1957] 2 Ll.L.R. 551, 555Google Scholar (C.A.). Compare Tzortzis v. Monark Line A/B, [1968] 1 W.L.R. 406, 411 (C.A.), per Lord Denning, M.R.: “It is clear that, if there is an express clause in a contract providing what the proper law is to be, that is conclusive in the absence of some public policy to the contrary.”

¹⁴ Golden Acres Ltd. v. Queensland Estates Pty. Ltd., supra note 5, affd. on other grnds. sub nom. Freehold Land Investments Ltd. v. Queensland Estates Pty. Ltd., 123 C.L.R. 418 (1970). See Kelly, , Note, 19 I.C.L.Q. 701 (1970)CrossRefGoogle Scholar. See also United Nations v. Atlantic Seaways Corp., [1979] 2 F.C. 541, 554–55.

¹⁵ For an American decision rejecting an express choice of law for similar reasons (deliberate evasion of state usury laws), see Continental Mortgage Investors v. Sailboat Key, Inc., 354 So. 2d 67 (Fla. Dist. Ct. App. 1978).

¹⁶ The agent was a Hong Kong registered company, and many of the prospective buyers were in the Far East.

¹⁷ In a related case, Queensland Estates Pty. Ltd. v. Collas, supra note 5, the court also said (at 80–81) that a choice of law in a deed in favour of Hong Kong law was “unconnected with the realities of the contract” and therefore ineffective, but characterized the issue as relating to property rights and therefore not a matter for the proper law of the contract in any case, but one for the lex situs.

¹⁸ Nike Infomatic Systems Ltd. v. Avac Systems Ltd., 105 D.L.R. (3d) 455 (1979).

¹⁹ S.A. 1971, c. 28, ss. 5(1) and 28.

²⁰ It is possible that an Alberta court might have felt constrained to apply the statute, as reflecting the public policy of the forum: cf. Ross v. McMullen, infra note 94.

²¹ Dicey and Morris, supra note 3, at 731–32. See also the exchange between Dr.Morris, and Mann, F. A.: Mann, “The Proper Law of the Contract,” 3 I.L.Q. 60 (1950)Google Scholar; Morris, , “The Proper Law of the Contract: A Reply,” 3 I.L.Q. 197 (1950)Google Scholar; Mann, , “The Proper Law of the Contract: A Rejoinder,” 3 I.L.Q. 597 (1950).Google Scholar

²² Cheshire, G. and North, P., Cheshire’s Private International Law 208 (9th ed. 1974).Google Scholar

²³ 1977 c. 50. For a discussion of its conflicts provisions, see Mann, , Note, 27 I.C.L.Q. 661 (1978).CrossRefGoogle Scholar

²⁴ See s. 2 (I) (terms excluding or restricting liability for death or personal injury resulting from negligence), s. 5 (terms excluding or restricting manufacturer’s liability to consumers for defective, negligently made goods) and ss. 6 and 7 (terms excluding or restricting liability for breach of certain obligations of the seller of goods).

²⁵ See s. 2(2) (terms excluding or restricting liability for loss or damage caused by negligence, other than death or personal injury), s. 3 (terms in consumer contracts or standard forms excluding or restricting liability for breach of contract), s. 4 (indemnity clauses), and s. 8 (terms excluding or restricting liability for misrepresentation). For the meaning of “reasonableness” in this context, see s. 11.

²⁶ S. 27(2).

²⁷ S. 27 (2) (a). The meaning of the words “imposed” and “evade” will obviously need to be judicially clarified; see Mann, op. cit. supra note 23, at 662–63.

²⁸ Choice of Law, Part I, 274–75.

²⁹ “Dealing as consumer” is defined in s. 12 to mean, basically, contracting other than in the course of a business, with a party who contracts in the course of a business.

³⁰ S. 27(2) (b). This provision closely parallels one in the new European Communities Convention on the law applicable to contractual obligations: infra note 127 and accompanying text.

³¹ Supra note 28.

