DOCSLIB.ORG

Rome II and the Law Applicable to Non-Contractual Obligations

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Rome II and the Law Applicable to Non-Contractual Obligations Number 789 20 January 2009 Client Alert Latham & Watkins Litigation Department Rome II and the Law Applicable to Non-Contractual Obligations Introduction and succession, promissory notes, negotiable instruments, nuclear On 11 January 2009, a fundamental damage, the law of companies and change to the way in which the defamation claims are expressly law applicable to non-contractual excluded from the auspices of Rome II. obligations will be determined Rome II was approved by the Council under English law took place when and European Parliament on 11 Regulation (EC) No 864/2007 on the July 2007 and came into force on 11 law applicable to non-contractual January 2009. It only applies to events obligations (Rome II) came into effect. giving rise to damage after it came The existing common law basis for into force. “Rome II will determining applicable law was enable parties replaced by the directly applicable Whilst Rome II is directly applicable doing business Rome II Regulation. and takes effect in the United Kingdom without the necessity for Rome II represents a significant across borders to implementing legislation, the Law departure from the former state of Applicable to Non-Contractual predict the law affairs under English law in certain Obligations (England and Wales that will apply respects, but it does give parties and Northern Ireland) Regulations the potential for achieving greater to their activities 2008 (SI 2008/2986) also came into certainty in their cross-border effect on 11 January 2009. Those with greater dealings. For the first time, parties Regulations make some consequential certainty. are able to choose (subject to some ” amendments to existing legislation exceptions) the law applicable to and extend the scope of Rome II to their non-contractual obligations. In conflicts between the laws of different addition, a standard set of rules for parts of the United Kingdom and/or determining the applicable law where any of those parts and Gibraltar. no express choice has been made came into effect across Europe. Practising lawyers across Europe, as well as companies and financial “Non-contractual” obligations relate institutions engaged in cross-border primarily to tortious claims, but also business, will need to come to terms include such things as breach of with the changes which Rome II statutory duty, unjust enrichment and makes to the rules as to which law restitutionary claims. However, the is applicable for torts and other liability of the state in the exercise non-contractual obligations and the of state authority, revenue and consequential changes which will be customs, family, matrimonial, wills necessary to contracts. Latham & Watkins operates as a limited liability partnership worldwide with affiliated limited liability partnerships conducting the practice in the United Kingdom, France and Italy. Under New York’s Code of Professional Responsibility, portions of this communication contain attorney advertising. Prior results do not guarantee a similar outcome. Results depend upon a variety of factors unique to each representation. Please direct all inquiries regarding our conduct under New York’s Disciplinary Rules to Latham & Watkins LLP, 885 Third Avenue, New York, NY 10022-4834, Phone: +1.212.906.1200. © Copyright 2009 Latham & Watkins. All Rights Reserved. Latham & Watkins | Client Alert Objectives determined by the jurisdiction in which the damage occurs to Party B (England). The fundamental objective of Rome There are, however, a number of II is to standardise the rules by which exceptions. The general rule will not be the law applicable to non-contractual applied where: obligations is determined, with the aim of ensuring that the courts of all • both parties have their habitual EU Member States (save for Denmark, residence in the same country at the which has opted out of the Rome II time when the damage occurs (Article regime) apply the same choice of 4(2)); law rules to disputes involving non- • the tort is ‘manifestly more closely contractual obligations. It is anticipated connected’ with another country that this will give rise to increased legal (Article 4(3)); certainty, facilitate mutual recognition • the parties have agreed on a of judgments and reduce the incidence particular law to govern their non- of forum shopping. Whether this will contractual obligations (Article 14); actually be the case, remains to be seen. • there are mandatory rules of the forum (Article 16); or Rome II will enable parties doing • the application of a provision of business across borders to predict the the law that would normally be law that will apply to their activities determined by Rome II is ‘manifestly with greater certainty. It also, for the first incompatible’ with the public policy of time, allows them to influence the law the forum (Article 26). that will govern their non-contractual obligations