Lloyd's Maritime and Commercial Law Quarterly
TOWARDS AN AGREEMENT ON THE CONCEPT OF “CONTRACT” IN EU PRIVATE INTERNATIONAL LAW?
Andrew Dickinson*
Brogsitter v Fabrication de Montres Normandes
Introduction
Private international lawyers thrive on problems of characterisation. Should a particular claim or issue be placed into one pigeonhole or another (or both) for the purposes of determining what rules and principles should determine the jurisdiction of courts or the applicable law? These problems are as likely to arise today in delimiting the scope of EU private international law rules as they were in the past in the interpretation of rules of the common law, national legislation and civil codes. The harmonisation of recent years in Europe means, nevertheless, that they are now of wider import. The judges, legal practitioners, academic commentators and citizens of 27 or more1 European nations may be called upon, or may volunteer, to join the quest for solutions. In the final analysis, however, only the Court of Justice (“ECJ”)2 can isolate the “true” meaning of the words used by the EU’s legislators. Inevitably, therefore, its decisions will be pored over with a view to divining the law’s future path.
Arguably the most important and troublesome of the current problems in a commercial context concerns the need, for the purposes of the Brussels I,3 Rome I4 and Rome II5 Regulations, to isolate the essence of what is “contractual” in flavour and to distinguish it from what is not. Thus, the Brussels I Regulation, Art.5(1) (Recast Regulation, Art.7(1)) contains rules of special jurisdiction for “matters relating to a contract”, and the ECJ has emphasised that a matter cannot fall within both this provision and the later provision (Art.5(3); Recast Regulation, Art.7(2)) concerning “matters relating to tort, delict or quasi-delict”.6 In the field of choice of law, the Rome I Regulation concerns the law applicable to “contractual obligations” and the Rome II Regulation concerns the law applicable to “non-contractual obligations”. Recital (7) to each Regulation emphasises the complementary
* Fellow, St Catherine’s College and Professor of Law, University of Oxford.
1. Of the 28 Member States of the EU, only Denmark is not bound by the legislative instruments referred to in this note. Nevertheless, it has entered into a separate Convention with the EU giving effect to the rules of the Brussels I regime ([2005] OJ L299/62; also [2013] OJ L79/4). Its courts also apply the provisions of the 1980 Rome Convention on the law applicable to contractual obligations. Three further European States (Iceland, Norway and Switzerland) are parties with the EU to the 2007 (Lugano) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, modelled on the (2001) Brussels I Regulation ([2009] OJ L147/1).
2. The Court of Justice of the European Union, formerly the Court of Justice of the European Communities.
3. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ([2001] OJ L12/1) (the “Brussels I Regulation”). For proceedings instituted on or after 10 January 2015, the Brussels I Regulation will be repealed and replaced by Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) ([2012] OJ L351/1) (the “Recast Regulation”). For present purposes, the rules in the Brussels I Regulation and the Recast Regulation are identical.
4. 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) ([2008] OJ L177/6) (the “Rome I Regulation”).
5. Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II) ([2007] OJ L199/40) (the “Rome II Regulation”).
6. Kalfelis v Bankhaus Schröder Münchmeyer, Hengst & Co (Case C-189/87) [1988] ECR 5565, [17].
CASE AND COMMENT
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