³² Also worth noting is s. 27(1), which provides that if the “objective” proper law of the contract is not a law of the United Kingdom, but the parties have expressly chosen a law of the United Kingdom, the operation of the Act is excluded; in other words, those who deliberately choose to have their contract governed by, say, English law are deprived of the protection of the Act. This result has been described as “perverse” by Dr.Mann, : “The Proposed New Law of Exemption Clauses and the Conflict of Laws,” 26 I.C.L.Q. 903, at 907–9 (1977)CrossRefGoogle Scholar. It should be noted further that the Act does not apply to “international supply contracts”: s. 26. Parties may subject such contracts to the regime created by the Uniform Law on International Sales, as implemented in the U.K. by the Uniform Laws on International Sales Act 1967, c. 45.

³³ Hamlyn & Co. v. Talisker Distillery, [1894] A.C. 202 (H.L. (Sc.)); Spurrier v. La Cloche, [1902] A.C. 446; N.V. Kwik Hoo Tong Handel Maatschappij v. James Finlay & Co. Ltd., [1927] A.C. 604; Re O’Brien and Canadian Pacific Ry. Co., 25 D.L.R. (3d) 230 (Sask. 1972).

³⁴ Tzortzis v. Monark Line A/B, supra note 13.

³⁵ James Miller & Partners Ltd. v. Whitworth Street Estates (Manchester) Ltd., [1970] A.C. 583; Compagnie Tunisienne de Navigation S.A. v. Compagnie d’Armement Maritime S.A., [1971] A.C. 572 (1970).

³⁶ Compagnie Tunisienne, etc., supra note 35, at 605, per Lord Diplock.

³⁷ In re Missouri S.S. Co., 42 Ch.D. 321, 337 (C.A. 1889); The Industrie, [1894] P. 58 (C.A. 1893); Bunge North American Grain Corp. and Fire Assn. of Philadelphia v. Steamer “Sharp”, [1933] Ex. C.R. 75.

³⁸ Armadora Occidental S.A. v. Horace Mann Ins. Co., [1977] 1 W.L.R. 1098 (C.A.). Compare Navegacion Goya, S.A. v. Mutual Boiler & Mach. Ins. Co., 411 F. Supp. 929 (S.D. N.Y. 1975).

³⁹ G. E. Dobell & Co. v. Steamship Rossmore Co., [1895] 2 Q.B. 408 (C.A.). The relevant clause in the bill of lading read: “This shipment is subject to all the terms and provisions of, and all the exceptions from liability contained in the Act of Congress of the United States, approved on the 13th day of February, 1893.” See also the Vita Foods case, supra note 7, at 291; Stafford Allen & Sons Ltd. v. Pacific Steam Navign. Co., [1956] 1 W.L.R. 629 (C.A.) ; Adamastos Shipping Co. Ltd. v. Anglo-Saxon Petroleum Co. Ltd., [1959] A.C. 133 (1958); Heath Steel Mills v. Schroder, 37 D.L.R.(2d) 367 (N.S.S.C. 1962). For a discussion of the difference between a choice of law and an incorporation of law, see Kelly, , “Reference, Choice, Restriction and Prohibition,” 26 I.C.L.Q. 857, at 857–71 (1977).CrossRefGoogle Scholar

⁴⁰ Peninsular & Oriental Steam Navigation Co. v. Shand, 3 Moo. P.C. (N.S.) 291 (P.C. 1865).

⁴¹ Supra note 8 and accompanying text.

⁴² Jacobs v. Crédit Lyonnais, 12 Q.B.D. 589, 599–600 (C.A. 1884).

⁴³ Supra note 2.

⁴⁴ Ibid., 129.

⁴⁵ [1954] P. 150 (CA. 1953).

⁴⁶ Ibid., 176, 179.

