Lecture notes
Lecture 9: Applicable Law in non-contractual obligations
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- University Of Southampton (UOS)
full lecture notes for lecture 9 on non-contractual obligations
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Lecture 8: Applicable Law andMatters of Contract
Key Reading:
T Hartley, International Commercial Litigation (CUP, 2nd edn., 2015), Chapters 23
and 24
J Hill and M Shúilleabháin, Clarkson and Hill’s Conflict of Laws (Oxford University
Press; 5th edition; 2016), Chapter 4
Law Applicable to Contractual Obligations and Non-Contractual Obligations
(Amendment etc.) (EU Exit) Regulations 2019
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17
June 2008 on the law applicable to contractual obligations (Rome I)
Additional Reading:
A Mills, Party Autonomy in Private International Law (CUP 2018), Chapters 7 and 9
P Mankowski, ‘Just How Free is a Free Choice of Law in Contract in the EU?’ (2017)
13 Journal of Private International Law 231
Key Case Law:
Case C-133/08 Intercontainer Interfrigo SC (ICF) v Balkenende EU:C:2009:617
Case C-548/12, Marc Brogsitter v Fabrication de Montres Normandes EURL and
Karsten Fräßdorf, EU:C:2014:148
Case C-381/98 Ingmar EU:C:2000:65
Case C-135/15 Nikiforifdis EU:C:2016:774
Molton Street Capital LLP v Shooters Hill Capital Partners LLP, Odean Group
LLC [2015] EWHC 3419 (Comm) ;
Samcrete Egypt Engineers and Contractors SAE v Land Rover Exports Ltd
[2001] EWCA Civ 2019;
Lecture 8: Applicable Law and Matters of Contract 1
, Ennstone Building Products Ltd v Stanger Ltd [2002] EWCA Civ 916;
Definitely Maybe (Touring) Ltd v Marek Lieberberg Konzertagentur GmbH (No 2)
[2001] 1 WLR 1745
Key Topics:
Background to the Rome Convention and
Rome I
Transition from Rome Convention to Rome I:
Rome Convention on the Law Applicable to Contractual Obligations (1980):
A multilateral convention established under public international law.
Aimed to unify conflict-of-laws rules concerning contractual obligations.
Rome I Regulation (Regulation (EC) No. 593/2008):
Key Objective: To harmonize rules across Member States to ensure
consistent outcomes in disputes, regardless of distinct national rules.
Scope of Rome I Regulation
1. Temporal Scope (Art 28):
Applicability: Contracts concluded from 17 December 2009 onwards.
Clarification in Case Law: Hellenic Republic v Grigorios Nikiforidis (C-135/15)
clarified when a contract is 'concluded' per the Regulation.
Brexit Implications:
Before 31st December 2020: Rome I applies to contracts concluded before
the end of the transition period (Art 66(a) Withdrawal Agreement).
After 31st December 2020: Applies to contracts concluded post-Brexit.
2. Material Scope (Art 1(1)):
General Application: To contractual obligations in civil and commercial matters
in situations involving a conflict of laws.
Lecture 8: Applicable Law and Matters of Contract 2
, Exclusions:
Not applicable to revenue, customs, or administrative matters.
Requires an international dimension, linked to at least two different countries.
Also a situation where the parties choose the applicable law while all
other elements relevant to the situation are located in a country other
than the country whose law has been chosen;
Excludes obligations in family law, certain negotiable instruments, arbitration
agreements, choice of court, and company matters.
A contractual obligation;
A civil and commercial matter.
Exclusions from Scope (Art 1(2)(d)):
Specific Exclusions: Matters excluded even if they involve contractual
obligations.
Key Exclusions: Status and legal capacity of natural persons (except Art 13
Rome I), certain obligations under negotiable instruments, arbitration and choice
of court agreements, and specific company matters.
Universal (Erga Omnes) Scope:
Universal Application: Applies regardless of whether the law is of a Member
State or not (Art 2(1)).
if english court has jurisdiction → will apply Rome I to identify applicable law
Practical Implications:
Applicable in any contractual dispute, even involving non-EU parties.
Member State courts can apply non-EU laws, including English law post-
Brexit.
3. Territorial Scope:
Member State Inclusion: Applies to all EU Member States except Denmark.
(recital 46)
Multiple Territorial Units:For States with several territorial units having separate
rules regulating contractual obligations: Each unit considered separately for
determining applicable law (Art 22).
Lecture 8: Applicable Law and Matters of Contract 3
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