by contractually agreeing on However, note that special rules apply a choice of law. to product liability, unfair competition, environmental damage, intellectual The General Rule property and industrial action. In virtually all EU Member States the Article 14 applicable law, in civil and commercial matters, for non-contractual obligations Article 14 is arguably the most used to be determined by the place significant introduction to English where the harmful act was committed Law precipitated by Rome II. Parties (lex loci delicti commissi). By way of have not previously been able to example, if Party A committed a harmful agree contractually as to the law that act in Germany in relation to which will apply to their non-contractual Party B suffered loss in England, then obligations. However, subject to some pursuant to the former position, the law exceptions, Article 14 now allows parties applicable to Party A’s act would have to make such an agreement. been German law. However, now that Rome II has come into force, this is no A distinction is made in Rome II longer the case. between agreements which pre-date and post-date the occurrence of the The fundamental change introduced event giving rise to the damage. In each by Rome II is that the lex loci delicti case, a choice of applicable law must commissi principle has been replaced be ‘expressed or demonstrated with by the general rule that the law reasonable certainty’. applicable to non-contractual obligations will be determined on the basis of Agreements between the parties as to where the damage occurs, or is likely the applicable law which post-date the to occur, regardless of the country or event (e.g. once a dispute has already the countries in which the act giving arisen or the damage has occurred), can rise to the damage occurs (Article 4). be freely made. Therefore, after damage Returning to the previous example, for has occurred to Party B, it is free to Party A’s harmful act, committed after 11 agree with Party A the law that will be January 2009, the applicable law will be applicable to Party A’s act. 2 Number 789 | 20 January 2009 Latham & Watkins | Client Alert However, agreements on the law A simple governing law clause, applicable to non-contractual obligations containing an Article 14.1(b) choice of which pre-date the event causing applicable law agreement, might look as damage can only be made where: follows: 1) the parties are pursuing a commercial “This Agreement and any non- activity; and contractual obligations arising out 2) the agreement is freely negotiated. of or in connection with it, shall be governed by and construed in It will be interesting to see how the accordance with English law.” question of whether an agreement has From now onwards, parties should been ‘freely negotiated’ is developed by expect to see this type of wording in the courts and whether consideration draft agreements. of the parties’ respective bargaining positions will be necessary. In addition, whilst a contract on one party’s standard Exceptions to Article 14 terms may not comply with this test, it remains to be seen as to whether There are certain mandatory provisions the inclusion of such a provision in a of Rome II. For example: standard form contract (such as ISDA • where all elements relevant to the agreements) is treated as being ‘freely situation, at the time the event giving negotiated’ for these purposes. rise to damage occurs, are located Whilst choosing a governing law for in a country other than the country non-contractual obligations gives whose law has been chosen, the the parties greater certainty as to the parties’ choice will not prejudice the precise nature and scope of their legal application of that country’s law from relationships, there remains a possibility which the parties cannot derogate by that a party will be bound by that agreement (Article 14.2); choice, even if a dispute arises under • where all elements relevant to the which the law of the country where situation, at the time the event giving the damage occurred might have been rise to damage occurs, are located more favourable. However, in most in one or more Member States, the commercial, cross-border agreements, parties’ choice will not prejudice the the benefit to the parties of agreeing application of any Community law on the applicable law in respect of their which cannot be derogated from by non-contractual obligations will most agreement (Article 14.3); or likely far outweigh the potential risk • where the dispute relates to unfair that the ‘default’ applicable law would competition (Article 6) or infringement be more favourable to them. of IP rights (Article 8), in relation to which special rules apply. With the advent of Rome II, parties who engage in cross-border business with a number of counterparties now face the What the Governing Law will risk that, unless an agreement as to the Affect applicable law has been made, a tortious act committed in one jurisdiction which Rome II has ‘universal application’ causes damage to a number of claimants (Article 3).
