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- Preliminary Material
- Foreword
- Preface
- Table of Contents
- Table of Cases
- Table of Legislation
- List of Abbreviations
- Main Text
- 1 All Roads Lead to Rome
- Preliminary Material
- A A New Roman World
- B What is an ‘Applicable Law’ of a Contract?
- C A New Age of International Cooperation (1945–1968)
- D From Rome to Brussels (1957–1968)
- E Harmonizing the Conflict-of-Laws Rules of Member States
- F Preliminary Work (1968–1972)
- G The 1972 Draft Convention
- H When Six became Nine (1973–1975)
- I The Return to Rome (1975–1980)
- J The Rome Convention (1980)
- K Hurry Up and Wait
- L The Contracts (Applicable Law) Act 1990
- M New Age after New Age
- N The New Imperium (1992–2003)
- O ‘An Area of Freedom, Security and Justice’
- 1.135
- 1.136
- The Treaty of Amsterdam (1997)
- The New treaty base: Article 65 of the TEC
- A proper treaty base?
- Initial restrictions (1999–2003)
- The special position of Denmark, Ireland, and the UK
- Awaiting the new powers (1998–1999)
- The Vienna Action Plan
- Tampere: ‘A genuine European area of justice’
- The flexing of new legislative muscles
- Converting the Rome Convention into a community instrument
- Academic support
- The Treaty of Nice in Force (2003): Qualified majority voting and the co-decision procedure
- The Rome II Regulation (2003–2007)
- P The Rome I Regulation (2003–2009)
- The Green Paper
- Responses to the Green Paper
- The EESC Opinion and the views of the European Parliament
- The Hague Programme (2004)
- The expert meeting
- The Rome I Proposal (2005)
- The absence of an impact assessment
- The Council’s Committee on Civil Law Matters (Rome I)
- An outline of the Rome I Negotiations (2006–2008)
- The Rome I Regulation in force
- Q Justification and the Principles of Subsidiarity and Proportionality
- R Ireland and the United Kingdom
- S The Treaty of Lisbon (2007)
- T Preliminary References to the CJEU under Article 267 TFEU
- U The Brussels I Regulation (Recast) (2012)
- 2 Application and Relationships
- Preliminary Material
- I Application
- II Relationships
- H Relationship with Other Provisions of EU Law
- I Relationship with the Rome Convention
- J Relationship with Existing International Conventions
- 2.90
- 2.91
- Article 25(1): existing international conventions
- Article 25(2): European bilateral/multilateral conventions
- International Conventions after 17 June 2009
- Recital (42)
- The legislative development of Articles 25 and 26
- The EESC opinion
- Draft article 23 of the proposal
- The Council’s reaction
- The European Parliament’s amendments
- The 25 September 2007 Rome I Committee meeting
- 3 Classification and Interpretation
- Preliminary Material
- A A Brave New (Roman) World
- B Classification of Obligations
- C Interpretation
- D Literal or Textual Interpretation in a Multi-Lingual Union
- E ‘Autonomous’ Interpretation
- F Context and Objectives
- G Using the Recitals
- H The General Objective of Legal Certainty
- I Using Travaux Préparatoires
- J The Court’s Case Law
- K Academic Opinion
- L National Courts
- 4 The ‘Applicable Law’
- Preliminary Material
- A The Law of ‘A Country’
- B States with More than One Legal System: Article 22(1)
- C ‘Universal Application’
- D The Exclusion of Renvoi
- E The Use of Non-State ‘Law’?
- F The Commission’s Proposal: Draft article 3(2)
- G Recital (13): Incorporation by Reference
- H Recital (14): Future Community Contract Law Instruments
- I Practical Consequences of Excluding Non-State Law
- J The Future?
- 5 Habitual Residence
- Preliminary Material
- A A Key Connecting Factor
- B ‘Companies and Other Bodies, Corporate or Unincorporated’
- C ‘A Natural Person Acting in the Course of his Business Activity’
- D ‘A Branch, Agency, or Other Establishment’
- E The Habitual Residence of a Private Individual
- F Article 19(3): The Relevant Time
- 6 Material Scope
- Preliminary Material
- A Article 1(1)
- B ‘In Situations Involving a Conflict of Laws’
- C ‘To Contractual Obligations’?
