Presentation on theme: "Rome I regulation Discussion topics"— Presentation transcript:
1 Rome I regulation Discussion topics AppendixRome I regulationDiscussion topics
2 Rome I – applicable law for contracts Use of the applicable law to a contract: it will regulateinterpretation,performance,penalties for breaching obligations,assessment of damages,termination of obligations,instructions for actions,penalties for invalid contracts.
3 Rome I – applicable law for contracts - choice Article 3Freedom 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.
4 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.
5 Rome I – applicable law for contracts – no choice Article 4 - Applicable law in the absence of choice1. 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;
6 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.
7 Rome I – applicable law for contracts Art. 21Public policy of the forumThe application of a provision of the law of any country specifiedby this Regulation may be refused only if such application ismanifestly incompatible with the public policy (ordre public) ofthe forum.
8 Rome I – Overriding mandatory provisions Art. 9 - Overriding mandatory provisions1. 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.
9 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.
10 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
11 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
12 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
13 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 patentDivorce regulation: see below
14 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?
15 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
16 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.
17 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 partiesIn 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 divorceWhere 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.