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CHOICE OF LAW IN CONTRACT: THE MISSING PIECES OF THE ARTICLE 4 JIGSAW?

Published online by Cambridge University Press:  17 January 2008

Simon Atrill
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Abstract

Article 4 of the Rome Convention determines the law governing a contract in the absence of choice by the parties. Despite its practical importance, and several decisions of the Court of Appeal, the correct construction of Article 4 remains unclear. This article considers the existing approaches and the Commission's proposal for reform, ventures to suggest an alternative, and analyses the recent cases in this light.

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Articles
Information
International & Comparative Law Quarterly , Volume 53 , Issue 3 , July 2004 , pp. 549 - 577
Copyright
Copyright © British Institute of International and Comparative Law 2004

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References

1 Regulation 44/2001on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters ‘2001’ OJ L12/1.Google Scholar

2 Since Art 5(l)(b) introduced presumptions dealing with sale of goods and services contracts, the Regulation is likely to decline as a source of such cases.Google Scholar

3 [1980] OJL266/1.Google Scholar

4 Especially: Samcrete Egypt Engineers and Contractors v Land Rover Exports Ltd [2001] EWCA Civ 2019, [2002] CLC 533, Kenburn Waste Management Ltd v Bergmann [2002] EWCA Civ 98, [2002] CLC 644, Ennstone Building Products Ltd v Stanger Ltd [2002] EWCA Civ 916, [2002] I WLR 3059, Iran Continental Shelf Co v IRI International Corporation [2002] EWCA Civ 1024, Caledonia Subsea v Microperi 2002 SLT 1022, AMICO v Cellstar [2003] EWCA Civ 206, [2003] ILPr 22.Google Scholar

5 European Commission ‘Green Paper on the Conversion of the Rome Convention 1980 on the Law Applicable to Contractual Obligations 1980 into a Community Instrument and its Modernization’ COM (2002) 654 final (14 Jan 2003).Google Scholar

6 [2001] 1 WLR 1745, [9].Google Scholar

7 [1998] 2 All ER 821. See, in addition to those considered in Section IV, Dinkha Latchin v General Mediterranean Holidays [2002] CLC 330, Mirchandani v Somaia (Morritt V-C, 23 Feb 2001), Print Concept GmbH v GEW (EC) Ltd [2001] EWCA Civ 352, [2002] CLC 352.Google Scholar

8 Hoge Raad, 25 Sept 1992. Struycken ‘Some Dutch Judicial Reflections on the Rome Convention Article 4(5)’ [1996] LMCLQ 18.Google Scholar

9 Also Machinale Glasfabriek de Maas BV v Emaillerie Alsacienne SA [1984] ECC 123 (Dutch District Court), Re Claim under a Building Contract [2001] ILPr 395 (Bundesgerichtshof) (both applying the presumption).Google Scholar

10 Kenburn Waste Management Ltd v Bergmann [2002] EWCA Civ 98, [2002] CLC 644, [41].Google Scholar

11 Lipstein ‘Characteristic Performance—A New Concept in the Conflict of Laws in Matters of Contract for the E.E.C’ (1981) 3 Northwestern Journal of International Law and Business 402, 414. Although in Definitely Maybe, above, n 6, Moore-Bick J noted that Art 4(2) was derived from the law of Switzerland, Swiss law selects the place of characteristic performance, and not the characteristic performer's place of residence: D'Oliveira ‘“Characteristic Obligation” in the Draft EEC Obligation Convention’ (1977) 25 AJCL 303. The relative merit of the Swiss prima facie rule—since it is likely to be more closely connected with the contract in some cases—may reduce the need for an ‘escape’ clause.Google Scholar

12 [1980] OJ C282/20.Google Scholar

13 Vischer ‘The Antagonism Between Legal Security and the Search for Justice in the Field of Contracts’ [1974] II Recueil des Cours l.Google Scholar

14 Lagarde ‘The European Convention on the Law Applicable to Contractual Obligations: An Apologia’ (1982) 22 Virginia Journal of International Law 91, n 35. This was noted in Caledonia at first instance: 2001 SLT 1186, [32].Google Scholar

