Appendix
Rome I regulation
Discussion topics
Rome I – applicable law for
contracts
Use of the applicable law to a contract: it will
regulate
• interpretation,
• performance,
• penalties for breaching obligations,
• assessment of damages,
• termination of obligations,
• instructions for actions,
• penalties for invalid contracts.
Rome I – applicable law for
contracts - choice
• Article 3
• Freedom of choice (choice of law)
• 1. A contract shall be governed by the law chosen by
the parties. (Agreement between parties. The choice is
unlimited)
• The choice shall be made expressly or clearly
demonstrated by the terms of the contract or the
circumstances of the case. (form - not necessarily in
writing)
• By their choice the parties can select the law applicable
to the whole or to part only of the contract. (depeçage)
• 2. A later change in the law to be applied is possible.
Rome I – applicable law for
contracts - choice
• 3. Where all other elements relevant to the
situation at the time of the choice are located in
a country other than the country whose law has
been chosen, the choice of the parties shall not
prejudice the application of provisions of the law
of that other country which cannot be derogated
from by agreement. (peremptory norms of that
country have to be respected)
• 5. The existence and validity of the consent
of the parties as to the choice of the applicable
law: as any other contract.
Rome I – applicable law for
contracts – no choice
• Article 4 - Applicable law in the absence of choice
• 1. The law governing the contract shall be determined as follows:
• (a) a contract for the sale of goods shall be governed by the law of
the country where the seller has his habitual residence;
• (b) a contract for the provision of services shall be governed by
the law of the country where the service provider has his habitual
residence;
• (c) a contract relating to a right in rem in immovable property or
to a tenancy of immovable property shall be governed by the law of
the country where the property is situated;
• (e) a franchise contract shall be governed by the law of the country
where the franchisee has his habitual residence;
• (f) a distribution contract shall be governed by the law of the
country where the distributor has his habitual residence;
Rome I – applicable law for
contracts – no choice
• 2. Where the contract is not covered by paragraph 1 ...,
the contract shall be governed by the law of the country
where the party required to effect the characteristic
performance of the contract has his habitual
residence.
• 3. Where it is clear from all the circumstances of the
case that the contract is manifestly more closely
connected with a country other than that indicated in
paragraphs 1 or 2, the law of that other country shall
apply.
• 4. Where the law applicable cannot be determined
pursuant to paragraphs 1 or 2, the contract shall be
governed by the law of the country with which it is most
closely connected.
Rome I – applicable law for
contracts
• Art. 21
• Public policy of the forum
• The application of a provision of the law of any
country specified
• by this Regulation may be refused only if such
application is
• manifestly incompatible with the public
policy (ordre public) of
• the forum.
Rome I – Overriding mandatory
provisions
Art. 9 - Overriding mandatory provisions
1. Overriding mandatory provisions are provisions
the respect for which is regarded as crucial by a
country for safeguarding its public interests,
such as its political, social or economic
organisation, to such an extent that they are
applicable to any situation falling within their
scope, irrespective of the law otherwise
applicable to the contract under this Regulation.
2. Nothing in this Regulation shall restrict the
application of the overriding mandatory
provisions of the law of the forum.
Rome I – Overriding mandatory
provisions
3. Effect
may be given to the overriding
mandatory provisions of the law of the
country where the obligations arising out
of the contract have to be or have been
performed, in so far as those overriding
mandatory provisions render the
performance of the contract unlawful. In
considering whether to give effect to those
provisions, regard shall be had to their
nature and purpose and to the
consequences of their application or
non-application.
1. Multilateral international conventions:
Unification of substantive law.
Desirable or necessary?
- cumbersome nature of this activity
• - numerous reservations
• - relatively small number of states
• - interpretation problems
• - EU: easier - no ratification of EU
secondary law
2. Rome I Regulation: erga
omnes or inter partes character?
• - normal approach: inter partes
• - but: difficult to separate cases "between
member states" and "other"
• - similar international conventions are e.o.
as well
• - the reciprocity not concerned
• - two or three levels of regulation
3. "Lugano" ECJ opinion 1/2003: a real
exclusive competence of the EU?
•
•
•
•
- what is exlusive competence
- this case: no real exclusive jurisdictions
- reasoning of the ECJ
- courts of member states - the recognition
in the member state, not in the whole EU
4. Law applicable to divorce:
Reinforced cooperation or
subsidiary agreement?
• - difference: role of national Parliaments
(none)
• - regulation in force for some countries
only
• - another example: EU patent
– Divorce regulation: see below
5. Bilateral agreements between
member and non-member states:
exclusive competence of the EU?
• - why different systems for member and
non-member countries not possible?
• - EU competence
• - why those bilateral agreements are not
concluded directly by the EU?
6. EU Private International Law: does
it constitute a system or not?
•
•
•
•
- what is subject of regulation?
- what may be subject of regulation?
- similar situation: labour law, criminal law
- no philosophy, no theory, just selected
areas
Council Regulation (EU) No 1259/2010
Choice of applicable law by the parties of a divorce
1. The spouses may agree to designate the law applicable to divorce
and legal separation provided that it is one of the following laws:
(a) the law of the State where the spouses are habitually resident at the
time the agreement is concluded; or
(b) the law of the State where the spouses were last habitually resident,
in so far as one of them still resides there at the time the agreement
is concluded; or
(c) the law of the State of nationality of either spouse at the time the
agreement is concluded; or
(d) the law of the forum.
The existence and validity of an agreement on choice of law or of any
term thereof, shall be determined by the law which would govern it
under this Regulation if the agreement or term were valid.
Council Regulation (EU) No 1259/2010
Choice of applicable law by the parties of a divorce
Applicable law in the absence of a choice by the parties
In the absence of a choice, divorce and legal separation shall be subject to the law of the
State:
(a) where the spouses are habitually resident at the time the court is seized; or, failing
that
(b) where the spouses were last habitually resident, provided that the period of
residence did not end more than 1 year before the court was seized, in so far as one
of the spouses still resides in that State at the time the court is seized; or, failing
that
(c) of which both spouses are nationals at the time the court is seized; or, failing that
(d) where the court is seized.
Conversion of legal separation into divorce
Where legal separation is converted into divorce, the law applicable to divorce shall be
the law applied to the legal separation, unless the parties have agreed otherwise in
accordance with Article 5 (choice of law).
However, if the law applied to the legal separation does not provide for the conversion of
legal separation into divorce, Article 8 shall apply, unless the parties have agreed
otherwise in accordance with Article 5.
Where the law applicable ... makes no provision for divorce or does not grant one of the
spouses equal access to divorce or legal separation on grounds of their sex, the law
of the forum shall apply.