Load more

Recommended publications
  • Jurisdiction and Governing Law Rules in the European Union
    Jurisdiction and Governing Law Rules in the European Union Contents Introduction 1 Recast Brussels Regulation (EU 1215/2012) 2 Rome I Regulation (EC 593/2008) 4 Rome II Regulation (EC 864/2007) 6 Main exceptions 8 016 2 Further information If you would like further information on any aspect of jurisdiction and governing law rules in the European Union, please contact a person mentioned below or the person with whom you usually deal. Contact Ivan Shiu, Partner T +44 (0)20 7296 5131 [email protected] Giles Hutt, Professional Support Lawyer T +44 (0)20 7296 5483 [email protected] This note is written as a general guide only. It should not be relied upon as a substitute for specific legal advice. Jurisdiction and Governing Law Rules in the European Union January 2016 1 Introduction For any commercial organisation, ensuring that a how the rules work, and giving details of key provisions. dispute is tried in a forum that is both convenient and To help practitioners spot similarities and differences business-friendly is often critical: it can greatly increase between the Regulations, which dovetail with each the chance of achieving a successful outcome, and other, rules are grouped by colour according to their doing so in a reasonable time frame and at reasonable subject matter. So, for example, rules governing the expense. The law governing legal obligations is also scope of a Regulation appear in dark green boxes; crucial, of course. Unfortunately it is not always those dealing with party choice appear in blue boxes; straightforward to work out which court or courts are and 'escape' clauses (a prominent feature of the Rome free (or obliged) to try a case, and what law they will Regulations) are shown in white boxes.
    [Show full text]
  • The Law Applicable to Unregistered IP Rights After Rome II
    R. L. R. The Law Applicable to Unregistered IP Rights After Rome II Haimo SCHACK＊ Until a few years ago, the con ict of laws problems of intellectual property rights have rarely been thoroughly treated.1) For con ict of laws people IP law was a remote special subject, and the IP people believed that they need not bother with the arcana of con icts law because the territoriality principle and the international conventions supposedly provided all the necessary rules. This mistake has been pointed out, at the latest, by the internet. Today the transborder use and infringement of IP rights is most common and legal proceedings are long since brought not only in the country for which protection is sought. More and more often the country of origin, the protecting country and the forum state are not identical, and one action apart from actions for injunctive relief asserts IP infringements in several protecting countries. That holds true in particular for unregistered and for Community-wide IP rights the reach of which not necessarily coincides with the national borders of a registering state. In the last years, however, the German and foreign literature on the law applicable to IP rights has been swelling very much. 2) Of late, even the European legislator has tried its hand with a rst partial rule in this eld of con icts law. The Regulation (EC) No. 864/2007 of the European Parliament and of the Council on the law applicable to non- contractual obligations ( Rome II )3) of 11 July 2007 provides in art.
    [Show full text]
  • Reports of Cases
    Report s of C ases JUDGMENT OF THE COURT (Sixth Chamber) 31 January 2019 * (Reference for a preliminary ruling — Judicial cooperation in civil matters — Law applicable to non-contractual obligations — Regulation (EC) No 864/2007 (Rome II) — Articles 16 and 27 — Overriding mandatory provisions — Directive 2009/103/EC — Civil liability insurance for motor vehicles — Article 28) In Case C-149/18, REQUEST for a preliminary ruling under Article 267 TFEU from the Tribunal da Relação de Lisboa (Court of Appeal, Lisbon, Portugal), made by decision of 20 December 2017, received at the Court on 26 February 2018, in the proceedings Agostinho da Silva Martins v Dekra Claims Services Portugal SA, THE COURT (Sixth Chamber), composed of C. Toader, President of the Chamber, A. Rosas and M. Safjan (Rapporteur), Judges, Advocate General: H. Saugmandsgaard Øe, Registrar: A. Calot Escobar, having regard to the written procedure, after considering the observations submitted on behalf of: – the Portuguese Government, by L. Inez Fernandes, M. Figueiredo, P. Lacerda, L. Medeiros and P. Barros da Costa, acting as Agents, – the Spanish Government, by L. Aguilera Ruiz and V. Ester Casas, acting as Agents, – the European Commission, by M. Wilderspin and P. Costa de Oliveira, acting as Agents, having decided, after hearing the Advocate General, to proceed to judgment without an Opinion, gives the following * Language of the case: Portuguese. EN ECLI:EU:C:2019:84 1 JUDGMENT OF 31. 1. 2019 — CASE C-149/18 DA SILVA MARTINS Judgment 1 This request for a preliminary ruling concerns the interpretation of Articles 16 and 27 of 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) (OJ 2007 L 199, p.
