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1
Siehr, Kurt. "Mandatory Rules of Third States From Ole Lando to Contemporary European Private International." European Review of Private Law 28, Issue 3 (September 1, 2020): 509–22. http://dx.doi.org/10.54648/erpl2020028.
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On 18 October 2016 the European Court of Justice, in the case Greece v. Nikiforidis, decided: ‘Article 9 (3) of the Regulation No. 503/2008 on the law applicable to contractual obligations must be interpreted as precluding overriding mandatory provisions other than those of the State of the forum or of the State where the obligations arising out of the contract have to be or have been performed from being applied, as legal rules, by the court of the forum, but as not precluding it from taking such other overriding mandatory provisions into account as matters of fact in so far as this is provided for by the national law that is applicable to the contract pursuant to the regulation’. Ole Lando already anticipated this development when he dealt with this problem arising under the Rome Convention of 1980 on the law applicable to contractual obligations still in force in Denmark. Harmonization, contract law, European private law, restatements
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Fallon, Marc. "Proposition pour une convention européenne sur la loi applicable aux obligations non contractuelles." European Review of Private Law 7, Issue 1 (March 1, 1999): 45–68. http://dx.doi.org/10.54648/233266.
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In the document the text of which is set out below, the European Group of Private International Lawyers makes a proposal for legislation complementing the Rome Convention of 19 June 1980 on the law applicable to contractual obligations, by covering non-contractual obligations which arise from a harmful event or a quasi-contract. In matters of quasi-delict, even though from the comparative point of view the dominant conflict of laws rule is the application of the lex loci delicti, it is well known that this rule is subject to many slight variations from one country to another, in particular when the act which causes the damage and the damage itself occur in different states. The proposal draws as much inspiration as possible from the Rome Convention. While leaving scope for the application of the lex loci delicti, it is based on the application of the law of the country with which the situation has the closest connection, and it establishes various presumptions in order to maximise the foreseeability of the applicable law. A general presumption gives priority to the fact that the parties are habitually resident in the same country. Special presumptions try to take account of substantive law policies, by giving priority to the place where the damage arose.
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Verhagen, H. L. E. "The Tension Between Party Autonomy and European Union Law: Some Observations on Ingmar GB Ltd V Eaton Leonard Technologies Inc." International and Comparative Law Quarterly 51, no. 1 (January 2002): 135–54. http://dx.doi.org/10.1093/iclq/51.1.135.
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Party autonomy is the basic principle for international contracts. By making a ‘choice of law’, the parties to a contract can agree amongst themselves which law is to regulate their contractual relationship. In international transactions, the law of the parties' choice replaces the law that would otherwise have governed the contract, including the mandatory rules (ius cogens) of the latter law. Article 3 of the 1980 Convention on the Law Applicable to Contractual Obligations (hereafter: the ‘Rome Convention’) fully recognises this principle of party autonomy. Under Article 3 the parties are free to choose whichever law they deem appropriate to govern their contractual relationship. It is not even necessary for the transaction to display some connection with the chosen law.
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von Hoffmann, Bernd. "Consumer contracts and the 1980 Rome EC Convention on the law applicable to contractual obligations." Journal of Consumer Policy 15, no. 4 (December 1992): 365–84. http://dx.doi.org/10.1007/bf01014117.
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López-Rodríguez, Ana M. "The Rome Convention of 1980 and its Revision at the Crossroads of the European Contract Law Project." European Review of Private Law 12, Issue 2 (April 1, 2004): 167–91. http://dx.doi.org/10.54648/erpl2004014.
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Abstract: This article deals with some of the issues addressed in the Action Plan on a more coherent European contract law, COM (2003) 68 final, in connection with the Green Paper of the European Commission of 14 January 2003, COM (2003) 654 final, on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernization. It argues ways in which both initiatives may complement each other towards a smoother functioning of the internal market.
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López-Rodríguez, Ana. "The Revision of the Rome Convention of 1980 on the Law Applicable to Contractual Obligations–A Crucial Role within the European Contract Law Project?" Nordic Journal of International Law 72, no. 3 (2003): 341–67. http://dx.doi.org/10.1163/157181003771013799.
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AbstractThis article deals with some of the issues addressed in the Action Plan on a more coherent European contract law, COM (2003) 68 final, in connection with the Green Paper of the European Commission of 14 January 2003, COM (2003) 654 final, on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernization. It argues ways in which both initiatives may complement each other towards a smoother functioning of the internal market.
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Fentiman, Richard. "COMMERCIAL EXPECTATIONS AND THE ROME CONVENTION." Cambridge Law Journal 61, no. 1 (March 7, 2002): 1–52. http://dx.doi.org/10.1017/s0008197302381509.
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WHICH law governs a contract where none has been chosen by the parties? The solution lies in Articles 3 and 4 of the 1980 Rome Convention on the Law Applicable to Contractual Obligations. Article 3 allows a court to infer the parties’ intentions from the circumstances. But such intentions must be “real”, not presumed, and in the absence of genuine consent, Article 4 provides that the applicable law is that most closely connected with the contract. Under Article 4(2) this is (in effect) the law in force where the supplier of goods or services is located, or (if relevant) has a branch—for the supplier’s performance is invariably “characteristic” of a contract, in the sense intended by the Convention. But any clarity thereby won is immediately lost because the presumption is rebuttable under Article 4(5) whenever a contract is better connected with another law, exposing Article 4(2) to the risk of constant challenge. The presumption is especially vulnerable because it will so seldom be appropriate to apply the supplier’s law, the law of the place of performance frequently having a stronger claim to govern. Perplexingly, it is a presumption more apt to be rebutted than applied.
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Kuipers, Jan-Jaap. "Party Autonomy in the Brussels I Regulation and Rome I Regulation and the European Court of Justice." German Law Journal 10, no. 11 (November 1, 2009): 1505–24. http://dx.doi.org/10.1017/s2071832200018356.