- D Preliminary Thoughts
- E Matters Relating to Contract under the Brussels Regime
- F A Preliminary Autonomous Interpretation of ‘Contractual Obligations’
- G In ‘Civil and Commercial Matters’
- H ‘Revenue, Customs or Administrative Matters’
- 7 Specific Exclusions
- Preliminary Material
- A Definition by Exclusion
- B The Status or Legal Capacity of Natural Persons
- C Family and Comparable Relationships
- D Matrimonial and Comparable Property Regimes
- E Wills and Succession
- F Negotiable Instruments
- G Arbitration and Choice of Court Agreements
- 7.109
- Arbitration agreements
- Choice of court agreements
- Arbitration and the Brussels Regime
- Exclusion of arbitration agreements in the Rome Convention
- The intended scope of the arbitration exclusion
- The exclusion of choice of court agreements under the Rome Convention
- The convention’s exclusions in practice
- The Rome I Green Paper
- Legislative development of Article 1(2)(e)
- H Questions of Internal Company Law
- I Certain Questions of Agency
- 7.150
- 7.151
- 7.152
- The exclusion in the Rome Convention
- Background to the Rome Convention exclusion
- A new rule for the Rome I Regulation?
- The Rome I Proposal: new draft article 7
- Reactions to the proposal
- The return to the Rome Convention’s solution
- Article 1(2)(g) in practice
- An organ of a company or other legal personality
- J Trusts
- K Pre-Contractual Dealings
- L Certain Insurance Contracts
- 8 Evidence and Procedure, Presumptions of Law, Burden and Mode of Proof
- Preliminary Material
- A Boundary Markers
- B Substance and Procedure
- C Background and Legislative Development
- D Article 1(3): ‘Evidence and Procedure’
- E Article 18: An Introduction
- F Presumptions of Law
- G Burden of Proof
- H In Practice
- I Modes of Proof: Article 18(2)
- J Proof of Foreign Law
- K Pleading and Proving Foreign Law in England & Wales
- 9 Freedom of Choice
- Preliminary Material
- A The Cornerstone Provision
- B Party Autonomy
- C ‘The Law Chosen by the Parties’
- D Making a Choice
- E ‘Made Expressly’
- F Or ‘Clearly Demonstrated’
- 9.28
- 1972 Draft Convention: a choice ‘ explicite ou implicit ’
- The Rome Convention: ‘demonstrated with reasonable certainty’
- Problems in application
- The Green Paper
- Reactions to the Green Paper
- The Rome I Proposal
- The Commission’s drafting mistake and proposed change
- Reaction to the Commission’s ‘mistake’
- The Presidency’s 12 October 2006 revisions
- 26–27 October Rome I Committee
- The United Kingdom’s compromise amendments
- The Presidencies’ 12 December 2006 revisions
- The impact of the change in Article 3(1) in the United Kingdom
- Alternative views
- G ‘By the Terms of the Contract or the Circumstances of the Case’
- 9.73
- 9.74
- The use of exclusive jurisdiction clauses: Recital (12)
- The legislative development of Recital (12)
- The Commission’s new presumption
- Reactions to the new presumption
- The 12 October 2006 reversal
- The Netherlands’ compromise proposal
- The Presidencies’ compromise recital
- The Slovakian proposal
- Recital (12) in practice
- Arbitration clauses
- ‘Terms of the Contract’
- Standard form contracts associated with a particular law
- Reference to provisions of a particular law
- ‘Circumstances of the case’
- ‘The behaviour of the parties’
- ‘Circumstances of the case’ in practice
- H Dépeçage
- I Article 3(2): Changing the Applicable Law
- J Article 3(3): Mandatory Rules
- K Article 3(4): EU Mandatory Rules
- L Article 3(5): The Existence and Validity of Consent
- 10 The Applicable Law in the Absence of Choice
- Preliminary Material
- A ‘Choosing’ in the Absence of Choice
- B The Search for a Uniform Solution
- C Article 4 of the Rome Convention
- 10.15
- 10.16
- The principle of closest connection
- Dépeçage ’ (severance)
- Swiss solutions: the doctrine of ‘characteristic performance’
- The Giuliano–Lagarde Report’s guidance on Article 4
- The Rome Convention: the Article 4(2) presumption
- The Rome Convention: Article 4(3) and (4) presumptions
- The Rome Convention: Article 4(5)
- Criticism of the concept of characteristic performance
- D The Rome Convention in Operation (1991 to the 2003 Green Paper)
- E The Court’s Decision in ICF
- F The Call for Change
- G Article 4: General Observations
- H Sale of Goods
- 10.98
- Recital (17)
- A negative interpretation
- Classification
- Party labels?
