Proskauer Rose International Practice Guide Proskauer Rose LLP |
      Proskauer on International Litigation and Arbitration:
       Managing, Resolving, and Avoiding Cross-Border Business or Regulatory Disputes
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C. Codification and Harmonization of Conflict of Laws Principles

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  1. On July 4, 2008 and January 1, 2009, respectively, the European Union introduced two important regulations harmonizing and clarifying the conflict of laws principles applicable in Europe: the Rome I Regulation on the Law Applicable to Contractual Obligations, and the Rome II Regulation on the Law Applicable to Non-Contractual Obligations.
  2. The Rome II Regulation replaces the national patchwork of conflict of laws rules currently applied by the various Member States with a harmonized set of regulations. Rome II governs cross-border non-contractual (e.g. tort) claims not exceeding €2,000 and started to run as of December 17, 2008.
  3. The Rome I Regulation effectively modifies and supplants the contractual conflict of laws rules contained in the 1980 Rome Convention, providing important clarifications and bringing several of the rules up to date.  Rome I is based on the principle of party autonomy, and respects the choice of law that the parties to a contract make.  Among the principal contributions of Rome I are the following:

(a) Parties may choose any law, including laws with only a minimal connection to the contract, regardless of whether the chosen law is that of an EU Member State.

(b) However, if the parties have not chosen a law applicable to their contract in accordance with Article 3 of Rome I, the law governing the contract will be determined following the rules set out in Article 4, and will depend on the parties to and the substance of the contract.

(c) In contrast to the vague notion contained in Article 7 of the Rome Convention of 1980, Article 9 of the Rome I Regulation provides the following definition of "overriding mandatory laws" ("lois de police" in French): "provisions the respect for which is regarded as crucial by a country for safeguarding its public interests, such as its political, social or economic organization, to such an extent that they are applicable to any situation falling within their scope, irrespective of the law otherwise applicable to the contract under this Regulation."

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