⁴⁷ Dicey, A., The Conflict of Laws (1896), sub-rule 3, 569–70.Google Scholar

⁴⁸ The two presumptions were stated most clearly in Bowen, L.J.’s judgment in Jacobs v. Crédit Lyonnais, supra note 42, at 600–1Google Scholar. For the presumption in favour of the lex loci contractus, see also Peninsular & Oriental Steam Navign. Co. v. Shand, supra note 40, at 291; Lloyd v. Guibert, supra note 2, at 12223; In re Missouri S.S. Co., supra note 37, at 338. For the presumption in favour of the lex loci solutions, where the contract is to be performed elsewhere than in the place of contracting, see Chatenay v. Brazilian Submarine Telegraph Co., [1891] 1 Q.B. 79 (C.A. 1890).

⁴⁹ For example, Zivnostenska Banka National Corp. v. Frankman, [1950] A.C. 57 (!949) was decided on the basis that since both the place of performance and the place of contracting were in Czechoslovakia, the proper law could not be other than Czechoslovakian law.

⁵⁰ Dicey and Morris on the Conflict of Laws (8th ed. 1967), Rule 127, sub-rule 3, at 712. The presumptions in this edition were more weakly phrased than those in the first edition. “Prima facie the proper law … is presumed to be …” was changed to “[the contract] may sometimes be presumed to have its closest and most real connection with …,” the latter phrase referring to the more “objective” formulation the courts began to use around 1950. There were also some other changes, which are not material here.

⁵¹ Dicey and Morris on the Conflict of Laws (9th ed. 1973), Rule 146, sub-rule 3 and fn. 40, at 742.

⁵² See Coast Lines Ltd. v. Hudig & Veder Chartering N.V., [1972] 2 Q.B. 34, at 44, 47, 50 (CA. 1971).

⁵³ O.K. Murphy Est. v. The Queen, [1974] Can. Tax Cas. 552, 557 (Fed. Ct. Trial Div.). See also Bunge North Am. Grain Corp. and Fire Assn. v. Steamer “Skarp,” supra note 37; Rosencrantz v. Union Contractors Ltd., 23 D.L.R. (2d) 473 (B.C.S.C. 1960); Re Modern Fashions Ltd., 8 D.L.R. (3d) 590 (Man. Q.B. in bptcy. 1969); Re Maritime Heating Co., 2 D.L.R. (3d) 471 (N.B. 1968).

⁵⁴ Mount Albert Borough Council v. Australasian Temperance & General Mutual Life Assurance Society Ltd., [1938] A.C. 224, 240 (P.C. 1937).

⁵⁵ [1951] A.C. 201 (P.C. 1950). It is tempting to draw an analogy between this case and the cases that first “objectified” the French and German choice of law formulas (Choice of Law, Part I, 242–43, 265–66) because they, like the Bonython case, involved a split of what had been, at the time of contracting, a single currency into two new currencies and therefore made it difficult to speak in terms of an “intention” of the parties at the time of contracting so far as the currency of the contract was concerned. But the Bonython case was different because although the Queensland pound and the pound sterling were, at the time of contracting, simply pounds sterling, Queensland undoubtedly had its own monetary system.

⁵⁶ Ibid., 219–21.

⁵⁷ Ibid., 221.

⁵⁸ Compagnie Tunisienne case, supra note 35, at 583, 603; James Miller & Partners Ltd. v. Whitworth Street Estates (Manchester) Ltd., supra note 35, at 604, 606, 611, 614–15; In re United Rys. of Havana and Regla Warehouses Ltd., [1961] A.C. 1007, 1068, 1081 (1960); Coast Lines Ltd. v. Hudig & Veder Chartering N.V., supra note 52, at 44,46, 50; Sayers v. Intern. Drilling Co. N.V., supra note 4, at 1180–81, 1183, 1185; Mauroux v. Soc. Com. Abel Pereira da Fonseca SARL, [1972] 1 W.L.R. 962, 966 (Ch.D.); Rossano v. Manufacturers’ Life Ins. Co., [1963] 2 Q.B. 352, 369 (1962); Imperial Life Assurance Co. of Canada v. Colmenares, [1967] S.C.R. 443, 448; Sunlite Intern. Inc. v. Trans-Canada Resources Ltd., [1978] 5 W.W.R. 345 (Alta. S.C.); Etler v. Kertesz, 26 D.L.R. (2d) 209, 217 (Ont. 1960); Charron v. Montreal Trust Co., 15 D.L.R.(2d) 240, 245 (Ont. 1958); Montreal Trust Co. v. Stanrock Uranium Mines Ltd., 53 D.L.R. (2d) 594, 611 (Ont. H.C. 1965); Re Viscount Supply Co., 40 D.L.R. (2d) 501, 507 (Ont. S.C. in bptcy. 1963).

