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Rome Regulations Rome Regulations Commentary Second Edition Edited by Gralf-Peter Calliess Published by: Kluwer Law International PO Box 316 2400 AH Alphen aan den Rijn The Netherlands Website: www.kluwerlaw.com Sold and distributed in North, Central and South America by: Aspen Publishers, Inc. 7201 McKinney Circle Frederick, MD 21704 United States of America Email: [email protected] Sold and distributed in all other countries by: Turpin Distribution Services Ltd Stratton Business Park Pegasus Drive, Biggleswade Bedfordshire SG18 8TQ United Kingdom Email: [email protected] Printed on acid-free paper. ISBN 978-90-411-4754-7 © 2015 Kluwer Law International BV, The Netherlands All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without written permission from the publisher. Permission to use this content must be obtained from the copyright owner. Please apply to: Permissions Department, Wolters Kluwer Legal, 76 Ninth Avenue, 7th Floor, New York, NY 10011-5201, USA. Email: [email protected] Printed and Bound by CPI Group (UK) Ltd, Croydon, CR0 4YY. Suggested citation: Gebauer, Art. 4 Rome I, in Calliess (ed.) Rome Regulations (2nd. ed 2015), mn. 5 ARTICLE 12 SCOPE OF THE LAW APPLICABLE (1) The law applicable to a contract by virtue of this Regulation shall govern in particular: Rome I (a) interpretation; (b) performance; (c) within the limits of the powers conferred on the court by its procedural law, the consequences of a total or partial breach of obligations, including the assessment of damages in so far as it is governed by rules of law; (d) the various ways of extinguishing obligations, and prescription and limita- tion of actions; (e) the consequences of nullity of the contract. (2) In relation to the manner of performance and the steps to be taken in the event of defective performance, regard shall be had to the law of the country in which performance takes place. Overview I. Purpose II. Scope of Application III. Legislative History IV. Content 1. Paragraph 1: Applicable Law 2. Paragraph 2: Manner of Performance of Obligations I. Purpose The purpose of Article 12 is to define the sphere of the applicable law under the 1 Rome 1 I Regulation. That law shall govern, in particular, interpretation, performance, the consequences of breach, extinction of obligations and the consequences of nullity of contracts. For those matters, the same law will be applicable as for its existence and validity (cf. Article 10). This is to create a uniform lex contractus.1 Article 12(2) is a special rule that relates solely to the manner of performance and the 2 steps to be taken in the event of defective performance. It complements the regulation of the performance of a contract in paragraph 1(b) and allows a severance (dépeçage) with regard to the law of the real place of performance. The purpose of paragraph 2 is 1. Magnus, Art. 12 Rom I-VO, in Staudingers Kommentar zum Bürgerlichen Gesetzbuch (Magnus ed., revised edition 2011), para. 2 (Prinzip des einheitlichen Vertragsstatuts); Spellenberg, Art. 12 Rom I-VO, in Münchener Kommentar zum BGB Vol. 10 (Säcker and Rixecker eds, 6th ed. 2015), para. 3; Ferrari, Art. 12 Rom I-VO, in Kommentar zum Internationalen Vertragsrecht (Ferrari et al. eds, 2nd ed. 2012), para. 1; Rauscher/Freitag, EuZPR/EuIPR (Rauscher ed., 2011) Art. 12 para 1. Schulze 307 Rome I Article 12 Scope of the Law Applicable Rome I to avoid conflicts between the law applicable to the contract and the law of the country where the performance takes place. This special provision of private international law is not a conflict-of-laws rule in the classical sense but may have similar results (‘regard shall be had to the law’) (see mn. 33–35). II. Scope of Application 3 The Rome I Regulation gives no definition either for the contract or for the terms listed in paragraph 1. That list of terms is not exhaustive as it is indicated by the words ‘in particular’ (paragraph 1). Under the Rome I Regulation, it is necessary to apply a uniform meaning of these notions as the scope of application is equal for all Member States.2 For the understanding of Article 12, reference will be made to the definitions for the European Private Law set out in the Draft Common Frame of Reference (DCFR).3 One of its politically accepted functions is to be an instrument for the development of a coherent terminology.4 4 Thus, Article 12 covers every type of contract that is qualified to be a contract under the Regulation. That means an agreement intended to create obligations in a binding legal relationship or to have some other legal effect. The contract can be a bilateral or a multilateral one5 and may be valid or not.6 Unilateral acts as well as the conduct of 2. Cf. Lehmann, Der Anwendungsbereich der Rom I Verordnung – Vertragsbegriff und vorvertra- gliche Rechtsverhältnisse, in Ein neues Vertragsrecht für Europa – Der Vorschlag für eine Rom I-Verordnung (Ferrari and Leible eds, 2007), 17, 20; already to the Rome Convention Plender/Wilderspin, The Rome Convention on the Choice of Law for Contracts (2nd ed. 2001), 10–02; other opinion Kaye, The New PIL of Contract of the European Community (1993), 273 (lex fori). 