Drafting International Commercial Contracts: Lessons from Recent European Union Case Laws

Abstract

Choice of law and choice of forum clauses of an international commercial contract may sometimes be used to evade the application of any domestic or international law. This is so done by the principle of party autonomy. However, the parties cannot avoid the mandatory rules of such laws. Lawyers drafting commercial contracts should be mindful of this limitation on the autonomy principle. The recently decided English case of Fern vs Intergraph depicts this tension and sends a note of caution for international commercial lawyers. This paper makes a brief review of this case and highlights the said limitation. At the same time, it underlines a note that the mandatory rules, despite their trumping nature, may suffer non-enforcement in the chosen forum, which does not recognize them.