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The relationship between Community law and Private International Law (PIL) did not have an easy start. The original EEC Treaty merely made one reference to PIL. The notable exception was the Brussels Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial Matters (1968), an international convention concluded on the basis of art. 220 EEC (293 EC). The Rome Convention on the Law Applicable to Contractual Obligations (1980) did not even have an explicit legal basis. After the adoption of the Rome Convention it remained relatively silent on the Community level. It did not help that due to the status of international convention the European Court of Justice (ECJ) was deprived of any power of interpretation. The problem was resolved in two separate protocols. The protocol on the Brussels Convention entered into force in 1975 and the protocol on the Rome Convention only entered into force in 2004. Whereas there has been a substantial amount of case-law on the Brussels Convention, the ECJ only delivered its first judgment on the Rome Convention in October 2009.
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Olejnik, Karol. "Prawo właściwe dla umów z zakresu prawa własności intelektualnej, ze szczególnym uwzględnieniem umów licencyjnych." Acta Iuridica Resoviensia 35, no. 4 (2021): 306–19. http://dx.doi.org/10.15584/actaires.2021.4.22.
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This article deals with the issue of determining the law applicable to contracts in the field of intellectual property law in general. After Poland joined the European Union, in a relatively short period of time, various legal acts regulating the above-mentioned matter were in force. The author presents the current procedure for determining the law applicable to contracts for the transfer of intangible rights and license contracts on the basis of the Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I). Author presents the sequence of actions in determining the applicable law – from the freedom to choose the law, through set decisive rules and the concept of characteristic performance, to correction clauses. At the same time, the text compares the current regulations with the provisions of the Rome Convention of 1980, which was the basis of today’s EU legal solutions. The author put particular emphasis on agreements for the use of intellectual property rights, for which the determination of the applicable law brings about more practical problems.
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Boskovic, Olivera. "Retour sur la loi applicable aux intérêts moratoires – A propos de l’arrêt rendu par la Cour de cassation belge le 23 avril 2007." European Review of Private Law 18, Issue 1 (February 1, 2010): 177–83. http://dx.doi.org/10.54648/erpl2010010.
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Résumé: L’arrêt rendu par la Cour de cassation belge le 23 janvier 2007 relance le débat sur la difficile question de la loi applicable aux intérêts moratoires. Censurant la Cour d’appel qui avait appliqué le taux de la loi du for pour toute la période postérieure au jugement, la Haute Juridiction belge affirme que c’est la loi du contrat qui est, en vertu de l’article 10)1)c de la Convention de Rome de 1980 relative à la loi applicable aux obligations contractuelles, applicable à cette question. Cette solution, cohérente, doit étre confrontée à une proposition qui recueille de plus en plus de suffrages doctrinaux, à savoir l’application de la loi de la monnaie dans laquelle est libellée la condamnation à la question des intérêts moratoires. A l’examen, il s’avére que cette dernière thèse ne permet pas de résoudre toutes les difficultés. Bien que des solutions optimales, quoique passablement complexes, existent sans doute en théorie, la solution adoptée par la Cour de cassation belge est satisfaisante et constitue probablement la réponse la plus adéquate à la situation qui lui était soumise. Abstract: This decision of the Belgian Cour de cassation reopens the debate on the difficult question of the law applicable to interest by way of damages. Quashing the Court of appeal decision which had applied the rate of the lex fori for the post-judgement period, the Supreme Belgian Court held that, by virtue of article 10)1)c of the Rome Convention on the law applicable to contractual obligations, the governing law is the law of the contract. This solution although satisfactory, should be confronted to an increasingly welcomed proposition, i.e. the submission of interest by way of damages to the law of the currency in which the debt is expressed. On closer examination, it appears that the latter proposition does not resolve all problems. Although optimal solutions, inevitably complex, do exist in theory, the solution adopted by the Belgian Cour de cassation is satisfactory and was probably the most adequate response under the submitted circumstances.
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Meeusen, Johan. "Stefan Klauer, Das europäische Kollisionsrecht der Verbraucherverträge zwischen Römer EVÜ und EG-Richtlinien, Tübingen, J.C.B. Mohr (Paul Siebeck), 2002, 389p." European Review of Private Law 11, Issue 4 (August 1, 2003): 587–89. http://dx.doi.org/10.54648/erpl2003037.
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Together with a number of other fields of law, consumer law often appears to be a laboratory of private international law. Various policy interests, both at national (substantive) and international level, are at stake and have prompted a creative, policy-oriented approach from the conflicts legislator. A compromise has been sought between the protection of the consumer, substantive policy goal which is to be secured also in international transactions, and traditional conflicts values such as international harmony and legal certainty in cross-border relationships, which both are much easier realized with a neutral and abstract approach. Well-known achievements with regard to international consumer contracts are Article5 of the 1980 Rome Convention on the law applicable to contractual obligations and the provisions in EC directives on consumer protection which shield the consumer from the application of restrictive third country law. Much has already been written on this topic. Still, the book of Stefan Klauer on European conflicts of law regarding consumer protection constitutes a very valuable contribution to the academic debate.
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Badykov, Mikhail. "The Russian Civil Code and the Rome Convention: Implied Choice of the Governing Law." Review of Central and East European Law 33, no. 2 (2008): 181–203. http://dx.doi.org/10.1163/092598808x262597.
