1. Private International law Sciences Po Paris Spring 2017
PIL for contract law
Giuditta Cordero-Moss, Ph.D., Dr.Juris
Professor, Oslo University

2. Forum Norwegian seller Italian buyer
The goods do not comply with contract, buyer pays only part of the price
Alt. 1: Seller sues to obtain payment
Alt. 2: Buyer sues to obtain specific performance

3. Sources Lugano Convention If German seller: Brussels I
If Italian defendant and claimant outside EU/EEA: Brussels I
If Norwegian defendant and claimant outside EU/EEA: Norwegian civil procedure (controversial)

4. Court’s discretion? Brussels I, Lugano: No discretion
Norwegian civil procedure: Some discretion (controversial)
US, UK civil procedure: Discretion

5. General rule
Art. 4 Brussels I, Art. 2 Lugano: The defendant’s domicile
Alt. 1: Forum in Italy
Alt. 2: Forum in Norway

6. How to determine domicle I
Art. 62 Brussels I, Art. 59 Lugano:
Domicile is determined by the law of the place where a party is domiciled.

7. How to determine domicle II
Art. 63 Brussels I, Art. 60 Lugano:
A company is domiciled at the place where it has its:
statutory seat;
central administration; or
principal place of business

8. Alternative forum for activity of branch
Art. 7.5 Brussels I, art. 5.5 Lugano:
(5) as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated

9. Alternative forum for contracts
Art. 7.1 Brussels I, 5.1 Lugano:
in the courts for the place of performance of the obligation in question;
for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be:
— in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered,
— in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided;
if point (b) does not apply then point (a) applies;

10. Qualification
Contract: obligation freely assumed by one party towards the other.(C-51/97)
Autonomous interpretation(C-12/15, C-196/15)
Membership in an association (C-34/82)
Not: direct claim against producer(C-26/91)
Not: guarantor’s recourse against debtor (C-265/02)
Not: culpa in contrahendo (C-334/00)

11. Place of performance Swap agreement between Norwegian and German bank
Place of performance of monetary obligations:
German law: debtor’s place
Norwegian law: creditor’s place
How do you define place of performance?

12. Place of peformance is determined under the lex causae
Under the law that governs the contract
C-12/76
Under the law that would have governed the contract, if the contract had been valid
C-38/81

13. Place of performance of «the obligation in question»
Brussels Convention: The obligation on which the claim is based
C-12/76
To avoid creditor’s forum: Brussels I (44/2001): Characteristic obligation for sales and services

14. Special forum rules for weak contractual party
Insurance
Sec. 3 Brussels I, Lugano
Consumer contracts
Sec. 4 Brussels I, Lugano
Individual employment contracts
Sec. 5 Brussels I, Lugano

15. Choice of forum agreements
Art. 25 Brussels I, art. 23 Lugano: courts are bound by choice of forum agreements
“Any disputes arising from this contract shall be brought before the courts of Oslo”
But: CDC C-352/ : not for disputes on damages following anti-competitive agreements
Does not apply to exclusive fora

16. Choice of law
Party autonomy
Default conflict rule

17. Party autonomy Norwegian seller Italian buyer
Governing law clause: “This contract shall be governed by the laws of Norway”

18. Effects of the parties’ choice
Mandatory rules of the otherwise applicable law are not applicable
In domestic contracts: mandatory rules are applicable(art. 3.3 Rome I)
In intra-EU contracts: EU mandatory rules are applicable (art. 3.4 Rome I)
Overriding mandatory rules prevail (art. 9 Rome I)

19. Scope of the parties’ choice
Governing law clause chooses Norwegian law
The Italian party alleges it lacks legal capacity according to Italian law
Norwegian court
Shall the court apply only the chosen law, or shall it apply also the laws of each of the parties?

20. Tacit choice
”Clearly demonstrated by the terms of the contract or the circumstances of the case” (art. 3 Rome I)
The choice must be actual
Use of standard form clearly drafted under a specific law
Hypothetical choice is not allowed
Choice of forum
Contract clauses inspired by a legal system

21. Lacking parties’choice
Norwegian seller
Italian buyer
No governing law clause
The habitual residence of the party making the characteristic performance (art. 4 Rome I)

22. Evolution of the rule Rome Convention Rome I Closest connection
Presumption: habitual residence of characteristic debtor
Exception: closest connection
Rome I
General connecting factors for named contract types
Habitual residence of characteristic debtor for other contracts

23. Special conflict rules
Carriage (Art 5 Rome I)
Consumer (Art 6 Rome I)
Insurance (Art 7 Rome I)
Individual employment contracts (Art 8 Rome I)