    [Show full text]
  • The Rome II Regulation the Law Applicable to Non-Contractual Obligations
    ©2009 Andrew Dickinson Not to be re-published in any form without permission The Rome II Regulation The Law Applicable to Non-Contractual Obligations Andrew Dickinson www.romeii.eu First Online Supplement – May 2009 Author’s Introduction This supplement focuses on developments since October 2008. In particular, in the absence of judicial consideration of the Regulation’s provisions following its application date (11 January 2009), it draws attention to legislation implementing the Regulation in the United Kingdom, to recent ECJ cases concerning other EC private international law instruments, to new decisions of the English courts concerning the pre-Regulation rules of applicable law, and to recent books and journal articles. There is an ever growing body of literature on the Regulation, in the form of both books and articles. As is to be expected, the authors consider a wide array of issues and express widely diverging views on many of those issues. It is, of course, no more legitimate to resolve difficult or controversial questions by counting the number of supporters for a particular position than it is to determine the law applicable to a non-contractual obligation by numerically listing the number of contacts to a particular country or its law. Accordingly, the references in the following commentary to the views of other writers are intended to facilitate access to their reasoning on specific points, whether in line with or opposed to the reasoning in the main work, rather than attempts to buttress or weaken the author’s position on those points by citation alone. Notes A second cumulative supplement to Dicey, Morris & Collins, The Conflict of Laws (14 th edn, 2006) was published in December 2008.
    [Show full text]
  • Private International Law 2016
    Private international law 2016 PRIVATE INTERNATIONAL LAW 2 JURISDICTION 5 BRUSSELS I BIS REGULATION 10 CHOICE OF COURT AGREEMENTS 15 FORUM CONTRACTUS 31 LIS ALIBI PENDENS 41 ROME I REGULATION 47 CHOICE OF LAW ( BY THE PARTIES) 54 UNIFICATION OF PRIVATE LAW 59 MANDATORY RULES 66 PUBLIC POLICY 72 ROME II REGULATION 77 CROSS - BORDER EMPLOYMENT CONTRACTS 84 CISG – VIENNA S ALES CONVENTION 92 PRIVATE INTERNATIONAL LAW Concept Private international law (also called 'conflict of laws') is a branch of law which aims to provide legal answers to the issues arising out of cross-border private relationships. Such relationships may be civil or commercial : it may concern family relationships (e.g. adoption or a marriage between two spouses having different nationalities), civil issues (e.g. where may the German owner of an apartment located on the French Riviera bring court proceedings against the German family who has rented out his apartment for one week during the summer holidays and neglected to turn the water tap off when they left the premises) and commercial matters (e.g. when a business established in Germany pledges its receivables to a Luxembourg bank in order to guarantee a line of credit, which law should the bank use to verify that the pledge may be opposed to other creditors of the business?). When a private relationship has a cross-border dimension, it touches upon several States. The question arises which of those States is empowered to regulate the relationship. This general question may be fine tuned in three more precise questions: – which court has authority to adjudicate disputes; the same question arises in relation with authorities which are called upon to intervene in non contentious matters, such as e.g.
    [Show full text]
  • The Rome II Regulation
    HOUSE OF LORDS European Union Committee 8th Report of Session 2003-04 The Rome II Regulation Report with Evidence Ordered to be printed 30 March and published 7 April 2004 Published by the Authority of the House of Lords London: The Stationery Office Limited £price HL Paper 66 The European Union Committee The European Union Committee is appointed by the House of Lords “to consider European Union documents and other matters relating to the European Union”. The Committee has seven Sub-Committees which are: Economic and Financial Affairs, and International Trade (Sub-Committee A) Internal Market (Sub-Committee B) Foreign Affairs, Defence and Development Policy (Sub-Committee C) Agriculture and Environment (Sub-Committee D) Law and Institutions (Sub-Committee E) Home Affairs (Sub-Committee F) Social and Consumer Affairs (Sub-Committee G) (established in December 2003) Our Membership The members of the European Union Committee are: Baroness Billingham Lord Marlesford Lord Bowness Lord Neill of Bladen Lord Brennan Baroness Park of Monmouth Lord Dubs Lord Radice Lord Geddes Lord Renton of Mount Harry Lord Grenfell (Chairman) Lord Scott of Foscote Lord Hannay of Chiswick Lord Shutt of Greetland Baroness Harris of Richmond Lord Williamson of Horton Baroness Maddock Lord Woolmer of Leeds The Members of the Sub-Committee which conducted the inquiry are listed in Appendix 1. Information about the Committee The reports and evidence of the Committee are published by and available from The Stationery Office. For information freely available on the web, our homepage is: http://www.parliament.uk/parliamentary_committees/lords_eu_select_committee.cfm There you will find many of our publications, along with press notices, details of membership and forthcoming meetings, and other information about the ongoing work of the Committee and its Sub-Committees, each of which has its own homepage.
