Every cross-border contract should have a choice of law and jurisdiction clause. It’s one of the basic “must have” boilerplates for international agreements. But, as we all know, jurisdictions and legal systems are sometimes a little difficult to identify. One country may have several jurisdictions and legal systems. The best example is perhaps the United States of America (American Law!) which in fact consists of over 50 jurisdictions. Hence, the much-loved term “forum shopping” used to describe the skill of finding a court and law most favourable to a party’s position.
And on this side of the Atlantic, whilst the lay person may talk of “British law” applying to a contract, legal professionals should be aligning their agreements with one of the (current) three jurisdictions that make up the United Kingdom: Scotland, Northern Ireland, England & Wales.
In the case of any dispute arising out of or in connection with this Agreement, its interpretation or performance, such shall be subject to the law of England and Wales.
However, this situation may be changing relatively soon. Clauses for the law of “England & Wales” may needed to be adjusted in future.
On 24 October the Law Gazette (the official journal of the Law Society of England and Wales) reported a potential battle ahead. The official Commission on Justice in Wales has issued its report and recommended that the law applicable in Wales be developed and formally identified as the law of Wales as distinct from the law of England. In other words, this would be allowing for a separate legal system and set of laws in criminal and civil law (including contract matters) in Wales.
Saint George is the patron saint of England and the red dragon is the symbol of Wales. Even against the background of a possible Brexit and independence for Scotland, this may be a contest worth watching.