⁵⁹ Supra note 51, loc. cit.

⁶⁰ Compagnie Tunisienne case, supra note 35, at 587, per Lord Morris; James Miller & Partners Ltd. v. Whitworth Street Estates (Manchester) Ltd., supra note 35, at 606, per Lord Hodson; In re United Rys. of Havana and Regla Warehouses Ltd., supra note 58, at 1081–84, per Lord Morris; Rossano v. Manufacturers’ Life Ins. Co., supra note 58, at 369; Imperial Life Assurance Co. of Canada v. Colmenares, supra note 58, at 449. See also Dicey and Morris, supra note 51, at 507.

⁶¹ Coast Lines Ltd. v. Hudig & Veder Chartering N.V., supra note 52, at 44, per Lord Denning, M.R.; Sayers v. Intern. Drilling Co. N.V., supra note 4, at 1184, 1185. This factor is often outweighed by others; see, e.g., Etler v. Kertesz, supra note 58.

⁶² B.P. Exploration Co. (Libya) Ltd. v. Hunt, [1976] 3 AU E.R. 879 (Q.B.D.), followed in B.P. Exploration Co. (Libya) Ltd. v. Hunt (No. 2), [1979] 1 W.L.R. 783 (Q.B.D.). Express choices of law in this type of contract are discussed in Brown, “Choice of Law Provisions in Concession and Related Contracts,” 39 M.L.R. 625 (1976).

⁶³ In re United Rys. of Havana, etc., supra note 58, at 1068 (“country”); Whitworth Street Estates (Manchester) Ltd. v. James Miller & Partners Ltd., [1969] ι W.L.R. 377, 380 (C.A.) (“system of law”).

⁶⁴ James Miller & Partners Ltd. v. Whitworth, etc., supra note 35, at 604; Compagnie Tunisienne case, supra note 35, at 588.

⁶⁵¹ James Miller & Partners Ltd. v. Whitworth, etc., supra note 35, at 606, per Lord Hodson; Coast Lines Ltd. v. Hudig & Veder Chartering N.V., supra note 52, at 50, per Stephenson, L.J.; B.P. Exploration (Libya) Ltd. v. Hunt, supra note 62, at 888.

⁶⁶ Compagnie Tunisienne case, supra note 35, at 595; compare his use of the newer formula in James Miller & Partners v. Whitworth, etc., supra note 35, at 614–15.

⁶⁷ Supra note 52.

⁶⁸ This was one of many cases in which the proper law has had to be determined in isolation from the issue that was actually the subject of litigation. In this case the proper law had to be determined for the purpose of deciding whether the English equivalent of a “long-arm” statute, Order 11 of the Rules of the Supreme Court, permitted service ex juris on the defendants in The Netherlands, because the applicable rule (rule 1 (1) (f) (iii)) requires that the contract be “governed by English law.”

⁶⁹ Coast Lines Ltd. v. Hudig & Veder Chartering N.V., supra note 52, at 44.

⁷⁰ Ibid., 46.

⁷¹ He did point out that if the parties’ intention to make a valid contract was relevant, so was the consideration that Dutch charterers should not lightly have imputed to them an intention to subscribe to a clause that transgressed the Commercial Code of The Netherlands, which did not permit a choice of foreign law to make valid a clause like the one in question.