- A ‘positive’ autonomous interpretation
- ‘Goods’
- Manufactured to order
- Likely exclusions
- ‘Sale’
- Leasing of goods
- Gifts
- Is the payment of a ‘price’ in money required?
- ‘The seller’
- Barter contracts
- Background to Article 4(1)(a)
- The legislative development of Article 4(1)(a)
- I The Provision of Services
- J Rights in Rem and Tenancies of Immovable Property
- K Tenancies for Temporary Private Use
- L Franchise Contracts
- M Distribution Contracts
- N Sale of Goods by Auction
- O Contracts Concluded within a Multilateral System
- 10.272
- 10.273
- ‘Financial instruments’
- Multilateral trading facilities within MiFID
- ‘Multilateral systems’ in Article 4(1)(h)
- What contracts are covered by Article 4(1)(h)?
- What law should apply to such contracts in the absence of choice?
- Contracts not falling within Article 4(1)(g)
- Recital (31) and the Settlement Finality Directive
- The legislative development of Article 4(1)(h)
- The Commission’s 15 March 2007 Working Document
- The relationship with MiFID
- The United Kingdom’s proposed amendments
- The Irish proposal regarding the CREST system
- The Presidency’s 25 June 2007 Text
- Links between Article 4(1)(h) and Article 6
- P Article 4(2)
- Q Article 4(3): the Escape Clause
- 10.354
- The Legislative Development of Article 4(3)
- The United Kingdom’s September 2006 proposed amendment
- The Presidency’s 12 October 2006 revisions
- The Presidencies’ 12 December 2006 text
- The Adoption of Recital (20)
- The German and Danish amendments
- The United Kingdom’s 24 October 2007 proposal
- The Presidency’s 25 October 2007 revisions
- Article 4(3): Legislative intent and operation
- ‘Contract’ and ‘country’
- ‘All the circumstances of the case’
- Very close relationship with other contracts
- Other potential connecting factors
- The place of performance
- The place of contracting
- ‘Manifestly closer connection’
- R Closest Connection
- S Intellectual Property Contracts
- 11 Contracts of Carriage
- Preliminary Material
- A Carriage of Goods and Passengers
- B International Transport Conventions
- C Contracts of Carriage under the Rome Convention
- D Calls for Change?
- E The Rome I Proposal: Draft Article 4(1)(c)
- F ‘Carriage of Goods’
- G The Parties to a Contract of Carriage of Goods
- H The Applicable Law under Article 5(1) for Contracts for the Carriage of Goods
- 11.77
- Party autonomy preserved
- The first default rule: the carrier’s law
- The habitual residence of the carrier and consignor
- The place of receipt/place of delivery
- The fall-back rule: the agreed place of delivery
- The legislative development of the Article 5(1)
- The Swedish proposal
- 2 March 2007: a new draft article 4(a)
- The 25 April 2007 Rome I Committee meeting
- The 25 June 2007 text
- I Contracts for the Carriage of Passengers: Article 5(2)
- 11.114
- Recital 32
- A passenger contract
- Parties: passengers and carriers
- Selecting the applicable law for passenger contracts
- Party autonomy: a permitted choice of law?
