What does Brexit mean for choice of law

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The Rome Regulations affecting contractual (Rome I) and non-contractual (Rome II) choice of law are EU measures which provide that the courts will uphold a parties’ choice of law. Following the UK’s exit from the EU, they shall most probably cease to have effect and the law of England and Wales will revert to the common law position.

What will change?

With respect to contractual claims the position is unlikely to change significantly as the common law rules are similar to the provisions of Rome I. The express choice of the parties will continue to be given effect. In the absence of such choice, English and Welsh courts will apply the law of the country with which the contract has its closest and most real connection.

In relation to non-contractual liability (e.g. tortious claims) the position is less clear as the English and Welsh common law does not give the parties the express right to choose the law applicable to non-contractual obligations. Instead, the applicable law is determined by the law of the country where the tort occurred. 

Unless the UK adopts measures which mirror Rome II in consequence of its exit from the EU there may be a void relating to choice of law for non-contractual liability.