    [Show full text]
  • Law Applicable to Non-Contractual Obligations (Rome II)
    10.9.2013 EN Official Journal of the European Union C 261 E/17 Thursday 10 May 2012 Law applicable to non-contractual obligations (Rome II) P7_TA(2012)0200 European Parliament resolution of 10 May 2012 with recommendations to the Commission on the amendment of Regulation (EC) No 864/2007 on the law applicable to non-contractual obligations (Rome II) (2009/2170(INI)) (2013/C 261 E/03) The European Parliament, — having regard to Article 225 of the Treaty on the Functioning of the European Union, — having regard to Article 81 of the Treaty on the Functioning of the European Union, in particular point (c) of paragraph 2 thereof, — having regard to Articles 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Articles 7 and 11 of the Charter of Fundamental Rights of the European Union, — having regard to the forthcoming accession of the Union to that Convention pursuant to Article 6(2) of the Treaty on European Union, — having regard to Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ( 1), in particular Articles 2 and 5(3) thereof, and to the proposal for a recast of that regulation (COM(2010)0748), — having regard to the judgment of the Court of Justice of 7 March 1995 in Case C-68/93 Shevill [1995] ECR I-415, — having regard to the judgment of the Court of Justice of 25 October 2011 in Joined Cases C-509/09 and C-161/10 eDate Advertising GmbH ( 2), — having regard to the opinion of Advocate
    [Show full text]
  • Rome II Regulation on the Law Applicable to Non-Contractual Obligations: the European Private International Law Tradition Continued
    Dr. Xandra E. Kramer* The Rome II Regulation on the Law Applicable to Non-Contractual Obligations: The European private international law tradition continued Introductory observations, scope, system, and general rules Published in Nederlands Internationaal Privaatrecht (NIPR) 2008, no. 4, p. 414 – 424. The original page numbers are indicated in this text by [xx]. [414] 1. Introduction The establishment of Regulation No 864/2007 on the Law Applicable to Non-Contractual Obligations (Rome II) is remarkable for several reasons.1 Firstly, the regulation of torts in the European Union has a history of forty years, starting with the preparation of the Rome Convention in 1967. Secondly, as was the case with its thorny counterpart, the Regulation on the Law Applicable to Contractual Obligations (Rome I),2 negotiations have been difficult. Many amendments to previous texts proved necessary, and notably the Council and the European Parliament – applying the co-procedure to a private international law regulation for the first time – had difficulties reaching an agreement.3 Thirdly, though a huge number of regulations have meanwhile been established pursuant to Article 61 and 65 EC Treaty, Rome II was the first established community legislation dealing with the applicable law, one year before the adoption of Rome I.4 Fourthly, for the first time, the efforts to develop European conflict-of-law rules and the negotiations attracted serious cross-Atlantic attention, especially from scholars in the United States (US). Not only have Americans and other
    [Show full text]
  • 1 Private International Law: Object of Harmonization Or Tool for Regulation? Inquiring Into the Functions of PIL in an Integrate
    Private International Law: Object of Harmonization or Tool for Regulation? Inquiring into the Functions of PIL in an Integrated Area Stéphanie Francq Professor of Law, Université catholique de Louvain (UCLouvain) What is private international law good for in the EU? In this course, I propose to reflect upon this very simple, though fundamental, question. During the last 15 years, the EU has largely occupied the field of private international law (i.e. conflict of jurisdiction and conflict of laws; hereafter PIL). Since the year 2000, about 15 regulations have been enacted in the field of conflict of jurisdiction, conflict of laws and civil cooperation. Following the piecemeal approach, the EU is now considering a “codification” of PIL. The EU Parliament in particular is supporting the project, as a way to simplify citizen’s life in the EU (see for instance, the workshop recently organized by the JURI commission of the Parliament: “Cross-border activities in the EU – Making life easier for citizens”, reference hereunder) PIL thus certainly is an object of harmonization. And the accelerated development of the “area of justice, liberty and security” rests, for a good part, on the enactment of PIL instruments. The development of PIL in the EU is, in some respects, surprising. PIL is not “attractive” in political terms: it is technical, esoteric and highly complex. In regard of these flaws how can it be that PIL has become so fashionable in the EU? Answering this question brings one to consider the functions of PIL. If PIL is becoming a field of harmonization and truly, a field of expansion of the EU, it must be because it can perform specific functions, which are of importance for the EU.
