KM555 QMUL LLM Dissertation Final

LLM Candidate number: KM555
LLM, Queen Mary, University of London, 2009-2010
EU Regulation 'Rome I' as a step forward in the
Europeanization of conflict of laws
Supervisor: Ms Catharine MacMillan

2
TABLE OF CONTENTS
Introduction ..............................................................................................................................3
Chapter 1: The development of the legislative competence of the European Union on
measures promoting the harmonization of conflict of laws .......................................................6
1.1: The intergovernmental phase..........................................................................................6
1.2: The Treaty of Amsterdam ...............................................................................................9
1.3: The Treaty of Lisbon.....................................................................................................15
Chapter 2: The specific role of conflicts rules within the EU Private International Law and
the need for their harmonization...............................................................................................18
2.1: The operation of conflicts rules ....................................................................................19
2.2: Some reflections on practical application of conflicts rules and the principle of
uniformity of decision..........................................................................................................21
2.3: Conclusion on the aims of Europeanization of conflict of laws...................................25
Chapter 3: Analysis of the most relevant provisions of Regulation Rome I...........................26
3.1: Rome I, article 3 – freedom of choice ..........................................................................27
3.2: Rome I, article 4 – applicable law in the absence of choice.........................................29
3.3: Rome I, article 6 – consumers contracts.......................................................................35
3.4: Rome I, art. 7 – insurance contracts .............................................................................37
3.5: Other amendments to the Rome Convention................................................................41
3.6: Proposals of the Commission that were not adopted in the final text ..........................44
Conclusion...............................................................................................................................47

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Introduction
EC Regulation 593/2008 on the law applicable to contractual obligations (‘Rome I’) entered
into force on 17th
December 2009, replacing in the Member States of the European Union the
1980 Rome Convention on the same matter. This change is only the most recent step of a long
process of Europeanization (or communitarization) of conflicts of laws, which began with the
original Treaty of Rome of 1957, had its turning point in the provisions of the Treaty of
Amsterdam in 1997 and now shows even further improvements in the Treaty of Lisbon in
2007. This paper aims to explain what objectives are promoted by the European authorities in
the enactment of instruments of private international law and to assess whether the provisions
of Rome I, in comparison to the previous text of the Rome Convention, are a successful
contribution to this process and, thus, an improvement of the judicial cooperation inside the
EU.
Private international law (hereinafter referred to also as ‘PIL’) greatly evolved in Europe
during the last fifty years, because of the closer judicial cooperation in civil and commercial
matters in which Member States have progressively engaged. Indeed, one can clearly see a
long and relentless process by which European authorities have gained more and more power
to legislate in this field and to decide what policies govern PIL rules. As it will be explained in
chapter one, the original Treaty of Rome did not envisage harmonization or unification of PIL
rules, nor did the Treaty of Maastricht in 1992. However, this latter declared that the “judicial
cooperation in civil matters” was a matter of common interest of Member States, since it
facilitated the achievement of the objectives of the Union, mainly the free movement of
persons. Only the Treaty of Amsterdam, that moved the whole matter from the third pillar (the
action of the European Union) to the first pillar, introduced a specific competence of the
European Community to legislate in the field of private international law. Nowadays, the
legislative power is left to the European Union, since, with the Treaty of Lisbon, the European

4
Community has ceased to exist as such starting from December 2009.
We will also examine what the main reason is for shifting the competence in the field of
private international law from the Member States to the European Community. A
fundamental factor can be identified in the relation created by the Amsterdam treaty between
the adoption of measures in the field of judicial cooperation in civil matters and the proper
functioning of the internal market (Article 65 EC Treaty). Private international law has
become, at least in part, a tool for the development of the internal market and it is considered
as a means to remove the barriers to the movement of persons that different laws and different
choice-of-law rules can create inside the European Community. The link between private
international law and the goal to develop the internal market has since then characterized the
following evolution of the matter, establishing the leading public policies underlying rules and
their application and interpretation by the European Court of Justice.
In this context, the harmonization of conflicts rules pursues specific aims. It will be seen that
the European Commission holds that a uniform regulation of choice-of-law rules within the
EU not only complements the system of mutual recognition of foreign judgments, but also
helps, inter alia, to increase legal certainty and uniformity of decision within the Courts of the
Member States; this, in turn, should reduce forum shopping.
This paper assesses whether the new Rome I regulation is able to achieve these goals in a
more effective manner than the Rome Convention. It does not address some different but
related issues, such as the criticism about the conception of private international law as a mere
instrument for the realization of the internal market, subordinated to European Law and its
Community-driven policies and, second, the ongoing debate on a European ‘choice-of-law
revolution’, as compared to the American one.
The introduction of Rome I has been praised as a positive improvement of the previous

5
regime. On one side, it will be seen what advantages the transfer of conflicts rules in the field
of contractual obligations has from an international convention into a European regulation. On
the other side, specific rules introduced by the Regulation, both as amendments of the old text
or as complete innovations, have been welcomed by some commentators for being more
comprehensive (for instance, Article 7 on insurance contracts) and clearer (for instance,
Article 4 on the law applicable in absence of choice by the parties) than the ones of the Rome
Convention. It seems from these comments that the principal objectives of the action of the
EU in the field of PIL has been accomplished.
However, Rome I rules have been criticized by other authors, who deem them too rigid
(Article 4) or unnecessarily complex (Article 7) and these opinions raise questions about the
capacity of the new provisions to achieve the goals sought, as it will be seen in chapter three.
Others also criticize the outcome of the negotiations of the final text for not implementing
some original solutions first included in the proposal of the Commission.
There is then a large number of issues worth discussing. We will first give an account of the
history of the Europeanization of conflicts rule within the developments of the judicial
cooperation in civil and commercial matters in the European Union. Part II of the paper will
analyze the specific role of conflict of laws rules and discuss the reasons and the aims of their
harmonization. It will then be possible in the third part to examine the text of Rome I, in order
to evaluate how it differs from Rome Convention. The paper concludes by summarizing
achievements and drawbacks discussed previously, in order to examine the ability of Rome I
to be an effective cornerstone of European private international law.

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CHAPTER 1
The development of the legislative competence of the European Union on
measures promoting the harmonization of conflict of laws
The analysis of the Regulation Rome I1
(hereinafter, ‘Rome I’ or ‘the Regulation’) needs to be
put into the context of the developments occurred in the field of European private
international law due to the progressive expansion of judicial cooperation between Member
States. An account will be given of the history of this process and its reasons, focusing the
attention on the area of PIL concerning choice-of-law rules, as opposed to those regarding
jurisdiction, recognition and enforcement of judgments.
1.1 The intergovernmental phase
The original EC treaty of Rome of 19572
did not provide any direct reference to private
international law nor a specific competence of the European Community in this field3
.
Nonetheless, the founding Member States acknowledged the importance of an easier
circulation of judgments for the achievement of the Community objectives and, accordingly,
they agreed that Member States should enter into negotiations of legal instruments regarding
“the simplification of formalities governing the reciprocal recognition and enforcement of
judgments of courts or tribunals and of arbitration awards” (Article 220 fourth indent Treaty
of Rome4
).
As a result, the European Community did not have any competence on harmonization or
1
Regulation (EC) 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law
applicable to contractual obligations, [2008] OJ L 177/6.
2
Treaty Establishing the European Economic Community, done at Rome on 25 March 1957, 298 UNTS 11 (EC
Treaty).
3
Jürgen Basedow, ‘The Communitarization of the Conflict of Laws under the Treaty of Amsterdam’ (2000) 37
CMLR 687.
4
Later this article was renumbered 293 by the Treaty of Amsterdam and finally repealed by the Treaty of Lisbon,
see para 1.3.

7
unification of conflicts law, which was left to intergovernmental negotiations of Member
States. Therefore, until 1993 (the year in which the Maastricht Treaty entered into force), the
two main instruments in the field of European private international law were the Brussels
Convention on jurisdiction and the enforcement of judgments in civil and commercial matters
(1968)5
and the Rome Convention on the law applicable to contractual obligations (1980)6
.
Both these instruments were international conventions adopted by Member States exercising
their sovereign powers, and only the former was negotiated on the basis of Article 2207
. The
European authorities did not intervene on the negotiations of the Convention of Rome, which
was not formally based on a European treaty provision.
This approach of leaving to national governments the development of PIL instruments had
few drawbacks, as pointed out by Basedow8
. The first of them was the need to modify and
ratify the text of the Conventions in occasion of every accession of a new State to the
European Community; the expansion of the rules was “time-consuming”9
, particularly
considering the number of new Member States which have acceded the European Community
from its creation up to now10
.
Another disadvantage of the intergovernmental method was that was premised on the idea that
the national States are the primary source of private substantive law, without taking into
account that more and more substantive provisions have their source in a Community
5
[1998] OJ C27/1 (consolidated version).
6
[1998] OJ C27/34 (consolidated version).
7
The negotiation achieved a success even beyond the Treaty provision, since the Convention provided for direct
rules of jurisdiction and not only for the simplification of formalities governing the reciprocal recognition and
enforcement of judgments, as in art. 220 of the EC Treaty, see Olivier Remien, ‘European Private International
Law, the European Community and its Emerging Area of Freedom, Security and Justice’ (2001) 38 CMLR 53.
8
Basedow (n 3) 688.
9
Ibid.
10
The Member States were six in 1951; they respectively became nine in 1973, ten in 1981, twelve in 1986,
fifteen in 1995, twenty-five in 2004 and eventually twenty-seven in 2007.

