1 This will almost invariably be the case either because (i) the facility agreement will contain an express choice of English law or (ii) English law otherwise applies to the relationship for the reasons given in Chapter 41 above.
2 See, for example, the Philippine legislation at issue in the Wells Fargo litigation, discussed at para 46.29 above.
3 Article 12(1)(a) of Rome I, considered at para 41.12(c) above.
4 For cases in which the English courts refused to give effect to a foreign moratorium, see National Bank of Greece and Athens SA v Metliss  AC 255 (HL) and Adams v National Bank of Greece SA  AC 255 (HL). These cases have already been noted at para 46.28 above.
5 Arts 10 and 12, Rome I.
6 It may be noted that this provision bears some similarity to the principle that the English courts will not enforce a contract where performance is illegal in the country in which performance is required to occur. The rule is generally founded on the decision in Ralli Bros v Compania Naviera Sota y Anzar  2 KB 287 (CA).
7 See, for example, Kleinwort Sons & Co v Ungarische Baumwolle Industrie AG  2 KB 678 (CA) and Libyan Arab Foreign Bank v Bankers Trust Co  QB 528. See also the discussion in Mann, para 16.22. In many cases, the payment will actually have to be settled across accounts in the principal financial centre of the currency concerned. However, that location does not, in consequence, become the place of payment: see the discussion at paras 45.31–45.37 above, noting the decisions in Libyan Arab Foreign Bank v Bankers Trust Co  QB 728 and Citibank, NA v Wells Fargo Asia Ltd 495 US 660 (1990). There is, therefore, a distinction between the place of payment and the place of settlement of a monetary obligation.
8 ie in accordance with Art 12, Rome I. It may be noted in passing that courts in the United States have tended to hold that matters touching the repayment of a bank deposit, or of a loan owing to a bank, are governed by the law of the situs of the deposit or obligation, as opposed to the law that governs the contract as a whole: see Callejo v Bancomer SA 764 F 2d 1101 (5th Cir, 1985) and contrast Allied Bank International v Banco Credito Agricola de Cartago 757 F 2d 516 (2nd Cir), cert den, 473 US 934 (1985). The point will only be material where the situs of the obligation differs from the law which governs it.
9 SR&O 1946, No 36. For an in-depth discussion of Art VIII(2)(b), see Mann, ch 15.
10 See, in particular, Sharif v Azad  1 QB 605 (CA).
11 See, for example, Wilson Smithett & Cope Ltd v Terruzzi  1 QB 683.
12 United City Merchants (Investments) Ltd v Royal Bank of Canada  1 AC 168 (HL).
13 The most frequently cited authority for this proposition is Davis Contractors Ltd v Fareham UDC  AC 696 (HL).
14 Universal Corporation v Five Ways Properties Ltd  1 All ER 552 (CA), where a change in Nigerian exchange control regulations caused difficulty for the buyer of a property in completing the purchase when due, because monies held within that country had been its sole source of funding for the transaction. Although the Court of Appeal reversed the first instance judgment on other grounds, it approved the judge’s statement that ‘quite emphatically, the doctrine of frustration cannot be brought into play merely because the purchaser finds, for whatever reason, that he has not got the money to complete the contract…’.
15 Bank of America NT &SA v Envases Venezolanos 740 F Supp 260 (1990) aff’d 923 F 2d 843 (1990).