15 Lagarde, 80 Rev crit de dip (1991) 747, criticizing Bloch v Lima [1992] JCP 21972.Google Scholar

16 European Commission ‘Green Paper’ COM (2002) 654 final (14 Jan 2003), 25–6. The strong model also appears to be favoured by the Commission in Art 3(3) of its ‘Proposal for a Regulation on the Law Applicable to Non-Contractual Matters’ (‘Rome II’), COM (2003) 427 final. However, the responses to the Commission's Green Paper have been mixed: amongst others, the Dutch government, European Banking Federation and Bar Council of England and Wales saw no need to strengthen the presumption. On the other hand, the ICC, Yahoo! Europe and the Max-Planck Institute for Foreign and Private International Law supported the Commission's proposal. The UK government expressed no concluded view on this point.Google Scholar

17 Fentiman Foreign Law in English Courts (OxfordOUP 1998), 80–96.Google Scholar

18 [1972] 2 QB 34,44 (Lord Denning, MR ), 47 (Megaw, Megaw), 50 (Stephenson, Megaw ).Google Scholar

19 Macneil, ‘Time of Acceptance: Too Many Problems for a Single Rule’ (1964) 112 UPaLRev 947.Google Scholar

20 Collins, et al. (eds) Dicey and Morris on The Conflict of Laws (13th edn London Sweet & Maxwell 2000), §32–112.Google Scholar

21 The model is similar to the ‘most significant relationship’ test in the Second Restatement, §188, eg Auten v Auten 308 NY 155,124 NE 2d 99 (1954).Google Scholar

22 [1997] 2 Lloyd's Rep 1, 5, 10.Google Scholar

23 Caledonia Subsea v Microperi 2002 SLT 1022, 1032. The point was not argued on appeal.Google Scholar

24 2001 SLT 1186, [24], [27]: Official Report 2[1980] OJ C282/121. ‘Rebut’ was used in Sierratel, above, n 7.Google Scholar

25 See Clarke, LJin Iran Continental Shelf Co v I.R.I.International Corporation [2002] EWCA Civ 1024.Google Scholar

26 Second Council Directive on the Co-ordination of Laws Relating to Direct Insurance [1988] OJ L172/1, implemented by s 94B(1) of Part 1 of Schedule 3A to the Insurance Companies Act 1982 as amended by the Insurance Companies (Amendment) Regulations 1990: para 2(4).Google Scholar

27 Credit Lyonnais v New Hampshire Insurance [1997] 2 Lloyd's Rep 1,5; AMICO v Cellstar [2003] EWCA Civ 206, [2003] ILPr 22, [18].Google Scholar

28 The French version uses the verb ‘ecarter’, whilst the German version uses ‘gelten nicht’. Three bilingual dictionaries prefer ‘refuter’ or ‘detruire’ and ‘entkraften’ or ‘widerlegen’ respectively as translations for ‘to rebut [a presumption]’:Google ScholarHerbst, , Dictionary of Commercial, Financial and Legal Terms (3rd ednSwitzerlandZug 1968);Google ScholarLindbergh, International Law Dictionary (London 1992);Google ScholarVerbruggen, van Hoof, and Stoll Elsevier's Legal Dictionary (London 2001). Neither version leans in favour of the strong or weak model.Google Scholar

29 Credit Lyonnais v New Hampshire Insurance [1997] 2 Lloyd's Rep 1, 5.Google Scholar

30 See also Definitely Maybe (Touring) Ltd v Marek Lieberberg [2001] 1 WLR 1745, [15].Google Scholar

31 Baffin Land Corp v Monticello Motor Inn Inc (1967) 425 P 2d 623, 628 also states that a simple ‘count up’ of factors is inappropriate.Google Scholar

32 Second Council Directive on the Co-ordination of Laws Relating to Direct Insurance [1988] OJL172/1, above, n 26.Google Scholar

33 As in AMICO, above, n 4.Google Scholar

34 Definitely Maybe (Touring) Ltd v Marek Lieberberg [2001] 1 WLR 1745, [26] AMICO v Cellstar [2003] EWCA Civ 206, [2003] ILPr 22, [47].Google Scholar

35 In addition to Rome Convention cases from other jurisdictions, both the Inter-American Convention on the Law Applicable to International Contracts 1994 at 33 ILM 7 32 (1994) and Second Restatement have adopted this model.Google Scholar