8
instrument11
. For instance, under the Rome Convention, in a transnational intra-community
contract it was possible to avoid the laws of any Member State, enacting the directive on
unfair terms in consumer contracts12
simply by choosing the law of a third state under Article
3 of the Rome Convention: indeed, Article 3 par. 3 applies only in internal cases and not to
transboundary contracts. It is true that this problem has been dealt with by a specific conflicts
rule inserted in the consumer directive itself, aimed to invalidate the choice of a law of a non-
member country when the contract has a “close connection” with the territory of the Member
States13
; however, the directive has to be implemented in the Member State to be effective
within private parties. It will be seen later that this particular problem has been solved thanks
to the introduction of a specific rule in Article 3.4 of Rome I14
.
In 1992 the Treaty on European Union (TEU) or Treaty of Maastricht15
, along with the
creation of the European Union, introduced for the first time an explicit reference to private
international law, even though the related competence in this field was provided for in the
third of the three ‘pillars’ forming the European institutions. In other words, it was still a
matter of inter-governmental competence of the Member States and not yet of the European
Community (the first pillar)16
. Title VI of the Treaty established provisions on “cooperation
in the fields of justice and home affairs” and Article K in particular first mentioned “judicial
cooperation in civil matters” as an area of common interest in order to achieve the objectives
of the Union, in particular the free movement of persons. In practice, the cooperation should
have consisted in information and consultations within the Council, in order to coordinate the
action of Member States, and in some powers of the Council itself to adopt joint positions and
11
Basedow (n 3) 688.
12
Council Directive 93/13/EEC, [1993] OJ L95/29.
13
Directive 93/13 art. 6.2.
14
See infra para 3.1.
15
Treaty on European Union, done at Maastricht on 7 February 1992, [1992] OJ C191/1.
16
Aude Fiorini, ‘The Evolution of European Private International Law’, (2008) 57 ICLQ 969.

9
joint actions and to draw up conventions to recommend to the Member States for adoption
(Article K 3).
In the end, these provisions did not introduce any substantial innovation in the field17
, because
they still presumed that international conventions were the exclusive instrument of legislation
on private international law; however, they were the first to consider the action concerning
judicial cooperation within Member States as a means to improve the free movement of
persons, creating the basis for the development of the European competence in PIL.
1.2 The Treaty of Amsterdam
The biggest modernization came in 1997 with the Treaty of Amsterdam18
. The competence to
adopt measures in the field of judicial cooperation in civil matters was transferred from the
third pillar (the European Union) to the first pillar (European Community); in particular, this
legislative power was granted to the Council “in order to establish progressively an area of
freedom, security and justice” (Article 61 EC Treaty, now 67 of the Treaty on the Functioning
of the European Union, TFEU). The boundaries of this competence were determined both by
the position of Article 61 and 65 (now 81 TFEU) EC treaty in the title IV, named “Visas,
asylum, immigration and other policies related to free movement of persons”, and by the
requirements found in article 65 itself:
Measures in the field of judicial cooperation in civil matters having cross-border
implications, to be taken in accordance with Article 67 and in so far as necessary for
the proper functioning of the internal market, shall include:
(a) improving and simplifying:
— the system for cross-border service of judicial and extrajudicial documents,
— cooperation in the taking of evidence,
— the recognition and enforcement of decisions in civil and commercial cases,
17
The only Convention adopted under the then art. K 3 (Brussels II Convention on jurisdiction and the
recognition of judgments in matrimonial matters) is not even entered into force; see Basedow (n 3) 691. Now, in
line with the Europeanization of private international law, this matter is governed by EC Regulation 2201/2003,
the so-called ‘Brussels II’ regulation, see n 56.
18
1997 OJ C340/1.

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including decisions in extrajudicial cases;
(b) promoting the compatibility of the rules applicable in the Member States
concerning the conflict of laws and of jurisdiction;
(c) eliminating obstacles to the good functioning of civil proceedings, if necessary by
promoting the compatibility of the rules on civil procedure applicable in the Member
States. [emphasis added]
Art 65 provides that action in the field of judicial cooperation in civil matters should be taken
“in so far as necessary for the proper functioning of the internal market”. This constitutes a
fundamental acknowledgement of the role of private international law for the fulfillment of
the Community internal market objective, as pointed out by Meeusen19
. The concept
underlying this rule is that the diversity of rules concerning, for example, the conflict of laws
in the ever growing Community of Member States means that the same legal situation (a
contract of sale as well as a matter of family law) might be governed by different laws
depending on the State whose conflicts rule are considered. In one State the applicable law
may be more favorable for the claimant, whereas in another one the advantage may be on the
respondent. The same concern exists in regard to the differences in the rules on recognition
and enforcement of foreign decisions. This lack of uniformity represents a barrier to the free
movement of persons, which is likely to delay or hamper the creation of the internal market.
Consequently, the free movement of persons is boosted when these barriers fall or, at least, are
reduced20
, and this result can be achieved depriving progressively the Member States of their
competence in the field and granting it to European authorities.
So far, the interpretation given to Article 65 has been very wide, so that many harmonizing
provisions concerning private international law have been taken on this legal basis21
. The
requirement of the necessity of the measure for the correct functioning of the internal market
19
Johan Meeusen, ‘Instrumentalisation of Private International Law in the European Union: Towards a European
Conflicts Revolution?’ (2007) 9 E.J.M.L. 287.
20
Ibid; See ch 3.
21
Meeusen (n 19) 290. See n 56 for a non comprehensive list of secondary legislation based on art. 65.

11
is not restricting the Community legislative powers, since the free movement of persons,
which is the basic goal for every measure taken under title IV is also one of the elements
which must be ensured within the internal market (Article 14 EC treaty, now Article 26
TFEU)22
.
It is worth adding few other remarks on the circumstances in which the EC may act in the
field of PIL. First, the list contained in Article 65 is not exhaustive23
. On the other hand, the
whole subject matter was transferred to the European Community, and Article 293 fourth
indent (former Article 220) remained to govern other areas of intervention not related to civil
matters24
. Further, at least as par. (b) is concerned, to require cross-border implications for the
measures to be adopted is naturally compatible with conflicts rules, which by definition
operate when there are foreign elements25
.
The form which these ‘measures’ should take is not specified, so all the types listed in Article
249 EC treaty (now Article 288 TFEU) can be used; the biggest developments in the field of
PIL (and Rome I is within them) have been promoted through regulations26
, a form which has
general application, is binding in its entirety and directly applicable in all Member States
(Article 288 TFEU), similarly to international conventions27
. This may seem in contrast with
the wording of Article 65 (b) EC treaty, which makes reference to the promotion of
compatibility and not to unification of rules concerning the conflict of laws and jurisdiction,
but the Community experience in this field leads clearly in the direction of establishing
22
Basedow (n 3) 701.
23
Basedow (n 3) 700, who bases this assumption on the use of the word ‘include’ in the first paragraph of art.
65.
24
Ibid.
25
Remien (n 7) 74.
26
Fiorini (n 16) 974.
27
Basedow (n 3) 706.

12
uniform rules28
. Further, regulations do not have to be implemented in each Member State and
immediately become part of the “acquis communautaire”29
.
Moving the legislative competence on private international law within the European
Community has also solved the question of absence of inherent jurisdiction of the Court of
Justice of the European Union (ECJ) on international Conventions entered into by Member
States30
. While, indeed, special Protocols were signed to confer jurisdiction to the ECJ to give
rulings on the interpretation of the Brussels and the Rome Conventions31
, the Community
competence on the matter resulted in the ECJ having direct jurisdiction on it. In this regard,
however, according to Article 68 EC treaty, only courts or tribunals of final appeal could ask
the ECJ to take decisions in the field of private international law, so reducing considerably
said power of interpretation32
.
It is also to be reminded that, before the innovations of the Treaty of Amsterdam, the
European Community did implement conflicts rules33
, in particular in the context of some
directives enacted on the basis of art 95 EC treaty, now 114 TFEU. However, the practice of
28
Remien (n 7) 77.
29
See Ole Lando and Peter Arnt Nielsen, ‘The Rome I Regulation’ (2008) 45 CMLR 1687. It is worth to note
that since the Treaty of Amsterdam United Kingdom, Ireland and Denmark signed two protocols to the Treaty
which have the effect of excluding them from the measures generally taken in accordance to Title IV (art. 69 EC
treaty). There is, however, an opt-in possibility for the UK and for Ireland, which so far has always been
exercised in relation to Community measures on private international law (including Rome I), see n 79.
30
Fiorini (n 16) 972.
31
Protocol on the interpretation by the Court of Justice of the [Brussels] Convention (consolidated version),
[1998] OJ C27/28; Protocol on the interpretation by the Court of Justice of the European Communities of the
[Rome] Convention (consolidated version), 1998 OJ C27/47, entered into force on 10.08.2004.
32
Fiorini (n 16) 973; Koen Lenaerts, ‘The contribution of the European Court of Justice to the area of Freedom,
security and justice’ (2010) 59 ICLQ 255, 263. As a result, while a preliminary ruling could be asked by an
appellate court with regard to the 1968 Brussels Convention, the same court could not ask a ruling under the
Brussels I Regulation 44/2001. See par. 1.3 for the amendments brought about in this respect by the treaty of
Lisbon.
33
Fiorini (n 16) 969; Meeusen (n 19) 288.

