As regards the law governing the obligations of the parties, the EU rules Rome I1 and Rome II2 provide a framework for the harmonisation of rules on contractual and non-contractual obligations to ensure that Member States apply the same law to the same dispute. In matters of contractual obligations, Rome I implements the choice of law applicable by the parties and contains rules for determining the applicable law if no choice has been made, if the contract was concluded on or after 17 December 20093. The recognition and enforcement of an English judgment in a foreign jurisdiction outside the EU and EFTA depends on the private international law of the country concerned and advice should be sought locally. Although most places in the Western world (and even in the world in general) follow the same basic principles of law, there are differences everywhere. The applicable law is determined by the jurisdiction, i.e. by any major jurisdiction that has its own specific local law. For the avoidance of doubt, there are 51 jurisdictions in the United States. It is different from a sovereign state, which we generally think of as a country. There are about 200 sovereign states in the world, but more than 300 jurisdictions to choose from. The inclusion of clear provisions on applicable law and jurisdiction in a contract, as indicated above, should ultimately help to ensure that disputes are resolved in accordance with the law and before the courts chosen by the parties. An applicable legal clause indicates the law that governs the contract. This extends not only to the interpretation of its clauses, but also to the validity, effect and performance of the contract. The clause should also regulate the non-contractual rights of the parties.

The clause should be clearly worded in such a way that the applicable law is easy to determine. The courts must first decide on the applicable law and jurisdiction clause if the parties do not specify them. This often leads to costly litigation, as either party may try to obtain a judgment in a jurisdiction that suits them best, which often leads to conflicts of laws. In order to minimise the impact of these sensitive jurisdictional issues, it is important to include an applicable law clause and a choice of jurisdiction clause to express the choice of parties to the laws of the country, and the legal system should regulate all contractual disputes. The applicable law clause chosen in a contract has no effect with respect to a non-contractual (i.e. tort) claim between the parties for the same subject matter, e.g. a claim for misrepresentation cannot be governed by the chosen law if the misrepresentation is made in another jurisdiction. The parties` choice of applicable law is generally confirmed by courts in countries with developed legal systems.1 It follows that the parties gain certainty by including an applicable legal clause: they know which law is likely to be applied when deciding on issues concerning their rights and obligations under the contract. This allows them to analyze their legal situation with confidence.

The choice of applicable law does not necessarily have to coincide with the choice of venue, and the parties may choose different jurisdictions depending on the nature of the dispute. However, for obvious reasons, it usually makes sense to make them identical. Trying to assign different types of disputes to different choices of law and jurisdiction often leads to problems. Such selection was to be avoided and was considered bad at common law. The Hague Convention on Choice of Court Agreements provides a voluntary global framework for rules on jurisdiction and recognition and enforcement of judgments in civil and commercial matters. The EU (along with Mexico and Singapore) recently ratified the Hague Convention, so there is a framework governing these issues in which the UK currently participates as a member of the EU. It ensures that exclusive choice of court agreements between parties to some, but not all, trade agreements are protected. In addition, the jurisdiction clause may be invalid in certain circumstances. Other factors to consider when choosing an appropriate jurisdiction include: 6.

Regulation (EU) No 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels Regulation) At the risk of stating the obvious, no article on the drafting of conflict-of-laws rules would be complete without emphasizing that the choice of applicable law does not necessarily mean the choice of forum.