⁷² Wyatt, , “Choice of Law in Contract Matters: A Question of Policy,” 37 M.L.R. 349 (1974).CrossRefGoogle Scholar

⁷³ As to these, see Dicey and Morris, supra note 51, Rule 148, at 763 et seq.; Libling, , “Formation of International Contracts,” 42 M.L.R. 169 (1979).CrossRefGoogle Scholar

⁷⁴ It is conceivable that parties might deliberately split their contract between two proper laws, but this has not happened in a reported case, and the courts lean heavily against any such construction of the parties’ intentions. See Kahler v. Midland Bank Ltd., [1950] A.C. 24, 42 (1949), per Lord McDer-mott (“not without good reason”) and Montreal Trust Co. v. Stanrock Uranium Mines Ltd., supra note 58, at 607 (“only in exceptional circumstances”). See also In re Claim by Helbert Wagg & Co., supra note 12, at 341–42; Cheshire and North, supra note 22, at 202.

⁷⁵ See supra note 68.

⁷⁶ E.g., the Compagnie Tunisienne case, supra note 35. Lord Wilberforce, at 600, strongly deprecated the time and expense that this procedure cost, and said that as a rule the proper law should be considered a matter to be determined, as one of their findings, by the arbitrators. See also the Coast Lines case, supra note 52, at 44–45, per Lord Denning, M.R.

⁷⁷ In one Canadian case, counsel tried to argue that the “closest and most real connection” test should be read as “closest and most real connection with respect to the issue before the court,” but the court rejected that argument as “splitting” the proper law. Montreal Trust Co. v. Stanrock Uranium Mines Ltd., supra note 58, at 615.

⁷⁸ Zivnostenska Banka National Corp. v. Frankman, supra note 49; Kahler v. Midland Bank, [1950] A.C. 24 (1949); Rossano v. Manufacturers’ Life Ins. Co., supra note 58; Imperial Life Assurance Co. of Canada v. Colmenares, supra note 58; Etler v. Kertesz, supra note 58; Serpa v. Confederation Life Assn., 43 D.L.R. (3d) 324 (Ont. H.C. 1974), vacated on other grnds., ibid., 324 n.

⁷⁹ Mount Albert Borough Council v. Australasian, etc., Life Assurance Society Ltd., supra note 54; see also Montreal Trust Co. v. Stanrock Uranium Mines Ltd., supra note 58.

⁸⁰ In re United Rys. of Havana, etc., supra note 58; In re Claim by Helbert Wagg & Co. Ltd., supra note 12.

⁸¹ Choice of Law, Part I, 239–41.

⁸² R. v. International Trustee for the Protection of Bondholders A.G., [1937] A.C. 500.

⁸³ Por a criticism of the assumption in English law that the proper law is virtually the exclusive source of the mandatory rules that apply to a contract, see Jaffey, , “Essential Validity of Contracts in the English Conflict of Laws,” 27 I.C.L.Q. 1(1974).CrossRefGoogle Scholar

⁸⁴ Supra note 7.

⁸⁵ The Torni, [1932] P. 78 (C.A.).

⁸⁶ Supra note 7, at 300.

⁸⁷ Supra note 4. Another example is Nike Infomatic Systems Ltd. v. Avac Systems Ltd., supra note 18.

⁸⁸ Supra note 4, at 1184, 1185. Lord Denning reached the same result by characterizing the issue as intermediate between tort and contract, and finding that the “proper law of issue” was Dutch law.

⁸⁹ Especially since the employer was a multinational, not really a Dutch concern, and since Dutch law permitted waivers of employees’ tort rights only in “international” employment contracts, holding them void for domestic contracts.

⁹⁰ O’Donovan v. Dussault, 35 D.L.R. (3d) 280 (Alta. 1973). Cf. Bateman & Litman Real Estate Ltd. v. Big T Motel Ltd., 44 D.L.R. (2d) 474 (Sask. Q.B. 1964), affd. 49 D.L.R. (2d) 48on (Sask. 1964).

⁹¹ O’Donovan v. Dussault, supra note 90, at 286. Canadian courts have also refused to apply the forum’s statutory bar against deficiency actions after repossession of goods sold by conditional sale, where the proper law of the conditional sale was the law of another province, which permitted deficiency actions. Trans-Canada Credit Corp. v. Prince, 53 D.L.R. (2d) 92 (Man. 1965); Canadian Acceptance Corp v. Matte, 9 D.L.R. (2d) 304 (Sask. 1957).

