EU Regulation No / on the Law Applicable to Contractual Obligations (the “Rome I Regulation”) establishes uniform EU conflict of laws. As is well known, Article 6 (2) of the Rome I Regulation, which lays down harmonised conflict rules for the EU, provides that even if the parties to a consumer. Introduction. The courts of all EU Member States other than Denmark are now applying the Rome I Regulation (//EC) (“Rome I”), a new.


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A practical effect of these changes is that lawyers opining on the validity of choice of rome 1 regulation clauses in transaction documents will have to amend their formal legal opinions to reflect these provisions. A Question of Assignment? The rules in the Rome Convention relating to assignment and subrogation have been tidied up.

However, the European Commission is to produce a report on the effectiveness of assignments Article 14 as against third parties by June This was a controversial issue in the early negotiations for Rome I, but ultimately it was put to one side in order to secure agreement within rome 1 regulation reasonable timescale.

The UK Government plans to consult with interested parties in the next few months in order to take their views on this issue on board. This posture, therefore, comes to a conclusion that arbitrators are not required to apply Rome I and Rome I is thus only one set of conflict of laws rules among others to determine the most suitable applicable law in the absence of party choice.

Actually, whether Rome I applies to a contract in arbitration proceedings may be a very relevant question, especially when a contract is concluded between non-EU parties. It is because Rome I has universal character cf.

Hence, the Regulation would even apply in litigation within the EU to a contract concluded and executed in a third country between two non-EU parties which, for any conceivable reason, come to a member state to litigate. If Rome I is to apply in arbitration in the way it does in the courts of rome 1 regulation states, any agreement of the parties on the seat of arbitration within the EU would also determine the set of conflict of law rules and inherently also the governing law of the contract.

This case is thus an interesting contribution towards the debate. However, it was not the only interesting issue arising in this arbitration. That is, if the payor is prevented from paying from an account in its own jurisdiction, the English courts will expect it to pay using some other means.

Rome 1 regulation 9 3 does not link the place of performance with the obligation that is unlawful. There is no link in the Article between obligations that have to be performed in a certain place and the obligations that are rendered unlawful.

A connection between those obligations might be implied by the process of statutory interpretation, if the courts took the view that the purpose of the Article was to restrict unlawfulness only to obligations that had to be performed in the relevant jurisdiction.


However, in the absence of any authority, it is uncertain whether this purposive interpretation rome 1 regulation be adopted. The implication of this for financial institutions is that they must enumerate all the jurisdictions where performance of any part of a contract is required and determine whether any overriding mandatory obligations affects any obligations of the contract.

Local law risk: Overriding mandatory provisions and Article 9 of the Rome I Regulation

At least until this is clarified by the courts, this ambiguity adds extra due diligence overhead. This is to be interpreted rome 1 regulation in accordance with the law of any particular jurisdiction but in a supra-national sense.


Rome 1 regulation, for each local jurisdiction, it is necessary to determine exactly which doctrines of local law correspond to unlawfulness within Article 9 3. It is easy to overlook this issue when restricted to an English law perspective.

There is an English law doctrine of illegality and it appears to coincide with unlawfulness, as set out in Article 9.

  • SciELO - Scientific Electronic Library Online
  • Rome I Regulation - Wikipedia
  • Rome I Regulation - Commentary
  • Rome I Regulation on law applicable to contractual obligations comes into force
  • EUR-Lex Access to European Union law

However, other jurisdictions may have a less well-developed doctrine of illegality, or it may overlap with related doctrines. Liber Amicorum Kurt Siehr.

Symeonides states that, although the double-protection rule may appear too generous, the other party may avoid it by simply not choosing a law other than the lex causae, as objectively determined under Rome I. Variationen zum Thema Eingriffsnormen nach Art.

Verlag Ernst und Werner Giesekingp. Art 6 Rom I-VO. Sellier European Law PublishersNo. The need to transpose conflict rules set forth rome 1 regulation directives has been considered outdated also by B.

Volume 2 Rome I Regulation - Commentary

Heiderhoff see Note 47No. Symeonides see Note 44p.


For analysis of the concept of overriding mandatory provisions, see, for example, R.