«Russia and the World Community’s Respond to a Challenge of Instability of Economic and Legal Systems Materials of the International Scientific-practical Conference ...»
they may choose any State law (whether or not it is the law of a Member State 41 ), even if it is unrelated to the subject of the contract, and they may also anytime change their original choice. 42 Recital 13 of the Rome I Regulation clarifies that the parties are always allowed to incorporate by reference in their contract to a non-State body of law or an international convention. Hence, parties can refer to a non-State law as lex contractus. However, this incorporation by reference takes place within the limits of the domestic mandatory provisions of the State law applicable to the contract, as determined under the conflict of laws rules of the Rome I Regulation. 43 Besides the restriction to State law, there are no additional restrictions as to which law parties may choose. There is no reThe commonly used abbreviation “Rome“ indicates that the European Union instrument contains conflict of law rules.
Garcimartn Alfrez, F. J. 2008. The Rome I Regulation: Much ado about nothing? The European Legal Forum, 2/2008. p. I-61.
Denmark is bound by the Rome Convention.
Rome I Regulation, Article 28.
Rome I Regulation, Article 2.
Rome I Regulation, Article 3.
Garcimartn Alfrez, F. J. 2008. The Rome I Regulation: Much ado about nothing? The European Legal Forum, 2/2008. p. I-67.
quirement of the chosen law to bear some “reasonable“ or “substantial“ relationship to the parties or the transaction. Choice of law can be made expressly by a choice of law clause either in writing or orally. Choice of law can be made as well implicitly, it means it can be derived from the terms of the contract or the circumstances of the case.
Where the parties have not determined which law shall be applicable to their contract, Rome I Regulation first of all lists a catalogue of eight specific contracts (for instance, contracts for the sale of goods, contracts for the provision of services, contracts concerning immovable property, franchise and distribution contracts, contract for the sale of goods by auction) for which it directly specifies the applicable law. 44 Most of the specifically addressed contracts are presumed to be connected with the country where the party who is to provide the characteristic performance is habitually resident. 45 If none, or more than one of the specified rules apply to a contract, the applicable law will be determined based on the country of residence of the principal actor carrying out the contract.
If, however, the contract is related more closely to another country than provided by these rules, the law of that country will be applied (so-called “escape clause” which allows a departure from the specific rules). The same applies when no applicable law can be determined. 46 In addition, in the absence of choice of applicable law, the Rome I Regulation expressly lays down special conflict of law rules with regard to four different types of contracts: contract for the carriage of goods and passengers 47, consumer contracts 48, insurance contracts 49 and individual employment contracts 50.
The Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation) harmonises the conflict of law rules for non-contractual obligations in civil and commercial matters. The Rome II Regulation complements the Rome I Regulation by specifying harmonized choice of law rules for torts and restitutionary obligations. Uniform regulation detailing the governing law for non-contractual obligations is an absolute novelty for European countries. It applies in all European Union Member States, except Denmark. The Rome II Regulation is to have universal application so the uniform conflict rules laid down in the regulation can designate the law of European Union Member State or of a third country. 51 The regulation is applicable to events giving rise to damage occurring on or after 11 January 2009. Rome I Regulation, Article 4 (1).
Rome I Regulation, Article 4 (2).
Rome I Regulation, Article 4 (3), (4).
Rome I Regulation, Article 5.
Rome I Regulation, Article 6.
Rome I Regulation, Article 7.
Rome I Regulation, Article 8.
Rome II Regulation, Article 3.
Rome II Regulation, Articles 31 and 32.
The Rome II Regulation divides non-contractual obligations into two major categories, those arising out of a tort or delict 53 and the second category includes quasi-delictual or quasi-contractual obligations, including in particular unjust enrichment (including payment of amount wrongly received), negotiorum gestio (agency without authority), and culpa in contrahendo (the notion of culpa in contrahendo includes not only the breakdown of contractual negotiations but also the violation of a duty of disclosure and any other non-contractual obligations directly linked to the dealings preceding the conclusion of a contract). Pursuant to the Rome II Regulation, parties are entitled to submit noncontractual obligations to the law of their choosing 55 provided that such choice of law is made in an agreement entered into after the event giving rise to the damage (a post-tort agreement) or in an agreement concluded before the event giving rise to the damage (a pre-tort agreement) provided that the pre-tort agreement has been freely negotiated by the parties pursuing a commercial activity.
