Escape From Uncertainty: Article 4(3) Rome I Regulation

AuthorJack Fraser
PositionUniversity of Southampton
Pages10-20
S.S.L.R Escape From Uncertainty: Article 4(3) Rome I Regulation Vol.7
10
Escape From Uncertainty: Article 4(3) Rome I
Regulation
Jack Fraser
University of Southampton
Abstract
The Rome I Regulation is a European Union (EU) conflict of laws regime that
provides the rules for determining which national law should govern contractual
obligations in civil and commercial matters. This article will consider how the escape
clause contained in Article 4(3) Rome I Regulation should be interpreted in the
absence of any clear guidance on this issue from the Court of Justice of the European
Union (CJEU). It will argue that the CJEU will need to clarify three main points if
the scope of the escape clause in Article 4(3) Rome I Regulation is ever to be clear.
The second part of this article will argue that a flexible approach to the exception
contained in Article 4(3) should be adopted in order to best serve commercial
efficacy and the expectations of contracting parties.
Introduction
he Rome I Regulation41 is a European Union (EU) conflict of laws regime that
provides the rules for determining which national law should govern
contractual obligations in civil and commercial matters. 42 The Rome I
Regulation replaces43 the Rome Convention44 (hereinafter the “Convention”)
and applies to all contracts concluded after 17 December 2009.45 Article 4 Rome I
provides the procedure for establishing the applicable law of the contract when the
parties to the contract have not chosen the law that is to govern the contract. Article
4(3) Rome I, provides an escape clause which is an exception to the rules contained in
Article 4(1) and 4(2) Rome I. It states, “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, the law of the country” which is most closely
connected shall apply instead.46
After examining the case law and academic writings in relation to both the Convention
and Rome I, prior to and after the decision of the Court of Justice of the European
41 Rome I Regulation (Regulation (EC) No 593/2008 on the law applicable to contractual obligations).
42 Article 1(1) Rome I Regulation 2008.
43 Article 24 Rome I Regulation 2008.
44 Convention on the law applicable to contractual obligations 1980 (Rome Conventi on).
45 Article 28 Rome I Regulation 2008.
46 Article 4(3) Rome I Regulation 2008.
T

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