British Arab Commercial Bank Plc v Bank of Communications and Another: ComC 17 Feb 2011

Blair J said: ‘It is not in dispute that, . . it must be a ‘real choice’ which the parties had a clear intention to make. A tacit choice must only be found where it is reasonably clear that it is a genuine choice by the parties (See Clarke J’s review of academic authority in [Oldendorff] . . ) It follows that both parties must be shown with reasonable certainty to have had a common intention, although I consider it is unnecessary to distinguish between subjective or objective intention in this regard. The fundamental question is whether in the absence of an express choice there was nevertheless a real choice. As the Giuliano-Lagarde put it: ‘this article does not permit the court to infer the choice of law that the parties might have made where they had no clear intention of making a choice. Such a situation is governed by Article 4’.


Blair J


[2011] EWHC 281 (Comm), [2011] 1 Lloyd’s Rep 664




England and Wales


CitedEgon Oldendorff v Libera Corporation 1996
Conflict of laws – ‘It is sufficient to say that the party relying upon art. 3 must demonstrate with reasonable certainty that the parties have chosen a particular law as the governing or applicable law. ‘ . .

Cited by:

CitedFour Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .
Lists of cited by and citing cases may be incomplete.

Banking, Jurisdiction

Updated: 27 November 2022; Ref: scu.429633