engleski

Internationally Mandatory Rules under Article 7(1) of the European Convention on the Law Applicable to Contractual Obligations

This paper is the result of a scientific research into the subject of internationally mandatory rules from the viewpoint of private international law. However, it is narrowed to the specific topic of the third countries’ internationally mandatory rules whose effectuation is possible by virtue of the provision of Article 7(1) Convention on the Law Applicable to Contractual Obligations signed in Rome in 1980. Before dealing specifically with different features of the said provision, some general remarks are made, in the introductory part of the thesis, which concern private international law in the European Union as well as the status and role of internationally mandatory rules within the conflict-of-law unification efforts. The second chapter is dedicated to the historical study of doctrinal foundations of the internationally mandatory rules method which is followed by an examination of the case law recognizing the third countries’ internationally mandatory rules and legal sources giving effect thereto. In the part dealing with the evolution of legal thought, the basic elements of the paradigm of conflict-of-law rules that appeared in the 19th century are described, as well as relevant circumstances that at the beginning of the very next century, raised the issue of extraterritorial application of domestic mandatory rules on the global level. Such an environment created fruitful ground, primarily in Germany, for the development of the new academic opinion which advocated recognition of foreign internationally mandatory rules in other countries, known as the Sonderstatut theory. The following survey of Dutch jurisprudence and case law of some other European countries of the middle of the 20th century intends to verify the hypothesis on courts’ awareness of the method of internationally mandatory rules in the period preceding the Rome Convention. This historically inspired survey ends by presenting the non-exhaustive list of the provisions contained in the national statutes and international instruments on private international law that match up the provision under Article 7(1) Rome Convention. The third chapter, titled the concept of internationally mandatory rules, commences with the issues of terminology that arise in a number of languages, with specific accentuation on the English legal language. Subsequently discussed are the substantive elements of the internationally mandatory rules concept among which the most important are those that serve the purpose of differentiating between (domestically) mandatory rules and internationally mandatory rules. Besides certain jurisprudential guidelines, the further sections give substantial attention to three doctrinary methodologies potentially relevant to that effect: the functional approach, the a priori criteria approach and the “ rule of reason” approach. Whereas the first two are declined by the author, the latter one is her preference. Within the analysis of substantive aspects, the effort is made to define the notion of internationally mandatory rules, to elaborate on the criteria for their precise identification and to point out some of the rules that may be considered internationally mandatory. The last of the sections devoted to the substantive features of the internationally mandatory rules concept gives details on the categorisation of different types of those rules. Turning to the formal aspects, the criteria for application of certain rule that is characterized as internationally mandatory are portrayed and commented and the issue of the scope of discretionary power on whether or not internationally mandatory rule of a third country should be given effect under the provision of Article 7(1) Rome Convention is delved into. Furthermore, due attention is called to the specific procedural aspect of internationally mandatory rules – their application ex officio. Given the pluralism of methods in private international law, even more highlighted by the recognition of the internationally mandatory rules method, the following problems are subject to deep scrutiny in this thesis: the doctrinal construction regarding the effectuation of internationally mandatory rules, relationship between internationally mandatory rules and multilateral conflict-of-law rules, the relationship between internationally mandatory rules and the unilateralist method and the differentiation between internationally mandatory rules vis-&agrave ; ; -vis the ordre public concept. The closing subsection closely examines the theoretical aspects of the third countries’ internationally mandatory rules explaining in particular the points of the most critical divergences in scholarly opinion such as whether the third country’ s internationally mandatory rules confines excessively the autonomy of the parties to choose the applicable law, whether they put at risk the level of legal certainty, the predictability of result and the uniformity of decisions and whether the economy of the court proceedings is frustrated by taking account of third country’ s internationally mandatory rules. Chapter four deals with the third countries’ internationally mandatory rules in the context of harmonisation of Croatian private international law with European law. Besides presenting the summaries of the basic scientific contributions to the concept of internationally mandatory rules made in Croatia, this chapter is mainly concerned with the question whether or not the Croatian private international law de lege ferenda needs a provision similar to the one contained in Article 7(1) Rome Convention. Applying the arguments from the previous chapter to the domestic situation, the thesis is concluded by the author’ s proposal for transposing the rule contained in Article 7(1) Rome Convention into Croatian law.

third countries’ internationally mandatory rules; international contracts; Rome Convention; private international law; European law

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