Choice of law and jurisdiction: “England and Wales” and Brexit
Towards the end of most of the contracts that your organisation enters into you will find a clause choosing the governing law of the contract and the courts that will have jurisdiction in relation to disputes. In most cases, this will refer to the laws and the courts of “England and Wales”.
As part of the devolution process (no, this time it is not about Brexit!), a process has begun to create a distinct legal infrastructure for Wales. The senior legal officer for Wales is quoted as saying that “the creation of a Welsh legal jurisdiction and the devolution of the justice system is inevitable”.
The time may be fast approaching when we draft those clauses to refer simply to the laws and the courts of England. Or Wales, as appropriate.
On the subject of these clauses, we can’t avoid discussing the effect of Brexit. English law is likely to continue to be widely chosen – it is well known by businesses across the world, well developed and allows contracts to be interpreted in their commercial context. English courts are likely to continue to be widely chosen for resolving disputes in international contracts – the English system is widely respected, the proceedings are in English (which is commonly used in business) and the English courts are very experienced in dealing with complex international disputes.
But these are both reminders that we need to pay attention to these so-called “boilerplate clauses”. Legal advice should always be taken when it comes to contracts that are important to your organisation.
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