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8 - Choice of Law in Non-Contractual Relations

Published online by Cambridge University Press:  31 July 2018

Alex Mills
Affiliation:
University College London
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Summary

This chapter examines the effectiveness of a contractual choice of law by the parties in a variety of non-contractual contexts. It first focuses on the problem of determining the intended scope of a choice of law agreement, which is a matter of contractual interpretation. The question then arises as to whether non-contractual choice of law rules will directly or indirectly give effect to a party agreement. In tort, a contractual choice of law is often recognised as having an indirect influence on the applicable law, and may be directly effective in limited circumstances. A contractual choice of law may also have an indirect effect in some cases where a claim is based on unjust enrichment. In choice of law in property, arguments are increasingly made for recognition of party autonomy, and an indirect effect is commonly recognised for assignments of contractual rights. The question of whether party choices of law should be recognised in equitable claims and under the law of trusts is also explored. Finally, the chapter examines the increasing influence of party autonomy in aspects of succession and family law, noting the distinctive role which party autonomy plays in this context. In each context a variety of approaches are considered.
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Publisher: Cambridge University Press
Print publication year: 2018

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