- If no permitted choice has been made
- The fall-back rule in Article 5(2)
- The legislative development of Article 5(2)
- The new draft article 4(a)(2): four options
- The European Parliament
- The 20 September 2007 revisions
- The United Kingdom’s proposed amendment
- J Mixed Contracts of Carriage of Goods and Passengers
- K The ‘Escape Clause’ under Article 5(3)
- L Relationship between Rome I and International Conventions and other EU Instruments
- 12 Consumer Contracts
- Preliminary Material
- A Protecting the Weaker Party
- B The 1968 Brussels Convention
- C Article 5 of the Rome Convention
- 12.10
- 12.11
- 12.12
- Article 5(1) of the Rome Convention: material scope
- Article 5(2): the necessary connecting factors
- Article 5(2) specific invitation/advertising
- Article 5(2): receipt of consumer’s order
- Article 5(2): Kaffeefahrten trips
- The scope of consumer protection under Article 5(2)
- Article 5(3): default rule/consumer’s law
- Article 9(5): formal validity for consumer contracts
- Articles 5(4)(a) & 5(5): contracts of carriage
- Article 5(4)(b): exclusion of services exclusively supplied outside the consumer’s country
- D Article 15 of the Brussels I Regulation (44/2001)
- E The Need to Revise the Rome Convention
- F Suggested Solutions
- G The Rome I Proposal: Draft Article 5
- H The Legislative Development of Article 6 of the Regulation
- I The Scope of Article 6
- J ‘A Concluded Contract’
- K ‘The Consumer’
- 12.93
- ‘A natural person’
- ‘For a purpose which can be regarded as being outside his trade or profession’
- The limits of a trade of profession?
- Standard Bank v Apostolakis
- Dual purpose/mixed contracts
- Future business purposes
- Wholly exceptional transactions
- Personal guarantees
- Losing the right to consumer contract protection?
- L ‘The Professional’
- M The Activity Provisos
- 12.138
- Recitals (24) & (25)
- ‘Pursues his commercial or professional activities’
- Article 6(1)(b): the directed activity criterion
- The Court’s guidance on directed activity
- The mere existence of a website is not enough
- Interactive and passive websites
- ‘Clear expressions of intention’ by the professional are required
- Insufficient evidence of directed activity
- Disclaimers and ‘ring-fencing’
- Concluded at a distance?
- The contract falls within the scope of such activities
- The consumer always wins?
- N The Scope of Consumer Contract Protection
- O The Supply of Services Outside a Consumer’s Habitual Residence
- P Contracts of Carriage Excluded
- Q The Package Travel Contract Exception
- R Contracts Relating to Immovable Property
- S The Timeshare Contracts Exception
- T The Financial Transactions/Exclusions
- U Financial Instruments
- V Transferable Securities
- W Units in Collective Investment Undertakings
- X Financial Services are not Excluded
- Y Article 6(4)(e): Multilateral Trading Systems
- 13 Insurance and Reinsurance Contracts
- Preliminary Material
- A A New Rule that Preserves the Status Quo
- B Choice of Law in Insurance Contracts under the Old Regime
- C Life Assurance: The Consolidated Life Assurance Directive
- D General Insurance: The Non-Life Insurance Directives
- E The ‘Situation of the Risk’ under the Insurance Directives
- F The Need for Change?
- G A New Insurance Provision?
- H The Legislative Development of Article 7
- 13.61
- 13.62
- 13.63
- Compulsory insurance concerns
- Further revisions
- The 26 April 2007 revised Proposal
- 30 May 2007
- The 25 June 2007 Proposal
- The 3–4 July 2007 Rome I Committee
- The United Kingdom’s response
- Ireland’s response
- 3 September 2007
- 10 October 2007
- The Presidency’s 25 October Text
- The status quo decision
- Last-minute changes
- Article 7: a temporary solution?
