Page:Harvard Law Review Volume 9.djvu/401

CONFLICT OF LA WS. 373 The test above suggested — " the law of the country with which the contract has the most real connection" — has not been adopted by later decisions; but, on the contrary, increased impor- tance has been given to the intention of the parties as the control- ling fact in selecting the applicable law. In England, Hamlyn & Co. v. Talisker Distillery is the latest, and is likely to be a leading case. This was a Scotch action, at the instance of the Talisker Distillery, in right of the extinct firm of R. Kemp & Co., for damages and implement of an agree- ment made between Hamlyn & Co., merchants in London, and R. Kemp & Co., former owners of the Talisker Distillery in Scot^ land, whereby Hamlyn & Co. agreed to purchase all grains made by Kemp & Co., and to erect at the Distillery a patent grain^ drying machine. Kemp & Co., on their part, agreed to work this machine, and keep it in repair, and to dry and bag up the grain, and deliver it free on board at Carbost, Skye, to the order of Hamlyn & Co., or otherwise, as required. This agreement was signed in London, and contained the following clause : " Should any dispute arise out of this contract, the same to be settled by arbitration by two members of the London Corn Exchange, or their umpire, in the usual way." This clause was valid by the law of England, but invalid by the law of Scotland, because the arbi- trators were unnamed. Hamlyn & Co. contended that the action was excluded by the clause of reference, and hence the question came to be, which law should govern. The House of Lords decided, reversing the decision of the Court of Session, that the arbitration clause was governed by the law of England, and that further proceedings in the action should be stayed to await the result of the arbitration. The following passage from the speech of the Lord Chancellor, Lord Herschell, will show the grounds of the decision, namely : — " Where a contract is entered into between parties residing in different places, where different systems of law prevail, it is a question, as it appears to me, in each case, with reference to what law the parties con- tracted, and according to what law it was their intention that their rights, either under the whole or any part of the contract, should be determined. In considering what law is to govern, no doubt the lex loci solutiotiis is a matter of great importance. The lex loci contractus is also of im- portance. In the present case, the place of the contract was different from the place of its performance. It is not necessary to enter into the inquiry, which was a good deal discussed at the bar, to which of these