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AbstractIn this article, the author compares the provisions of the 1980 European Convention on the Law Applicable to Contractual Obligations (Rome Convention) and the 1994 Russian Civil Code on implied choice of a governing law (the provisions of Article 3 of the Convention and Article 1210(2) of the Code). He begins with an examination of whether the Code and the Convention allow the use of the same factual data for inferring an implied choice; goes on to analyze whether the relationship between the terms and the circumstances is the same under these two instruments; and concludes by testing whether the Code and the Convention demand the same level of certainty in inferring a choice. This research enriches the methodological background to the rules set forth in Article 1210(2) of the RF Civil Code, as the Russian case law on the subject is quite elementary at present and courts and lawyers, therefore, lack any firm guidance. The author shows that a prima facie similarity in the possible use of terms and circumstances in the Convention and the Code is misleading. Many circumstances that are well-settled under the Convention (e.g., the choice of a particular forum, reference in a contract to a national statute, use of standard forms, etc.) are likely to be ignored in Russia. Furthermore, there is a difference between terms and circumstances in the instruments examined. This difference has its roots in the general provisions of the RF Civil Code (Part I). The implication of a choice in the Code demands such a high standard of certainty that it renders the regulation of the Code substantially different from that of the Convention.
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Riefa, Christine. "Article 5 of the Rome convention on the law applicable to contractual obligations of 19 June 1980 and consumer E‐contracts: the need for reform." Information & Communications Technology Law 13, no. 1 (March 2004): 59–73. http://dx.doi.org/10.1080/1360083042000190643.
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Ditrih, Stefan, Svetlana Marković, and Olgica Milošević. "Change of Circumstances and Force Majeure Clauses in Serbian Legal System and Sources of International Uniform Law." Economic Themes 57, no. 1 (March 1, 2019): 67–86. http://dx.doi.org/10.2478/ethemes-2019-0005.
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AbstractThe effects of globalisation are many. One of them is the effect that globalisation has on commercial contracts and contractual relations between contracting parties. Due to a fast pace of economy and the speed and volume of the conclusion of contracts in international trade, participants must rely on stable and reliable legal framework for contractual obligations. In globalised economy, traders from different countries bring with them individual trade practices and norms of national legislation, often diametrically opposed, and sometimes the legal institutes that are regulated in one country don’t even exist in another. This is the case with the institutes of force majeure and a change of circumstances. Due to large differences in the regulation of these two institutes in national legal systems, there have been demonstrated some attempts of standardisation and creation of a unified system of exemption from liability for non-performance, due to force majeure or a change of circumstances. This problem becomes even more evident when dealing with the long term contracts, which are prone to the effects of unforeseen circumstances. This paper aims to explore the nature of the above mentioned legal institutes in some of the most important sources of international commercial law. With a special attention paid to the Serbian regulatory solutions, in order to further understand the similarities and differences between the national legal systems and sources of international law. The first part of the paper deals with applicable legal framework in Republic of Serbia, concerning force majeure and a change of circumstances. The second part of the paper deals with the international sources of commercial law, such as UN Convention on Contracts for the International Sale of Goods of 1980; UNIDROIT Principles of International Commercial Contracts; Principles of European Contract Law; Draft Common Frame of Reference; and Common European Sales Law.
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Gunnarsson, Eyvindur G. "Default Interest Rates in International Transaction: Analyses of Private Law Application." European Review of Private Law 25, Issue 4 (September 1, 2017): 765–88. http://dx.doi.org/10.54648/erpl2017048.
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Abstract: A legal problem that regularly arises in the event of default of monetary obligations in international contracts, or contracts which contain a foreign element, is which law to apply to default interest rates. This is of significant importance as default interest rates can vary to a great extent between countries. Iceland was hit hard by the 2008 financial crisis, especially by the spill-over effects of its banking failure which, inter alia, lead to the collapse of the currency (ISK). As a result, both the failed banks as well as many debtors defaulted on their obligations. This has provided for interesting case law in Iceland. The article explores Icelandic rules on default interest on monetary claims in foreign currency. The main issue at hand whether Icelandic or foreign law is applicable. The 2001 Interest Act applies to default interest on monetary claims. The rate of the official default interest is based on the strength of the relevant currency. In states where the currency is strong the default interest is usually lower than in states that have a weaker currency. Accordingly, if a foreign currency monetary claim accrues default interest under Icelandic law, the creditors’ return can be much higher or lower than under the law of the state of the currency of payment, depending on the strength of that currency. It is, therefore, pivotal to determine which law is applicable to the contract. In the absence of express choice of law, the rules of Icelandic private international law decide what is the prevailing law of the contract. The relevant law is the 2000 Act on the Choice of Law in Contracts which materially corresponds to the 1980 Rome Convention on the law applicable to contractual obligations. The Supreme Court of Iceland has held that the prevailing law of the contract is also the applicable law of the default interest on a foreign currency monetary claim. This is also the prevailing view of courts in most of foreign jurisdictions. Article 78 of the United Nations Convention on Contracts for the International Sale of Goods (CISG) only states that if a party fails to pay the price or any other sum that is in arrears, the other party is entitled to interest on it. However, it is silent on the interest rate. On the other hand, the UNIDROIT Principles of International Commercial Contracts, 7.4.9(2), the Principles of European Contract Law, PECL 9:508(1), the Draft Common Frame of Reference, DCFR III. – 3:708, as well as the Common European Sales Law (CESL) address the problem with an explicit rule that states that the interest shall be the average bank short-term lending rate to prime borrowers prevailing for the currency of payment at the place for payment. Résumé: Un problème juridique qui se pose régulièrement dans le cas de manquement aux obligations monétaires dans les contrats internationaux, ou dans les contrats contenant un élément étranger, est de savoir quelle loi appliquer aux taux d’intérêts de retard. Ceci est d’une importance majeure dans la mesure où les taux d’intérêts de retard peuvent varier énormément selon les pays. L’Islande a été durement touchée par la crise financière de 2008, spécialement par les répercussions des faillites de ses banques qui ont notamment conduit à l’effondrement de la devise (ISK). Par voie de conséquence, les banques en faillite, ainsi que de nombreux débiteurs, n’ont pas respecté leurs obligations. Cette situation a fourni une intéressante jurisprudence en Islande. Le présent article étudie les réglementations islandaises concernant les interest de retard sur des créances pécuniaires en monnaie étrangère. La question essentielle est de savoir si c’est la loi islandaise ou la loi étrangère qui s’applique. La ‘Loi sur
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Lando, Ole. "The EEC Convention on the Law Applicable to Contractual Obligations." Common Market Law Review 24, Issue 2 (June 1, 1987): 159–214. http://dx.doi.org/10.54648/cola1987012.
