#10019 - Rome 1 - Conflict of Laws

ROME 1: CONTRACTUAL OBLIGATIONS

DOES THE REGULATION APPLY? (ART 1)

1. Does England have jurisdiction?

• As long as England has jurisdiction, this Regulation applies to determine the applicable law (irrespective of why England has jurisdiction) BUT

• this article is used to decide if England has jurisdiction remember

2. When?

1. Was the contract concluded after 17 December 2009?

3. Was it a Contractual Obligation?

1. Not defined in Regulation BUT

2. Guiliano-Lagarde report – in relation to RC indicated that an autonomous approach must be taken. So doesn’t matter if it’s not contractual according to English law SUPPORTED BY:

3. Golden Ocean Group – a claim for damages for breach of warranty is within this, even though English law simply imposes it on an agent who acted as though he had his principal’s authority

4. Recital 7 – says be consistent with Brussels I

5. Jakob Handte – was it an agreement freely entered into with regard to another identified person

1. freely entered into = doesn’t mean that this was express though

6. Property

• excluded. So intellectual property falls outside, whereas, contracts to transfer such property will be within

4. Was it in a Civil or commercial matter?

BRIGGS’ SEVEN PROPOSITIONS FOR CHOOSING BETWEEN ROME I AND ROME II p. 221-222

1. If it is common ground that there was a contract between the parties, Rome 1 Regulation will in principle apply to determine the issues of choice of law

2. If C seeks to enforce a contract, but D counters with an assertion that the alleged contract was not valid or made = the obligation relies on and sought to be enforced is contractual and the Rome I Regulation will again in principle apply

3. If the roles are reversed, and C seeks to rescind a contract for pre-contractual fault, or applies for relief to rescind a contract for pre-contractual fault, or applies for relief predicated on the basis that he has rescinded the contract and D contends that the contract is valid, the obligation is contractual and Rome I Regulation applies

4. If C seeks to enforce and D denies he is a party to the contract, Rome I still applies

5. If it is common ground that a supposed contract was a nullity, the dispute concerns the consequences of nullity of a contractual obligation and Rome I will in principle apply (Art 12(e))

6. If C seeks monetary compensation for being tricked or pressured into a contract which he cannot now escape from, the claim is founded on an allegation of pre-contractual fault and does not require the court to enforce or assess the validity of the contract, with the consequence that the obligation in question is non-contractual so Rome II applies

7. If C seeks monetary compensation for the counter-party’s wrongful failure to negotiate in good faith towards the conclusion of a contract, the obligation in question is non-contractual and the Rome II will deal with the question of choice of law

WHAT LAW CHOSEN

1. Any law

1. Art 2 – doesn’t matter if law specified by the Regulation is that of a non-MS

2. Domestic law

a. Art 20 - apply domestic law of that country, as renvoi doesn’t apply

IS IT EXCLUDED?

1. Art 1(2) shows a list of excluded items

2. Arbitration

• even though excluded, English common law will therefore probably reach the same result as Rome I anyway

3. Capacity

• Capacity of natural and unnatural person is excluded so apply CL

• CL = Contractual capacity satisfied in England if this would be satisfied under the law of the country with which the contract was most clearly connected or by the law of the person’s domicile HOWEVER

• Art 13 – provides an exception to when one person can rely on capacity

IS THERE AN EXPRESS CHOICE MADE BY THE PARTIES?

1. What?

• Article 3 refers to the express choice and what’s needed

• Halpern v Halpern – every national system of law applies

• This choice can be for wherever parties want, doesn’t need any connection to the contract (except insurance)

2. Exception

• Halpern v Halpern – if parties choose a non-national system of law (such as Sharia law or Jewish law) this choice will not be effective

• Art 3(3) – provides another exception, but Briggs says realistically it’s too rare to apply and never has been applied

3. Test

• must either be expressed or so clearly demonstrable from the contract or circumstances of the case that it did not require further expression SO

• Doesn’t include where it’s said that parties, as reasonable people, must have meant country X.

