In the case of Intercontainer Interfrigo SC (ICF) v Balkenende Oosthuizen BV and another [2009] All ER (D) 71 the Court of Justice of the European Communities gave a preliminary ruling relating to art 4 of the Convention on the Law applicable to Contractual Obligations concerning a Belgian claimant company, and the two defendant companies established in the Netherlands, the former seeking an order for the payment by the defendant companies of unpaid invoices which had been issued on the basis of a charterparty entered into by the parties.
The questions before the Court were: (i) whether art 4(4) of the Rome Convention (http://www.opsi.gov.uk/acts/acts1990/ukpga_19900036_en_2#sch1) applied to charterparties other than single voyage charter-parties and which factors allowed a charter-party to be categorised as a contract of carriage for the purposes of applying that provision to the contract at issue in the main proceedings; (ii) in which circumstances it was possible, under the second sentence of art 4(1) of the Rome Convention, to apply different national laws to the same contractual relationship, in particular as regards the limitation of the rights under a contract. Further, the referring court asked, inter alia, whether, if the connecting criterion provided for in art 4(4) of the Rome Convention applied to a charter-party, that criterion related only to the part of the contract concerning the carriage of goods; and (iii) whether the exception in the second clause of art 4(5) of the Rome Convention had to be interpreted in such a way that the presumptions in art 4(2) to (4) of the Rome Convention would not apply, only if it was evident from the circumstances in their totality that the connecting criteria indicated therein would not have any genuine connecting value, or whether the court would have to also refrain from applying them if it was clear from those circumstances that there was a stronger connection with some other country.
The Court ruled that (i) The last sentence of art 4(4) of the Rome Convention had to be interpreted as meaning that the connecting criterion provided for in the second sentence of art 4(4) applied to a charter-party, other than a single voyage charter-party, only when the main purpose of the contract had not merely been to make available a means of transport, but the actual carriage of goods; (ii) the second sentence of art 4(1) of the Rome Convention had to be interpreted as meaning that a part of a contract might be governed by a law other than that applied to the rest of the contract only where the object of that part had been independent; further, where the connecting criterion applied to a charter-party had been that set out in art 4(4) of the Rome Convention, that criterion had to be applied to the whole of the contract, unless the part of the contract relating to carriage had not been independent of the rest of the contract; and (iii) Article 4(5) of the Rome Convention had to be construed as meaning that, where it had been clear from the circumstances as a whole that the contract had been more closely connected with a country other than that determined on the basis of one of the criteria set out in art 4(2) to (4) of the Rome Convention, it would be for the court to disregard those criteria and apply the law of the country with which the contract had been most closely connected.
