Interpreting Article 4(3) of the Rome I Regulation

2008

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1314749 The establishment of Regulation No 864/2007 on the Law Applicable to Non-Contractual Obligations (Rome II) is a landmark for European Private International Law. The regulation of torts in the European Union has a history of forty years, starting with the preparation of the Rome Convention in 1967. As was the case with its thorny counterpart, the Regulation on the Law Applicable to Contractual Obligations (Rome I), negotiations have been difficult. It is also for the first time, that the efforts to develop European conflict-of-law rules and the negotiations have attracted such serious cross-Atlantic attention, especially from scholars in the United States (US). Not only have Americans and other non-Europeans bothered to publish on the (draft) Rome II Regulation, they have also interacted in the Brussels negotiations, at the invitation of the European Parliament's rapporteur for Rome II. This contribution provides an outline of the background (section 2), scope (section 3), and system of the Regulation (section 4) and an analysis of the two general conflict rules laid down in Article 4 (section 5) and 14 (section 6). The question is whether in methodology and content this Regulation stands in the European tradition, or whether it takes a new direction. Another question is whether it offers a predictable but at the same time a sufficiently flexible system of conflict rules. The Rome II Regulation proves that it is difficult to reach a satisfactory compromise between legal certainty and flexibility in order to do justice in an individual case, while fulfilling the law and economics criteria of simple and predictable rules. The Regulation provides many special rules as well as general and special exceptions that are occasionally ambiguous and make the outcome sometimes unpredictable. Nevertheless, it is concluded that the Rome II Regulation in spite of its flaws, is an acceptable instrument that furthers the harmonization of conflict of laws in Europe.

Northwestern journal of international law and business, 2012

Precontractual liability is liability that arises out of a harmful conduct that occurs during the formation period of a contract. Where the harmful conduct occurs during international negotiations, a conflict of laws issue arises. The determination of the applicable law to precontractual liability can be a complex and tedious task, which is why the European Legislature has provided a special conflict-of-law rule in Article 12 of the Rome II Regulation on the applicable law to non-contractual obligations. Through this provision, the European Legislature aims to achieve uniformity between EU Member States, while providing an appropriate conflicts rule. The present essay assesses the European Legislature’s attempt at codification and offers a commentary of Article 12 of the Rome II Regulation. It comes at a time when the Commission is scheduled to submit a report on the application of the Rome II Regulation to the European Parliament, the Council, and the European Economic and Social C...

2008

The establishment of Regulation No 864/2007 on the Law Applicable to Non-Contractual Obligations (Rome II) is a landmark for European Private International Law. The regulation of torts in the European Union has a history of forty years, starting with the preparation of the Rome Convention in 1967. As was the case with its thorny counterpart, the Regulation on the Law Applicable to Contractual Obligations (Rome I), negotiations have been difficult. It is also for the first time, that the efforts to develop European conflict-of-law rules and the negotiations have attracted such serious cross-Atlantic attention, especially from scholars in the United States (US). Not only have Americans and other non-Europeans bothered to publish on the (draft) Rome II Regulation, they have also interacted in the Brussels negotiations, at the invitation of the European Parliament's rapporteur for Rome II. This contribution provides an outline of the background (section 2), scope (section 3), and sy...

EU private international law ("PIL") was significantly different before the recent private international law boom. Before 1998, there had been only fragmented and miscellaneous conflict-of-laws provisions in the acquis communautaire, focusing on specific areas. Most provisions were to be found in directives dealing with substantive law, i.e. the conflict-of-laws rules were merely extensions to the regulations in certain areas. Adopting such rules was common in the fields of consumer protection (i.e. consumer contract law) and insurance law. The article tries to summarize these rules and analyse their connection with the latest law, i.e. with the provisions of the Rome regulation on the law applicable to contracts.

The Rome I Regulation on the applicable law to contractual obligations co-exists with a still expanding body of EU rules on various aspects of contract law. A specific question that has been raised during the negotiations on the Rome I Regulation is how this instrument relates to substantive EU consumer law in view of the desired coherence of consumer protection. More in general, the question may be posed how the conflict rules of Rome I and (substantive) mandatory EU rules in the field of private law interact; in how far are European Private International Law (EPIL), in particular Rome I, and European Private Law (EPL) communicating vessels? The tension between conflict rules and choice of law in particular and mandatory EU private law was already revealed in the Ingmar case (2000), in which the ECJ ruled that a choice of law could not evade the mandatory provisions of the Agency Directive. This seems to be a clear triumph of mandatory European private law. However, this is not the end of the story, and more recent developments in the field of European private international law and substantive private law complicate matters. The debate has been triggered by the Consumer Rights Directive, the CESL proposal and been given a new dimension by the rulings in EDate Advertising and Unamar. This paper analyses the interaction between various provisions of Rome I and European private law at the macro level, and aims to contribute to the discussion on how this relationship can be defined. Published in: P. Stone and Y. Farah, Research Handbook on EU Private International Law, Cheltenham, Edward Elgar, p. 248-284, 2015

1991

Art. 23 Rome I Regulation, in Gralf-Peter Calliess (Hrsg.), Rome Regulations – Commentary on the Uniform EC Rules on Conflict of Laws, Kluwer International, London, 2015, 416 - 427, 2015

Internationally Mandatory Rules represent a private international law method that has acquired a certain degree of recognition in case law, legal codifications and scholarship. Yet, there seems to be insufficient clarity regarding their conceptual features. This article looks into the two basic conditions under which a rule may be characterised as being internationally mandatory, particularly within the framework of the European Union private international law: the interest criterion and the overriding criterion. It discusses the development and analysis the wording of the provisions contained in the Rome Convention and the proposal for its conversion into the Rome I Regulation. It propounds that not only the "interventionist" rules, but also the combined "interventionist-protective" rules may be classified as internationally mandatory.

Social Science Research Network, 2011