36 Bloch v Lima, above, n 15.Google Scholar

37 Fentiman, ‘Commercial Expectations and the Rome Convention’ (2002) 61 CLJ 50.CrossRefGoogle Scholar

38 ‘Market expectations’ is a preferable label, to underline the model's objective nature and irrelevance of presumed intention.Google Scholar

39 The American Law Institute Restatement of the Law, Second: Conflict of Laws (St Paul, MNAmerican Law Institute Publishers 1971), §188, referring to the aims in §6.Google Scholar

40 Above, text to n 16–18.Google Scholar

41 Swiss law selects the place of characteristic performance, and not the characteristic performer's place of residence: D'Oliveira, above, n 11.Google Scholar

42 Kenburn Waste Management Ltd v Bergmann [2002] EWCA Civ 98 [2002] CLC 644, [29].Google Scholar

43 Lando, ‘The EEC Convention on the Law Applicable to Contractual Obligations’ (1987) CML Rev 159.Google Scholar

44 This would explain Art 8(2)(c) of the 1986 Hague Convention, allowing the buyer's law to apply where the contract arose from an invitation to tender.Google Scholar

45 Toulson, J, in CGU International Insurance v Ashleigh (QB, 6 Nov 2001), [22] suggested that the approaches under the laws of Ohio and England were the same, which might present difficulties for the third model. The context suggests that he had in mind only the list of factors in §188 Second Restatement, but his remarks were phrased more widely.Google Scholar

46 Eg, Definitely Maybe, above, n 6, because of the overwhelming connections with Germany.Google Scholar

47 Favoured in Official Report [1980] OJ C282/21; Machinefabriek, above, n 8, Societe Fort James France v Societe Fabio Perini (Cour d'Appel de Colmar, 20 Oct 1998), Unitras-Marcotec v Mobili (Corte d'Appello di Milano, 18 July 1997).Google Scholar

48 It is irrelevant that the UK is not a signatory to them, since the expectation exists independently of the treaties. Furthermore, the reason for non-adherence to a treaty may not be disapproval of a particular provision.Google Scholar

49 This is implicitly supported by Dicey and Morris, above, n 20, §32–124, which suggests that the presumption will be most readily rebutted where these places diverge.Google Scholar

50 Ferguson Shipbuilders Ltd v Voith Hydro 2000 SLT 229 supports this reasoning. On similar facts to those of Example 2, the Cour de Cassation in Ammerlaan Agro Projecten BV v Les Serres de Cosquerou [1999] ILPr 627 adopted the solution suggested, but in a similar case the Bundesgerichtshof disagreed: Re Claim under a Building Contract, above, n 9. A choice of law clause in favour of the law of the place of the construction project is included in several standard construction contracts: ICE 7, GC/Works/1 and United Kingdom Department of Trade and Industry ‘PFI Contract Guidance: Standardization of PFI Contracts’ (Issue 3, 2002), §29.6.Google Scholar

51 Thus, the governing law coincides with the jurisdiction presumed under Art 5(l)(b) of the Judgments Regulation.Google Scholar

52 Kalfelis v Schröder, MUnchmayer, Hengst & Co [1988] ECR 5565.Google Scholar

53 Jaffey, ‘The English Proper Law Doctrine and the EEC Convention’ (1984) 33 ICLQ 531, 553.CrossRefGoogle Scholar

54 Ibid554.

55 Kaye ‘The New Private International Law of Contract of the EC’ (Aldershot Dartmouth 1993).Google Scholar

56 Definitely Maybe (Touring) Ltd v Marek Lieberberg [2001] 1 WLR 1745, [14].Google Scholar

57 Official Report [1980] OJ C282/20.Google Scholar

58 Fentiman ‘Commercial Expectations and the Rome Convention’ (2002) 61 CLJ 50, 51.Google Scholar

59 Above, text to nn 14–15.Google Scholar

60 [1999] 2 All ER (Comm) 54.Google Scholar

61 [2002] EWHC 28, [2002] Lloyd's Rep IR 853.Google Scholar

62 AMICO v Cellstar [2003] EWCA Civ 206, [2003] ILPr 22, [25]Google Scholar

63 Above, n 15. Also Glencore International v Commerciale Alluminio Nord (Corte di Cassazione, 28 July 1998) (creditor's law governs).Google Scholar

64 This is consistent with the commercial importance of this factor, underlined by the UN Convention on Contracts for the International Sale of Goods 1980, Art 57.Google Scholar