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Williams, Patrick Ross. "The Eec Convention on the Law Applicable to Contractual Obligations." International and Comparative Law Quarterly 35, no. 1 (January 1986): 1–31. http://dx.doi.org/10.1093/iclqaj/35.1.1.
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Хлестова, Ирина, and Irina KHlyestova. "Hague Convention on the Law Applicable to Traffic Accidents." Journal of Russian Law 4, no. 12 (December 5, 2016): 0. http://dx.doi.org/10.12737/22719.
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The article analyses of the Hague Convention on Law Applicable to Traffic Accidents of the 4 May 1971. Article 2 of the Hague Convention lays down the general rule: the applicable law is the internal law of the State where the accident occurred. At the same time the Hague Convention states a lot of exemptions from this general rule. In some cases it leads to the application of the law of the country of the vehicle’ registration involved in the accident. The Hague Convention determines the action sphere of the applicable law. The feature of the Hague Convention is that persons who suffered injury or damage has the right of direct action against insurer of the person liable. The problems of correlation of the provisions of the Hague convention and EC Regulation on the law applicable to non-contractual obligations of the 11 July 2007 were considered in the article.
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Bouček, Vilim. "Smjernice u postlisabonskom europskom međunarodnom privatnom pravu." Zbornik Pravnog fakulteta u Zagrebu 72, no. 3 (June 30, 2022): 799–826. http://dx.doi.org/10.3935/zpfz.72.3.02.
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This paper discusses the application of the EU directive as a source of European private international law with an emphasis on the post-Lisbon period in private international law of the member states. After presenting the main features of a directive in private international law, such as the legal basis for those “measures” in secondary legislation, types of directive, their structure, purpose and the effects of a directive, the author points out the special importance of the directive expressed in the Ingmar and Unamar cases of the Court of Justice of the European Union. In both cases the legal framework was Council Directive 86/653/EEC of 18 December 1986 on the coordination of the laws of the Member States relating to self-employed commercial agents. In the Ingmar case of 2000, although lacking a (unilateral) conflict of law rule, the Court gave, by interpretation, the position of an unwritten (or hidden) conflict of law rule to a substantive law provision of the Directive. At the same time the Court determined that the provisions of Articles 17 to 19 are to be regarded as mandatory rules for the purposes of private international law. For the former EC legal order it was essential that a principal established in a non-member country (USA), whose commercial agent acts within the EC, cannot evade those provisions by freely choosing un-harmonized applicable law. In 2013 Court of Justice of the European Union was again asked to deal with Council Directive 86/653/EEC of 18 December 1986 but in the new Unamar case with parties from Bulgaria (principal) and Belgium (commercial agent). Again, the Court confirmed the mandatory character of Articles 17 and 18 of the Directive and applied also Art. 7(2) of the Rome Convention of 1980. In his ruling it took into consideration the provisions of Art. 9(1) of the Rome I Regulation in which there is a definition of overriding mandatory provisions. Taking into account the terms of the mandatory provisions, but this time also consistent with the wording of Article 9(1) of the Rome I Regulation of 2008, the Court concluded that the law chosen by the parties to a commercial agency contract may be rejected by the court of another Member State before which the case has been brought in favor of the law of the forum, owing to the mandatory nature in the legal order of that Member State, only if the court of the forum state held it to be crucial to grant the commercial agent protection, going beyond that provided for by the directive, thus taking account of the nature of such mandatory provisions. From June 1988 to today (2021) the EEC, the EC and the EU adopted a considerable number of directives as measures for the approximation of national law dealing mostly with consumer, but also employment and insurance issues, setting forth conflict rules. These sector-specific rules (or special conflict rules for certain (consumer) contracts) from the second-generation directives based on unilateral conflict rules prevail over the conflict rules of the Rome Convention of 1980 (Art. 20) and the Rome I Regulation of 2008 (Art. 23) in relation to particular matters, lay down conflict-of-law rules relating to contractual obligations. This situation creates a “labyrinth” of legal sources dealing with conflict-of-law rules on the national, (ex international) and on the European level. The described fragmentation of a situation where conflict-of-law rules are depressed among several instruments and where there are differences between those rules, contrary to Recital 40(1)-1) Rome I Regulation, has not been avoided. But at the same time the Rome I Regulation did not exclude the possibility of including conflict-of- rules with regard to particular matters (Recital 40(1-2) Rome I Regulation). At the end of this paper the author answered one additional question: How to solve the problem of the lack of coordination between the Rome I Regulation of 2008 and other provisions of EU law, including national laws implementing those acts? The first step may be to give a narrow interpretation of Art. 23 of the Rome I Regulation and to give precedence only to special EU conflict-of-law rules in relation to a particular matter. Stricto sensu it means, all provisions in the consumer directives which provide that, if a contract has a direct link to the territory of one or more Member States, EU law will apply, even if the parties have chosen the law of a third country, should not (always) be regarded as choice of law rules. Such a consideration has the potential to exclude the application of Art. 23 of the Rome I Regulation and rather apply Article 3(4) or 9(2) of Rome I. An example of such “conflict-of-law rule” is Article 22(4) of Consumer Credit Directive 2008/48 EC of 23 April 2008 on credit agreements for consumers (OJ EU L 133/66). The second step is to reopen the lost political battle from 2008 of the European Parliament for a general precedence of all EU internal market law. Thirteen years after Rome I was adopted we have some additional arguments in favor of applying the general principle of supremacy in EU law without breaching “the proper functioning of the internal market” (Recital 40(2) of the Rome I Regulation). The first argument is general, known as the process of communitarization. Its result is not just Rome I (without Article 23) but also Directive 2011/83/ EU of 25 October 2011 on consumer rights, which is a new legal act in the post-Lisbon period of the EUPIL and among consumer directives should be seen as lex posterior. It is not for the first time that in such kind of Directive there is no unilateral conflict rule with the aim to protect all EU values by applying EU law. But the relevant provision lays down that the consumer should not be deprived of the protection granted by that Directive, and that, where the law applicable to the contract is that of a third country, Regulation Rome I should apply in order to determine whether the consumer retains the protection granted by that Directive (Recital 58 of the Directive on consumer rights). Taking into consideration all above mentioned arguments, the author concludes: in the third decade of the 21st century the post-Lisbon legal practice regarding special EU conflict-of-law rules relating to particular matters contained in EU Directives on consumer protection should no longer prevail. The application of the Directives with or without a unilateral conflict rule in a situation with an international element should instead be safeguarded through the application of the provisions of Articles 3(4) and Art. 6(2) for consumer protection, and Article 9(2) of the Rome I Regulation of 2008 in order to determine whether the consumer retains the protection granted by that Directive.
