Giuliano-Lagarde Report on the Rome Convention  OJ C/1. Introduction para 2 and commentary of Arts 3 and 4. Add to My Bookmarks Export citation. Giuliano-Lagarde Report on the Rome Convention  OJ C/1. Commentary of Art 7. Add to My Bookmarks Export citation. Giuliano-Lagarde Report on. Posts about Giuliano Lagarde Report written by Geert van Calster.
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In any event it should be stated that the judge will not be able to exclude consideration of the country in which the carrier has his principal place of business in seeking the places with which the contract is most closely connected.
In other words, the Convention is a uniform measure of private international law which will replace the rules of private international lagards in force in each of the Contracting States, with regard to the subject matter which it covers and subject to any other convention to which the Contracting States are party see Article In Italian law, where the presumed will of the parties plays no part, the matter is settled expressly and directly by the legislature.
Such a development would give rise to a common corpus of unified legal rules covering the territory of the Community’s Member States.
This is the rule which appears in subparagraph 2 a. In its judgment of 24 February in SA Antwerpia v. As regards arbitration agreements, certain delegations, notably the United Kingdom delegation, had proposed that these should not be excluded from the Convention. This Article underlines the universal character of the uniform rules laid down in this Convention.
The solution adopted in the last sentence of Article 3 1 is prompted by exactly this kind of idea.
repirt Additionally, in considering whether to give effect to these mandatory rules, regard must be had to “the consequences of their application or non-application”. If the choice of law is made or changed in the course of proceedings the question arises as to the limits within which the choice or change can be effective.
This is a practice well-known in some areas. They arose in particular in determining the number of ratifications required for the Convention to come into force and in drafting a statement by the Governments of the Member States on the conferral of jurisdiction on the Court repott Justice.
The Group unanimously affirmed that matters relating to the custody of children are outside the scope of the Convention, since they fall within the sphere of personal status and capacity. The Group intended this enumeration to exclude from the scope of replrt Convention all matters of family law. Mr Vogelaar’s opening address reviews the grounds on which the Commission’s conclusion was founded and is worth repeating here:.
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The Group took the view that its main purpose was to frame general rules such as those existing in legislative provisions currently in force in Italy and in the Benelux Treaty and the French draft law.
As regards advisability of harmonization the Member States’ delegations with the sole exception of the German delegation declared themselves to be fundamentally in agreement on the value of the work in making the law more certain in the Community.
This interpretation, which emerges from the second sentence of Article 3 1has an important consequence. The chief aim of the Convention is lagared introduce into the national laws of the EEC Member States a set of giuoiano rules on the law applicable to contractual obligations and on certain general points of private international law to the extent that these are linked with those obligations.
Following this concept, the Paris Court stated in its judgment of 27 January Soc. Winter has truly arrived. The same applies to a change by a new agreement between the parties in the applicable law previously chosen.
At its meeting in June the Group completed the preliminary draft convention on the law applicable to contractual and non-contractual obligations and decided that it should be submitted, together with the reports finalized at a meeting of rapporteurs on 27 and 28 Septemberto the Permanent Representatives Commitee for transmission to the Governments of the Community Member States 9.
The first four paragraphs lay down rules governing all contracts and acts intended to have legal effect.
Giuliano-Lagarde Report on the Rome Convention  OJ C/1 | University of Nottingham
As regards international treaties, the rule of freedom of choice has been adopted in the Convention on the law applicable to international sales of goods concluded at the Hague on 15 June which entered into force on 1 September Working from the Governments’ written comments and others made orally during discussions, the working party reached general agreement on the substantive provisions of the Convention and on the accompanying report.
Similarly, in the case of contracts relating to the supply of services for example, accommodation in a hotel, or a language course which are supplied exclusively outside the State in which the consumer is resident, the latter cannot reasonably expect the law of his State of origin to be applied in derogation from the general rules of Articles 3 and 4. On the normally general nature of the uniform rules in the Convention and their significance in the unification of laws already undertaken in the field of private international law.
To conclude this short survey, only the provisions of the third and fourth paragraphs of Article 13 of the Benelux Treaty which has not entered into force remain to be mentioned. The outcome may be that preference is given to the court of a State whose law seems to offer a better solution to the proceedings.
Giuliano Lagarde Report | gavc law – geert van calster
Article 9 applies to contracts and unilateral acts intended to have legal effect. As for the geographical location of the characteristic performance, it is quite natural that the country in which the party liable for the performance is habitually resident or has his central administration if a body corporate or unincorporate or his place of business, according to whether the performance in question is in the course of his trade or profession or not, should prevail over the country of performance where, of course, the latter is a country other than that of habitual residence, central administration or the place of business.
For example, there would be a genuine connection when the contract is to be performed in that other country or when one party is resident or has his main place of business in that other country. This overlap is, however, not complete. Unlike the situation in France and Germany, in Italy the principle of freedom of contract of the contracting parties was expressly enacted as early as in the preliminary provisions of the Civil Code.
The law of Scotland is to similar effect 20c and Irish law draws its inspiration lagare the same principles as the English and Scottish legal systems. Of the nine Member States of the Community, Italy is the only one lafarde have a set of rules of conflict enacted by the legislature covering almost all the matters with which the Convention is concerned.
Confirming this exclusion, the Group stated that it affects all hiuliano complex acts contractual, administrative, registration which are necessary to the creation of a company or firm and to the regulation of its internal organization and winding-up, i.
Several experts have observed that this omission might oblige the court in certain cases to take a large number of different and even contradictory laws into account. It follows from the foregoing observations that the draft dealt both with the law applicable to contractual obligations and with that applicable to non-contractual obligations.
These are precisely the situations in which the uniform rules are intended to apply. The Hague Convention of 14 March on the law applicable to agency provides in Article 5 that “the internal law chosen by the principal and the agent is to govern the agency relationship between them” Such a clause gives rise to an argument that the law of the country chosen should be applied as the proper law of the contract.
This provision is a parallel to Article 3 2 of the Hague Convention on international sales. At all events the Benelux Treaty on uniform rules for private international law, even though the signatory States have not pursued its entry into force, is clear evidence of their present views on this subject.
However, the last sentence of Article 6 2 provides that if it appears from the cirumstances as a whole that the contract is more closely connected with another country, the law of the latter country is applied.
In the new text it has therefore stated that the legal system of the country of which these mandatory provisions are an integral part must be examined to find out whether these provisions apply in the particular case whatever the law applicable to the contract. The application of paragraph 2 can result in a decision releasing a party who would have been bound under the terms of paragraph 1, but it can never produce the opposite effect of holding that a contract exists which is non-existent by its proper law.