13
these provisions, that mostly aimed either to prevent the choice by the parties of a law of a
non-member State (as in the consumers’ directive34
) or to define the scope of European PIL
provisions (as in the insurance directive35
), was unsatisfactory because the rules were
distributed in different instruments of secondary Community law and could not form a unique
and coherent body of law36
. In chapter four it will be seen how Regulation Rome I tackled the
problem of incoherence of sources of conflicts rules in relation to insurance contracts with the
insertion of a provision (Article 7), which is intended to substitute the previous regime.
In conclusion, the main feature of Article 65 of EC treaty is the acknowledgment that
difference among rules of conflict of laws of Member States may affect the free movement of
persons and thus the growth of the internal market. The European Community, then, gains full
competence on legislating on the matter of private international law37
, with the aim to remove
those legal barriers, increase legal certainty and efficiency and prevent discrimination38
.
Following the new powers granted by the Amsterdam Treaty, the Commission and the
Council identified the priorities in the action aimed to achieve a stronger judicial cooperation
in civil matters between Member States. The 1998 Vienna Action Plan39
, recognizing legal
certainty and equal access to justice as main objectives of the intervention, affirmed the need
of “identification of the competent jurisdiction, clear designation of the applicable law,
availability of speedy and fair proceedings and effective enforcement procedures” [emphasis
34
Eg Council directive 93/13/EEC, [1993] OJ L95/29.
35
Eg Second Council directive 88/357/EEC, [1988] OJ L172/1.
36
Fiorini (n 16) 972. Remien (n 7) 59 also describes situation of choice-of-law rules in the insurance directives
as a “chaotic amalgam of approximation and diversity” and express doubts about “appropriateness of the rules”
in relation to consumer contract directives. In the same sense see Green Paper on Rome I (n 78) 17.
37
Basedow (n 3) 701.
38
Fiorini (n 16) 974.
39
Action Plan of the Council and the Commission on how best to implement the provisions of the Treaty of
Amsterdam on an area of freedom, security and justice, [1999] OJ C19/1.

14
added]. It is interesting to note that the Plan expressly called for a “revision, where necessary,
of certain provisions of the Convention on the Law applicable to contractual obligations,
taking into account special provisions on conflict of law rules in other Community
instruments (Rome I)”, so stressing the importance of the choice-of-law matter for the
achievements of the goals of the Plan and, indirectly, recognizing the inadequacy of the then
current regime.
Europeanization of conflicts rule is connected also to a further key principle, the mutual
recognition of judicial decisions in civil matters, which was recognized at the Tampere
European Council of 15th
and 16th
October 1999 (it had not even been mentioned, however, in
the Vienna Action Plan). The concept is based on the assumption that the sound operation of
the internal market can be hampered by the differences between national rules governing
recognition and enforcement of foreign judgments40
. Therefore, each Member State should
recognize judicial decisions and judgments coming from other states without any special
procedure being required and without having regard to the substance of the case. This entails
that judgments which have been rendered according to the applicable national procedural
rules would circulate freely throughout the Union, regardless of whether their substantive
outcome is different from the one that would have been reached in other Member States, with
the only limited exception of public policy issues. Mutual recognition operates also as a
“substitute mechanism” in those cases where the harmonization of substantive law is
inconvenient or too difficult41
. This approach, then, focus on the freedom of movement within
the EU, almost irrespectively of the substantial outcome of the decisions and, remarkably, of
the choice-of-law rules applied to reach them.
According to the Tampere conclusions, mutual recognition became the “cornerstone of
40
For this terminology see Reg. 44/2001 (Bruxelles I) [2001] OJ L 12/1.
41
Meeusen (n 19) 301.

15
judicial co-operation in both civil and criminal matters within the Union” and, therefore, the
importance given to conflicts rules by the Community legislator has been reduced42
. The
subsidiary position of the measures relating to harmonization of conflict-of-law rules in
respect of the mutual recognition has been clarified in the programme that the Council
adopted to implement this principle43
. Harmonization of choice-of-law rules is deemed to
“help facilitate the mutual recognition of judgments” in civil and commercial matters and
accordingly is considered “ancillary” to instruments on jurisdiction, recognition and
enforcement of judgments.
Nonetheless, development of European unified conflicts rule has never ceased, nor it seems
than that the European authorities have dismissed the importance of the subject. Indeed, five
years after the European Council's meeting in Tampere, a new multi-annual programme
(known as the Hague Programme)44
was adopted, which pushed for the work concerning the
conflict of laws regarding contractual (‘Rome I’) and non-contractual obligations (‘Rome II’)
to be actively pursued45
.
1.3 The Treaty of Lisbon
The entry into force of the Reform treaty (or Treaty of Lisbon46
) in December 2009 put
forward some formal and substantial changes to the legislative competence of the EU in the
field. Articles 61 and 65 EC Treaty become respectively 67 and 81 TFEU and were inserted in
42
Ibid.
43
Draft programme of measures for implementation of the principle of mutual recognition of decisions in civil
and commercial matters, [2001] OJ C12/1.
44
[2005] OJ C53/1.
45
Hague programme, para 3.4.2.
46
Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European
Community, signed at Lisbon, 13 December 2007, [2007] OJ C306/1. For the consolidated versions of the Treaty
on European Union (TEU) and the Treaty on the Functioning of the European Union (TFEU) see [2010] OJ
C83/1.

16
a Title V named “Area of freedom, security and justice”. The Union competence is now
expressly limited by the principle of “conferral” and is expressly shared with Member
States47
, which can take measures in this field only if the European Union has not exercised
its competence or has stopped exercising it. Moreover, principles of subsidiarity and
proportionality continue to govern the use of Union competences48
.
Besides this, the amendments, at least from a substantive point of view, have been considered
limited49
. The first and more evident is that judicial cooperation in civil matters having cross-
border implications has to be based on the principle of mutual recognition of judgments first
appeared in the Tampere Conclusions, so that this latter principle eventually acquires a Treaty
basis (Article 81 TFEU). Furthermore, measures to be taken within said cooperation do not
have to be necessary for the proper functioning of the internal market anymore50
and are
completely separated from the aim of free movement of persons. Also, Article 81 TFEU
provides a closed list of areas of potential action, as opposed to the one earlier provided by
Article 65 EC treaty. However, Fiorini argues that this latter provision had already been given
a wide interpretation and then a major “impetus to any further expansion in practice” is
unlikely51
.
An important change, though, has been introduced in the role of the ECJ. Article 68 EC
47
Article 5 (2) TEU clarifies that “Under the principle of conferral, the Union shall act only within the limits of
the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein.
Competences not conferred upon the Union in the Treaties remain with the Member States.”. According to Art. 4
TFEU, the area of freedom, security and justice constitutes a shared competence between the Union and the
Member States.
48
Art. 5 (3), (4) TEU.
49
Fiorini (n 16) 975.
50
The words “in so far as necessary for” in art 81 TFEU have been replaced by “particularly when necessary
for” the proper functioning of the internal market.
51
Fiorini (n 16) 977.

17
Treaty52
has been repealed, so that the whole matter of Title V of the TFEU falls within the
scope of Article 267 TFEU and any national court can now request a preliminary reference on
this matter53
. As a result, consistency of application and interpretation of European private
international law rules should improve54
.
In conclusion, the Union competence on European PIL is now based on a “slightly wider and
more (but not entirely) clearly defined” legal basis, even though the general coherence of the
field is reduced by the coexistence of Article 67 and 81 TFEU with the provision of Article
114 TFEU, which still allows to enact isolated PIL provisions55
.
52
See n 32.
53
Art. 267 TFEU (ex art. 234 EC Treaty); See Lenaerts (n 32) 265.
54
Fiorini (n 16) 978.
55
Ibid.

18
CHAPTER 2
The specific role of conflicts rules within the EU Private International
Law and the need for their harmonization
In the first chapter of this paper it was explained that the attribution of competence to the
European Community to legislate on private international law has led to a remarkable
expansion of instruments of harmonization of conflicts law in Europe, in particular in the last
ten years56
. I also described the advantages of this “communitarization” of the sources of PIL,
consisting mainly in the greater consistency in Community legislation in the field and in the
use of conflicts rules for the achievement of Community objectives, such as reducing legal
barriers to the free movement of persons in the internal market and supporting the mutual
recognition of judgments. Furthermore, uniform interpretation of the ECJ has been granted,
which shall guide national courts in the application of European PIL, so that they will share
more and more the same practical conflicts solutions, as it happened in respect of the ECJ
jurisprudence on the Bruxelles Convention and its successor, the Regulation 44/2001. It is in
this legislative process that the conversion of the Rome Convention into a EC Regulation
started in 200257
.
Apart from the issue of the benefits of Europeanization that are relevant on the ground of EU
law, a different and more general question arises about why conflict of laws rules should be
56
For this paper, the most relevant instruments enacted by the European Community in the field of private
international law within the judicial cooperation framework are: Reg. 44/2001 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters (Brussels I), [2001] OJ L12/1; Reg. 2201/2003 on
jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental
responsibility (Brussels II), [2003] OJ L338/1; Reg. 593/2008 (Rome I); Reg. 864/2007 on the law applicable to
non-contractual obligations (Rome II), [2007] OJ L199/40. The others concern either procedural matters or
cooperation between Member States. An updated list of these measures is available at
<http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_civil_matters/index_
en.htm> (last visited 01.08.2010).
57
See ch 3.

19
harmonized throughout the twenty-seven European Member States. In other words, it has to
be assessed what the specific goals of the harmonization process are, together with the
consequences for the practical application of these provision in the European courts. It is in
the light of these objectives that, in the next chapter, Regulation Rome I will be compared to
the Rome Convention, to show whether and how much these have been achieved.
2.1 The operation of conflicts rules
Choice-of-law provisions deal with the selection of the law applicable to a relation which
cannot be considered as a pure national case, because it contains one or more foreign elements
which are not connected to the legal order of one and the same State 58
. For instance, the
parties to a contract may be domiciled in different States, or the place of performance of the
obligations contained in the agreement may differ from that of the court before which the
claimant brought the case.
When such a situation occurs in a litigation proceedings before a judge of a Member State59
,
that judge will have to make use of the private international law rules of his or her
jurisdiction, in order to decide what law applies to the matter; the outcome, then, could be the
application of the lex fori, as well as of a foreign law.
When Member States apply divergent conflicts rules, based on different connecting factors, it
could happen that the same legal relation (for instance, a contract of sale) is thought to be
governed by two diverse laws, depending on the judge called to decide on the issue (and,
ultimately, on where the lawsuit has been brought first). For instance, one of them may
58
L Collins (ed), Dicey, Morris and Collins on the Conflict of Laws (London, Sweet & Maxwell, 14th edn,
2006), 3.
59
Arbitrators, instead, do not have to abide by the rules of Private International Law of the seat of arbitration, see
Julian Lew, Loukas Mistelis, Stefan Kröll, Comparative International Commercial Arbitration (Kluwer Law
International, The Hague 2003), 425.