⁹² Ralli Bros. v. Compania Naviera Sota y Aznar, [1920] 2 K.B. 287 (CA.); Machender v. Feidia A.G., [1967] 2 Q.B. 590, 601 (CA.).

⁹³ The only authorities are cases where the proper law was English: Regazzoni v. K.C. Sethia (1944) Ltd., [1958] A.C. 301 (1957); Foster v. Driscoll, [1929] i K.B. 470 (C.A. 1928); but Dicey and Morris suggests it is probable that the rule extends to contracts governed by foreign law: supra note 51, at 753.

⁹⁴ E.g., Boissevain v. Weil, [1950] A.C. 327, esp. 343–44; Ross v. McMullen, 21 D.L.R. (3d) 228 (Alta. S.C. 1971). For other examples, see Dicey and Morris, supra note 51, at 753–57.

⁹⁵ [1909] 2 K.B. 208 (CA.).1

⁹⁶ Ibid., 227, per Vaughan Williams, L.J.

⁹⁷ Dicey and Morris, supra note 51, at 753. One product of this rule has been a decision holding that contracts for the sale of slaves were enforceable if they were legal in the country where they were intended to be performed. Santos v. Illidge, 3 C.B. (N.S.) 861 (Exch. Ch. 1860).

⁹⁸ Kaufman v. Gerson, [1904] 1 K.B. 591 (CA.); McMahon v. Taugher, 20 D.L.R. 521 (Ont. 1914). Compare National Surety Co. v. Larsen1, [1929] 4 D.L.R. 918 (B.C.).

⁹⁹ Rousillon v. Rousillon, 14 Ch. D. 351 (1880). Compare Nasco, Inc. v. Gimbert, Choice of Law, Part II, 241, note III and accompanying text.

¹⁰⁰ Convention of September 27, 1968, as amended by the Convention of Accession of October 9, 1978. See McClellan, , “The Convention of Brussels of September 27, 1968 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters,” 15 C.M.L. Rev. 228 (1978)Google Scholar; McClellan, Note, 16 C.M.L. Rev. 268 (1979).

¹⁰¹ The French text is reproduced in [1973] Rev. Crit. de Dr. Intern. Privé 209. For commentary, see Nadelmann, , “Impressionism and Unification of Law: The E.E.C. Draft Convention on the Law Applicable to Contractual and Non-Contractual Obligations,” 24 Am. J. Comp. L. 1 (1976).CrossRefGoogle Scholar

¹⁰² The English text was published in [1979] 2 C.M.L.R. 776.

¹⁰³ At the time of writing, Denmark and the United Kingdom had not yet signed the Convention. It is to come into force after it has been ratified by seven states (Art. 29( 1 ) ), and will affect only contracts made after the Convention comes into force in the state where the action is brought (Art. 17). See North, [1980] J. Bus. L. 382. I am grateful to Dr. North for providing me with a copy of the Convention.

¹⁰⁴ Arts. I(2)–(4). (All references in this section to articles are to the Convention.) These provisions also exclude contractual matters in the fields of succession, matrimonial, company, and trust law.

¹⁰⁵ Art. I (I) and Art. 2.

¹⁰⁶ Art. 3(1).

¹⁰⁷ Ibid.

¹⁰⁸ Art 3(2). This would probably cover the German rule that a failure to plead foreign law in the earlier stages of legal proceedings is to be construed as an inferred choice of German law to govern the contract: see Choice of Law, Part I, 263–64.

¹⁰⁹ Art. 4(1).

¹¹⁰ Choice of Law, Part I, 235–38, 241–45.

¹¹¹ Ibid., 264–70.

¹¹² Choice of Law, Part II, 232–33.

¹¹³ Art. 4(2).

¹¹⁴ See Choice of Law, Part I, 243, 268.

