Abstract
It is of course well-known that English contract and commercial law is the cornerstone of international trade transactions, which in turn renders the English Commercial Court the forum of choice for disputing parties. What is perhaps less visible is the proliferation of English law as the governing law of contracts that ordinarily have no relation whatsoever to English law and institutions (in fact, there may well be conflicts between the contract's envisaged conduct and obligations within parts of English law) and in respect of which the parties do not (always) intend to submit disputes arising from such contracts to English courts.
The question, hence, arises about the appropriateness of English law and what drives parties to such decisions.
Although it is beyond the scope of this brief article to ascertain and quantify in detail the entire gamut of reasons underlying such contractual choices- such an exercise would require a broad empirical analysis certain justifications are no doubt evident. English law is written in the English language by native speakers, whether judges or legislators. This may seem like a pedantic observation, especially in a world where translation of large documents is achievable at the click of a button, but the certainty of a global language is a significant incentive for parties and their counsel.' Moreover, although those not trained in the common law tend to perceive judge-led precedent as intrusive and unpredictable, at closer inspection common law satisfies the commercial need for rational flexibility, true deference to party autonomy, adaptability and being subject to few public policy restrictions?
Hence, any apprehension about its predictability-which is necessarily based on comparisons with the rigid civil law codifications of contract law— are quickly dispelled.' Even continental lawyers are coming to the realisation that detailed codification gives no guarantee of legal certainty, especially where common law courts across the globe engage in global dialogue in a conscious attempt to forge uniformity not only with the common law but also other legal systems.
The question, hence, arises about the appropriateness of English law and what drives parties to such decisions.
Although it is beyond the scope of this brief article to ascertain and quantify in detail the entire gamut of reasons underlying such contractual choices- such an exercise would require a broad empirical analysis certain justifications are no doubt evident. English law is written in the English language by native speakers, whether judges or legislators. This may seem like a pedantic observation, especially in a world where translation of large documents is achievable at the click of a button, but the certainty of a global language is a significant incentive for parties and their counsel.' Moreover, although those not trained in the common law tend to perceive judge-led precedent as intrusive and unpredictable, at closer inspection common law satisfies the commercial need for rational flexibility, true deference to party autonomy, adaptability and being subject to few public policy restrictions?
Hence, any apprehension about its predictability-which is necessarily based on comparisons with the rigid civil law codifications of contract law— are quickly dispelled.' Even continental lawyers are coming to the realisation that detailed codification gives no guarantee of legal certainty, especially where common law courts across the globe engage in global dialogue in a conscious attempt to forge uniformity not only with the common law but also other legal systems.
| Original language | English |
|---|---|
| Number of pages | 1 |
| Journal | Law Quarterly Review |
| Publication status | Published - 2021 |