4. Examples

• ‘this contract shall be governed by the law of France’ = French law

• ‘this contract shall be construed in accordance with French law’ = probably fine too for French law BUT

5. Can be formulaic

• So saying the law of the place where X happens is okay BUT

• Briggs seems to suggest that not where this place cannot be ascertained without reference to some legal system. Can’t apply the governing law in this sense to figure this out as, at this point, the governing law won’t have been chosen

6. Jurisdiction choice influential?

• so if England has been selected as the choice for the jurisdiction of the matter, this doesn’t necessarily mean English law should apply BUT

• Recital 12 – seems to indicate that where England is the selected jurisdiction, it ‘should be one of the factors taken into account in determining whether choice of law has been clearly demonstrated’ AND

7. Service Out

• Egon Oldendorff [1995] – a clause providing for arbitration in England (although didn’t express choice of law for England) was sufficient to establish a good arguable case that the contract was governed by English law – so service out of the jurisdiction was allowed

8. Governing Law

• Egon Oldendorff No 2 [1996] – the same clause was relied upon to show that English law was the applicable law under Art 3

9. Broad Approach to Interpretation

• Egon Oldendorff – give a broad Regulation based approach to language

10. ‘British Courts’

• The Komninos – Court of Appeal said that it was clear ‘british courts’ meant English law based on the facts.

11. Exceptions

• Art 3(3) - basically, when the contract was formed, if everything else about it pointed to another country, can’t derogate from those things that can’t be derogated from by agreement in that country

• Art 3(4) - if choice of law is a non-MS, can’t derogate from Community law

FLOATING CHOICE/VARYING THE APPLICABLE LAW?

1. No Floating Choice at Common Law

1. Armar Shipping – didn’t allow for a ‘floating choice’ (ie. parties could specify no choice of law was to be made until at some point after the formation of the contract, one party nominated it)

2. Floating Choice is permissible under Reg

1. Clarkson and Hill – suggest that this is the case, although untested

3. Separate Parts Allowed Under Reg

1. Art 3(1) - Parties can have separate parts of the contract governed by different laws

4. Can Alter At ANY Time Under REG

1. Art 3(2) – can agree to alter at any time SO

2. Mauritius Commercial Bank

• parties can amend their agreement so as to change the governing law of their jurisdiction agreement

• If the contract allows for only one party to make a nomination about choice of law, or, only allows one party to bring proceedings elsewhere, that is fine

• It doesn’t breach fundamental principles regarding equal access to justice

5. No Law At The Outset?

1. So if the clause said, ‘no choice of law until some time in the future that Party X chooses one’

2. Briggs – he says if the contract chooses to have no law chosen at the outset then this is not a contractual obligation. He suggests this mirrors the position under the CL (Amin Rasheed). Although, this is far from certain and just his opinion. I disagree

3. If however, there was just nothing said about choice at all, and the parties later agree a choice, that is fine

IF THERE IS NO CHOICE

1. Auction

1. This will be where the auction took place Art 4(1)(g)

2. Land

1. Lex Situs is governing law - Art 4(1)(c) EXCEPT

2. Art 4(1)(d) has an exception to this

3. When to switch to Art 4(2)

1. Normally when two parts of Art 4(1) are engaged, unless the two places point to the same law OR

2. Where none of the parts from Art 4(1) are engaged

4. Characteristic Performance Art 4(2)

1. This is how Art 4(2) is defined.

2. So for a sale contract = seller

3. Supply of services contract = supplier

5. When to switch to Art 4(3) ESCAPE CLAUSE

1. When Art 4(1) and Art 4(2) yield WRONG answer ie. there is another country manifestly more closely connected

2. Interfrigo

• decision from Court of Justice under Rome Convention, but logic of decision probably still applies

• Suggests that this escape clause shouldn’t have a narrow interpretation SO

• Judge the contract as a whole

3. Bank of Baroda (UK case)

• Interfrigo can be seen as approval for Mance J’s comment under Rome Convention that apply characteristic performance ‘unless there is a valid reason, looking at the circumstances as a whole, not to do so.’ SIMILARLY

4. Ennstone Building Products (UK case)

• It is approval for Keane LJ’s approach that apply the characteristic performer ‘except where the evidence clearly shows that the contract is more closely connected with another country’ BUT

5. These decisions all relate to Rome Convention, new more careful drafting of Art 4 under Rome I may suggest otherwise with inclusion of the word ‘manifestly’ BUT

6. Kokott AG thought ‘manifestly’ made no difference to Art 34 of Brussels I Reg, which Briggs refers to in ‘When in Rome, do as the Romans Do’ suggesting the same could be true of this provision

6. When to switch to Art 4(4) ESCAPE CLAUSE

1. When Art 4(1) and 4(2) yield NO answer, just go to where more closely connected

7. More Closely Connected Meaning?

1. Lawlor v Sandvik – Looking for connections to countries, rather than...