    [Show full text]
  • Rome I and Rome II: a Handbook to Determine the Law Governing Contractual and Non-Contractual Obligations
    October 2010 Rome I and Rome II: A Handbook to Determine the Law Governing Contractual and Non-Contractual Obligations BY NORMAN PEPE Introduction This Client Alert aims to provide in-house counsel who are involved in international transactions with an overview of the recent uniform European conflict-of-law rules governing the process by which the law applicable to contractual and to non-contractual obligations is selected. Regulation (EC) No 864/2007 of 11 July 2007 applies to non-contractual obligations (the “Rome II Regulation”), and Regulation (EC) No 593/2008 of 17 June 2008 applies to contractual obligations (the “Rome I Regulation” and, together with the Rome II Regulation, the “Rome Regulations”)1. By way of background, whilst the Rome I Regulation has reformed and replaced the 1980 Convention on the Law Applicable to Contractual Obligations (the “Rome Convention”) in the Member States of the European Union2, uniform regulations detailing the governing law for non-contractual obligations (such as the Rome II Regulation) is an absolute novelty for European countries. Given that the origins of both Rome Regulations may be traced back to the Rome Convention, this Client Alert also intends to highlight the main innovations in this recent legislation as distinguished from the Rome Convention. Due to their self-executing nature, the Rome Regulations3 can be seen as a single set of uniform rules which apply directly to Member States and replace their domestic law and which cover certain types of contractual, non-contractual, and pre-contractual obligations in those situations where there is a conflict of law4.
    [Show full text]
  • The Rome II Regulation De Boer, T.M
    UvA-DARE (Digital Academic Repository) The purpose of uniform choice-of law rules: the Rome II Regulation de Boer, T.M. DOI 10.1017/S0165070X09002952 Publication date 2009 Document Version Final published version Published in Netherlands International Law Review Link to publication Citation for published version (APA): de Boer, T. M. (2009). The purpose of uniform choice-of law rules: the Rome II Regulation. Netherlands International Law Review, 56(3), 295-332. https://doi.org/10.1017/S0165070X09002952 General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) Download date:25 Sep 2021 NILR 2009 295 THE PURPOSE OF UNIFORM CHOICE-OF-LAW RULES: THE ROME II REGULATION by Th.M. de Boer* 1. Methodological background 2. A catalogue of objectives 3.
    [Show full text]
  • International Private Law Aspects and Dispute Settlement Related to Transnational Company Agreements
    International private law aspects and dispute settlement related to transnational company agreements Study on behalf of the European Commission VC/2009/017 Aukje van Hoek & Frank Hendrickx Main topics • Applicable law • Jurisdiction of the courts • Ius standi – standing in courts PIL Relevant instruments • Rome I Regulation: applicable law with regard to contracts • Rome II Regulation: applicable law with regard to non-contractual obligations • Brussels I Regulation: international jurisdiction in civil and commercial matters • Do they apply? Characterisation issues • Binding • Civil and Commercial • Contract • NB limited relevance of national law – autonomous interpretation Characterisation: conclusions • Brussels I applies, as do Rome I and II • Relationships between management and workers’ representatives is (largely) ‘contractual’ • Relationship with third parties (consumers, competitors) characterised independently, could be non-contractual Applicable law: Rome I Parties to the TCA • Central (European) management • Local subsidiaries • International and/or European trade unions • National (federations of) trade unions • (E)WC’s • Agency/mandate third party relations NOT covered by Rome I! Applicable law: Rome I • Article 3: party autonomy – choice of law by the parties – Non-national systems of law – CFR – Depecage • Article 4: applicable law in absence of a choice by the parties – Characteristic obligation (Article 4 sub 2) – Closest connection • As a default (Article 4 sub 4) • As an exception (Article 4 sub 3) Conclusions • Party
    [Show full text]