2014 ZAB Q6 Does the Rome I Regulation offer any significant improvement in
addressing the problems which arose under the Rome Convention?
Discuss.
2015 ZAB Q6 The Rome I Regulation is a step backwards from the certainty of the
Rome Convention.” Discuss.
2015 Oct ‘There is not much difference between the Rome Convention of 1980 on
contractual obligations and the Rome I Regulation.’ Critically examine
this statement.
2016 Oct Assess the impact of Art 7(1) of the Rome Convention on the Law
Applicable to Contractual Obligations on the principle of party autonomy
and discuss alternative approaches to party autonomy as adopted by
some jurisdictions.
2017 Oct (a) Discuss the rules in the Rome I Regulation for the ascertainment of
the applicable law in the absence of choice by the parties.
(b) Contrast and compare these rules with the equivalent rules of the
Rome Convention which was replaced by the Rome I Regulation.
2019 ZAB Q4 In the context of the Rome I Regulation, discuss and explain:
(a) the principle of party autonomy;
(b) the definition of dépeçage;
(c) the definition of floating applicable law and its permissible use
, Rome I and RC
Intro
As Volker Behr rightly pointed out, year of 2009 is seen as an important year in
development of unified Private International Law in EU and one of the reasons is the
enforcement of Rome I. After 2009, there are two frameworks to find applicable law
of contract, either using Rome Convention (which enforce by Contract Applicable
Law Act 1990) if contract made after 1st April 1991 or Rome I if contract made after
17th December 2009 (A29 Rome I). Where neither framework applies, then English
common law shall govern. Convention and Rome I applies to contractual obligations
arising in civil and commercial matters.
Express
The cornerstone of Rome I is the principle of party autonomy (recitals 11 Rome I),
nevertheless it appears to have no substantial changes, at least as far as party
autonomy is concerned. In Art.3(1) of both frameworks, contract will be governed by
the law chosen by the parties (Compagnie v Cle Tunisienne) and allowed parties to
depecage (pick and choose) different law to govern different part of contract
provided choices are logically consistent (Giuliano Lagarde Report 1985).
Moreover, under Art.3(2) of both framework, parties allowed to change their choice
of law upon breach of contract and also in circumstance where parties have not
made any choice of law, they were allowed for delayed choice of law (Armar
Shipping v Caissey).
Implied
The only different found under Art.3(1) is in the wording of test to allow parties’
choice of law. Convention states choice must be expressed or demonstrated “with
reasonable certainty” by the terms of the contract. Whereas Rome I slightly different
words used by requiring choice must be made expressly or “clearly demonstrated”
by the terms of the contract. Therefore, it could argue that Convention lacks an
express choice by just asked for demonstrates choice of law “with reasonable
certainty”. Whereas Rome I require choice to be “clearly demonstrated” thus trying to
avoid the uncertainty linked up with the former notion of reasonableness and so
prevent court too easily surprising parties by inferring choice of law on assumption of
what a reasonable person under the same circumstances would have chosen
(Dicey, Morris and Collins). Hence such predictability better secured under Rome I.
In regards to choice demonstrating from other terms of contract (ie. existence of
jurisdiction agreement or arbitration agreement or even standard form against the
background of a particular system of law), authority for Convention developed
throughout multiple cases (The Komninos, The Parouth, Compagnie, Amin
Rasheed Shipping v Kuwait Insurance), whereas today the law codified under
Recital 12 Rome I.
Limiting effect
There are a number of circumstances in which Art.3(1) of both frameworks may
displaced. However, candidate will focus on mandatory rule and consumer contract
which appears some changes to Convention.
In regards to mandatory rule, Art.3(3) and Art.3(4) Rome I differentiate between
mandatory provision of forum and mandatory provision of third countries compare
with Art.3(3) Convention where there is no such distinction. This provision ensures
addressing the problems which arose under the Rome Convention?
Discuss.
2015 ZAB Q6 The Rome I Regulation is a step backwards from the certainty of the
Rome Convention.” Discuss.
2015 Oct ‘There is not much difference between the Rome Convention of 1980 on
contractual obligations and the Rome I Regulation.’ Critically examine
this statement.
2016 Oct Assess the impact of Art 7(1) of the Rome Convention on the Law
Applicable to Contractual Obligations on the principle of party autonomy
and discuss alternative approaches to party autonomy as adopted by
some jurisdictions.
2017 Oct (a) Discuss the rules in the Rome I Regulation for the ascertainment of
the applicable law in the absence of choice by the parties.
(b) Contrast and compare these rules with the equivalent rules of the
Rome Convention which was replaced by the Rome I Regulation.
2019 ZAB Q4 In the context of the Rome I Regulation, discuss and explain:
(a) the principle of party autonomy;
(b) the definition of dépeçage;
(c) the definition of floating applicable law and its permissible use
, Rome I and RC
Intro
As Volker Behr rightly pointed out, year of 2009 is seen as an important year in
development of unified Private International Law in EU and one of the reasons is the
enforcement of Rome I. After 2009, there are two frameworks to find applicable law
of contract, either using Rome Convention (which enforce by Contract Applicable
Law Act 1990) if contract made after 1st April 1991 or Rome I if contract made after
17th December 2009 (A29 Rome I). Where neither framework applies, then English
common law shall govern. Convention and Rome I applies to contractual obligations
arising in civil and commercial matters.
Express
The cornerstone of Rome I is the principle of party autonomy (recitals 11 Rome I),
nevertheless it appears to have no substantial changes, at least as far as party
autonomy is concerned. In Art.3(1) of both frameworks, contract will be governed by
the law chosen by the parties (Compagnie v Cle Tunisienne) and allowed parties to
depecage (pick and choose) different law to govern different part of contract
provided choices are logically consistent (Giuliano Lagarde Report 1985).
Moreover, under Art.3(2) of both framework, parties allowed to change their choice
of law upon breach of contract and also in circumstance where parties have not
made any choice of law, they were allowed for delayed choice of law (Armar
Shipping v Caissey).
Implied
The only different found under Art.3(1) is in the wording of test to allow parties’
choice of law. Convention states choice must be expressed or demonstrated “with
reasonable certainty” by the terms of the contract. Whereas Rome I slightly different
words used by requiring choice must be made expressly or “clearly demonstrated”
by the terms of the contract. Therefore, it could argue that Convention lacks an
express choice by just asked for demonstrates choice of law “with reasonable
certainty”. Whereas Rome I require choice to be “clearly demonstrated” thus trying to
avoid the uncertainty linked up with the former notion of reasonableness and so
prevent court too easily surprising parties by inferring choice of law on assumption of
what a reasonable person under the same circumstances would have chosen
(Dicey, Morris and Collins). Hence such predictability better secured under Rome I.
In regards to choice demonstrating from other terms of contract (ie. existence of
jurisdiction agreement or arbitration agreement or even standard form against the
background of a particular system of law), authority for Convention developed
throughout multiple cases (The Komninos, The Parouth, Compagnie, Amin
Rasheed Shipping v Kuwait Insurance), whereas today the law codified under
Recital 12 Rome I.
Limiting effect
There are a number of circumstances in which Art.3(1) of both frameworks may
displaced. However, candidate will focus on mandatory rule and consumer contract
which appears some changes to Convention.
In regards to mandatory rule, Art.3(3) and Art.3(4) Rome I differentiate between
mandatory provision of forum and mandatory provision of third countries compare
with Art.3(3) Convention where there is no such distinction. This provision ensures