- I Insurance Contracts under the Rome I Regulation
- J The Applicable Law of Large Risk Insurance Contracts: Article 7(1) and (2)
- K The Applicable Law for ‘All Other Insurance Contracts’ situated within Member States
- L Restricted Party Autonomy for Non-Large Risks
- Article 7(3)
- Article 7(3)(a): Where the risk is situated
- Article 7(3)(b): The policyholder’s habitual residence
- Article 7(3)(c): The law of the Member State of the policyholder’s nationality
- Article 7(3)(d): Events in one Member State
- Article 7(3)(e): Commercial activities for risks in multiple Member States
- The United Kingdom: Permitted Greater Freedom of Choice of Law
- M The Applicable Law in the Absence of Permitted Choice: Article 7(3)
- N The Additional Rules for Included Contracts
- O Mixed Risk Contracts
- P Non-Large Risks Wholly Located outside the European Union
- Q The Position of Denmark
- R Non-Large Risks Situated in the EEA
- S Reinsurance under the Rome Convention
- T Reinsurance under the Rome I Regulation
- 14 Individual Employment Contracts
- Preliminary Material
- A Favor Laboratoris
- B Background
- C Article 6 of the Rome Convention
- D Interpretation
- E Individual Employment Contracts
- 14.11
- 14.12
- Defining the material scope of Article 8
- The concept of contracts of employment in Europe
- An autonomous interpretation is required
- The contents of an autonomous interpretation?
- An outline of a possible autonomous definition
- De facto and void employment contracts
- Lawrie-Blum and the Brussels Regime
- What constitutes ‘the contract’?
- F Article 8 (1): Party Autonomy for Employment Contracts
- G The Protective Proviso: Article 8(1) and Recital (35)
- 14.47
- 14.48
- Provisions that cannot be derogated from by agreement
- Recital (35)
- Adequate not absolute protection
- The nature of non-derogable provisions
- The sources of non-derogable provisions
- Examples of non-derogable provisions
- The territorial restrictions on applying national laws
- The application of the protective proviso
- A comparative evaluation
- ‘May not, however, have’ rather than ‘Shall not have’
- The relationship with overriding mandatory provisions
- The relationship between Article 8 and Article 3(3) and (4)
- H Article 8(2): Habitual Place of Performance
- I Temporary Employment: Article 8(2) and Recital (36)
- J Article 8(3): Place of Engagement
- K Article 8(4): The Exception Clause
- L The Relationship with the Posted Workers Directive: Recital (34)
- 15 Overriding Mandatory Provisions & Public Policy
- Preliminary Material
- A Two Sides of the Same Coin
- B Mandatory Rules
- C Article 7 of the Rome Convention
- D Article 9(1): The New Autonomous Definition
- E Recital (37)
- F Article 9(1): Two Key Issues
- G Article 9(2): Overriding Mandatory Rules of the Forum
- H Article 9(3) of the Rome I Regulation: Third Country Overriding Mandatory Rules
- 15.57
- The Green Paper
- The Rome I Proposal
- Reaction in the council to draft article 8(3)
- The Dinky Toys dilemma
- The European Parliament
- The presidency’s proposed deletion of draft Article 8(3)
- The First Swedish Proposal
- Stalemate
- The first four options
- Option (5): The hybrid compromise that won
- The Presidencies’ 25 June 2007 proposal
- The Rome I Meeting of 3–4 July 2007
- The Presidencies’ 4 October 2007 revisions
- The Rome I Committee’s 10 October 2007 meeting
- I Article 9(3) in Practice
- J ‘Effect May Be Given’
- K Article 21: Public Policy of the Forum
- 16 Consent, Validity, and Incapacity
- Preliminary Material
- A Consent and Material Validity
- B Using the Putative Applicable Law
- C Article 10(1): The Existence and Validity of a Contract
- D Article 10(2): The Exception Regarding the Existence of Consent
- E Article 11: Formal Validity
- F Article 11(1): Contracts Concluded in One Country
- G Article 11(2): Contracts Concluded by Parties in Different Countries
- H General Observations: Article 11(1) & (2)
- I Article 11(3): A Unilateral Act Intended to have Legal Effect
- J Article 11(4): Consumer Contracts
- K Article 11(5): Immovable Property
- L: Article 13: Incapacity under Another Law
- 17 The Scope of the Law Applicable
- Preliminary Material
- A The Realm of the Applicable Law
- B Interpretation
- 17.04
- 17.05
- 17.06
- Rules of interpretation
- The use of ‘alien’ interpretative materials
- Pre-contractual negotiations
- Post-contractual conduct
- Incorporating terms, and implied and customary terms
- The meaning of words, ambiguities, and terms of the trade
- The law of the language used?