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Dikovska, Iryna. "Modern Approaches to Private International Law and Conflicting Provisions on Legal Aid in Civil Cases." Journal of the National Academy of Legal Sciences of Ukraine 27, no. 1 (March 25, 2020): 177–88. http://dx.doi.org/10.37635/jnalsu.27(1).2020.177-188.
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Part of the legal aid treaties between Ukraine and other states contains rules concerning conflict of laws. Where those that determine the law applicable to contractual obligations, family, and hereditary relations are not in line with current approaches to determining the law applicable to the specified groups of relations. The purpose of the paper is to uncover the differences between the regulation of conflict of laws in private relations in the legal aid treaties between Ukraine and some EU countries and the modern approaches to the regulation of conflict of laws in such relations, contained in other sources of private international law; an explanation of how to solve conflicts between legal aid treaties and other international treaties; outlining the main areas of improvement of rules concerning conflict of laws in legal aid treaties. The methods of the study were comparative, dialectical, and Aristotelian, which allowed to identify the problems of regulation of conflict of law in legal aid treaties and to draw conclusions for their elimination. Application of these methods allowed to find out that lex loci contractus is most often used to regulate contractual obligations in the absence of an agreement of the parties on the choice of applicable law. The agreement between Ukraine and Romania does not provide for the choice of the law for contractual obligations. Legal aid treaties imperatively determine the law applicable to the property relations of the spouses. They apply a dualistic approach to determining the right to inherit. It has been established that competition between the rules of this Convention and the rules of legal aid treaties between Ukraine and Poland and Ukraine and Estonia should be decided in favour of the Hague Convention. It is proposed to amend the legal aid treaties concluded between Ukraine and the EU Member States: the rules concerning conflict of laws, which define the law applicable to contractual, family, and hereditary relations should be revised using the relevant EU regulations as a model.
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Juenger, Friedrich K. "Two European Conflicts Conventions." Victoria University of Wellington Law Review 28, no. 3 (June 1, 1998): 527. http://dx.doi.org/10.26686/vuwlr.v28i3.6066.
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The states of the European Union have so far concluded two major conflict of laws conventions: The Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, and the Rome Convention on the Law Applicable to Contractual Obligations. Professor Juenger here reflects on the creation and experience of these treaties and concludes that the Brussels/Lugano Conventions present a model for the world while the Rome Convention shows what to avoid.
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Graziano, Thomas Kadner. "THE LAW APPLICABLE TO PRODUCT LIABILITY: THE PRESENT STATE OF THE LAW IN EUROPE AND CURRENT PROPOSALS FOR REFORM." International and Comparative Law Quarterly 54, no. 2 (April 2005): 475–88. http://dx.doi.org/10.1093/iclq/lei008.
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The choice of law-rules for contractual obligations is harmonized in the European Union and the system established by the Rome I-Convention has proved its merits.1 The choice of law rules for tortious or delictual liability, on the contrary, is still largely left to the national legislators and courts2 and they differ very much from one country to the other. Two Hague Conventions cover particular issues.3 Neither of them is in force in the UK.
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Lando, Ole, and Peter Arnt Nielsen. "The Rome I Regulation." Common Market Law Review 45, Issue 6 (December 1, 2008): 1687–725. http://dx.doi.org/10.54648/cola2008117.
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This article describes the most significant features of Regulation (EC) No 593/2008 on the Law Applicable to Contractual Obligations that will enter into force on 17. December 2009 (the Rome I Regulation). The Regulation will replace the Rome Convention on the same subject–matter. The authors approve of the “fine-tuning” of the provision regulating the parties’ rights to choose the applicable law. They welcome the provision on the law applicable in absence of an agreed choice. Though radically different from the corresponding provision of the Rome Convention it will satisfy the need for predictability. The new provisions on transports of carriage and insurance contracts are also discussed. The authors find the provision on the application of foreign international mandatory provisions very useful. However, they regret that the Regulation does not allow courts to apply the lex mercatoria in international disputes on an equal footing with national law. They also emphasize the need for a choice–of–law rule on jurisdiction agreements, which has not been provided in the Regulation.
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Knöfel, Susanne. "EC Legislation on Conflict of Laws: Interactions and Incompatibilities between Conflicts Rules." International and Comparative Law Quarterly 47, no. 2 (April 1998): 439–45. http://dx.doi.org/10.1017/s0020589300061935.
