Problems of enforcement of european law - Fourth session
Conflict of Law Rules (the 1980 Rome Convention on the Law Applicable to Contractual Obligations)
Moderator : Justice Judit Török, Supreme Court of Hungary
The keynote speech was delivered by Judge Elmer, Vice-President Maritime and Commercial Court, Copenhagen, who advised the Forum that he had personally never heard a case about the Rome Convention. Judge Elmer addressed the Forum on three topics namely (i) the background to the Rome Convention ; (ii) the plans to transform it into a Regulation and to supplement it with rules for the choice of law for non-contractual obligations (the so-called “Rome II”) ; and (iii) the prospects for the harmonisation of law generally in Europe.
Judge Elmer noted that the process of signature and ratification of the Rome Convention had been a long-drawn process. In particular the Protocol of 1988 allowing for references to the ECJ from higher courts of Member States only came into effect on 1 April 2004, with the result that there were to date no ECJ cases on the Convention. A useful resource, which however required more work, was the website of national judgments on the Convention set up by the Academy of European Law in Trier, http://www.romeconvention.org/. The main impetus for drawing up the Rome Convention had been the Brussels Convention, the underlying idea being that the applicable law ought to be the same in the state of judgment as in the state of enforcement, thereby preventing forum shopping. In Denmark the application of the Convention had met no difficulties at all, with only a handful of reported Danish cases. No doubt the strong emphasis on party autonomy in the Convention was part of the reason for this.
As for turning the Convention into a Regulation, it had taken the Convention 11 years to enter into force, and 16 years for the Protocol. While it was clear that there was no choice historically but to proceed by way of a Convention in the first place, the Rome I project to now turn the Convention into a Regulation would now probably materialise. This was all the more likely given the Commission’s “Rome II” proposals to adopt rules for the choice of law for non-contractual obligations. Judge Elmer’s view was that Rome II would also probably lead to the adoption of appropriate Regulations when the time was ripe.
Finally, queried Judge Elmer, if one took this as a starting point, what were the prospects for harmonisation of substantive civil law itself in Europe. Was this possible, or desirable ? Studies conducted so far in Denmark indicated that it would be possible to harmonise European contract law. In that domain, guidance could be drawn from the elaboration by UNIDROIT of the “UNIDROIT principles of International Commercial Contracts” and from UNIDROIT and the American Law Institute’s work on “Global Rules of Civil Procedure”. While harmonisation would by no means be easy, one had to start somewhere.
Judge Elmer concluded by questioning whether the ECJ was presently sufficiently well equipped to deal with new references under the Rome Convention. The judges of the ECJ were traditionally public lawyers ; further the backlog of cases was such that cases routinely took 18-24 months to be heard. Should the EU therefore create a specialist civil law Court ?
Judge Catharina Van Santvliet, Court of Appeal of Brussels raised a question relating to the application of Article 7 of the Rome Convention. The issue arose regularly in Belgium because of a specific Belgian law on the unilateral termination of distribution agreements, which contained a number of mandatory provisions for the protection of the distributor. Should the Belgian Court disapply a chosen law in favour of Belgian law under Article 7(2) of the Convention ? Conversely, had a Court of any Member State had to consider whether to disapply a chosen law in favour of Belgian law in relation to distributorship agreements on Belgian territory ? Did other Member States have “mandatory rules” similar to the Belgian law referred to ? The Belgian approach to the issue so far seemed to Judge Van Santvliet to be far removed from the harmonisation advocated by Judge Elmer, and to be rather parochial.
Dr. Ronald Kunst, Judge Court of Appeal, Vienna was the last intervenor. He explained that the situation in Austria was that the Convention had been signed in 1996 and entered into force in 1998. There had so far only been a few decisions of the Supreme Court, dealing with labour contracts and consumer contracts. Judge Kunst thought that it would be helpful and useful to also adopt Rome II as an international convention. This would be much easier than the harmonisation of substantive civil law, but the common aim should be to reach a European lex mercatoria.
A general discussion followed with substantial contributions from Judge Rovelli, Président de Chambre à la Cour d’Appel de Gênes, Lord Justice Mance of the English Court of Appeal and Judge Rordorf, Conseiller à la Cour de Cassation de Rome.
Conflict of law rules The Rome Convention of 1980
Michael B. Elmer
Conflict of Law rules
- The Rome Convention of 1980
Brief and preliminary summary
- Facts about the Convention and the protocols on the interpretation by the European Court of Justice
- The application and interpretation of the Convention have met no severe difficulties
- In commercial contracts, the parties normally decide the choice of law themselves, and the Convention fully respects the parties’ autonomy, cf. article 3(1)
- Should the Convention be transformed into a Community regulation (the so-called Rome I regulation) ?
- The Commissions proposal for a regulation on the choice of law for non contractual obligations (Rome II)
- Different stages of integration – from harmonisation of rules on the choice of law to harmonisation of substantive civil law – towards a European lex mercatoria ?