¹¹⁵ D’Oliveira, , “‘Characteristic Obligation’ in the Draft E.E.C. Obligation Convention,” 25 Am. J. Comp. L. 303, 304–5 (1977)CrossRefGoogle Scholar. This article strongly criticizes the concept.

¹¹⁶ Ibid., 313–16; North, op. cit., supra note 103, at 385.

¹¹⁷ Cf. Prof.Kegel’s, “principle of minimum inconvenience”: Choice of Law, Part I, 268.Google Scholar

¹¹⁸ Art. 4(3).

¹¹⁹ Art. 4(4).

¹²⁰ Art. 4(5).

¹²¹ Ibid.

¹²² If the site of the project in France is considered a subsidiary “place of business” for the contractor, the presumption becomes one in favour of French law.

¹²³ Art3 3(3).

¹²⁴ Art. 5(l).

¹²⁵ Art. 5(2).

¹²⁶ See Choice of Law, Part I, 274–75.

¹²⁷ Art. 5(2).

¹²⁸ Ibid. The latter provision was inserted, it is understood, to cover cross-border shopping expeditions by bus, organized by merchants on the far side of the frontier; apparently these expeditions are not uncommon phenomena in Europe.

¹²⁹ Art. 5(3).

¹³⁰ Art. 5(4) (a).

¹³¹ Art. 5(4) (b).

¹³² Art. 5(5).

¹³³ This assumes that the travel agent is the “agent” of the tour operator for the purposes of Art. 5 (2), making the contract one in which the consumer’s order is given to the operator’s agent in France.

¹³⁴ Art. 6(2).

¹³⁵ Art. 6(1).

¹³⁶ Art. 7(2). It should be noted that these are not “mandatory rules” in the sense used in the other provisions, that is, rules the parties cannot displace by contract according to the relevant domestic law of contracts. The rules in question in Art. 7(2) (and Art. 7(1), discussed immediately below) are rules that, according to the relevant system of conflicts rules, cannot be displaced by a foreign law.

¹³⁷ See Hartley, , “Beyond the Proper Law: Mandatory Rules under Draft Convention on the Law Applicable to Contractual Obligations,” 4 European L. Rev. 236 (1979).Google Scholar

¹³⁸ An American judge might regard the rules’ position under the foreign conflicts law as relevant to assessing the foreign country’s interest in having those rules applied, but he would not regard it as decisive for the result.

¹³⁹ Choice of Law, Part I, 248–51.

¹⁴⁰ If the case was brought in an Italian court, the judge would have to decide only the second point, that is, whether the forum’s statute applied regardless of the law governing the contract. If so, the statute would apply simply as lex fori, under Art. 7(2). See supra note 136 and accompanying text.

¹⁴¹ The article was also slightly broader, because it used the phrase “any country with which the situation has a significant connection,” rather than the final version’s “close connection.”

¹⁴² Art. 22(1) (a).

¹⁴³ Art. 16.

¹⁴⁴ Art. 21. The Convention provides, in Arts. 23 and 24, a procedure for mandatory consultation and negotiation in the event that a state wishes to alter its choice of law rules, e.g., upon entering into another treaty that deals with the topic.

¹⁴⁵ See Arts. 459 et seq., BGB for the remedies in relation to contracts of sale. See also von Mehren, A. & Gordley, J., The Civil Law System 1105, 1122 (2d ed. 1977).Google Scholar

¹⁴⁶ Choice of Law, Part II, 225–26.

¹⁴⁷ Ibid., 232–33.

¹⁴⁸ A very similar issue arose recently in a Canadian constitutional case, R. v. Thomas Equipment Ltd., [1979] 2 S.C.R. 529. The question was whether Alberta could validly impose an obligation on a New Brunswick supplier of farm equipment to repurchase the equipment from an Alberta dealer when the dealership was terminated. The Supreme Court of Canada held that although the contracts of sale were governed by the law of New Brunswick, the connections of the case with Alberta gave the latter province an adequate constitutional basis for imposing its law. The defendant was therefore liable for breach of the statute, at least so far as the Alberta courts were concerned.