Class 10

Question 1

Preliminary remarks R1 and R2

Answer 1

unity of PIL concerning obligations in civil and commercial matters. BUT: no absolute parallel between the two

The Rome Regulations harmonise the PIL rules for determining applicable law. NO impact on substantive law of the EU-MS.

The Rome Regulations only apply in situations involving a conflict of laws, NOT in internal/domestic situations. But see Vinyls Italia.

Question 2

Main principles R1

Answer 2

Freedom of parties to choose applicable law.

High degree of predictability.

Room for manoeuvre for the court to correct the choice in favour of the country with which the contract is “most closely connected”.

Question 3

Main principles R2

Answer 3

A general rule with one general exception and one escape clause.

Specific rules for specific kinds of torts.

Extension to issues which at least in common law are not generally seen as torts: non-contractual’
Respect for parties’ freedom to
choose the applicable law.

Question 4

Exclusion of Renvoi

Answer 4

Renvoi = reference to the law of a State, including the PIL

Exclusion of renvoi = reference to the law of a State, excluding PIL

=> Art. 20 Rome I + art. 24 Rome II

Question 5

Universal Application

Answer 5

Any law indicated in this Regulation should be applied, even if it is not that of a MS. Regardless of the fact that the parties have freely chosen the applicable law or not.

Art. 2 Rome I
Art. 3 Rome II

Question 6

Temporal application

Answer 6

Rome I applies to contracts concluded as from 17 December 2009.
Before = Rome convention
art 28

Rome II applies to events giving rise to damage which occur (the events, NOT the damage) after 11 January 2009.
art 31

Question 7

Material application

Answer 7

Rome I (art. 1.1)
Contractual obligations in civil and commercial matters.

-> NOT torts or other non- contractual obligations, e.g. unjust enrichment
-> NOT public law, e.g. tax, customs, administrative matters
-> NOT Family law (ex. Matrimonial
property law)

Rome II (art. 1.1)
Non-contractual obligations in civil and commercial matters.

->Torts/delicts, unjust enrichment, negotiorum gestio and culpa in contrahendo (art. 2.1)
-> Those which have arisen and those which are likely to arise (art. 2.2 and 2.3)
-> NOT public law, e.g. tax,
customs, administrative matters …

Question 8

Unamar

Answer 8

Overriding mandatory provisions

only if the court before which the case has been brought finds, on the basis of a detailed assessment, that, in the course of that transposition, the legislature of the State of the forum held it to be crucial, in the legal order concerned, to grant the commercial agent protection going beyond that provided for by that directive, taking account in that regard of the nature and of the objective of such mandatory provisions.”

Holds that gold plated rule may be A9 rules provided in the transposition of the Dir into national law, national legislator has indicated that crucial character: presumption therefore is against such character

Question 9

Lazar

Answer 9

meaning that the damage related to the death of a person in such an accident which took place in the Member State of the court seised and sustained by the close relatives of that person who reside in another Member State, must be classified as ‘indirect consequences’ of that accident, within the meaning of that provision.”

singular event leads to one applicable law, even if its ricochet effect causes damage elsewhere.