20
provide for some implied warranties or for a particular method of assessment of damages not
present in the other60
.
This situation is held to have major drawbacks and, according to Remien, “is neither
comprehensible nor tolerable in an ‘area of freedom, security and justice’, as promised in
Article 61 EC”61
. It is argued indeed that the presence of divergent national choice-of-law
rules, which may vary and also be vague, reduces the legal security in the internal market62
,
because it makes more difficult to predict which law applies to a certain case, as well as its
final outcome. Furthermore, in the absence of clear and unified conflicts rules, uniformity of
judgments in the EU area becomes difficult to reach. This, in turn, can encourage forum
shopping, a practice that European Union has always tried to prevent63
. Last, as it was
explained above64
, the European Commission has considered the difference in choice-of-law
rules between Member States as a barrier to “the proper functioning of the internal market”.
One solution to minimize the problems described may be the adoption of a European Civil
Code or, in general, the harmonization of substantive private law in Europe. If Europe had a
unified Civil Code, there would not be the need of conflicts rules, except in relation to cases
regarding third countries. This process, though, is not achievable in the short term nor is it
necessary. It would also hardly respect the principle of subsidiarity65
.
60
For some examples of differing conflicts rules and their consequences, see Remien (n 7) 66 ff.
61
Remien (n 7) 60.
62
Ibid.
63
Forum shopping is the behaviour of someone involved in an international dispute to choose to bring a case in
front of a particular jurisdiction not because it is the most convenient place to hear the dispute, but only because
the applicable conflict of laws rules lead to the application of the law most advantageous for him (see Green
Paper on Rome I (n 78) 44.
64
See supra, ch 1.
65
Remien (n 7) 63 ff.

21
The harmonization of choice-of-law provisions, on the other side, is a method to raise legal
certainty in the internal market which is sufficient, effective and also coherent with the
principle of subsidiarity. For instance, with a unified choice-of-law rule on contracts, a breach
of a contractual obligation would be assessed according to the same law, regardless of the
jurisdiction in which the lawsuit took place. This should lead to uniformity of decision,
reduction of forum shopping, rise of mutual trust in the decision of the foreign judges, easier
mutual recognition of European judgments, as well as non-discrimination between Member
States66
. In addition, Europeanization of private international law can be said to simplify the
process of learning and applying conflicts rules in twenty-seven member states and is
eventually also proportionate to the objectives, since it often allows space for exceptions, such
as public policy or the application of the mandatory rules of the forum, and for later review of
the text of regulations.
2.2 Some reflections on practical application of conflicts rules and the
principle of uniformity of decision
It has been seen so far why and how the European authorities promote uniformity of decision
throughout Europe. It is worth remembering that the recital n. 6 of Regulation Rome I
acknowledges that identical conflict-of-law rules in the Member States which designate the
same national law are capable to improve not only the certainty as to the law applicable and
the free movement of judgments, but also the predictability of the outcome of litigation, which
is supposed to be the same irrespective of where the action is brought.
It must be recognized, though, that there are at least two major drawbacks in pursuing the goal
of uniformity of decision through the means of harmonized conflicts rules. This happens
because the concept that common choice-of-law rules lead to uniformity of judgments relies
on the assumption that judges are able to apply foreign law as they apply their domestic one,
66
Ibid.

22
in terms of knowledge and interpretation, but this may not always be true.
First, in some legal systems, as in the English one, foreign law is applied only when the
parties invoke it67
, while in others (like the Italian one) the application of foreign law is
automatic (ex officio) wherever the relevant conflicts rule points to it68
. This diversity has also
consequences on the way the foreign law is proved to the judge. In the English system, for
instance, the proof of foreign law is adversarial, which means that the parties have to supply
evidence of substance and application of foreign law to the judge, by means of experts
witnesses, since it is considered as a mere fact. In other jurisdictions, like Germany and Italy,
the treatment reserved to foreign law is equivalent to that of the lex fori, so that the judge is
deemed to know and apply it autonomously, even though the parties usually provide, for
instance, foreign lawyers’ affidavits in order to help him or her in the ascertainment of foreign
law’s content. In the English approach, then, there are major obstacles to uniformity of
judgments. First, since reliance upon foreign law is optional, often the lex fori (English law)
applies as the lex causae. Also, the use of an adversarial approach means that foreign law
enters into the process only as long as and in the manner in which the parties prove it. If the
evidence is insufficient or unclear, and the court has nonetheless to decide, its decision will be
likely to be different from the one of the foreign court of the state whose law is applied69
.
Second, Fentiman argues that the means of proof of foreign law has to be adequate, because
otherwise uniformity becomes a less viable goal when confronted with the reality of the
process; in this respect, one should consider that in any legal systems the act of applying
67
Ibid; see also Richard Fentiman, ‘Foreign law in English Courts’ (1992) 108 L.Q.R. 142. It has to be noted that
this approach is considered procedural and, according to art. 1.3 Rome I, excluded from the scope of the
regulation itself.
68
Remien (n 7) 78.
69
Richard Fentiman, ‘METHODS AND APPROACHES – choice of law in Europe: uniformity and integration’,
(2007-2008) 82 Tul.L.R 2021, 2032.

23
foreign law is difficult and uncertain, because it relies on the work of judges, experts and
lawyers70
. In practice, it may prove to be extremely difficult not only to know but also to
apply correctly the rules of a foreign country. In this respect, the 1968 London European
Convention on Information on Foreign Law71
provides that the State Parties exchange
information concerning their law and procedure in civil and commercial fields as well as on
their judicial system, by means of appointed national agencies, when problems of foreign law
arise during legal proceedings; however, this instrument has not been exploited so much in
practice72
. In this respect, Remien proposes that foreign law should always be considered “as
a law and not a mere fact” and suggests to introduce a ‘preliminary reference procedure’, by
which a Court may request to an equivalent court of the Member State whose law applies an
opinion on the content of the law, on the basis of the effective situation to be decided73
. Even
though this idea does not seem to have been further discussed by scholars, it confirms the
importance of a correct use of foreign law for the success of the conflicts rules. Concluding on
this point, citing Professor Ole Lando, Fentiman argues that without sufficient means of proof
of foreign law, the uniform choice-of-law rules of the EU cannot supply any real uniformity
and the conflict of laws becomes “a weak tool for legal integration”74
.
Many of the doubts about the feasibility of a complete uniformity of decision may be correct,
even though some reflections may be made that can reduce the impact that these arguments
have on the wider discussion on Europeanization of conflicts rules.
70
Ibid, 2033.
71
CETS n. 62, available at <http://conventions.coe.int>.
72
On the London Convention see Juliette Van Doorn, Barry J. Rodger, ‘Proof of foreign law: the impact of the
London Convention’ (1997) 46 ICLQ 151.
73
Remien (n 7) 79.
74
Fentiman (n 69) 2034.

24
In particular, on the one side the circumstance that, in the English jurisdiction, rules of foreign
law must be pleaded and proved in the same way as other facts and, consequently, their use is
optional, is a major obstacle. Nonetheless, this flaw seems to operate only in England and not
in other European countries, so its practical effect is reduced. Next, with regard to the
difficulties arising from the knowledge, application and interpretation of a foreign law, one
should take into consideration that the European Union authorities are aware of the
importance of an exchange of information on different legal systems for an effective judicial
cooperation between member States. Indeed, the European Parliament and the Council in
2007 set up a general programme called ‘Civil Justice’75
, aimed (inter alia) at improving
mutual knowledge of Member States’ legal and judicial systems in civil matters, to promote
and strengthen networking, mutual cooperation, exchange and dissemination of information
and finally to ensure the correct and concrete application of Community instruments in the
area of judicial cooperation in civil and commercial matters. This initiative can be seen as a
way to educate legal practitioners (as judges and lawyers) of the content of foreign laws, to
create contacts and to share knowledge between legal experts in different countries.
In addition, there may be some other advantages in looking for consistency of decision than
just reduce forum shopping or bring about legal certainty.
There is, for instance, a practical argument which takes into consideration the perspective of
commercial entities which conduct their business in the whole territory of the European
Union. For them, litigation in a foreign jurisdiction can be more burdensome, in terms of legal
costs and of time, than being parties of proceedings in their own country. Often the foreign
party feels to be disadvantaged by the use of another language and procedure and by the
75
Decision No 1149/2007/EC Of The European Parliament and of the Council [2007] OJ L257/16.

25
ignorance of the local judicial system76
. All these drawbacks may lead to renounce to promote
a legal action in a foreign jurisdiction, because of excessive uncertainty of results. Promoting
a policy of uniformity of decision by harmonizing conflicts rules might help to eliminate at
least one factor of uncertainty, the one linked to the applicable law and, eventually, to
encourage businesses to protect their rights, when needed, through litigation proceedings
before national foreign courts. The overall effect of this policy may even be to develop trust in
the legal system of other countries and in the overall functioning of the European internal
market. It is suggested here that the pursuit of the goal of uniformity of decision in the
European Union seems legitimate, notwithstanding the difficulties that judges may encounter
in applying foreign law.
2.3 Conclusion on the aims of Europeanization of conflict of laws
In conclusion, it has been said that harmonization of conflicts rules in Europe serves a variety
of objectives. The concrete application by judges of different Member States of the same law,
chosen by uniform choice-of-law rules, may increase legal certainty inside the European
Union and promote uniformity of decisions. This, in turn, may reduce the practice of forum
shopping. Further, knowing in advance the applicable law encourages parties who have (due
to the rules on jurisdiction) to assert their rights in foreign litigation not to renounce their
rights. This leads to a more equal and fairer access to justice. Eventually, harmonization of
private international law facilitates mutual recognition of judgments, thanks also to common
rules on public policy and mandatory provisions.
76
In this sense, see Green Paper on Rome I (n 78) 8.