65 Bank of Baroda v Vysya Bank [1994] 2 Lloyd's Rep 87.Google Scholar

66 Above, n 7.Google Scholar

67 Bank of Baroda v Vysya Bank [1994] 2 Lloyd's Rep 87, 92.Google Scholar

68 Ibid, 93: Offshore International SA v Banco Central SA [1977] 1 WLR 399, approved Power Curber International Ltd v National Bank of Kuwait SAK [1981] 1 WLR 1233. This argument was relied upon again in the context of a letter of credit transaction by David Steel J in Marconi Communications International Ltd v Pt Pan Indonesia Bank Ltd [2004] EWHC 129 (Comm) following Baroda.

69 Official Report [1980] OJ C282/21.Google Scholar

70 2001 SLT 1186, [26]. All references hereafter are to the Inner House.Google Scholar

71 Morse, ‘Letters of Credit and the Rome Convention’ [1994] LMCLQ 560, 566–7.Google Scholar

72 Jack, et al. Documentary Credits (3rd ednLondonButterworths 2001),Google ScholarKing Gutteridge and Megrah's Law of Bankers' Commercial Credits (8th ednLondonEuropa 2001),Google ScholarCresswell, et al. Encyclopedia of Banking Law (LondonButterworths 2001).Google Scholar

73 Morse, ‘Letters of Credit and the Rome Convention’ [1994] LMCLQ 560, 569.Google Scholar

74 Bonython v Commonwealth of Australia [1951] AC 201. The artificiality of inferred choice was first criticized by Westlake Private International Law (5th edn LondonSweet & Maxwell 1912) s 212,Google Scholarbut see also Cheshire and North Private International Law (11th edn LondonButterworths 1987), 461–6. However, the remarks of Hobhouse J in Forsikrings Vesta v Butcher [1986] 2 All ER 486, 504 show that the presumed intention model was never firmly rejected.Google Scholar

75 Eg The Adriatic [1931] P 241, 251.Google Scholar

76 [1971] AC 572, 600, approving Jacobs v Credit Lyonnais (1884) 12 QBD 589, 601.Google Scholar

77 Jacobs v Credit Lyonnais (1884) 12 QBD 589, 600.Google Scholar

78 Coast Lines, above, n 18.Google Scholar

79 Definitely Maybe (Touring) Ltd v Marek Lieberberg [2001] 1 WLR 1745, [14].Google Scholar

80 [1996] 1 Lloyd's Rep 74, 81–2.Google Scholar

81 Offshore International SA v Banco Central SA [1977] 1 WLR 399, 402: Gutteridge and Megrah Law of Bankers' Commercial Credits (5th edn LondonEuropa 1976).Google Scholar

82 [1977] AC 239.Google Scholar

83 [1957] AC 555.Google Scholar

84 The Moorcock (1889) 14 PD 64.Google Scholar

85 Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206.Google Scholar

86 [1936] P 90, 107.Google Scholar

87 AMICO v Cellstar [2003] EWCA Civ 206, [2003] ILPr 22, [44].Google Scholar

88 Criticized in Akai v People's Insurance (1996) 188 CLR 418, 441.Google Scholar

89 For an extensive analysis of the issues raised in the context of implied terms, see Peden, ‘Policy Concerns Behind Implication of Terms in Law’ (2001) 117 LQR 459.Google Scholar

90 [1976] 1 WLR 1187.Google Scholar

91 [1990] 1 AC 637.Google Scholar

92 National Bank of Greece v Pinios [1990] 1 AC 637, 682 and reference to Reddie v Williamson (1863) 1 Macph 228, 237.Google Scholar

93 Lord Somervell deployed the same reasoning in Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555, 599.Google Scholar

94 Implication of terms from trade usage may cover two doctrines; one of inferred intention, the other concerning cases in which the usage is applied as a desirable, objective policy goal (eg Hunt v Chamberlain (1896) 12 TLR 186: party unaware of usage nonetheless bound).Google Scholar

95 Baxter advocated an approach that asks which of two competing laws would be least impaired by the application of the other law: ‘Choice of Law and the Federal System’ (1963) 16 Stanford Law Review 1.Google Scholar