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Formerly, EC activity in the area of private law used to be content with approximating member States' substantive laws in specified areas, and, therefore, eventual conflictual implications demanded considerable interpretative efforts. Modern Community legislation, however, increasingly complements the intended substantive-law harmonisation with provisions on conflict of laws. Given the existence of the (Rome) Convention on the Law Applicable to Contractual Obligations, implemented in the United Kingdom by the Contracts (Applicable Law) Act 1990, this new tendency, where it concerns areas falling within the Convention, raises complex questions on both legislative technique and policy. The Convention, in Article 20, expressly reserves the precedence of Community choice of law rules. However, merely to point to this priority rule appears to be too simple a solution as conflicts, before being solved, have to be defined, and that is what this article aims at. Further, as an analysis that deals with European law would be incomplete without taking into account the impact on member States' law, reference will be made to domestic English and, for the purposes of comparison, to domestic German law. The latter appears to qualify for such a comparative approach because, due to the Rome Convention already having been part of the domestic law for a considerable period, certain experience might be expected within that legal system in dealing with contract conflicts issues thereunder.
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Tebbens, H. Duintjer. "European Group for Private International Law* – Proposal for a European Convention on the Law Applicable to Non-Contractual Obligations." Netherlands International Law Review 45, no. 03 (December 1998): 465. http://dx.doi.org/10.1017/s0165070x00002333.
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Janssen, André, and Christian Johannes Wahnschaffe. "COVID-19 and international sale contracts: unprecedented grounds for exemption or business as usual?" Uniform Law Review 25, no. 4 (December 1, 2020): 466–95. http://dx.doi.org/10.1093/ulr/unaa026.
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Abstract The year 2020 has witnessed a health crisis of unparalleled dimensions that has triggered ongoing complications on a global scale. Through restrictions on economic activities and disruptions in supply chains, COVID-19 has severely impeded global trade. Among the ensuing problems, the question of excusing a party’s failure to perform its contractual obligations is of key interest. This contribution analyses the conditions for exemption from liability with view to contracts for the international sale of goods subject to the 1980 UN Convention on Contracts for the International Sale of Goods. It revisits the statutory requirements and illustrates COVID-19 scenarios that might satisfy the relevant thresholds. This article further examines the particular legal consequences following from an exemption from liability, including the controversial discussion as to the adequate remedies in cases of economic hardship. Finally, this contribution addresses the newly revised International Chamber of Commerce’s clauses on force majeure and hardship.
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Hill, Jonathan. "Choice Of Law In Contract Under The Rome Convention: The Approach Of The Uk Courts." International and Comparative Law Quarterly 53, no. 2 (April 2004): 325–50. http://dx.doi.org/10.1093/iclq/53.2.325.
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The core provisions of the Rome Convention on the law applicable to contractual obligations are deceptively simple: a contract is governed by the law chosen by the parties (Article 3(1)); to the extent that the parties have not made a choice, a contract is governed by the law of the country with which it is most closely connected (Article 4(1)). However, within these provisions there are a number of problems. First, Article 3 provides that the parties’ choice may be either express or ‘demonstrated with reasonable certainty from the terms ofthecontract or the circumstances of the case’. This gives rise to potentially difficult questions about what constitutes an express choice and uncertainty as to the dividing line between, on the one hand, cases where the parties have made a choice (albeit not an expressone) and, on the other, cases where the parties have not made a choice at all. Secondly, the general principle in Article 4 is supplemented bya presumption (in paragraph 2), 1 which may, incertain circumstances, be disregarded (under paragraph 5). The operation of the presumption is problematic and the relationship between Article 4(2) and Article 4(5) controversial.
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Gonçalves, Anabela Susana de Sousa. "The e-commerce international consumer contract in the European Union." Masaryk University Journal of Law and Technology 9, no. 1 (June 30, 2015): 5–20. http://dx.doi.org/10.5817/mujlt2015-1-2.
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Article 6 of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) adapts the rule laid down in the Rome Convention regarding international consumer contracts, to take into account the requirements of the consumer protection in an international contract, as the weaker party, and the demands of electronic commerce. Article 6 determines the types of international contract protected and establishes the mechanisms to protect the consumer. However, the legal provision in question is not free from complications and requires an effort of interpretation to adjust the rule to the diffuse nature of the internet and to the characteristics of electronic commerce. This paper identifies the difficulties of application of the provision to e-commerce and discusses the interpretative options of the European Union Court of Justice (ECJ).
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Zaheeruddin, Mohammed. "THE COVID-19 PANDEMIC – AN IMPEDIMENT IN PERFORMANCE OF CONTRACTS." Balkans Journal of Emerging Trends in Social Sciences 3, no. 2 (December 2020): 177–85. http://dx.doi.org/10.31410/balkans.jetss.2020.3.2.177-185.
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The COVID-19 pandemic has created unprecedented situation all over the world, ocmpelled the governments to declare lockdown, closing of businesses, industries, commercial activities, ban on certain imports and exports. Under these circumstances, an obligor may not be able to perform his contractual obligations, consequently may result in breach of contract. In case of claim of damages by the obligee for breach of contract, the obligor may seek exemption from damages under the law of impediment or force majeure. According to Article 79 of the UN Convention on Contracts for the International Sale of Goods 1980 (CISG), a party is not liable for damages due to non-performance, delay or defect in performance, if he can prove that the failure was due to an impediment beyond his control. The COVID-19 situations are beyond the control of the parties to the contract, must be considered as an impediment or force majeure and the non-performing party is entitled for exemption from damages under Article 79 of CISG.
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Migliorini, Sara. "Quest-ce que sont les lois de police? Une querelle franco-allemande après la communautarisation de la Convention de Rome." European Review of Private Law 19, Issue 2 (April 1, 2011): 187–207. http://dx.doi.org/10.54648/erpl2011012.
