Rome I in Practice: A Presentation

Emmanuel GUINCHARD*…

The Project (background and aim). Resolving disputes which arise under contracts may be complicated enough in the domestic context. The task may become even more complex in the presence of a foreign element, in particular if the parties are based in different states or the contract should be enforced abroad. In those circumstances, it is essential to establish what law will apply to such a contract, possibly before the parties enter into any binding agreement. In the European Union (save Denmark), the Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I) is the key Regulation to consider. It derives from the initiatives of the European Commission following the Treaty of Amsterdam, which, according to Article 65(b) of the EC Treaty, gave the Community (now the European Union) competence to take measures to promote the compatibility of conflict-of-laws rules applicable in the Member States insofar as was necessary for the proper functioning of the internal market. The idea was that substantial contract law differed considerably across Europe. In the absence of a unified European contract law, rules on conflict of laws were therefore crucial. However, the rules themselves differed. This, it was argued, hindered the proper functioning of the internal market, hence the need to harmonise these rules in order to increase legal certainty. The Rome I Regulation was however not starting from scratch as it is primarily a communitarisation of the older 1980 Convention on the Law Applicable to Contractual Obligations, albeit with major amendments as to the contents and institutional context (jurisdiction of the Court of Justice as of right). Rome I applies since 17 December 2009. As we are