Abstract
LL.M. (International Commercial Law)
This paper will evaluate private international law rules relating to choice-of-law in Ghana. Thus,
express choice of law, tacit choice of law and the objectively determined proper law. It reviews
the problems facing the English common law rules on choice-of-law in Ghana. Although choice
of law rules in Ghana and that of the Economic Community of West African States remains
unchanged, same has gone through telling reform in the European Union while similar reforms are
being considered by the Hague Conference on Private International Law.
This study argues that the current common law rules, espoused by Ghana in relation to the law
applicable to contractual obligations in international commercial contracts are unsatisfactory and
that a case for reform is more than urgent to support cross-border trade and commerce. It suggests
that existing literature on the topic has paid scant attention to the need for reform and dwells on
the law as it is at present, therefore missing the opportunity to address key problems with the
present common law rules. In order to evaluate the extent to which the law in Ghana in this field
leaves much to be desired, the work will consider the rules on the issue adopted in Rome I
Regulation on the law applicable to contractual obligations (Rome I) and the Hague Principles
on Choice of Law in International Commercial Contract (Hague Principles) and examine the
extent to which Ghana can learn from these instruments as it contemplates reform of its own laws
on contractual obligations in cross-border transactions.
In the end, the paper proposes that the legislature in Ghana draft a private international law statute
modelled along Rome I and the Hague Principles. With respect to express choice of law and tacit
choice of law, the paper proposes the adoption of the provisions in the Hague Principles, while in
the case of the objectively determined proper law the paper advances argument for the adoption of
the provisions in Rome I. The proposal for the adoption of the provisions in these two instruments
is done in light of the principles of party autonomy – contracting parties’ freedom to choose the
applicable law in conflict of law rules with respect of contractual obligations – and predictability
– certainty as to the law applicable.