CHOICE OF LAW IN THE EUROPEAN UNION: JUDICIAL DISCRETION, PROCEDURE AND EVIDENCE

In the European Union choice of law rules, uniformity and legal certainty are the principal concern of the European legislator. Two main issues are considered. First, it is considered whether the exclusion of matters of procedure and evidence from the legislative competence of the European legislator threatens the aim of legal certainty and uniformity. Second, the extent to which the Court of Justice of the European Union (“CJEU”) has contributed to the aims of legal certainty in interpreting the escape clause for contractual obligations is analysed.
On the first issue, this research paper focuses on problems relating to the English procedure on the determination of the applicable law in English courts (or common law courts) during interlocutory proceedings. It is questioned whether a tentative or preliminary determination of the applicable law promotes the aim of legal certainty and stability of legal relationship among parties during judicial proceedings. It is questioned whether the standard of the good arguable case in determining whether or not English law applies at the ex parte stage in determining the existence of the English traditional common law jurisdiction, for the purpose of service on a foreign defendant encourages forum shopping in English courts, and thereby threatens the aim of uniformity in determining the applicable law.
In addition (also on the first issue), it is questioned whether the English rule of evidence on proof of foreign law promotes the application of the law of the forum, and thereby threatens uniformity.
On the second issue, it is assessed whether the decision of the CJEU in interpreting the escape clauses for commercial contracts, and employment contracts has promoted the aims of legal certainty.
The conclusion reached is that despite the European legislator’s emphasis on the aims of uniformity in the choice of law process, a diverse approach or outcome on the determination of the applicable law cannot be avoided.