96 The Choko Star [1990] 1 Lloyd's Rep 516, 526.Google Scholar

97 This principle also applies to the implication of contractual terms: ‘Most of the statements against too readily implying terms are in…cases of written and often detailed contracts…The position is different when the contract…is silent as to matters which have to be settled one way or the other if the contract is to be effective’ (Lister v Romford Ice and Cold Storage Co Ltd [1957] AC 555, 597 per Lord Somervell).Google Scholar

98 [2001] EWCA Civ 1162, [2001] 2 Lloyd's Rep 641.Google Scholar

99 AMICO v Cellstar [2003] EWCA Civ 206, [2003] ILPr 22, [44].Google Scholar

100 Notwithstanding the remarks of the Lord Chancellor: HL Deb vol 518 col 439 (24 Apr 1990).Google ScholarSee Cheshire, and North, Private International Law (13th ednLondonButterworths 1999) 542.Google Scholar

101 ‘Whether the result is a matter of ‘inferred intention’ or not may be open to jurisprudential discussion’ (Compagnie Tunisienne de Navigation SA v Compagnie d'Armement Maritime SA [1971] AC 572, 595 per Lord Wilberforce).Google Scholar

102 [1984] AC 50.Google Scholar

103 See ‘A Prototype and a Parallel’.Google Scholar

104 For the purposes of analysis only: the validation principle may not have been accepted at common law or under the Convention. But see AMICO v Cellstar [2003] EWCA Civ 206, [2003] ILPr 22 at [43], where Mance LJ seems to contemplate its potential relevance where the parties were aware of the legal consequences of selecting particular laws.Google Scholar

105 In another context, Soules v Louis Dreyfus Negoce [2000] 2 All ER (Comm) 154 affirms the importance of commercial certainty in chain contracts, and consequent disinclination to impose a solution upon the parties.Google Scholar

106 A similar argument is made by Wyatt, ‘Choice of Law in Contract Matters—A Question of Legal Policy‘ (1974) 37 MLR 399, 409. It is bolstered by reference to the analogy with implied contractual terms: in such cases it remains unnecessary to separate the inferred intention and objective determination stages, but the courts have done so for the sake of doctrinal clarity.CrossRefGoogle Scholar

107 This argument, by focusing on the identification of commercial policy interests, may seem to echo the criticized governmental interest analysis technique; a ‘commercial interest analysis’. The criticism of governmental interest analysis is focused upon the practical difficulties of determining which ‘interests’ are legitimate and how to weigh them against one another: Fawcett ‘Is American Governmental Interest Analysis the Solution to English Tort Choice of Law Problems?’ (1982) 31 ICLQ 150. However, the market expectations model is more modest, and imports commercial judgments made by market participants, which were accepted at common law in relation to choice of law, and continue to be used in implying contractual terms.Google Scholar

108 Dicey and Morris, above, n 20, §32–112.Google ScholarNorth, CfPrivate International Law Problems in Common Law Jurisdictions (London 1993) 127.Google Scholar

109 Samcrete Egypt Engineers and Contractors v Land Rover Exports Ltd [2001] EWCA Civ 2019, [2002] CLC 533, [39]; Credit Lyonnais v New Hampshire Insurance [1997] 2 Lloyd's Rep 1, 6. In Rossano v Manufacturers' Life Insurance Company [1963] 2 QB 352 the two tests produced different results.Google Scholar

110 Bonython, above, n 80.Google Scholar

111 [1970] AC 583,603–4.Google Scholar

112 Coast Lines v Hudig & Veder Chartering [1972] 2 QB 34,46 (Megaw LJ), 50 (Stephenson LJ).Google Scholar

113 Above, text to nn 123–7.Google Scholar

114 Such an argument has been made by Jaffey, Topics in Choice of Law (LondonBIICL 1996),Google Scholarch 3 and Pelichet ‘Report on the Law Applicable to International Sale of Goods’ (1982) in HagueConference on Private International Law, Proceedings of the Extraordinary Session ofOctober 1985, 79.Google Scholar

115 Jack, et al. Documentary Credits (3rd ednLondonButterworths 2001) 391.Google Scholar

116 See C-106/95 MSG v Les Gravières Rhénanes SARL [1997] ECR 1–911, [23]–[24].Google Scholar

117 Compagnie Tunisienne de Navigation SA v Compagnie d'Armement Maritime SA [1971] AC 572, 600. This may be a concern as to who applies the law, rather than its substantive content.Google Scholar

