engleski

Lex Contractus and Overriding Mandatory Rules. What can we learn from the CJEU case law?

It is generally well known that party autonomy represents a cornerstone in cross-border commercial transactions. Up to now it has become "the unquestioned primary tool to determine the applicable law in contracts". It runs counter most of legal theories in private international law and as such does not fit well within traditional methods of private international law, which consider the question of the applicable law in terms of a conflict between the states. Some even consider it a new paradigm of private international law, a "parallel world of private transnational ordering", since in private international law realm due to party autonomy it is the state law that is subordinate to the contract. In order to strike the balance between the party autonomy and state regulatory interests there are also some limitations to party autonomy, one of them being overriding mandatory rules. Overriding mandatory rules are dealt with in Art. 9 of the Rome I Regulation and with respect to earlier Art. 7 of the Rome Convention entail a number of modifications, some of which are either unclear or disputed. The CJEU law on this matter is scarce and not entirely clear but it still offers an important guidance on how to interpret and apply those rules. The aim of this article is to clarify the concept of overriding mandatory rules in European context as well as in the CJEU law.

party autonomy ; overriding mandatory rules ; CJEU case law

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