- Construction clauses
- Article 12(1)(a) in practice
- C Performance
- 17.19
- 17.20
- 17.21
- The meaning of ‘performance’
- Non-performance
- International sale of goods
- Contractual interest
- Contrast with the common law
- The ‘manner of performance’: Article 12(2)
- ‘Regard shall be had to the law of the country in which performance takes place’
- The application of Article 12(2)
- East West Corporation
- Illegality and the manner of performance
- D The Consequences of Breach/Assessment of Damages
- E Extinguishing Obligations, Prescription, and Limitation of Actions
- 17.76
- The various ways of extinguishing obligations
- Prescription
- Limitation of actions
- The Rome Convention compromise
- The 1984 UK domestic limitation legislation
- Public policy/undue hardship defence
- Amendments made in light of the Rome I Regulation
- Equitable defences: laches and acquiescence
- The scope of the foreign limitation provisions
- F The Consequences of Nullity of the Contract
- 18 Assignment and Subrogation
- Preliminary Material
- A Article 14
- B Assignments Generally
- C Non-application
- D The Expanded Concept of ‘Assignment’ in Article 14(3)
- E Article 14(1)
- F Contractual Subrogation
- G ‘Relationship’ vs ‘Mutual Obligations’
- H ‘A Claim’ vs ‘A Right’
- I Article 14(2)
- J Third Parties and Questions of Priority
- K Article 15: Legal Subrogation
- 19 Multiple Liability
- 20 Set-off
- Preliminary Material
- A Extinguishing Reciprocal Obligations
- B European Concepts of Set-off
- C The Three Families
- D Contractual Set-off and Insolvency Set-off
- E Background
- F The Legislative Development of Article 17
- G Article 17 in Practice
- 21 Coda
- 1 All Roads Lead to Rome
- Further Material
- Appendix A The Rome I Regulation
- Ch.I Scope
- Ch.II Uniform Rules
- Art.3 Freedom of choice
- Art.4 Applicable law in the absence of choice
- Art.5 Contracts of carriage
- Art.6 Consumer contracts
- Art.7 Insurance contracts
- Art.8 Individual employment contracts
- Art.9 Overriding mandatory provisions
- Art.10 Consent and material validity
- Art.11 Formal validity
- Art.12 Scope of the law applicable
- Art.13 Incapacity
- Art.14 Voluntary assignment and contractual subrogation
- Art.15 Legal subrogation
- Art.16 Multiple liability
- Art.17 Set-off
- Art.18 Burden of proof
- Ch.III Other Provisions
- Art.19 Habitual residence
- Art.20 Exclusion of renvoi
- Art.21 Public policy of the forum
- Art.22 States with more than one legal system
- Art.23 Relationship with other provisions of Community law
- Art.24 Relationship with the Rome Convention
- Art.25 Relationship with existing international conventions
- Art.26 List of Conventions
- Art.27 Review clause
- Art.28 Application in time
- Ch.IV Final Provisions
- Appendix B Article 25 Conventions
- Appendix C The Rome I Regulation: Key Legislative Chronology & Documents
- Appendix D The 1972 Draft ConventionCommission of the European Communities
- Appendix E The Rome Convention 1980: (Consolidated Version published in Official Journal C 27, 26.1.1998, p 36-53)
- Preamble
- Title I Scope of The Convention
- Title II Uniform Rules
- Art.3 Freedom of choice
- Art.4 Applicable law in the absence of choice
- Art.5 Certain consumer contracts
- Art.6 Individual employment contracts
- Art.7 Mandatory rules
- Art.8 Material validity
- Art.9 Formal validity
- Art.10 Scope of applicable law
- Art.11 Incapacity
- Art.12 Voluntary assignment
- Art.13 Subrogation
- Art.14 Burden of proof, etc
- Art.15 Exclusion of convoi
- Art.16 ‘Ordre public’
- Art.17 No retrospective effect
- Art.18 Uniform interpretation
- Art.19 States with more than one legal system
- Art.20 Precedence of Community law
- Art.21 Relationship with other conventions
- Art.22 Reservations
- Title III Final Provisions
- Protocol
- Joint Declaration
- Joint Declaration
- Preamble
- Index
- Appendix A The Rome I Regulation
- [44.200.112.172]
- 44.200.112.172