118 Offshore International, above, n 73.Google Scholar

119 Dow Jones & Co v Gutnick [2002] HCA 56, (2003) 194 ALR 433, [153]. This may be a different means of achieving a consistent approach to cases involving concurrent claims in contract and tort: see generally Briggs ‘Choice of Choice of Law?’ [2003] LMCLQ 12. However, the identification of the relevant ‘market’ and whether such expectation is objective or subjective in nature are significant obstacles, and it is notable that the rules at common law, under the 1995 Act and in the Commission's Draft Rome II Regulation favoured a strong model.Google Scholar

120 Eg, Vienna Sales Convention. See Example 1.Google Scholar

121 This explains the approach in Definitely Maybe, above, n 6.Google Scholar

122 Ashmore v Corporation of Lloyds (No 2) [1992] 2 Lloyd's Rep 620, 631.Google Scholar

123 Consistent with the implication of contractual terms in law.Google Scholar

124 Samcrete Egypt Engineers and Contractors v Land Rover Exports Ltd [2001] EWCA Civ 2019, [2002] CLC 533, [26].Google Scholar

125 Ibid, [39].

126 Samcrete Egypt Engineers and Contractors v Land Rover Exports Ltd [2001] EWCA Civ 2019, [2002] CLC 533, [41].Google Scholar

127 Official Report [1980] OJ C282/22.Google Scholar

128 Governor of the Bank of Scotland of the Mound v Butcher (CA, 28 July 1998).Google Scholar

129 Samcrete Egypt Engineers and Contractors v Land Rover Exports Ltd [2001] EWCA Civ 2019, [2002] CLC 533, [47].Google Scholar

130 The place of performance was an ‘important factor’: Whitworth Street Estates v Miller [1970] AC 583, 605.Google Scholar

131 Kenburn Waste Management Ltd v Bergmann [2002] EWCA Civ 98, [2002] CLC 644, [27].Google Scholar

132 Ibid, [28].

133 Ibid, [29].

134 Ennstone Building Products Ltd v Stanger Ltd [2002] EWCA Civ 916, [2002] 1 WLR 3059, [39].Google Scholar

135 However, David, Steel J has recently followed Baroda in a case concerning letters of credit: Marconi Communications International Ltd v Pt Pan Indonesia Bank Ltd [2004] EWHC 129 (Comm).Google Scholar

136 This broader approach may be supported by analogy with the identification of the ‘place of performance of the obligation in question’ under Art 5(1) of the Judgments Regulation. In Pugliese v Finmeccanica SpA, Alenia Aerospazio Division [2003] ECRI-3573, the ECJ held that circumstances beyond the terms of the contract in question ought to be considered, including the circumstances foreseen by the contracting parties: Pugliese, [24].Google Scholar

137 Iran Continental Shelf Co v IRI International Corporation [2002] EWCA Civ 1024, [62].Google Scholar

138 Ibid, [86].

139 Caledonia Subsea v Microperi 2002 SLT 1022, 1031 (Lord Cameron), 1032 (Lord Marnoch).Google Scholar

140 Briggs, ‘Recent Cases in the English Courts: Private International Law’ (2002) 73 BYBIL 439, 473–9.Google Scholar

141 Caledonia Subsea v Microperi 2002 SLT 1022, 1029.Google Scholar

142 Dinkha, above, n 7.Google Scholar

143 Above, n 66.Google Scholar

144 AMICO v Cellstar [2003] EWCA Civ 206, [2003] ILPr 22, [25].Google Scholar

145 Ibid, [44].

146 [2004] EWHC 129 (Comm), [27]–[30].Google Scholar

147 Lord Wilberforce criticized the unsettling effect of the Convention: HL Deb vol 518 col 438 (24 Apr 1990).Google Scholar

148 Caledonia Subsea v Microperi 2002 SLT 1022, [26].Google Scholar

149 European Commission ‘Green Paper‘ COM (2002) 654 final (14 Jan 2003), 25–6. See also above, text to n 16.Google Scholar

150 Governor of the Bank of Scotland of the Mound v Butcher, above, n 145; Definitely Maybe, above, n 6; Mirchandani v Somaia, above, n 7; AMICO, above, n 4.Google Scholar