The Rome Convention on the Law applicable to contractual obligations applies to contractual obligations in any situation involving a choice between the laws of different countries. The scope of the Convention is therefore clear; its aim is to regulate contractual relations between parties from different countries. The Rome Convention was drawn up by the Member States of the EEC in1980; their aim was to ensure the application of a common law of contract in the case of an international dispute. There was a need of uniform choice of law rules which would governed both the Member States' relations inter se and relations with non-community countries. This need for uniformity was felt to be necessary as well in order to avoid existing divergencies becoming more marked because of reforms likely to be introduced in the internal law of some Member States. The need of an harmonisation is even more justified as there is a growth of private law relationships across frontiers. The Convention provides a list of rules to avoid any conflict of laws in international contracts. Its ratification is reserved to Member States of the EEC; but the Convention is worldwide in effect' . This means that it will replace the contract choice of law rules in the Member State in which it is implemented not just for cases with an EEC connection ( ) but whenever a choice of law arises.
[...] Article of the Convention states that “Nothing in this Convention shall restrict the application of the rules of the law of the forum in a situation where there are mandatory rules irrespective of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract” The Giuliano Lagarde Report gives some examples of such mandatory rules, “notably rules on cartels, competition and restrictive practices, consumer protection and certain rules concerning carriage.” This appears to many lawyers as a restriction on the freedom of choice as the explanation given in the country appears as a restricted list. [...]
[...] A restriction on the freedom of parties is however contained in Art which provides that the choice of a foreign law shall not prejudice the application of mandatory rules. The Giuliano Lagarde Report points out the importance of such a provision: prohibiting parties from choosing to apply a law only to avoid mandatory rules of one of the legal system with which the contract is connected. While the purpose of this provision might be justified, there is however an important problem. judge of the forum must determine whether all the elements relevant to the situation are connected with only one country, and a significant element of appraisal is present in determining whether an element is or is not ‘relevant'.” This problem could be avoided if another terminology had been used by the Convention. [...]
[...] However this notion is wide so that “many interpretations of it are possible.” For determining the closest connection the Convention rests on the concept of “characteristic performance” The characteristic peformance This concept aims to ensure that the law which will be applicable will be the law of the party who is more likely to be exposed to legal problems. This refers to the party who is performing the obligation which characterises the contract. This implies reducing all questions in the contract to the characteristic performance. [...]
[...] Contract Conflicts The EEC Convention on the Law Applicable to Contractual Obligations : A comparative Study (1982 North Holland Publishing Company) Nygh, P., Autonomy in International Contracts (1999 Clarendon Press Oxford) Plender, R., The European Contracts Convention, The Rome Convention on the Choice of aw for Contracts (1991 Sweet & Maxwell) Articles Book Reviews (1983) 32 ICLQ 265 about North, P.M., Contract Conflicts The EEC Convention on the Law Applicable to Contractual Obligations : A comparative Study (1982 North Holland Publishing Company ) Collins, L., ‘Contractual obligations The EEC Preliminary Draft Conventions on Private International Law' in ( 1976) 25 ICLQ 35 D'Oliveira, H. [...]
[...] The Contracts Applicable Law Act 1990 decided to apply the Convention for disputes on contractual obligations within the United Kingdom. This freedom provided by the Convention is a good point despite the uncertainty which can arise: a Convention whose aim is unification provides uncertainty as it is up to a country to decide to what extent if at all it will apply the Convention. So far the convention has been considered only broadly. The criticisms are more directed on its core. [...]
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