Case_Study

THE FACULTY OF LAW CONFLICT OF LAWS DUE DATE: March 15, 2010 Assignment 1 Jim an Englishman moved to Saudi Arabia to work on an oil rig there. His job is high risk and he has no life insurance. He entered into a six month contract with Drillers Inc who are incorporated in Jamaica. His contract has a governing law clause which states that the contract will be governed by Saudi law and there is also a clause which states that Drillers Inc shall not be liable for any injuries which Jim sustains on the job. Jim goes out one night to have a drink at a local Saudi “pub” and in trying to relieve work stress he has one drink too many. He is travelling home on a moped which is the transportation provided to him by Drillers Inc, when he runs an amber light and crashes into another Englishman Carl who also works at Drillers Inc. Carl is severely injured and ends up in intensive care. Jim has no injuries from the car accident. While at work the next day Jim is worried about Carl and so are the other employees, in fact another employee Tom who is from Saudi Arabia, is so distracted that he forgets to buckle Jims safety harness. Jim climbs the drilling tower loses his balance and falls 30 feet. Jim sustains severe head and back injuries and it is feared he may never work again. Whether Under Jamaican and English Law the clause in the contract which states that Drillers Ink will not be liable for any injuries sustained on the job is unlawful, but it is permissible under Saudi law. Also, in Jamaica and England damages are recoverable for pain and suffering, but not in Saudi Arabia. Advise Jim and Carl what compensation they are entitled to, if any. The issue in contention revolves around determining the applicable law or the proper law in relation to the conflict of law that arises in relation to contract and tort. The main issue to be settled is whether the courts will confer jurisdiction upon the English or Jamaican courts to hear the matter considering the fact that these courts will not recognise unlawful exclusion clause and provide redress for personal injury damages despite the laws of Saudi Arabia being the expressed choice of law' Secondly it must be settled whether the contractual exclusion of liability clause written into the contract has any legal effect under the choice of law as it relates to the tortuous issue that arises' If so does this equates to a defence' The general rule as it regards conflicts of law in relation to contracts is that parties to a contract are entitled to the choice of law to govern their contract given their autonomy. Such contracts as far as the law permits will be recognised and enforced by the courts unless it is against public policy or the forum mandatory rule. The Rome Convention of 1980 which was incorporated into English Law by virtue of the Contracts (Applicable Law) Act 1990, the convention states that all contractual obligations in any situation involving a choice between the laws so different countries are governed by the convention, even where the other countries involved in the dispute are not contracting parties to the convention. Article 3 of the Convention provides for party autonomy, i.e. the freedom to choose the applicable law in relation to their contract. In the absence of express selection of the choice of law by the parties Article 4(1) it states that the law with which the contract is most closely connected shall be the applicable law. Article 4(2) of the said contract presumes that the contract is most closely connected with the country where the party who is to effect characteristic performance of the contract has his habitual residence at the time of the conclusion of the contract. With respect to contractual issues the essential validity of a contract is to be determined by the law which should govern the contract, assuming that it had been validly made Articles 5, 6 and 7 of the Rome Convention and provides for an exception to the expressed choice of law. Article 6 in particular is important to the case before us seeing that it governs employment contracts. The provision stipulates that the rights of employees will not be rendered illusory by the choice of law forced on the employee by the employer. Article 7(1) of the Rome Convention somewhat fetters this position as it specifies that effect may be given to the mandatory rules of the law of a country other than that of a chosen law with which the situation has a close connection, in so far as those rules must be applied whatever the law applicable to the contract. It further stated that in considering whether to give effect to these mandatory rules, regard shall be had to their nature and purposes and to the consequences of their application or non application. The question of the choice of law in tort had been governed had been governed by the common law rules, however due to their unsatisfactory impact the have been repealed by PT 3 of the Private International Law (Miscellaneous Provisions) Act 1995. Section 10 of the provision enacted in 1996 abolished the double actionability rule which has been governed by common law principles. abolished by the Private International law (Miscellaneous Provisions) Act 1995 once held that held that an action for an alleged tort committed in a foreign jurisdiction can be successful in a domestic court only if it would be actionable under both the laws of the home jurisdiction and the foreign jurisdiction. Such position has been replaced by the lex loci delicti commissi rule which holds that the applicable law is the law of the country in which the event constituting the tort or deilcit act. This generally applies to multi state torts, however, the lex loci delicti commissi is displaced if a more significant connection is established between the law of another country and the tort. While the provision of the Private international Law (Miscellaneous Provisions) Act of 1995 attempted to abolish the double actionability rule and substitute a statutory general rule applying the law of the place where the tort was committed, it sought to recognise the exception derived from the common law as seen in Boys v Chaplin[1] and Red Sea Insurance Co Ltd v Bouygues SA[2] as it provides that the general rule could be “displaced” when the special circumstances of the case so required such as where the significance of the factor which connect a tort with the country whose law would be the applicable law under the general rule; and the significance of any factors connecting the tort with another country The law relating to the forum is an exception, the English court has gave some weight to the lex fori, the appropriate forum for initiating an action in tort may be more flexible as the law of the place of the tort may lead to wholly inappropriate results committed in a foreign country will be the tort law of the foreign country. The principle emanating from Cooper v Cooper is that the putative proper law of the contract is probably the most practical approach. In the instance case it was held that it does not mean the law that the parties themselves have chosen for the governance of the contract While the Rome convention provides for freedom of choice with respect to laws governing the contract, the provision of However Jamaican and English law may be ----------------------- [1] [1968] 2 QB 1 189 [2] (1995) 1 AC 190