References:  EWCA Civ 2019
Coram: Lord Justice Thorpe, And, Lord Justice Potter
The defendant appealed an order refusing a stay of the proceedings on the grounds of forum non conveniens. The contract of guarantee contained no choice of law clause, but the contract under which it was made set English law as the jurisdiction. The clause had been deleted from the guarantee contract, and the subject mater of the contract was in Egypt.
Held: the convention should be read in a purposive not literal way. The presumption under the convention can be most easily rebutted where the place of performance differs from the location of the party whose performance is characteristic of the contract. Article 3 did not choose jurisdiction in the case, and the judge had given too much weight to the main contract. Nevertheless there remained a sufficient preponderance of connection to refuse the stay of action in England.
Statutes: Rome Convention on the Law Applicable to Contractual Obligations 4.2, Contracts (Applicable Law) Act 1990 Sch 1
This case cites:
- Cited – Egon Oldendorff v Libera Corporation ( I Lloyd’s Law Rep 380)
Conflict of laws – ‘It is sufficient to say that the party relying upon art. 3 must demonstrate with reasonable certainty that the parties have chosen a particular law as the governing or applicable law. ‘ . .
This case is cited by:
- Cited – Pt Pan Indonesia Bank Ltd Tbk v Marconi Communications International Ltd CA (Bailii,  EWCA Civ 422, Times 18-May-05)
The parties disputed the jurisdiction of the English courts over a letter of credit. It foresaw payment here and in sterling, made by the English bank as against the appropriate documents. Authority had been given for service out of the . .
- Cited – Caledonia Subsea Limited v Micoperi Srl IHCS (ScotC,  SC 70)
The court considered the proper application of Article 4 of the Convention. The Lord President expressed agreement with the position as stated in Samcrete: ‘I consider that the presumption under para 2 should not be disregarded unless the outcome of . .
Last Update: 01-Oct-15 Ref: 167341