Rome 1 Regulation PDF

**[Rome 1 Regulation ]** Question to class - Why what we agree on something called contract entails an obligation and what is that obligation? Why do contracts produce obligations? - From a legal perspective, the law recognises sphere of freedom when it comes to the patrimonial interest to...

**[Rome 1 Regulation ]** Question to class - Why what we agree on something called contract entails an obligation and what is that obligation? Why do contracts produce obligations? - From a legal perspective, the law recognises sphere of freedom when it comes to the patrimonial interest to regulate the way in which they will interact when dealing with their interests - Main idea is that fact that in our system the law recognises this in favour of individuals, and therefore if agreements entered into in such sphere the law will react and use its powers in order to fulfil that obligation - Therefore, the only legal value attributed to the contract is the one that the law recognises in favour of that contract - In cases in which multiple laws could be used, of the essence to handle properly the mechanisms to determine what law should handle this matter is fundamental - lex contractus Good grammar will not suffice, there cannot be a lack of diligence from a legal stand point -- must be familiar with legal system behind the system that governs the contract, being able to read a language is not enough **Rome 1 Regulation in EU** -- about law appliable to contractual relations, critical piece of legislation when it comes to international commercial relations -- unless mastered, we cannot provide any kind of legal advice **General Provisions** Material scope of the regulation -- what are the basic frames within which we apply this regulations - However, roam 1 regulation is EU law which means that EU courts will be the ones who will apply the regulation in order to identify the lex contractus, a Russian court, a Chinese court, a London court etc will never apply this when it comes to determination of lex contractus - From logical perspective, If you want to identify the law applicable to a contract you need to find out what court is to deal with the court, because if they are outside of the eu you will have no way to find out who is competent to deal with the lex contractus, only if EU will we be able to resort to Rome 1 regulation **Article 1** This Regulation shall apply, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters. - Where parties are acting in its private capacity, paradox that you can only qualify something as public or private according to a certain law in certain space, under communist legal system many things are considered private - need to previously qualify a certain relationship as private even before we know what law shall rule that relationship \*Boy asked here "re the paradox I didn't understand which would be the law applicable for the determination of whether the contractual parties are acting in the private capacity of public one because you have to determine this before and then with national law it will be applicable" -- this is why the paradox exists -- it is that you will be establishing whether or not the parties are acting in capacity without identifying the law appliable to the contractual relationship -- how can you do that without identifying the law applicable to the case? Court of Justice says don't worry and solves this by itself , but the CoJ jurisprudence because it is a question for only EU law and separate from national systems, because if you need to constantly result to national law then you have a problem\* - Courts have said in order to give content to nation of contractual obligations and civil and commercial matters, contractual obligations are obligations which are established as a result of consensus, civil and commercial matters are relations in which public powers are not involved It shall not apply, in particular, to revenue, customs or administrative matters General in discussion: Public entity enter into a private obligation -- this is possible, e.g city hall into obligation concerning the purchase of a real estate 2.The following shall be excluded from the scope of this Regulation: a. questions involving the status or legal capacity of natural persons, without prejudice to Article 13; Matter belonging to sphere of private law, public interest are clearly involved in such an issue, it is for the law to define the condition sunder which natural person can act validly in law, has nothing to do with the type of matters we are facing with these regulations b. obligations arising out of family relationships and relationships deemed by the law applicable to such relationships to have comparable effects, including maintenance obligations; family law, clear presence of public interest c. obligations arising out of matrimonial property regimes, property regimes of relationships deemed by the law applicable to such relationships to have comparable effects to marriage, and wills and succession; same approach d. obligations arising under bills of exchange, cheques and promissory notes and other negotiable instruments to the extent that the obligations under such other negotiable instruments arise out of their negotiable character; negotiable character of these instruments, it is the law that grants an autonomous nature of these instruments that makes them negotiable even beyond the negotiable instruments -- beyond the scope of application of the contract obligation for civil and commercial matters e. arbitration agreements and agreements on the choice of court; excluded, controversial because we infront of a contract obligation concerning civil and commercial matters, states try to keep out of the official circuit of state courts and mechanisms