26
CHAPTER 3
Analysis of the most relevant provisions of Regulation Rome I
In the previous chapters it has been examined how the European Community (now, European
Union) has progressively gained wider competence to legislate in the field of private
international law, and what the objectives of the Europeanization of choice-of-law rules are.
The question to address now is whether the provisions of Rome I are indeed able to achieve
these goals or not.
Before proceeding with the analysis, it is worth noting that the first Commission proposal of
the Regulation dates back to 15 December 200577
(the ‘Proposal’) and has been preceded by
extensive consultation of the Member States, the other institutions and civil society, in
particular via the Green Paper of 14 January 200378
. There has been a thorough discussion
both within the European Governments79
and the scholars80
on the text put forward, and the
final text of the Regulation moves away from the original Proposal in some important points,
77
Commission (EC), ‘Proposal for a Regulation of the European Parliament and the Council on the Law
Applicable to Contractual Obligations (Rome I)’, COM (2005) 650, 15.12.2005.
78
Commission (EC) ‘Green Paper on the conversion of the Rome Convention of 1980 on the law applicable to
contractual obligations into a Community instrument and its modernization’, COM (2002) 654, 14.01.2003. The
Green Paper received many responses, published at <http://ec.europa.eu/justice_home/news/consulting_public
/rome_i/news_summary_rome1 _en.htm> (last accessed 1.08.2010).
79
After the publication of the Proposal, the UK decided not to opt in to the proposal but nonetheless to engage in
the negotiations on it, in order to convince the Commission to introduce those amendments that were considered
necessary to opt-in at a later stage. Negotiations concluded in December 2007 and the UK Government, after
consulting the stakeholders, opted in to the Regulation at the end of July 2008 (see Ministry of Justice, ‘Rome I –
Should the UK opt in?’, Consultation paper CP05/08, 02.04.2008, available at
<http://www.justice.gov.uk/consultations/cp0508.htm> (last visited 23.07.2010).
80
On the Proposal see Editorial comments, ‘On the Way to a Rome I Regulation’ (2006) 43 CMLR 913; Ole
Lando and Peter Arnt Nielsen, ‘The Rome I Proposal’ (2007) 3(1) Jour.P.I.L. 29; Max Planck Institute for
Comparative and International Private Law, ‘Comments on the European Commission’s Proposal for a
Regulation of the European Parliament and the Council on the law applicable to contractual obligations (Rome
I)’ (2007) 71 RabelsZ Bd. 225; Lagarde, ‘Remarques sur la Proposition de Règlement de la Commission
Européenne sur la Loi Applicable aux Obligations Contractuelles’ (2006) Rev. crit. d.i.p. 331.

27
as we shall see below. Since it is not possible to take into consideration all the articles of the
Regulation, nor it is convenient as some of them have almost the same text as the Rome
Convention, a choice has been made between the most significant ones.
3.1 Rome I, article 3 – freedom of choice
Article 3 of the 1980 Rome Convention embodies the first and fundamental principle of
freedom of choice, which governs (in almost every jurisdiction of the world81
) choice of law
in contracts82
. The parties are able to choose the law that they prefer, also a non-European law
or a law which has no objective connection to the contract, and Article 3 establishes rules for
the form and the time of this choice, allowing depeçage and later change of the law itself.
However, even this wide freedom is delimited because, if the contractual situation is
connected with one country only, the Rome Convention demands the application of the rules
of law of that country which the parties cannot derogate from by contract (‘mandatory rules’,
3.3). This system prevents the parties to a substantially national contract to choose a law of a
foreign state only in order to avoid the application of certain (supposedly restrictive) laws of
the country.
Rome I does not carry any substantial modification in this respect, but the wording of the new
Article 3.3 of the Regulation is aligned as far as possible with Article 14 of Rome II83
and
avoids the use of the confusing term ‘mandatory rules’. The important change made with the
conversion relates to the extension of this principle to the case in which the situation is not
national anymore, but ‘European’, that is that “where all other elements relevant to the
situation at the time of the choice are located in one or more Member States” (3.4). In this
81
See Green Paper on Rome I (n 78) 10.
82
It is to be reminded that, while the Regulation has replaced the Rome Convention in the Member States since
17 December 2009, it is still in force between those countries and Denmark (Lando and Nielsen (n 29) 1629) and
also applicable to contracts concluded before that date.
83
See Rome I, recital n. 15.

28
case, it is the Community law which cannot be derogated from by agreement, where
appropriate as implemented in the Member State of the forum, which must be applied to the
contract regardless of the will of the parties (3.4).
The establishment of a Community minimum standard may be seen as filling a gap in the
previous text. Indeed, under the Convention, when all the parties involved are Community
nationals and they choose a law of a third state, Community protective rules would remain
unapplied and the weaker party would be disadvantaged. On the other hand, the protection of
weaker parties contained in sectoral directives is not considered adequate since it applies only
to specific types of contracts and in those countries in which the directive has been correctly
transposed84
. Moreover, the adoption of this rule is in harmony with the decision of the
European Court of Justice in the case Ingmar, where the fact that some elements of the case
were located outside the Community (the principal was established in the U.S.) did not
prevent the Court to held that several articles of the directive 86/653 on commercial agents
were applicable, because the activity of the agent was exercised in a Member State85
.
Furthermore, while in the Rome Convention the choice had to be expressed or demonstrated
“with reasonable certainty by the terms of the contract or the circumstances of the case”,
Rome I provides a clearer rule according to which the choice shall be made “expressly or
clearly demonstrated” by those terms and circumstances86
. The uncertainty linked to the word
reasonable is removed so that “ for an implied choice of law agreement the threshold is
higher under Rome I than under the Convention”87
.
84
See Green Paper on Rome I (n 78) 19 and supra n 14 and accompanying text.
85
Case C-381/98 Ingmar GB Ltd v Eato Lonard Technologies Inc [2000] ECR I-263 (judgment given
9.11.2000).
86
One of the factors to consider in determining whether a choice of law has been clearly demonstrated is an
exclusive jurisdiction agreement between the parties, see recital 12 and infra para 3.6.
87
Lando and Nielsen (n 29) 1698.

29
It is suggested that the new text enhances legal certainty, thanks to removal of the
interpretative doubts related to the word ‘reasonable’ in the third paragraph and leads to an
higher uniformity of decision, due to the introduction of the Community minimum standard.
3.2 Rome I, article 4 – applicable law in the absence of choice
A major intervention has been made on Article 4 of the Rome Convention, the second
fundamental principle in choice-of-law rules, which defines the applicable law in the absence
of choice by the parties, following the criterion of the ‘proper law’ of the contract. A ‘most
closely connected country’ test is established as the main rule by the Rome Convention,
together with three presumptions in paragraphs 2 (the country in which the party who effects
the characteristic performance88
has his habitual residence), 3 (the country where the
immovable property is situated) and 4 (particular rules contracts for carriage of goods). An
‘escape clause’ is also provided by Article 4.5, according to which the first of these
presumptions must not be applied where the characteristic performance cannot be identified,
nor the other presumptions shall apply if it appears from the circumstances as a whole that the
contract is more closely connected with another country.
It will be reminded that different courts in Europe have given diverse interpretations of the
weight of these presumptions: on one side, English courts, for instance, have considered the
presumption set by Article 4.2 as a weak one and have often disregarded it, applying the
‘escape clause’ of Article 4.5 to choose another law which they considered more proper89
;
88
“It is the performance for which the payment is due [...], which usually constitutes the centre of gravity and
the socio-economic function of the contractual transaction.”, Mario Giuliano and Paul Lagarde, ‘Report on the
1980 Convention on the law applicable to contractual obligations’ [1980] OJ C282/1 1 (Giuliano / Lagarde
Report) and cfr. Rome I recital 19.
89
For cases in which the presumption in art. 4.2 has been held to be very flexible see Definitely Maybe (Touring)
Ltd v. Marek Lieberger Konzertagentur GmbH, [2001] 2 Lloyd’s Rep. 455; Bank of Baroda v Vysya Bank Ltd,
[1994 2 Lloyd’s Rep. 87, 90-94 (Q.B.); generally on ‘weak’ and ‘strong’ models of interpretation of the provision
see Simon Atrill, ‘Choice of Law in Contract: the Missing Pieces of the Article 4 Jigsaw?’ (2004) 53 ICQL 549.

30
another European jurisprudence90
has otherwise relied on the presumptions as they were the
principal rules, in order to achieve the highest level of predictability, even at the expense of
flexibility. The vague relation between the rule, its presumption and the escape clause caused
uncertainty91
and the conflicting interpretations by the Courts risked to prejudice the uniform
and coherent application of the provision. Furthermore, in particularly complex contracts, the
application of the characteristic performance rule is problematic92
.
This article has been completely amended by comparison with the Rome Convention, in order
to address the disparity of interpretation and to achieve an higher degree of predictability. The
new Article 4 provides first for eight different fixed rules for different types of contracts. For
instance, the contract for the sale of goods will be governed by the law of the country where
the seller has his habitual residence (4.1(a)), or the franchise contract by the law of the
country where the franchisee has his habitual residence (4.1(e)). When those predetermined
rules cannot operate because the contract is not listed therein or has elements which are
covered by more than one point, the criterion of the law of the country in which the person
who has to perform the characteristic performance has his habitual residence applies (4.2).
It can be seen that in the new text the old ‘closest connection’ test, with its presumptions and
the escape clause, is replaced by hard and fast rules which should provide more
predictability93
.
90
See Dutch Supreme Court in the BOA case (Société Nouvelle de Papéteries v. BV Machinenfabriek BOA,
25.09.1992, reported in XLII Netherlands International Law Review, 1995, 259 or Baros AG v Embrica Maritim
Hotelschiffe GmbH, 17.10.2008, cited by Adrian Briggs, ‘When In Rome, choose as the Romans choose’ (2009)
125 L.Q.R. 191. According to Lando and Nielsen (n 29) 1701, “many continental courts and the Scottish courts
also put greater weight on the presumptions than to flexibility”.
91
Lando and Nielsen (n 29) 1700; see also Green Paper on Rome I (n 78) 25.
92
Zheng Tang, ‘Law Applicable in the Absence of Choice - The New Article 4 of the Rome I Regulation’ (2008)
71(5) M.L.R. 785, 786.
93
Ibid.

