Page:Harvard Law Review Volume 9.djvu/403

375 CONFLICT OF LAWS. 375 from the opinion of Mr. Justice Gray in The Montana, it is clearly implied that if the parties manifest an intention to be bound by some law other than that of the place of making, such intention would be effective. The intention of the parties in respect to the law under which they contract may be expressly declared, or it may be inferred from circumstances. The case of Hamlyn & Co. v. Talisker Distillery must be considered as a case falling under the former class. It is true the contract does not contain an express provision that it shall be governed by the law of England, but the clause of refer- ence referred so directly to London, and the usages of the London Corn Exchange, that, by construction, it was equivalent to an ex- press incorporation of the English law. It was so treated by the judges. Lord Watson said : — " If they had stipulated that all disputes arising out of the contract were to be decided in the Court of Session, I should have been of opinion that they had in view the principles of Scotch law, and meant that their mutual stipulations should be construed according to these principles. And, to my mind, their selection from the membership of a commercial body in London of a conventional tribunal which is to act in London, indicates, not less conclusively, that, in agreeing to such an arbitration, they were contracting with reference to the law of England." (pp. 212, 213.) In the absence of any declaration of intention in the contract, whether express or derivable from it by fair construction, the court is obliged to consider all the circumstances from which a mutual intention in regard to the governing law may be inferred. These circumstances will now be reviewed. I. If the contract or clause in question is valid by the law of one country, and invalid by the law of the other country, that is a circumstance of great cogency in favor of applying the law by which the agreement will be upheld. The reason is, that as the parties have entered into a transaction intended to have legal con- sequences, this intention implies a submission to that law which will enforce the agreement. In Hamlyn & Co. v» Talisker Distil- lery, the clause of reference was valid by the law of England, and invalid by the law of Scotland. This fact was considered by the judges. Lord Herschell said : — " As I have already pointed out, the contract with reference to arbitra- tion would have been absolutely null and void if it were to be governed
 * in the" usual way,' or, in other words, in the manner which is customary