Contributed By Winston & Strawn London LLP
English courts will uphold the parties’ express choice of law as the governing law of the contract save for certain circumstances in which the parties’ choice of law may be modified by law (in respect of contractual obligations under the Rome Convention or the Rome I Regulation, or non-contractual obligations under the Rome II Regulation). For example, where the choice of forum is England and Wales, English mandatory rules will apply irrespective of the parties’ choice of law in respect of both contractual and non-contractual obligations. Expert evidence as to non-English law must be adduced at trial where English courts consider disputes based on foreign law.
Submission to a Foreign Jurisdiction
As to submission to a foreign jurisdiction, English courts look to uphold exclusive jurisdiction clauses (including where in favour of non-English jurisdiction) subject to the application of the European regime (which comprises the 2001 Brussels Regulation, the 2007 Lugano Convention and the Recast Brussels Regulation) and English common law.
Where a "foreign" jurisdiction, chosen by the parties, is within the European regime, it will have jurisdiction (save in certain cases set out in the Convention and Regulations, eg, where the proceedings relate to rights in rem). The European regime provides for a mechanism to address competing claims to jurisdiction which is broadly based on which jurisdiction was first "seised" of the claim and (from January 2015) whether an exclusive jurisdiction agreement exists between the parties. Where the foreign jurisdiction is not within the European regime, English courts have been willing to stay English proceedings in favour of foreign proceedings, usually as long as the European regime does not expressly reserve jurisdiction to itself in the particular case, although this may depend on whether the foreign court was first "seised".
In future, the legal framework relating to choices of law and jurisdiction may change as a result of Brexit. In particular, in the case of a “no-deal” Brexit, and following the UK's independent accession to The Hague Convention on Choice of Court Agreements (the Hague Convention), the Hague Convention will apply to mutual recognition between the UK and EU member states of exclusive jurisdiction clauses. The Hague Convention is discussed below in 6.3 A Judgment Given by a Foreign Court. Any foreign or Commonwealth state may waive its right to sovereign immunity by submitting to the jurisdiction of the English courts.