31
However, unlike the Proposal, Rome I leaves space for the application of the law of the
country with which the contract is most closely connected. In the text of the Proposal, indeed,
the law identified by means of Article 4.1 and 4.2 could not be discarded at all, even in those
cases, for instance, of strong connection between two contracts in principal-accessory relation
within them94
. According to the Commission, this system would have “enhance[d] certainty
as to the law by converting mere presumptions into fixed rules and abolishing the exception
clause”, with the aim to establish rules on absence of choice “as precise and foreseeable as
possible so that the parties can decide whether or not to exercise their choice”95
. The
Member States and some scholars, however, had considered the absence of any escape clause
too rigid, and had called for the inclusion of a provision similar to Article 4.5 of the Rome
Convention96
. The inflexibility of the provisions had been considered “utterly unjustified”
(since, it was argued, the Rome Convention system already ensures predictability and
certainty of law sought by the Rome I Proposal) and completely ignoring the needs for justice
in individual cases97
.
The get-out clause contained in Article 4.3 is narrow and operates only where “it is clear from
all the circumstances of the case that the contract is manifestly more closely connected with a
country other than that indicated in paragraphs 1 or 2”98
[emphasis added]. A close
relationship with another contract, for instance, should be taken into consideration99
. The way
in which the exception correlates with the main rules has not changed in comparison with the
94
Franco Ferrari, ‘From Rome to Rome via Brussels: Remarks on the law applicable to contractual obligations
absent a choice by the parties (art. 4 of the Rome I Regulation)’ (2009) 73 RabelsZ Bd. 750, 759.
95
The Proposal, 5.
96
See for instance Lando and Nielsen (n 29) 917; Lagarde, (n 80) 338; Max Planck Institute (n 80) 266, which
also argues against the adoption of a inflexible rule citing international practice outside the EU, that mostly opts
for a flexible approach.
97
Ferrari (n 94) 760; Editorial comment (n 80) 917.
98
See a corresponding clause in Rome II, art. 4.3.
99
Recital 20 and 21 Rome I; cfr. Ministry of Justice (n 79) 23.

32
Rome Convention provision, but the clause is more restrictive than before, because the
connection of the contractual situation with the country has to be manifest, and this should
lead to less uncertainty100
.
Commenting on the future interpretation of the clause by the ECJ, Richard Fentiman argues
that the provision of Article 4.3 Rome I “suggests a search for geographical location” and
that the rule lacks any indication of whether and how the interpreter has to evaluate the
significance of different connecting factors other than the territorial one101
. The author
foresees that, given the decision of the ECJ in Osuwu (regarding the jurisdiction regime of
reg. 44/2001)102
, the ECJ will adopt a narrow interpretation of the escape clause, with the only
aim to pursue the uniformity of decision within the European Union103
. Thus, he argues, it is
likely that Article 4 of Rome I will be interpreted in the sense that laws applicable pursuant to
Article 4.1 and 4.2 can be displaced only if they have “no significant connection with the
contract”104
. As this is rare, “the article 4 exception is drastically reduced in significance,
perhaps to a vanishing point”105
. This likely interpretation is criticized by Fentiman, since the
use of PIL rules to serve the Community interests might not always lead to the best choice-of-
law solution. He claims that adherence to strict conflicts rules and an interpretation of the
clause which leaves only little space to judicial discretion do not serve commercial efficacy
and expectations of contracting parties106
. Likewise, a scholar argues that the approach of the
Dutch Supreme Court in interpreting the corresponding clause of the Rome Convention
described above is “too restrictive” and the proper approach should be an intermediate one, in
100
Ferrari (n 94) 763.
101
102
Case C-281/02, Osuwu v. Jackson, [2005] ECR I-1383.
103
See above, para 2.1.
104
105
Ibid.
106
Ibid.

33
which to apply the escape clause in those (yet exceptional) cases, in which factual and
relevant elements are weighted so to make a closer connection with another country obvious
and natural107
.
Lando and Nielsen support the text as being a “workable and reasonable compromise”108
. In
their view the rigid rules of the first paragraph assure predictability, while they are balanced
by the flexibility of the rest of the provision. One point of uncertainty may be the
interpretation of Article 4.2 in those cases where a complex agreement which contains two or
more points of paragraph 1 may be better considered as two different contracts, governed by
two different laws. In this case, it is suggested that the interpreter should assess whether the
terms of one of them (for instance, a distributorship contract) are severable from the other
contract term (for example, a sale contract). If it is so, the different laws of habitual residence
of either the distributor or the seller should govern the corresponding contract109
. Ferrari also
support the conservation of the escape clause, arguing though that “the degree of flexibility of
Article 4 of the Rome I Regulation [does not compare] to that of its Rome Convention
counterpart”110
.
Since the law chosen to govern the contract in all the points (a) to (h) of Article 4.1 mostly
corresponds to the law of the party who effects the characteristic performance, in most cases
the final result will be the same as applying the Rome Convention111
. Nonetheless, Tang
argues that in franchising and distribution contracts, the new rule increases certainty because
it is often difficult to establish who the characteristic performer is112
. This author however
107
Tang (n 92) 800.
108
109
Ibid.
110
Ferrari (n 94) 769.
111
Tang (n 92) 787.
112
Ibid. at 789. The rule also wishes to protect franchisees and distributors, which are considered by the

34
criticizes the new text of article 4 of Rome I on several other grounds. First, she argues that
the Regulation should provide definitions of the eight different types of contracts listed in par.
1 since, for instance, the distinction between contracts for the sale of goods and for the
provisions of services may be problematical, in particular when the subject matter is
intangible (e.g. software), as well as the division between franchise, distribution or agency
contracts113
. Also, definitions of contracts of the first paragraph would clarify the application
of the second paragraph of Article 4. Furthermore, she questions the necessity of including
specific rules for sales and services contracts (Article 4.1(a) and 4.1(b)), because the
characteristic performance in these contracts is easy to ascertain and the rules would have
only the effect to complicate the procedure to determine the applicable law. Finally, she
maintains that rules should be provided for joint ventures and exchange contracts, where the
characteristic performance rule often cannot be used.
One could question some of the referred criticisms to the new text of article 4 of Rome I. The
doubt about the efficacy of a strict rule to serve the interest of the parties expressed by
Fentiman does not take into consideration that those parties would normally prefer a rule
which is as clear as possible and applied uniformly within the EU. Parties to international
contracts wish to know in advance which law will be applicable to their relations and they
may not want to leave to the courts of the Member States as much discretion as the author
does. A strict rule then helps them to achieve these objectives.
Further, fixed rules of Article 4.1 of Rome I have been construed in order to achieve a higher
level of certainty, and the criticisms of Tang on particular aspects of the provision cannot hide
the fact that the overall result brings a greater clarity for the interpreter of the Regulation. It is
suggested here that the inclusion of ‘definitions’ of the contracts listed in the first paragraph
Commission as the weaker parties (Proposal, p. 6).
113
Ibid. at 791.

35
may have been unsuitable to reach the goal of certainty, for the following reasons. First, an
agreement on ‘definitions’ would have been extremely difficult to reach during the
negotiations, and this would have caused the delay in approval of the final text. Next, the
presence of such an innovation would have called the ECJ to interpret it, in order to solve the
likely uncertainties that normally come with new provisions. We could maintain that, on the
contrary, it will be a specific duty of the ECJ to provide those ‘definitions’ and to support and
explain them with full arguments, if a question arises before it.
In conclusion, the new text does not bring in any great novelty in practice114
, and it should be
considered as an improvement, as deemed by most of the scholars. Greater uniformity of
decision may be achieved by the new form of the provision, which should help to avoid the
interpretative differences arisen with regard to the relation between principal rule and
presumptions. Higher certainty should also come from new connecting factors for franchise
and distribution contracts, while the exception to the fixed rules of the first paragraph of
Article 4 assures a sufficient grade of flexibility, if its interpretation weights properly all the
elements of the situation.
3.3 Rome I, article 6 – consumer contracts
Another point of intervention on the provisions of the Rome Convention involves the
discipline of the law applicable to consumer contracts (Article 5 of the Convention, Article 6
of Rome I). The provisions reflect the assumption that consumers do not enjoy the same
bargaining power as suppliers and that, without limits on the principle of freedom of choice,
these ‘weaker parties’ may be obliged to accept unfavourable conditions and be deprived of
the protection which they can demand when they enter into a contract, even abroad115
.
114
In this respect, it has to be reminded that the aim of the Proposal is not the introduction of a new set of legal
rules, different from the ones of the Rome Convention, see Proposal, p. 3.
115
Green Paper on Rome I (n 78) 10.