3. Principles, Definitions and Model Rules of European Private Law, Draft Common Frame of Reference (DCFR), Interim Outline Edition (von Bar, Clive and Schulte-Nölke eds, 2008), Book II, 183 et seq. 4. See for the political progress Council 2 December 2009, Doc. 17024/09, Annex: The Stockholm Programme, 33, 3.4.2: The European Council reaffirms that the common frame of reference for European contract law should be a non-binding set of fundamental principles, definitions and model rules to be used by the lawmakers at Union level to ensure greater coherence and quality in the lawmaking process; cf. further the Second Progress Report from the Commission on The Common Frame of Reference, COM(2007) 447 final: ‘CFR is intended to be a ‘toolbox’ or a handbook for the Commission and the EU legislator to be used when revising existing and preparing new legislation in the area of contract law … The Commission considers the CFR a better regulation instrument … with the purpose of ensuring consistency and good quality of EU legislation in the area of contract law. It would be used to provide clear definitions of legal terms, fundamental principles and coherent modern rules’; see also Zoll, The Draft Common Frame of Reference as an Instrument of the Autonomous Qualification in the Context of the Rome I Regulation, in Rome I Regulation – The Law Applicable to Contractual Obligations in Europe (Ferrari and Leible eds, 2009), 17 et seq. 5. For that definition see Art. II.–1: 101 DCFR Outline Edition, 183 and Annex, Definitions: Contract, 549; for a similar functional definition see Lehmann, Anwendungsbereich, 17, 28 et seq. 6. Magnus, Art. 12 Rom I-VO, in Staudingers Kommentar, paras 10 and 77; Spellenberg, Art. 12 Rom I-VO, in Münchener Kommentar, para. 161. 308 Schulze Scope of the Law Applicable Article 12 Rome I a party to the contract will also be included to the extent that they have a relevant relation to the contract.7 The liability for faults in the pre-contractual time phase (culpa in contrahendo) is 5 8 qualified as a matter of non-contractual liability. Recital 10 clarifies that these Rome I questions are covered by the Rome II Regulation and therefore fall out of the scope of the Rome I Regulation. Thus, Recital 10 reads as follows: Obligations arising out of dealings prior of the conclusion of the contract are covered by Article 12 of Regulation (EC) No 864/2007. Such obligations should therefore be excluded from the scope of this Regulation. The scope of Article 12 also covers choice-of-law clauses. As the Giuliano-Lagarde 6 report for the Rome Convention notes,9 the word ‘term’ shall cover cases in which there is a dispute about the validity of a term of the contract, such as a choice-of-law clause. Hence, the applicable law also dictates the interpretation and effects of such a clause. Only the questions as to whether there is a choice of law and which law is chosen by the parties are to be answered by the law of the forum.10 Where the applicable law is severable under Article 3, the law governing the obligation upon which the plaintiff’s action is based must be taken to be the one that is applicable according to Article 12(1). If two claims are involved and if these are subject to separate applicable laws, it is possible to proceed only with those that are not time-barred according to the relevant applicable law.11 Article 12 does not govern the matters of consent and material validity covered by 7 Article 10.12 Article 1(2) lists matters that are excluded from the scope of the Regulation. Because 8 Article 12 does not govern these aspects – namely the question of legal and contractual representation (Article 1(2)(g)) and capacity (Article 1(2)(a) and (f)) – the status of legal capacity of the contractual partners, either of individuals or of companies and other bodies, will be excluded from the scope of application. These questions concern the consequences of a lack of capacity and must be answered by the proper conflict- of-laws rules of the forum.13 Article 13 of the Regulation gives a single exception clause 7.
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