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Abstract: Article 7(2) of the 1980 Rome Convention provided that nothing in the Convention shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract. The Rome Convention however did not define these 'overriding mandatory provisions'. The absence of a definition gave rise to a controversy between French and German courts. According to the latter, overriding mandatory provisions only protect public interests in a strict sense. However, French courts may consider a provision that exclusively protects the interests of the weaker party as an overriding mandatory provision. The definition of 'overriding mandatory provisions' provided in Article 9(1) Rome I fails to bring any real legal certainty. Since the controversy between the French and German courts essentially relates to the systematic relationship between overriding mandatory provisions and connecting factors protecting a weaker party in the Rome I Regulation, an intervention by the European Court of Justice will be necessary. Resume: L'Article 7(2) de la Convention de Rome sur la loi applicable aux obligations contractuelles laissait au juge la possibilité d'appliquer les lois de police du for, peu importe la loi désignée par la Convention même. Néanmoins, la Convention ne dé. nissait pas la catégorie des lois de police. Chaque juge pouvant appliquer ses propres critères de quail . cation des lois de police, une différence existait entre l'approche française et allemande à cette catégorie. D'une part, la jurisprudence allemande ne quali. ait de lois de police que les dispositions visant à protéger des intérêts strictement publics. D'autre part, la jurisprudence française n'hésitait pas à quali. er les dispositions protectrices des parties faibles comme de lois de police. La dé. nition de 'lois de police' contenue dans l'Article 9(1) du Règlement Rome I ne résout pas cette divergence. En effet, celle-ci découle principalement d'une divergence dans l'interprétation des rapports réciproques entre les lois de police et les critères de rattachement protecteurs des parties faibles. Partant, il revient à la Cour de justice d'intervenir pour trancher cette divergence.
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Benedettelli, Massimo V. "Applying the UNIDROIT Principles in International Arbitration: An Exercise in Conflicts." Journal of International Arbitration 33, Issue 6 (December 1, 2016): 653–86. http://dx.doi.org/10.54648/joia2016042.
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The International Institute for the Unification of Private Law, which recently celebrated its 90th anniversary, published in 1994 the Principles of International Commercial Contracts. Since then the UNIDROIT Principles have been more and more often referred to by arbitral tribunals when settling contractual disputes. As a non-binding instrument of soft law, however, the UNIDROIT Principles may play a very different function depending on whether they are used as ‘rules of law’ for the regulation of a contractual relationship, are incorporated as terms of a contract governed by a state contract law, or are means to interpret and supplement the applicable contract law or the 1980 United Nations Convention on Contracts for the International Sale of Goods. Moreover, they can be applied pursuant to an express or implied choice made by the parties, either in the contract or after the dispute has arisen, or when the arbitral tribunal so decides by its own motion. In all such different scenarios different problems may arise for the coordination of the UNIDROIT Principles with sources of state law that have title to regulate the contractual relationship in dispute. Understanding such problems and finding a solution to them is essential in order to avoid the risk that the award may be later challenged or refused recognition. Such understanding could also foster the legitimacy of requests made by a party, or decisions taken by the arbitral tribunal, to apply the UNIDROIT Principles. It is submitted that private international law, taken as a technique for the coordination of legal systems, may offer a useful know-how to parties, counsel, arbitrators and courts for mastering such problems in a reasoned and sound way. This may result in enhancing the effectiveness of the UNIDROIT Principles, while balancing party autonomy with the sovereign interest of states in regulating international business.
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Cordero Álvarez, Clara Isabel. "Incidencia de las normas imperativas en los contratos internacionales: especial referencia a las normas de terceros estados desde una aproximación europea = Overriding mandatory provisions in international contracts: a special reference to foreign overriding mandatory provisions from a European approach." CUADERNOS DE DERECHO TRANSNACIONAL 9, no. 2 (October 5, 2017): 174. http://dx.doi.org/10.20318/cdt.2017.3870.
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Resumen: Este trabajo analiza algunas cuestiones que plantea la aplicación de las leyes de policía en el ámbito del Derecho contractual de la UE. Por cuanto se refiere a las normas de este tipo de terceros Estados su aplicación resulta significativamente más compleja, en especial si analizamos su tratamiento en el Reglamento Roma I, mucho más restrictivo que su predecesor el Convenio de Roma de 1980. En este contexto la reciente sentencia del Tribunal de Justicia (Nikiforidis) resulta muy relevante, ya que abre la posibilidad a los Estados miembros para tomar en consideración normas de policía de terceros Estados como elemento fáctico en el marco de la lex contractus, sin sujetarla a las restricciones y condicionantes previstos en el art. 9.3.Palabras clave: leyes de policía, normas imperativas, Derecho contractual europeo, Reglamento Roma I, sentencia Nikiforidis.Abstract: This paper addresses some of the issues raised by the application of overriding mandatory provisions, from a European approach. With regard to foreign overriding mandatory provisions, their application is significantly more complex. This approach appears in European Contract Law, particularly regarding the treatment of this issue in the Rome I Regulation, which is much more restrictive than the Rome Convention of 1980. In this context, the recent case law of European Court of Justice (Nikiforidis case) is very significant. Since the judgment gives Member States the possibility to take into account foreign overriding mandatory provisions, as a factual element within the framework of the applicable law to the contract, outside the scope of article 9.3 of the Rome I Regulation.Keywords: overriding mandatory provisions, mandatory rules, European Contract Law, Rome I Regulation, Nikiforidis case.
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Grundmann, Stefan. "The Structure of European Contract Law." European Review of Private Law 9, Issue 4 (December 1, 2001): 505–28. http://dx.doi.org/10.54648/393250.
