Ireland: Determining Governing Law Not A Separable Issue

Last Updated: 25 January 2016
Article by Gearóid Carey

The High Court1 recently deemed that the question of determining which governing law applies to a dispute should not be dealt with as a separate and distinct matter in isolation from a ruling on the relevant facts. Although to an extent this is fact specific, parties should be mindful that where a dispute arises and there is a question over the applicable law, the Irish courts may require all aspects of the dispute to be determined at the same time. Accordingly, it is not necessarily the case that the governing law is to be determined separately from questions regarding liability.


The underlying proceedings involved a claim by the plaintiffs for declaratory relief and damages arising out of an alleged breach of contract and negligence on the part of the defendant in connection with the supply of magnets to the plaintiffs for use in wind turbines. The defendant denied liability and counterclaimed in respect of unpaid invoices and loss of profit. A fundamental issue arose as to whether Dutch or Irish law governed the contract and which should be applied by the court in determining the substantive dispute.

The defendant contended that the contract was to be governed by the law chosen by the parties pursuant to Article 3.1 of the EU Rome I Regulation and, accordingly, Dutch law applied because the defendant's general conditions of sale (which mandated Dutch law) were incorporated into the contract because of their attachment to a series of quotations delivered by email and their inclusion in the order confirmation forms. In contrast, the plaintiffs felt that Article 4(3) of the Rome I Regulation applied such that the law of the country most closely connected to the contract shall apply. The plaintiffs contended, among other things, that Dutch law was never accepted as the law of the contract and that the court should properly consider the negotiations that took place between the parties to the effect that Irish law was applicable. The defendant applied for orders directing either the trial of a preliminary issue or a modular hearing with regard to the applicability of Dutch law, arguing that time and costs would be saved if the applicable law was identified before the full hearing, since the parties would otherwise have to prepare their case on two different bases (ie, Dutch law and Irish law).

Relevant law

Judge Hedigan began by reciting the relevant Rules of the Superior Courts, from which his jurisdiction to make the orders sought arose. He cited at length from a recent Supreme Court decision2 dealing with the trial of a preliminary issue in which Judge McKechnie summarised the circumstances in which the jurisdiction might successfully be invoked:

"(a) There cannot exist any dispute about the material facts as asserted by the relevant party: such can be agreed by the moving party or accepted by him or her, solely for the purposes of the application.

(b) There must exist a question of law which is discrete and which can be distilled from the factual matrix as presented.

(c) There must result from such a process a saving of time and cost, when the same as contrasted with any other suggested method by which the issues may be disposed of: in default with a unitary trial of the entire action. In the absence of admissions, appropriate evidence will usually be necessary in this regard: impressions of what might or might not be, will not be sufficient.

(d) The greater the impact which a decision on the preliminary issue(s) is likely to have on the entire case, the stronger will be the argument for making the requested order.

(e) Conversely, if, irrespective of the court's decision on that issue(s), there should remain for determination a number of other substantial issues or issue(s) of a substantial nature, the less convincing will be the argument for making such an order.

(f) Exceptionally, however, even if the follow-on impact will not dispose of any other issue, the process may still be appropriate where the subject issue is substantial in its own right and where its determination would clearly benefit the action in an overall sense.

(g) As an alternative to such a process in such circumstances, some other method or mode of proceeding, such as a modular trial, may be more appropriate.

(h) It must be 'convenient' to make such an order: at one level this consideration, of itself, can be said to incorporate all other factors herein mentioned but, for the purposes of clarity, I think it is more helpful to retain the traditional separation of such matters.

(i) The making of such an order must be consistent with the overall justice of the case, including of course fair procedures for all parties.

(j) The court at all times retains discretion whether or not to make such an order: when so deciding it should exercise caution so as to make sure that if an order is made, it will meet the purposes intended by it; finally

(k) subject to giving due and proper weight to the decision of the trial judge, the appellate court can substitute its own views for those of the High Court where it thinks it is both necessary and appropriate to do so."


Taking these observations into account, Hedigan felt that, since the default option is a unitary trial (where all aspects of the dispute are to be determined together), the court must be satisfied that:

  • there is no dispute on the material facts;
  • there is a discrete question of law;
  • time will be saved;
  • the impact on the main case will be beneficial; and
  • directing such preliminary issues would be consistent with overall justice.

Noting the plaintiffs' reference to the relevance of evidence regarding the pre-contract negotiations involving meetings and telephone calls between a number of people, Hedigan felt that there appeared "to remain a factual element in the dispute as to what law if any was chosen". He concluded that he could not be satisfied that "there is no dispute on material facts". In addition, given that the plaintiffs will argue their case on the issue at the preliminary stage, relying on evidence that will trawl through all the negotiations which will likely be heard again at a full trial, Hedigan had "some difficulty in accepting that there will be a saving of time and cost". With respect to the argument that the case would have to be prepared on one basis only if the application were granted, he felt that this was somewhat "overblown", as all that would be required would be the evidence of Dutch lawyers on limited legal issues. Accordingly, he was not satisfied to depart from the normal practice of a unitary trial and he refused the application. He also cited as a factor in his decision the delay that any prospective appeal regarding whether the applicable law should be determined separately might have on the ultimate determination of the underlying dispute. He felt that such a possibility could run counter to the guiding principle that a commercial court case should be allowed to proceed to an expeditious resolution.


The decision is a useful reminder as to the high test applicable to the separation of the trial of individual matters from ultimate questions of liability and a useful restatement as to the primacy of unitary trials in Irish procedure. Although somewhat fact specific, the decision has clarified that even when dealing with a legal question that may objectively appear to be standalone – such as the question of the applicable governing law – an application to separate that determination may not succeed. In general terms, where a client is faced with a dispute regarding the governing law, a separate determination may be appropriate. However, before bringing the relevant application, consideration should be given to the opposing party's stance, in order to avoid the unhappy outcome that the defendant experienced here.


1 C&F Green Energy Ltd & C&F Tooling Ltd v Bakker Magnetic BV [2015] IEHC 773.

2 Campion v South Tipperary County Council [2015] IESC 79.

This article first appeared in the International Law Office Litigation newsletter, 19 January 2016.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions