International Construction Law Review
OXALIC ACID AND THE APPLICABLE LAW: THE ROME CONVENTION AND CONSTRUCTION*
PHILIP BRITTON
LLB, BCL, Director, Centre of Construction Law, King’s College, London 1
“Change is not made without inconvenience, even from worse to better.”
RICHARD HOOKER2
I. INTRODUCTION
When Ennstone Building Products Ltd
v. Stanger Ltd
3
reached the Court of Appeal and the law reports in 2002, it was one of few English cases ever to consider choice of law questions in a construction context.4
It was also apparently the first construction case to do so since the coming into force of the Convention on the Law Applicable to Contractual Obligations of 1980 (for short, the Rome Convention). This was implemented for the UK by the Contracts (Applicable Law) Act 1990 (for short, the 1990 Act5
), to that extent replacing the existing principles of both English6
and Scots law. How do these uniform European rules on choice of law work? Do they produce clear and intelligible outcomes for cases related to construction? This article aims to answer these two questions.
* The Article derives from an essay submitted to the Society of Construction Law in December 2002 as an entry for the annual Hudson Prize, in which it won first prize; it is published here with kind permission of the joint copyright holders, the SCL. The essay and article are (belatedly) in memory of Otto Kahn-Freund (1900–1979), whose European embodiment of the excitement of intellectual enquiry, as well as its importance, inspired more than one generation of law students, as Professor of Comparative Law at Oxford.
1 E-mail: philip.britton@kcl.ac.uk.
2 Richard Hooker (1554?–1600), theologian, defender of the Church of England and (1585) Master of the Temple; this quotation appears in the Preface to Samuel Johnson’s English Dictionary
(1755).
3 Ennstone Building Products Ltd
v. Stanger Ltd
[2002] EWCA Civ 916, [2002] 1 WLR 3059 (CA).
4 Two accessible other examples are Whitworth Street Estates (Manchester) Ltd
v. Miller
[1970] AC 583 and JMJ Contractors Ltd
v. Marples Ridgway Ltd
(1985) 31 BLR 100. In the first, the English House of Lords held by a majority (Lords Reid and Wilberforce dissenting) that an RIBA/JCT 1963 contract between an English employer and Scottish main contractor for work in Scotland was governed by English law, though the curial law for disputes was held to be Scots. On the present position in such a case, see note 75 and linked main text, below. In the second, Mervyn Davies J in the QBD held that an FCEC “Blue Form” subcontract between a Northern Irish subcontractor and English main contractor, made in Iraq for works there, was governed by Iraqi law, largely because the FIDIC main contract was expressly governed by Iraqi law.
5 The 1990 Act came into force on 1 April 1991; it was later amended to cope with subsequent accessions to membership of the EU.
6 For this purpose including not only Wales but also Northern Ireland: s.8(1) of the 1990 Act.
[2003
The International Construction Law Review
382