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CHOICE OF LAW

or not. It appears to apply whether the claim is restitutionary or tortious in character.Thus it applies to a tortious claim for damages which is based on the wrongful breaking off of negotiations, or on non-disclosure of material facts (for example, in the context of insurance), or on misrepresentation (whether fraudulent, negligent, or wholly innocent). Article 12(1) lays down the primary rule, which subjects the claim to the law which applies to the contract, or which would have been applicable to the contract if it had been entered into. This reference to the actual or putative proper law of the relevant contract is not subject to displacement by reference to a closer connection with another country. However, since the actual or putative proper law of the contract cannot always be determined – for example where the negotiations broke down because of disagreement about a proposed choice-of-law clause – Art 12(2) provides for such cases a supplementary rule which is similar to the main rule for tort cases specified by Art 4. Thus Art 12(2)(a) and (b), read with Art 2(1), provide a rebuttable presumption in favour of the law of the country in which both parties were habitually resident when the event giving rise to the damage or equivalent consequence occurred; or, in the absence of such a common residence, in favour of the law of the country in which the direct damage or equivalent consequence occurred. By Art 12(2)(c), this presumption is displaced where it is clear from all the circumstances of the case that the non-contractual obligation is manifestly more closely connected with another country, in favour of the law of the country which is manifestly more closely connected with the obligation.

Conclusion

We have now examined two of the three principal types of issue addressed by private international law. Chapter 18 turns to the third, which relates to the recognition and enforcement of foreign judgments.

Further reading

Collins et al (eds), Dicey, Morris and Collins on the Conflict of Laws, 15th edn, 2012, Sweet & Maxwell. Hill and Chong, International Commercial Disputes, 4th edn, 2010, Hart Publishing.

Stone, EU Private International Law – Second Edition, 2010, Edward Elgar.

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