surrounding private international law f. questions governed by the law of companies and other bodies, corporate or unincorporated, such as the creation, by registration or otherwise, legal capacity, internal organisation or winding-up of companies and other bodies, corporate or unincorporated, and the personal liability of officers and members as such for the obligations of the company or body; understandable given we are dealing with corporate institutions g. the question whether an agent is able to bind a principal, or an organ to bind a company or other body corporate or unincorporated, in relation to a third party; established that question concerning whether or not an agent/organ/officer has the power to bind its principle of its company before a this party, the power of representation, this is a question for the law to establish, not just contractual/consensually obligation h. the constitution of trusts and the relationship between settlors, trustees and beneficiaries; trust is essentially one of English origin, bc UK was in EU i. obligations arising out of dealings prior to the conclusion of a contract; rules by rome 2 regulation, law applicable to non-contractual obligations j. insurance contracts arising out of operations carried out by organisations other than undertakings referred to in **\[[F1](https://www.legislation.gov.uk/eur/2008/593/article/1#commentary-key-38e2e24e95d78f3ab37012adaa39b71a)**Article 2(1) of Directive 2009/138/EU which carry on life assurance under Article 2(3) of that Directive**\]** the object of which is to provide benefits for employed or self-employed persons belonging to an undertaking or group of undertakings, or to a trade or group of trades, in the event of death or survival or of discontinuance or curtailment of activity, or of sickness related to work or accidents at work. General issues concerning Rome 1 - First notion need to be aware of is one established in article 2, universal application, seen in... **Art2** Any law specified by this Regulation shall be applied whether or not it is the law of **\[[F1](https://www.legislation.gov.uk/eur/2008/593/article/2#commentary-key-556649da5756513cee97f0de98d98e03)**the United Kingdom or a part of the United Kingdom**\]**. - Extremely liberal, even if does not point towards an EU member state and its legislation, that is acceptable, EU court can reach conclusion that law governing this contract is not EU e.g Chinese law, this is the meaning of the principle of universal application This type of relation revolves around multiple jurisdictions but the law is a purely national creature still today! Therefore need to understand what specific national law applies in a very specific case - Problem here is in some cases certain states, given its constitutional structure, have more than one legal system - But in Spain for example, not a federation, a unitary state, sovereignty belonging to political unity of kingdom of Spain, however the state recognises the lrgal quality from regional parliament and the main parliament, only difference of the scope of application with Spanish parliament having a national scope of application Answer is in **article 22** of regulation Where a State comprises several territorial units, each of which has its own rules of law in respect of contractual obligations, each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Regulation In order to apply this need to understand constitutional set up of state, does a state comprise of several territorial units? Need to differentiate two type of rules when applying this regulation 1. Substantive rules of law - E.g obligation to provide goods in conformity with the specifications established in the country, deadline within which the seller must deliver the goods to the buyer -- these are substantive rules of law 2. Conflictual rules -- other type of rules, the ones concerning private international law, ones identify in the linking factors that will establish a relationship between a legal system and a specific contractual relationship, e.g in case of international sale of goods the law applicable to the contract will be the law of the habitual residence of the seller -- this is a rule of conflict of loss because it identified the legal system which shall rule the relationship, leaving aside other potential legislation. Ones relevant for Rome 1 Regulation are only the substantive ones, if you are applying Rome 1 regulation and conclusion is the law applicable to this specific contract are the laws of Spain -- these laws only cover substantive rules of law, called prohibition or exclusion of remvoir... **Art 20** **"**The application of the law of any country specified by this regulation means the application of the unless of law in force in that country other than its rules of private international law unless otherwise provided in this regulation" - When looking at Rome 1 regulations, Court will never apply Spanish international private law rules, only substantive rules of Spanish law - Private international law is like a train station -- substantive law is a destination, IPL is the station which indicated the road that you need to follow to reach your destination, different to the destination - Domestic law includes both substantive law and international private law - Exclusion of remwoir indicates these rules (what domicile to have a case in in IPL etc) must be excluded -- imagine under Rome 1 regulation you reach the conclusion that your contract is ruled by laws of Italy, and now you have an Italian civil code indicating that in case of international sale of goods the law applicable are the law of the place where the goods were delivered, you would be jumping constantly jurisdiction, therefore remoir excluded and only substantive law taken into effect