36
It will be remembered that, for contracts concluded in the circumstances described in article
5.2, the basic rule under the Convention demands that, in lack of choice in accordance with
article 3 of the Convention, the law of the country in which the consumer (as described in par.
1) has his habitual residence is applicable (5.3). Freedom to choose the governing law is
allowed, but the choice made by the parties cannot exclude the protection afforded to the
consumer by the mandatory rules of the law of the country in which he/she has his habitual
residence (5.2).
The system had been criticized for allowing a ‘double’ protection in presence of a choice of
law by the parties, and for leading to hybrid and complex solutions116
. In response to these
comments, the Proposal of the Commission removed completely the possibility to choose the
applicable law117
, making always applicable the law of the habitual residence of the
consumer. This change, though, was seen as particularly burdensome by some companies,
mainly operating in small business and e-commerce sectors, according to which the change
was unjustified and would have forced the businesses to gain knowledge of contract law in all
the countries in which they run their activities118
. This would have increased their costs and
perhaps even reduced their commerce in the internal market. In the end of the negotiations,
the limited party autonomy available under the Rome Convention was restored.
Also, the new provision has been clarified in some points. First, its scope of application has
been simplified and coordinated with Article 15.1(c) of reg. 44/2001, since now the
consumers rule applies when the professional pursues his commercial or professional
activities in the country where the consumer has his habitual residence, or, by any means,
directs such activities to that country (6.1); recital 24 of Rome I calls for an harmonious
116
117
See Proposal, art. 5.
118
Ministry of Justice (n 79) 26.

37
interpretation of these concepts between the two regulations and the doctrine calls for a wide
reading119
. If this is not the case, Article 3 and 4 of Rome I apply. Second, the rule does not
apply only to a contract the object of which is the supply of goods or services, as it was under
the old regime. Third, the scope of the article has been modified, by comparison with the
Rome Convention, because Article 6.4 now provides, together with the two cases already
present in the old text, three new exceptions, regarding financial instruments or transactions,
in which the rule is disregarded.
It is argued here that the coordination with the corresponding provision of Regulation 44/2001
and the simplification of the scope of the provision promote an higher degree of legal
certainty in its application by the Courts.
3.4 Rome I, article 7 – insurance contracts
Another sector in which the European legislator has intervened is the law applicable to
insurance contracts. Before the entry into force of Rome I, this subject was governed by some
Insurance Directives120
, which were applicable with regard to insurance contracts covering
risks situated in a Member State, and by the general rules of Article 3 and 4 of the Rome
Convention, for contracts where the risk was situated outside the EU and for reinsurance.
Further, Member States’ laws were applicable in the unusual case where the risk was located
in the EU and the insurer was not established in the Community. This system had been
119
The wording of art. 15.1(c) reg. 44/01 has replaced art. 13.1(3) of the Brussels Convention, which would
establish the circumstances in which special jurisdiction rules for consumers applied. The present concept of
activities pursued in or directed towards the consumer’s state is aimed to broaden the application of consumers’
jurisdiction and applicable law regimes in respect to the old rules, see Paul Cachia, ‘Consumer contracts in
European private international law: the sphere of operation of the consumer contract rules in the Brussels I and
Rome I Regulations’ (2009) 34 E.L.Rev. 476, 484.
120
Directives n. 73/239 [1973] OJ 228/3, 88/357 [1988] OJ 172/1 and 92/49 [1992] OJ 228/1 (general / non-life
insurance); directives 79/267 [1979] OJ 63/1, 90/619 [1990] OJ 330/50 and 92/96 [1992] OJ 360/1 (life
business).

38
criticized since it was extremely complex and difficult to apply121
, also because of
inconsistency between the categories considered by the Directives (large / non large risks) and
the Convention (consumer / commercial contracts)122
.
The new text of Article 7, employing the Directives’ categories, now establishes three regimes
for as many types of contracts: large risks insurance123
, other insurance contracts, reinsurance;
the Regulation, unlike the Rome Convention, excludes the application of consumer contracts’
rules in this field124
. As regard the first group, regardless of where the risk is situated, parties
can choose the applicable law pursuant to Article 3 Rome I; if they do not, the law of the
habitual residence of the insurer applies, unless it is clear that the contract is manifestly more
closely connected to another country (7.2). For other insurance contracts covering ‘non-large’
or ‘mass’ risks within the Community, parties’ autonomy is limited, since only a limited
number of laws can be chosen, mainly the law of the Member State where the risk is situated
or the one where the policy holder has his habitual residence or whose he is a national.
However, in certain cases, if the Member States referred to grant greater freedom of choice of
law, the parties can cross this limit and take advantage of that freedom. If no choice has been
made, the contract will be governed by the law of the Member State in which the risk is
situated at the time of conclusion of the contract (7.3). Eventually, as reinsurance and other
contracts covering non-EU located small risks are concerned, Article 3 and 4 of Rome I apply
and then the parties enjoy full freedom of choice of the applicable law while, without a
choice, the law will mostly be that of the insurer. Additional rules are set for compulsory
121
Louise Merrett, ‘Choice of Law in Insurance Contracts under the Rome I Regulation’ (2009) 5 JPIL 49, 50.
122
Xandra Kramer, ‘The new European Conflict of Law Rules on Insurance Contracts in Rome I: a Complex
Compromise’ (2008) 4 Icfai University Journal of Insurance Law 23, 31. Further, one should consider that
implementation of the directives varies among Member States, which complicates the issue even further., ibid,
31.
123
The definition is taken from directive 73/239 art. 5(d), art. 7.2 Rome I.
124
Art. 6.1 Rome I.

39
insurance contracts (7.4) and for contracts covering risks situated in more than one Member
State (7.5). The rules are generally very similar to the provisions of the Directives125
, which in
any case are not repealed, since they continue to apply to contracts concluded before
December 2009, to Denmark and to EFTA States.
These new rules have received contrasting reactions. Lando deems that the new system is an
“improvement”, since it concentrates all relevant choice-of-law rules in one text126
. Merrett,
too, praises increased transparency and easier application of the new rules127
and adds some
further remarks. First, since the place of incorporation of the insurer is irrelevant for the
application of the Regulation, the lacuna problem of insurers established outside the EU is
solved, so that there is no more space for the application of national conflicts rules in this
case. In addition, the solution found in Article 7.2 regarding large risks is defined
“straightforward”, since ensures that standard contracts stipulated by an insurer whose
business is cross-border are governed by the same law, even in the absence of a choice;
further, there is no need to localize where the risk is situated or to examine whether the
counterparty is a consumer128
.
On the other side, problems may arise in connection with non-large risks outside the EU,
which are governed by the general rules of the Regulation, including Article 6 on consumers’
contracts. In particular, when the requirements of Article 6 are satisfied, the ‘double
protection rule’ of paragraph two applies, confusing the application of the conflicts rules.
According to this author, it would have been better to submit all non-large risks to the same
regime applied to risks situated within the EU, solving also the inconveniences associated to
125
Lando and Nielsen (n 29) 1692; Merrett (n 121) 52.
126
127
Merrett (n 121) 53.
128
Ibid. 58.

40
contracts covering risks situated partly inside and partly outside the Union129
. This
fragmentation is criticized also by Kramer, who deems it unnecessary130
.
With regard to policies covering non-large risks within the EU, the choice of law permitted by
the second indent of Article 7.3, in addition to the fixed rules in points (a) to (e) of the same
provision, is deemed “essential”, since it allows insurers to choose the same governing law
for their contracts, even if they are targeted to different markets131
. However, Kramer claims
that allowing parties to take advantage of the freedom of choice granted by specific Member
States frustrates the uniformity and legal certainty sought by Rome I itself132
. Furthermore,
she argues that, as commercial contracts are concerned, the options of Article 7.3 “may be too
limited and not in conformity with the principle of freedom of choice” of Article 3 Rome I,
while for consumer contracts they may lead to a wider freedom than the provision of Article
6, overlooking consideration for consumer protection133
.
Eventually, the rule which makes applicable the law of the Member State in which the risk is
situated at the time of conclusion of the contract, in the absence of choice of law by the parties
(7.3), is a major simplification in respect to the old Directives’ regime. Even though it may
result in a disincentive to cross-borders trade, since it means the application of different laws
to different policies depending on the location of risks, this system may be crucial for the
protection of consumers134
.
Concluding on this point, Merrett argues that Article 7.3 represents an improvement of the
discipline of mass risks, even though the severance rule of Article 7.5 (apparently not
129
Ibid. 59.
130
Kramer (n 122) 36.
131
Merrett (n 121) 60.
132
Kramer (n 122) 39.
133
Ibid.
134
Merrett (n 121) 61.

41
rebuttable), applicable when the risk is situated in more than one Member State, may be hard
to apply in practice135
. In contrast, Kramer claims that the system related to mass risks
contracts “should have been carefully reconsidered” 136
.
It is hard to draw any final conclusion on the complex discipline of insurance contracts. While
a scholar claims that, for the most part, [...] the rules for choice of law in insurance contracts,
in so far as they differ from the position before the Regulation, are an improvement”137
,
another otherwise argues that the Commission failed to formulate effective uniform conflicts
rules in the insurance sector, being the final result of Article 7 of Rome I “no more than a
complex compromise” and “unnecessary complicated”138
. Nonetheless, it may be argued that
the inclusion of the subject in a single provision, which however generally keeps the rules of
the Directives, represents a step in the direction of the simplification of the subject, while
most of the criticisms may be addressed in a future revision of the Regulation, as confirmed
by the express reference to insurance contracts contained in the review clause of article 27.
3.5 Other amendments to the Rome Convention
The conversion of the Convention into a regulation has also brought about further
amendments, most of which might be considered to improve the previous regime, in the light
of the objectives discussed in chapter two.
As we have seen above, an aim of the Commission in drafting this instrument was the
consistency in the scope with both reg. 44/2001 (Brussels I) and 857/2008 (Rome II)139
.
Examples of this approach can be found in Article 1 of Rome I, where it excludes from its
application arbitration agreements (already covered by international instruments) and
135
Ibid.
136
Kramer (n 122) 39.
137
Merrett (n 121) 62.
138
Kramer (n 122) 41.
139
Proposal, p. 5.

