Mandatory Rules in Private International Law
| DOI | 10.1177/1023263X0000700204 |
| Published date | 01 June 2000 |
| Date | 01 June 2000 |
| Author | Michal Wojewoda |
| Subject Matter | Article |
Michal Wojewoda
'"
Mandatory Rules
In
Private International Law
With Special Reference To The Mandatory System Under The Rome
Convention On The Law Applicable To Contractual Obligations
§1. Introduction
The notion
of
mandatory rules is not an entirely new phenomenon in private
international law. However,
it
still remains controversial. Over the past decades, the
issue has sparked
off
heated debates resulting in substantial literature on the subject. 1
In the meantime and notwithstanding lingering doubts as to the overall utility
of
the
concept
in
contemporary conflict
of
laws, provisions
on
mandatory rules did find their
way into binding measures of both national and international character.
And
thus, there
mushroomed international agreements
and
domestic statutes employing the notion
in
question. Not surprisingly, they provoked another wave of comments - some
complimentary,
if
not enthusiastic, others highly critical. Mandatory rules have
been
examined
in
several dimensions. However, while discussing all their different facets it
is important to see them as a unitary concept. Unfortunately, the available literature
does
not
always follow a coherentpattern. Therefore, the main objective
of
this paper
is the clarification
of
various issues involved, reconsideration of others, together with
the systematization of the oft-eonfusing nomenclature.
Amongst many legislative attempts to tackle the problem, the 1980 Rome Convention
on
the law applicable to contractual obligations, 2elaborated under the aegis
of
the
European Communities, is 'one of the finest examples of the use of mandatory rules
in
private international law.
For
many reasons it occupies an exceptional position and thus
'"
1.
2.
Assistant at the Civil Law Department, Faculty of Law and Administration, University of Lodz,
(poland).
Numerous bibliographical references are given throughout the paper.
Opened for signature in Rome on 19June 1980, [1980]
OJ.
L266, hereinafter 'the Convention' or 'the
Rome Convention'; for the consolidated version, following the Accession Conventions, see [1998]
OJ.
C27.
7 MJ 2 (2000) 183
I
Mandatory
RulesIn Private
International
Law
offers avaluable backdrop for a more profound academic study. Its long legislative
history reveals significantmeanders
in
the evolution
of
the mandatory rules doctrine and
the final draft, with an extensive set
of
provisions on the subject, presents us with a rich
source
of
material for analysis. This is why this paper, while concerned with mandatory
rules
in
general, will draw heavily
on
the mandatory system
of
the Rome Convention.
Because it is a firm conviction
of
the present author that the Rome provisions
on
mandatory rules do constitute a
system.
It
will be argued infra that, despite certain
imperfections, they create a functional body
of
law - coherent, cogent, comprehensive,
non
self-contradictory and, above all, fully operative.
The structure
of
the essay reflects an attempt to strike a balance between general and
specific issues, between abstract concepts and their exemplification
in
legislation. The
first substantive chapter will deal with the general concept
of
mandatory rules. Starting
with
ahistorical overview, important features
of
the notion
in
point will be enumerated
in
an effort to create a working description rather than a classic definition. In addition,
some space will be devoted for delimiting mandatory rules and the neighbouring idea
of
ordrepublic. Finally, the questionwill be posited whether also public law provisions
can
be seen as mandatory
in
the conflict-of-laws sense. Part Three will concentrate
on
the system
of
the Rome Convention, presenting mandatory rules
both
in
action and
interaction. The various rules will be classified, discussed
in
some detail and their
mutual relations will be exposed. Additionally, some real or potential dangers will be
mentioned together with suggestions as to how to address them. The last major section
will again focus
on
somewhat broader issues, putting the mandatory rules concept
in
a
wider perspective with a view to providing some assessment. The concept will be
evaluated against the background
of
recent developments
in
private international law
(e.g. the competing ideas
of
uni- and multilateralism) and its role
in
the international
legal order will be canvassed. Other general issues, like party autonomy
in
conflict
of
laws, will be briefly considered too.
As a final caveat, before embarking
on
a more concrete analysis, the reader is asked
to bear
in
mind the fine distinction between
mandatory
rules
as such and provisions on
mandatory rules. Generally, the two notions are
just
two different sides
of
the same
coin
but
sometimes they have to be kept apart. The first term has a definite substantive
flavour (mandatory status derives from national substantive laws)
but
this flavour may
be fully appreciated only thanks to the existence
of
appropriate conflicts provisions.
It
is amazing how substantive and conflicts issues, unilateral and multilateral approaches,
concrete and abstract considerations are all masterfully interwoven
in
the colourful
fabric
of
the mandatory rules idea. On the following pages the author hopes to shed
some light on the different patterns embellishing this fine material and,
if
possible,
single out the most prominent strands.
184 7 MJ 2 (2000)
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