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The internal market and the fundamental freedoms aim at extending party autonomy across borders. The instrument of party autonomy is the contract. The basic concepts and the legal measures on which EC contract law is based are recent. However, from both a conceptual and an empirical point of view, EC contract law has become indispensable. That applies even in purely domestic cases. Contract law is the core area of private law, EC contract law influences already more than half of all contracts, also domestic, and two thirds of all cross border transactions of the member states are now with other member states. EC contract law can be defined as covering all EC rules concerning the formation, the content and the termination of contracts. EC contract law emerging over the last decade focuses on a specific type of transaction, and also of a particular regulatory approach. It focuses on transactions which typically concern large volumes and that are not only domestic. It is mainly obstacles to these transactions which are overcome and it is primarily the risks of these transactions which are regulated. European contract law has to be conceived both as broader and as narrower than national contract law. Broader because it includes all rules pertaining to contracts, also public good regulation. Narrower because it includes only rules which take away obstacles. National rules only constitute obstacles when internationally enforced. The key structural issue in European contract law is the division between on the one hand rules that are internationally enforced according to articles 5–7 of the Rome Convention on the law applicable to contractual obligations. On the other hand are the rules that the parties can choose according to article 3 of the Convention. Only rules internationally enforced are subject to scrutiny on the basis of the fundamental freedoms of EC law. Both areas are further developed in specific sections of this article: There is virtually no harmonization where parties can choose the law applicable. There is intense harmonization for rules that are internationally enforced. There are in fact only very few national rules which are not harmonized in this area. It is argued that the major aim of harmonization here is to remedy two forms of market failure: restrictions of competition and (certain) information asymmetries. In the section concerning the policy decisions inherent to the structure it is argued that the instruments used are such that both over regulation and state failure tend to be avoided. The policy is not restricted to a laissez faire approach either. The framework and mechanisms adjust the intensity of regulation near to an optimal level. This framework deserves more truly international and interdisciplinary discussion than it has received so far.
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"Convention On The Law Applicable To Contractual Obligations (Rome, 1980) and Convention On Jurisdiction And Enforcement Of Judgments In Civil And Commercial Matters (Brussels, 1968)/Convention Sur La Loi Applicable Aux Obligations Contractuelles (Rome, 1980) et Convention Concernant La Competence Judiciaire Et L'Execution Des Decisions En Matiere Civile Et Commerciale (Bruxelles, 1968)." Uniform Law Review - Revue de droit uniforme 8, no. 4 (December 1, 2003): 1026–27. http://dx.doi.org/10.1093/ulr/8.4.1026.
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Ciss, Desiree Roffee. "Deeply Analysis on French Rules of Conflict of Laws." Asian Research Journal of Arts & Social Sciences, August 13, 2019, 1–15. http://dx.doi.org/10.9734/arjass/2019/v9i230122.
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The law, in a general way, has the role of regulating life in society. From this same Law, several rights with branches facilitate their explanation and use in our social life to establish order. This being life in society could be seen as a kind of contract to the extent that it would be difficult for the individual to live without maintaining relationships with others. So, from the moment that there is this exchange between individuals there is what we could call contract. As we know, the contract is defined in law as an agreement by which one or more persons agree to one or more other persons to give, do or not to do something. It should also be specified that there are several kinds of contracts, but the one that will be the main focus of our development is the international contract. An international contract is understood to mean this contract, which, unlike the internal contract, presents an element of extraneity, in other words an international character. For example, a contract between two individuals of different nationality.
The contract thus concluded, the contracting parties may indeed encounter difficulties that may arise at any time, most often due to non-compliance with the terms of the contract. These problems or disputes are often very difficult to resolve because the parties are from different origins, residing in different countries, or bound by commitments made in a country other than their country of residence, hence the existence of different laws. and the birth of what is called a conflict of laws.
This being so, by conflict of laws is meant to be one of the main problems with private international law (the branch of law which deals with the settlement of disputes of private rights having at least an extraneous character). Thus, the question arises as to which law would be applicable in the event of a conflict of laws in the matter of contract, that is, how to choose or determine the applicable law in the course of a dispute with a foreign element? Thus, once the French judge is seized of the dispute, it will be necessary to find the law applicable to the questions of law asked. Assuming that the French judge can apply a foreign law, and that the various foreign laws with links to the litigation have a theoretical vocation to apply, were developed what are called conflict of laws rules which is an abstract rule, indirect (it does not solve the substantive question asked, but only to determine the law competent to resolve this substantive legal issue), and neutral (the substantive solution is not taken into account in the determination of the applicable law).
In order to give answers to our questioning, we will focus on how to choose the law applicable to conflict of laws in matters of contract and this, in the light of French law, the Rome Convention of 19 June 1980 and the Rome 1 Regulation on the law applicable to international contractual obligations.
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"Convention on the Law Applicable to Contractual Obligations (*)." Uniform Law Review os-19, no. 2 (August 1991): 65–113. http://dx.doi.org/10.1093/ulr/os-19.2.65.
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"Performance of Obligations as the Basis of Jurisdiction and Choice of Law (Lugano and Brussels Conventions Article 5(1) and Rome Convention Article 4)." Nordic Journal of International Law 68, no. 4 (1999): 379–96. http://dx.doi.org/10.1163/15718109920296073.
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AbstractWhen a dispute arises in connection with an international contract, it is necessary to clarify two matters: (i) the courts of which country are competent to decide on the dispute, and (ii) the law of which country applies to the merits of the dispute. Within the European Union, these matters are clarified, respectively, by the Brussels Convention on (i.a.) jurisdiction and by the Rome Convention on the law applicable to contractual obligations. The scope of application of the Brussels Convention is extended also to cover the EFTA Countries, through the Lugano Convention. The scope of the Rome Convention, on the contrary, does not reach beyond the European Union. This imbalance in the relationship between choice of forum and choice of law is particularly noticeable in Norway, which does not have a codified system of choice of law rules. The relationship between choice of forum rules and choice of law rules is highlighted in this article from the point of view of a specific connecting factor: the performance of the disputed obligation.