42
agreements on the choice of court (which may be better settled by Brussels I), or likewise
obligations arising out of dealings prior to the conclusion of a contract (governed by Rome
II). It is submitted that the system of choice-of-law rules for obligations in Europe is then
coherent and complete and the interpretation by the ECJ of the three instruments should be
consistent with each other140
.
The Regulation includes a specific rule for contracts of carriage (Article 5). In relation to
those which involve goods, the presumption found in Article 4.3 of the Rome Convention has
been transformed in a fixed rule. The difference is that, if the requirements of Article 5.1
Rome I are not met, the law of the country of delivery shall apply. The interpretation of this
provision shall be the same as the corresponding of the Rome Convention141
and this
“modernized version” is deemed “a satisfactory solution”142
. Moreover, a new provision has
been introduced in relation to contracts for the carriage of passengers, which limits party
autonomy to five rigid connecting factors, with the aim of protecting the passenger-consumer
(Article 5.2). If the applicable law has not been chosen, it will be the law of the country where
either the passenger or the carrier has his habitual residence, depending on the specific
situation. An escape clause is provided in Article 5.3, with the same wording as Article 4.3.
Another important amendment has been made to Article 7 of the Convention, concerning
mandatory rules. This provision was one of the most controversial of the whole text, since, on
one side, it allowed a court to give effect to certain rules belonging not to the law governing
the contract (lex causae), but to a country with which the situation had a close connection143
(7.1); on the other side, it called for the application of mandatory rules of the lex fori, in case
they required to be applied irrespective of the law otherwise applicable to the contract. The
140
141
See Recital 22.
142
143
For instance, the law of the place of performance of the obligations.

43
provision of the first paragraph was indeed very vague and, in the view of the U.K., could
give rise to an unacceptable legal uncertainty and a weakening of party autonomy144
. For this
reason, the United Kingdom and six other States made use of their reservation power in
respect of Article 7.1.
Since no reservation is possible with respect to the Regulation, a compromise has been found
during the negotiations. The new provision of Article 9 Rome I is narrower in scope, in two
senses. First, the ‘overriding mandatory provisions’ (as they have been renamed) are defined
in paragraph 1 as those “the respect for which is regarded as crucial by a country for
safeguarding its public interests, […] to such an extent that they are applicable to any
situation falling within their scope” (9.1)145
. Second, effect may be given only to rules
belonging either to the law of the forum (9.2) or to “the law of the country where the
obligations arising out of the contract have to be or have been performed, in so far as those
overriding mandatory provisions render the performance of the contract unlawful” (9.3)146
.
Courts retain their discretion, but this is more limited147
. Legal certainty is then increased,
since the Regulation now provides a uniform solution for the whole of the European Union.
The U.K. has praised the outcome of the negotiations on this point148
, being one of the reasons
why the Government finally decided to opt in Rome I.
144
See Ministry of Justice (n 79) 32.
145
This definition stems from the ECJ decision in Arblade, Case C–369/96, [1999] ECR I–8453, and C–374/96,
[1998] ECR I–8385. According to recital 37, the concept of ‘overriding mandatory provisions’ should be
construed more restrictively than the expression ‘provisions which cannot be derogated from by agreement’
found in art. 3, 6, 8 Rome I.
146
In English law, see Ralli Bros. v. Cia Naviera Sota y Aznar [1920] 2KB 287 CA.
147
148
Ministry of Justice (n 79) 32.

44
The last provision of Rome I which deserves to be mentioned for its contribution to clarify
conflicts rules149
is the new Article 19 introducing a definition of ‘habitual residence’, a
frequent connection factor throughout the Regulation. Article 60 of Reg. 44/2001 provides,
for the purposes to apply the rules on jurisdiction, a definition of domicile for companies or
other legal persons. This rule, which makes reference to three different criteria (statutory seat,
central administration or principal place of business), would be ineffective if applied also to
choice-of-law rules, since it would be impossible to select a single law applicable to a
contract. For this reason, Article 19 of Rome I fixes the habitual residence of companies and
other bodies in the place of central administration and the one of a natural person acting in the
course of his business activity in his principal place of business, at the time of the conclusion
of the contract; a special rule applies where the contract is concluded in the course of the
operations of a branch, agency or any other establishment.
Concluding, the new text of these provisions may result in greater consistency within
European PIL legislation and increased clarity for the interpreter of the Regulation.
3.6 Proposals of the Commission that were not adopted in the final text
Some of the rules present in the Proposal of the Commission were extremely innovative in
comparison with the Rome Convention, but they were cancelled after the negotiations,
lacking sufficient agreement on their inclusion in the final text. It might be interesting to
mention these solutions because, according to the Commission, they would have helped the
achievement of the objectives of the instrument and for some authors they would have also
represented a significant step forward in the European regime of conflicts rules.
In the first place, Article 3.2 of the Proposal allowed the parties to choose as the applicable
law “the principles and rules of the substantive law of contract recognised internationally or
149
Ibid, 36.

45
in the Community”, such as the UNIDROIT principles, the Principles of European Contract
Law or a possible future optional Community instrument150
. Lex Mercatoria as such would
have been excluded, because of its lack of precision. The possibility to choose a non-State
body of law had been proposed, in the view of the Commission, to “further boost the impact
of the parties’ will” and had been praised, for instance, by the Max Planck Institute for
Comparative and International Private Law151
. Lando and Nielsen even called for the
inclusion within the choices for the parties of the lex mercatoria, arguing that this could
reduce the “competitive advantage” of international arbitration, where this choice is normally
possible152
.
In the final text, though, the rule was removed. Too many States considered that no
democratic basis was to be found in those principles of contract law and then they might not
be equivalent to State law153
. However, recital 13 clarifies that a non-State body of law or an
international convention can be incorporated in the contract by reference and their application
is subject to the otherwise applicable national law. A wider space for Community-based
instruments of substantive contract law is left for the future (recital 14).
Another major innovation of the text first proposed by the Commission concerned the weight
to give to choice-of-court agreements in the decision on the law applicable to a contract
containing such a clause. Article 3.1 of the Proposal stated that an agreement to confer
jurisdiction on one or more courts or tribunals of a Member State meant that the parties would
also be presumed to have chosen the law of that Member State. According to Lando and
Nielsen this presumption would have been a positive development, in particular if the rule had
150
See Proposal, p. 5.
151
Max Planck Institute (n 80) 242.
152
153

46
been changed to take into consideration only exclusive jurisdiction agreements154
. Again, the
Max Planck Institute welcomed the proposal, claiming that the “synchronisation of forum and
ius saves time and transaction costs”155
. Nevertheless, no agreement was found during the
negotiations and only a reference is now contained in recital 12, according to which a
jurisdiction agreement “should be one of the factors to be taken into account in determining
whether a choice of law has been clearly demonstrated” by the terms of the contract or the
circumstances of the case (3.1)156
. This compromise may be supported, since it suggests a
straight method of dealing with those clauses to judges all over the European Union157
.
154
Ibid, 1699.
155
Max Planck Institute (n 80) 243.
156
See para 3.1.
157

47
Conclusion
Since the Treaty of Amsterdam, the European Community (now, European Union) has
progressively gained wider legislative competence in the field of private international law.
Nowadays, Member States share, in civil and commercial matters, common rules on
jurisdiction, conflict of laws and mutual recognition of judgments. This comprehensive
regime is designed to support the internal market objective by eliminating those legal barriers
that might divide the territory of the Union.
In this regard, harmonized conflicts rules for Member States play an important role. When
these rules are unified and consistently applied by national courts, legal certainty as to the law
applicable increases and persons involved in international litigation cases cease to make
recourse to forum shopping to find the most favourable jurisdiction for their rights.
Uniformity of decision is sought throughout the European courts, even with the shortcomings
described in relation to knowledge and proof of foreign law.
For this European judicial cooperation framework to progress further, though, the Rome
Convention needed to be transformed from an international instrument into a EU regulation.
Apart from bringing the advantages relating to the particular legislative form of this
instrument, such as direct and unconditional applicability, greater consistency in Community
legislation and uniform interpretation by the ECJ (in particular, after the Treaty of Lisbon),
the conversion was intended to modernize the text of the Rome Convention in those points
which had proved to be ineffective, as well as to introduce some new (although not
revolutionary) rules. Goals of this process have been a rise of the level of legal certainty, a
higher predictability of the outcome of litigation and, eventually, a support for the free
movement of judgments.
The discussion in chapter three shows that Rome I has mostly achieved these goals.

48
First, there are few new provisions which carry out a useful gap-filling function in comparison
to the previous text, like the new fourth paragraph of article 3, demanding the application of
mandatory Community law in European-related only situations, or the new rules for carriage
of passengers (Article 5) or habitual residence (Article 19).
Second, a few interventions refined the previous regime. Article 4 of Rome I, which radically
innovates the rule on the law applicable in the absence of choice (although the same result
will be obtained in most cases), provides a clearer rule in respect of the Rome Convention,
with eight fixed connecting factors for eight different types of contracts. Flexibility is gained
by the escape clause, narrowed in its application. Some problems of interpretation remain, but
it is suggested that this is inevitable, considering the significant amendments to the previous
text. Further, article 7 incorporates the previous Insurance Directives’ rules in one provision,
simplifying the regime, as far as possible: the subject remains still extremely complex and
further work is called for in the review clause of article 27 to enhance the present system.
Other amendments discussed, like the ones on consumer contracts (Article 6) and overriding
mandatory provisions (Article 9), can be considered to solve questions of interpretation of the
previous text and improve consistency and transparency in their application.
However, it is also true that Member States have decided not to introduce two provisions
which may have represented major innovations in the previous regime, such as allowing the
parties to choose a non-state body of law and the presumption of choice of an applicable law
in presence of a jurisdiction clause. No agreement was found on these solutions,
notwithstanding the positive welcome by part of the doctrine. However, reasonable
compromises have been found on the recitals, which guide the interpreter in the solution of
practical cases.
In conclusion, Rome I represents a considerable step forward to enhance the European

49
conflict of laws regime. It is now the duty of the European legislator to review the
controversial provisions and of the ECJ to interpret the complex ones, so to progress in the
established route towards a greater judicial cooperation within the Member States.

KM555 QMUL LLM Dissertation Final

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