42 At the foundation of each of these arguments is the proposition that the choice of law clause is promissory in effect. The issues were considered by Professor Adrian Briggs in Agreements On Jurisdiction and Choice of Law, Oxford, Oxford University Press, [11.45]-[11.58]. Observing that the court seized with jurisdiction may not apply the selected law for a number of reasons - whether because its choice of law rules directed the judge to apply a different law; or its own choice of law rules, while accepting the right of the parties to choose the proper law, regarded the particular choice as impermissible; or that the court was directed by its own choice of law rules to apply mandatory domestic law; that the court errs in its application of the chosen law - Professor Briggs postulated whether the party who brought proceedings before the court of the forum could be said to have breached the agreement on choice of law [11.45]. Having found practically no common law authority on the question [11.46], he approached the matter in principle, and identified amongst the relevant issues whether an agreement on applicable law was a contractual term inherently incapable of being breached [11.47].
43 Professor Briggs acknowledged that there was no case which said, clearly or even ambiguously, that an agreement on choice of law was a term of a contract which may be broken - though he added that there were a number of "tantalising" authorities, in which a court had considered whether to grant jurisdiction or relief on the footing that what it regarded as the proper law of the contract should be applied, and the case should not be heard by a court that would not apply it [Banco Atlantico SA v The British Bank of the Middle East [1990] 2 Lloyds Rep 504 (CA); Britannia Steamship Insurance Assoc v Ausonia Assicurazioni SpA [1984] 2 Lloyds Rep 98 (CA); Shell International Petroleum Co Limited v Coral Oil Co Ltd [1999] 1 Lloyds Rep 72; Trafigura Beheer BV v Kookmin Bank Co [2007] 1 Lloyds Rep 669; Catlin Syndicate Limited v Adams Land & Cattle Co [2006] EWHC 2065; Cadre SA v Astra Asigurari SA [2005] EWHC 2626]. But he accepted that there was apparently no case in which a common law court had been required to rule on the submission that a contract was broken simply by bringing proceedings before a court which would not apply the law expressly chosen by the parties to govern their contract [11.51].
44 But as no case denied the proposition, the Professor, approaching the question as one of principle, argued [11.52]:
If, therefore, a party to an agreement for dispute resolution brings proceedings before a court or tribunal which will not apply the law which was promised, so far as the parties were concerned, to govern, and was agreed by them to be applicable in the resolution of disputes, he appears to have incapacitated himself from performing that which was undertaken to be done [ Lovelock v Franklyn (1846) 8 QB 371, 378]. The proposition that there was a breach is not contradicted by the absence of the jurisdiction agreement: as explained above, parties to a contract for dispute resolution may intend to settle the substantive law which will apply, while leaving the particular court in which proceedings will be brought to be determined later. The agreement on choice of law, on the law which will be applied to resolve disputes, however, necessarily implies and can only mean that proceedings will be brought before a judge who may be asked to apply, and may be expected to apply, the substantive law upon which the parties agreed.
45 The Professor acknowledged:
Not every expression of choice of law carries with it, in addition to the expression of a common intention, a promise to implement that choice of law when disputes are resolved. In principle the question is one of construction.
46 That said, he continued:
In such a case it is hard to see why the bringing of proceedings designed, more or less deliberately, to defeat the application of the contractual choice of law should be treated any differently from the case of a party who brings proceedings outside the court contractually chosen by the parties. The overturning of a specific component of their agreement is common to each, and the conclusion that it amounts to a breach of contract is hard to resist: if it looks like a breach and acts like a breach it probably is a breach.
47 Against the Professor's argument, however, the courts have long recognized that a choice of law clause is not a choice of jurisdiction clause, and does not have the effect of a choice of jurisdiction clause [Dunbee v Gilman; AKAI v Peoples Insurance Co, 424-5]. The common law gives the parties to a contract liberty to choose a governing law for their contract [AKAI v Peoples Insurance Co, 442], albeit subject to some limitations. No doubt a contractual provision could be framed which unambiguously contained a promise to do nothing that might result in some other system of law becoming applicable. However, in my opinion that is not ordinarily the effect of a choice of law clause, which is usually declaratory of the intent of the parties, rather than promissory. I reach this conclusion to the following reasons.
48 As Lord Diplock said in Amin Rasheed Shipping Corporation v Kuwait Insurance Co [1984] AC 50 (at 65), giving legal meaning and effect to a contract depends on ascertaining the intent of the parties in the context of the applicable legal system:
My Lords, contracts are incapable of existing in a legal vacuum. They are mere pieces of paper devoid of all legal effect unless they were made by reference to some system of private law which defines the obligations assumed by the parties to the contract by their use of particular forms of words and prescribes the remedies enforceable in a court of justice for failure to perform any of those obligations;
49 The search for the proper law of a contract involves ascertaining the intention of the parties from the terms of the contract [Amin Rasheed & Kuwait Insurance, 61; AKAI v Peoples Insurance Co, 442]. The common law allows parties to choose expressly the applicable law. As the High Court said in AKAI v Peoples Insurance Co (at 441-442):
What is involved in enquiring whether the parties have exercised their liberty to select a governing law is the ascertainment of that which, in truth, the parties are to be taken to have agreed. This may be discerned from a direct statement in a formal written contract. On the other hand, or even in such a case of a formal written contract, it may be necessary to construe the contract as a whole in the manner we have described. In addition, there may be real difficulty in ascertaining, by the drawing of inferences from the evidence, the existence of the expressed terms of the contract. …
It is not a question of implying a term as to choice of law. Rather it is one of whether, upon the construction of the contract and by the permissible means of construction, the court may properly infer that the parties intended their contract to be governed by reference to a particular system of law. It is in this way that a submission, in the contract, to the exclusive jurisdiction of the tribunals of a particular country, may be taken as an indication of the intention of the parties at the law of that country is to be the proper law of the contract. There is, in truth, only one question here, and that is whether, upon the proper construction of the contract (which may include an expression of choice in direct language), the court may properly conclude that the parties exercised liberty given by the common law to choose a governing law that their contract. If the answer to this is in the negative, then the law itself will select a proper law.
50 In the absence of an express choice of law clause, courts search for an inferred intention, even in circumstances where it is unlikely that the parties gave the matter any thought at all [Amin Rasheed & Kuwait Insurance, 61; John Kaldor Fabric Maker Pty Ltd v Mitchell Cotts Freight (Australia) Pty Ltd (1989) 18 NSWLR 172; AKAI v Peoples Insurance Co]. The importance of AKAI lies in the recognition that "inferred choice of law" and "express choice of law" are two species of a single genus concerned with giving effect to the intention of the parties. As the High Court explained (at 441) (emphasis added):
It is not a question of implying a term as to choice of law. Rather it is one of whether, upon the construction of the contract and by the permissible means of construction, the court properly may infer that the parties intended their contract to be governed by reference to a particular system of law.
51 In our system of private international law, therefore, choice of law is about ascertaining the intention of the parties as to the legal system that is to govern their contract, not about covenants or promises that a particular legal system will apply. Where a choice of law is "inferred" rather than "express", it is not conceivable that there would be an implied negative stipulation not to invoke the jurisdiction of a court, which would apply a law other than the chosen one. In my view, that supports the conclusion that where there is an express choice of law, there is similarly no implied obligation not to invoke the jurisdiction of a court, which will not apply the chosen law; the express choice of law is declaratory of the parties' intention, not promissory. It may well be that the parties could frame a provision which was promissory in effect, but - given the conventional function of a choice of law clause - it would require very clear language to make it promissory rather than declaratory.