English law is one of the most widely chosen governing laws for international commercial contracts. Chinese companies entering into contracts with UK and European counterparties will frequently encounter English law as the governing law. Understanding the fundamentals of English contract law helps Chinese companies negotiate better terms and avoid unexpected outcomes.

Contract Formation Under English Law

English law requires three elements for a binding contract: offer, acceptance, and consideration. Consideration means that each party must provide something of value to the other, whether a payment, a promise, or a forbearance. This requirement differs from Chinese contract law, which does not require consideration in the same way. The absence of consideration can make a promise unenforceable under English law even if the parties clearly intended to be bound.

The requirement for certainty of terms is another important distinction. English courts will not enforce a contract if the terms are too vague or incomplete. Chinese companies should ensure that all essential terms are clearly stated in their English law contracts, including price, delivery terms, payment schedule, and the scope of work or goods being supplied.

Key Commercial Clauses

Limitation of liability clauses are among the most important provisions in English law contracts. The Unfair Contract Terms Act imposes reasonableness requirements on exclusion clauses in business to business contracts. Clauses that attempt to exclude liability for death or personal injury caused by negligence are void, and clauses excluding liability for other losses must satisfy the reasonableness test. Chinese companies should ensure that limitation clauses are drafted to be enforceable under the Act.

Indemnity clauses under English law create a primary obligation to compensate the indemnified party for specified losses. Unlike liability for breach of contract, which is subject to the rules on remoteness of damage, indemnity obligations can be broader. Chinese companies should carefully review the scope of any indemnity they give or receive.

Dispute Resolution

English law contracts typically include either a jurisdiction clause selecting the English courts or an arbitration clause selecting a London seated arbitral institution. The English Commercial Court is one of the most respected venues for commercial dispute resolution worldwide, and the London Court of International Arbitration is a popular choice for cross-border arbitration.

Conclusion

English contract law provides a stable and predictable framework for international commercial transactions. Chinese companies that understand its fundamentals can negotiate more effectively and manage their contractual relationships with greater confidence. Christopher Roberts at Collyer Bristow in London advises Chinese clients on English law contracts.

Representations and Warranties

Representations and warranties are a central feature of English law commercial contracts. The party making a representation states that certain facts are true as of a specified date, and if the representation proves to be false, the other party may have a claim for misrepresentation. Warranties are promises that certain facts are true and if breached, give rise to a claim for damages. Understanding the distinction between representations and warranties and the remedies available for each is important for Chinese companies negotiating English law contracts.

Implied Terms

English law implies certain terms into contracts for the sale of goods and supply of services, even if the parties do not expressly include them. The Sale of Goods Act implies terms relating to title, description, satisfactory quality, fitness for purpose, and conformity with sample. These implied terms can only be excluded or limited to the extent permitted by the reasonableness test under the Unfair Contract Terms Act. Chinese companies should understand what the law implies and ensure that their contracts either satisfy the implied standards or include valid exclusions where appropriate.

Governing Law and Jurisdiction

The choice of English law as the governing law of a contract brings with it the associated legal framework including the rules of interpretation, the approach to implied terms, and the remedies available for breach. Chinese companies should understand the implications of choosing English law and ensure that their contracts clearly specify the chosen governing law. The choice of jurisdiction for dispute resolution should also be expressly stated, whether English courts or an arbitral tribunal seated in London.

Breach of Contract Remedies

When a party breaches an English law contract, the innocent party has several remedies available. The primary remedy is damages, which are intended to place the innocent party in the position they would have been in if the contract had been performed. The measure of damages is limited by the rules on remoteness of damage from the leading case of Hadley v Baxendale, which distinguishes between losses that arise naturally from the breach and losses that were within the contemplation of both parties when the contract was made.

Specific performance is an equitable remedy that requires the breaching party to perform their obligations under the contract. It is available only when damages would be an inadequate remedy, typically for contracts involving the sale of unique goods or property. Injunctions may also be available to prevent a party from continuing a breach of contract or from disclosing confidential information.

Key Practical Recommendations

Chinese companies entering into English law contracts should ensure that all terms are recorded in a single written document signed by both parties. Verbal agreements and side letters create uncertainty and can lead to disputes about what was actually agreed. The contract should include a clause confirming that the written document contains the entire agreement between the parties and supersedes any prior discussions or correspondence.

Legal review of English law contracts by qualified legal counsel is strongly recommended. An English solicitor with experience in the relevant area of commercial law can identify risks in proposed contract terms, suggest alternative language that better protects the client interests, and advise on the enforceability of specific clauses under English law. The cost of legal review is small compared to the potential cost of litigating a poorly drafted contract.

Force Majeure and Frustration of Purpose

English law recognizes the doctrines of force majeure and frustration as mechanisms for addressing circumstances that make contract performance impossible or fundamentally different from what the parties contemplated. Force majeure clauses in contracts define the events that excuse performance and the consequences of those events. Frustration of purpose is a common law doctrine that applies when an event outside the control of either party makes performance radically different from what was agreed.

Chinese companies should ensure that their English law contracts include carefully drafted force majeure clauses that specifically address events that are relevant to their business. A well drafted clause identifies the force majeure events, specifies the notice requirements and the time period for which performance is excused, and addresses the consequences if the force majeure event continues for an extended period including the possibility of termination.

English Contract Law Resources for Chinese Businesses

Several resources are available to help Chinese companies understand English contract law and manage their contractual relationships in the UK. These include English law guides published by the Law Society of England and Wales, practice notes from major law firms, and online resources from UK government agencies. Chinese companies with ongoing contracting needs in the UK may also consider retaining English legal counsel on a continuing basis to provide advice on contract matters as they arise, which is often more cost effective than engaging counsel on a transaction by transaction basis.