If the parties do not specify their choice of governing law, under the Rome II Regulation the general rule is that the law governing the non-contractual obligations arising out of a tort or delict is the lex loci damni, i.e. the law of the country in which the damage arises or is likely to arise irrespective of the country in which the event giving rise to the damage occurred or of the country or countries in which indirect consequences of that event arise. 56 This rule is, however, subject to certain exceptions. When the parties (the person claimed to be liable and the person who has allegedly sustained damage) have their habitual residence in the same country, the law of this common country will apply. 57 The “escape clause” allows a judge to apply in any case the law of the country that, in light of all of the circumstances of the case, is manifestly more closely connected with the tort or delict in question. 58 There are specific regimes for special types of torts or delicts, namely product liability, unfair competition and acts restricting free competition, environmental damage, infringement of intellectual property rights, and industrial actions.59 Special rules also apply to cases where damage is caused by an act other than a tort or delict (such as unjust enrichment, negotiorum gestio, and culpa in contrahendo), which cover all the types of action falling within this category.
The increasing mobility of citizens within the European Union has resulted in an increasing number of “international” family matters where the spouses and other family members are of different nationalities, or live in different Member States or live in a Member State of which they are not nationals. Many crossRome II Regulation, Articles 4 – 9.
Rome II Regulation, Articles 10 – 12.
Rome II Regulation, Article 14 (1).
Rome II Regulation, Article 4 (1).
Rome II Regulation, Article 4 (2).
Rome II Regulation, Article 4 (3).
Rome II Regulation, Articles 5 – 9.
border family matters are already regulated by European Union law and the number of regulations is constantly expanding. Divorce, legal separation, and parental responsibilities, including child abduction and maintenance obligations, are already covered. The property relations of international couples (spouses and registered partners) and inheritance will be added in the near future. Yet the Union has left untouched civil status, marriage, registered partnership, cohabitation, adoption, parentage, the law on surnames and the protection of adults. In its 2005 Green Paper on applicable law and jurisdiction in divorce matters, the Commission suggested to harmonize choice of law rules regarding matrimonial matters. This resulted in the drafting of a Rome III Regulation.
However, due to the opposition of a number of Member States, the Rome III Regulation has been rejected. In 2010 the Commission announced a new proposal on the possibility of harmonizing choice of law rules regarding matrimonial matters. The objectives set out in this new proposal were similar to those set out in the 2005 Green Paper but the new proposal was based on the enhanced cooperation mechanism. 62 The decision authorizing enhanced cooperation shall be adopted only when the objectives of a Union-wide cooperation cannot be attained within a reasonable period. This last resort requirement was considered fulfilled, since after almost two years of negotiations no unanimity had been reached.
The Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Rome III Regulation) will apply from 21 June 2012 in the fourteen European Union Member States which currently participate in the enhanced cooperation (Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia). These Member States have been authorised to participate in the enhanced cooperation by Council decision 63 and are bound by the uniform rules that will determine the law applicable to divorce and legal separation. The national conflict of law rules of the fourteen participating Member States will be replaced by the conflict of law rules of Rome III Regulation. The other thirteen Member States do not participate in the Rome III Regulation for various reasons, which are based on Boele-Woelki, K. 2010. For better or for worse: The Europanization of international divorce law. Yearbook of Private International Law, Volume 12, p. 21.
Commission Green Paper on applicable law and jurisdiction in divorce matters, COM(2005) 82, 14 March 2005.
Article 20 of the TEU and Articles 326-334 of the TFEU lay down the conditions under which a group of Member States (at least nine Member States) can be permitted to proceed with a proposal for enhanced cooperation between them. Enhanced cooperation allows those countries of the Union that wish to continue to cooperate in particular area more closely together to do so within European Union structures but without the other members being involved. The mechanism of enhanced cooperation has never been used, although it was introduced by the Amsterdam Treaty. Thus, such form of closer cooperation between Member States has not yet proven successful. Enhanced cooperation in judicial cooperation now provides a potential precedent for enhanced cooperation in the other areas.
Council decision of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (2010/405/EU).
the content of the proposed uniform conflict of law rules 64 or are solely for political reasons, but may opt in at any time in accordance with the Article 328 of the TFEU.
The rules of the Rome III Regulation are applied only if the divorce or legal separation has cross-border aspects. Obviously if spouses have different nationalities or habitual residences at the time the competent authority is seized, the applicable national law must be determined.
The law designated by the Rome III Regulation shall apply whether or not it is the law of a participating Member State. 65 The choice of law rules can lead to the application of foreign law, including not only the law of another Member State (intra-Union situation) but also the law of third country (extra-Union situation).