Cutting Off the EU to Spite Its Face?: How to Promulgate the UK’s Contractual Choice of Law Rules to Ensure Stability Post-Brexit

Abstract

As the UK struggles to figure out what its relationship with the world will look like after leaving the EU, scholars attempt to predict how it will answer the many remaining questions. One of the questions that the UK will face is what to do with existing EU law and, in particular, Regulation 593/2008 (Rome I). This regulation sets out the choice of law rules for any contractual agreements that are disputed in the UK. The UK must grapple with how to distinguish the laws from the EU and reinforce parliamentary sovereignty while also keeping the laws consistent to avoid chaos in the courts. The UK’s choice will have wide-ranging implications; for example, it is estimated that forty percent of global commercial arbitrations are decided under English law. Given its prominence, this paper primarily focuses on English law when examining Rome I’s consistency with common law, but acknowledges that the laws of Scotland and Northern Ireland will also have to be taken into consideration. The analyses of this Note centers on what changes the UK could implement to Articles 3 and 9—as case studies—to best achieve the goal of Brexit while also preserving stability.