The United Kingdom’s Ministry of Justice (MoJ) has issued guidance on Regulation 593/2008/EC on the law applicable to contractual obligations, commonly referred to as Rome I, which came into force in the United Kingdom on 17 December 2009. The guidance is intended to provide a brief summary of the most important provisions of Rome I.
ARTICLE 3—FREEDOM TO CHOOSE A PARTICULAR LAW
Article 3 reflects the position under the Rome Convention (i.e., that a contract shall be governed by the law chosen by the parties), with the addition of two clarifications:
- A choice of law by the parties need not be made in express terms.
- When determining the question of whether or not a choice of law has been demonstrated, the courts will take into account the fact that the parties have conferred exclusive jurisdiction on a particular court or courts.
ARTICLE 4—APPLICABLE LAW IN THE ABSENCE OF CHOICE
Article 4 sets out the rules that apply where the parties have not chosen an applicable law under the contract. The MoJ guidance notes that, whilst the provision appears to differ widely from the equivalent rules in the Rome Convention, in practice its effect is not different significantly from the manner in which the UK courts have applied the Rome Convention.
ARTICLE 6—CONSUMER CONTRACTS
The provision of the Rome Convention relating to consumer contracts applied only to contracts for the supply of goods and services. Article 6 extends beyond this limitation and, as such, exceptions have been made for contracts of carriage and insurance contracts. Otherwise, the general rule is that consumer contracts are governed by the laws of the country in which the consumer has his habitual residence, provided that the business party either pursues his commercial activities in, or directs such activities to, that country.
A consumer contract may specify a different law to apply to the contract (again, provided that the business party pursues or directs his activities to the relevant country). However, this specification must not have the effect of depriving a consumer of protection which the business party would not be able to avoid contractually under the law that would have applied in the absence of a choice of law clause.
ARTICLE 22—STATES WITH MORE THAN ONE LEGAL SYSTEM
Article 22 leaves it up to Member States to decide which law applies if they have more than one internal legal system. It is therefore for the United Kingdom to determine the appropriate choice of law in respect of disputes that are connected to two or more of the jurisdictions of England and Wales, Scotland and Northern Ireland.
ARTICLE 28—APPLICATION IN TIME Article 28 provides that Rome I will only apply to contracts concluded after 17 December 2009, the date on which it came into force.