Maria Hook, 2015
The author argues that choice of law rules are not self-contained tools, rather they are supplemented not only by substantive law and judicial discretion but also by what the author terms ‘modal choice of law rules’. One example of this concept is a rule that requires a choice of law agreement to be in writing. The modal choice of law rule supplements the rule that contracts be governed by the law that the parties intended to apply. The author argues that modal choice of law rules can be utilised in place of judicial discretion to provide greater predictability in the application of a choice of law rule. In addition, they may act as a valuable supplement to areas of substantive law that lack the rules needed to properly define a choice of law element. The benefits of applying foreign modal choice of choice of law rules are identified as: uniformity of outcome, increased certainty and associated enforceability of the judgment overseas.