Conflict of Laws in Contractual and Non-Contractual Obligations Recent ec regulations on Conflict of Laws in Contractual and Non-Contractual Obligations



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Prof. Dr. Volker Behr Summer Course 2012

volker.behr@jura.uni-augsburg.de





Conflict of Laws in Contractual and Non-Contractual Obligations
Recent EC Regulations on Conflict of Laws in Contractual and Non-Contractual Obligations (Rome I and Rome II Regulations) as Compared to United States Conflict of Laws and to Developments Worldwide
Prof. Dr. Volker Behr, Augsburg

Warm-up Paper

I look forward to seeing you and to discovering with you the ins and outs of the new European private international law (conflict of laws) in contractual and non-contractual obligations as compared to developments elsewhere. Globalized economy and global mobility of citizens more and more often create lawsuits which are no longer purely domestic. This is true notably to lawsuits based on contracts or torts. Economic reasons as well as the relevant systems of jurisdiction may induce or even necessitate suing or being sued abroad. Suing or being sued abroad (and even the choice of alternatively suing in a domestic court or abroad) implies considerations of jurisdiction and the applicable law based on conflict of laws rules of the relevant courts.


In the course of the next weeks we shall try to find out what are the recent developments in this area of the law. We will have one two hours classroom sessions per week, the first part mostly dedicated to contracts, the second part to non-contractual obligations. The classroom sessions will consist of a mixture of lectures, short statements of students (5 min. at max.) on specific topics, and discussions. Everybody should prepare at least one short statement and participate in the discussion. I shall ask for students who are willing to volunteer, and I hope that at the end of the course everybody will have had the opportunity to present at least one short statement.
Reading assignments should be completed before the respective classroom sessions. If you don’t prepare, you will not be able to follow the class discussions, and the discussions themselves will falter in case many of you are unprepared. I shall give reading assignments to be prepared to each specific session.
Materials to the course seem rather voluminous considering the short period of time of the course. However, there is no reason to be frightened. Quite a number of the documents will be used only in a very restricted way addressing just a few of the articles – as far as they are related to our main topic. I only added the documents full text instead of little morsels in order to give to those of you, who are specifically interested, an impression of what else is in store. In addition I add some scholarly writing – again not all of it to be prepared for classroom work.
Reading assignments will be restricted to those parts which are used within the course. So don’t be scared. It will be feasible.
As to the subject matter: This course will start with a short introduction to topics and problems of private international law and a (very brief) outline of jurisdictional bases within the European Union. As far as jurisdiction within the U.S. is concerned, some of you probably are more expert than I am. I shall only touch this topic. Probably at least some of you are taking the transnational litigation course as well, which focuses on jurisdiction.
This course then will try to line out the new developments of conflict of laws rules within the European Union as laid down in two recent EC regulations on the Law Applicable to Contractual Obligations (Rome I Regulation) and on the Law Applicable to Non-Contractual Obligations (Rome II Regulation). Rome I Regulation has entered into force by the end of 2009, while Rome II Regulation already is in force since January 2009. Those Regulations are the conflict of laws rules in all Member States of the European Union (except for Denmark). Hence, knowledge of these developments may be of special interest to lawyers interested in international business transactions. However, this course will not be restricted to European developments. Instead, it will try a comparative approach comparing recent developments in Europe and developments in the United States and elsewhere. Such comparison seems to be of actual interest taking into consideration that within the United States the Restatement 2d on Conflict of Laws seems to be somehow overage and a new Restatement is under discussion.
As you will see, European private international law of contractual and non-contractual obligations is based from 2009 on on EC- Regulations. Such Regulations are statutory law. Hence, emphasize will be laid on the interpretation of such Regulations. To this end you normally rely on courts’ decisions and scholarly writing. However, as Rome I and Rome II only recently entered into force there is practically no published case law available. Notably there is no case law of the European Court of Justice, which only decides when asked by national courts. Hence, we have to rely on what (little) scholarly writing in English language exists up to now and on some courts’ decisions of the European Court of justice concerning jurisdiction and eventually some Member State courts’ decisions concerning what is called the Rome Convention, which is the predecessor to Rome I.
Thanks, and I am looking forward to the beginning of the class and to meeting you.


1st session assignments are:
Art. 1 – 5, 9 (2), 15 (2) Brussels Regulation

Art. 1 – 4 Rome I Regulation

Restatement of the Law Second, Conflict of Laws 2d, Chapter 8, Contracts (§§ only)

Solomon, 82 Tul.L.Rev. 1607



or

Behr, 29 J.L. & Com. 233 (2011)





1. Session


Introduction


0.1.

Basics of Private International Law in General

01.1.

Objectives of Private International Law

01.2.

Sources

01.3.

How Does Private International Law Work?

01.4.

Qualification/Characterization

01.5.

Renvoi

0.2

Approaches” Towards Conflict of Laws in Europe and in the U.S.

02.1

Characteristics of the American Approach

02.1.1.

Determining the Applicable law by the Court

02.1.2.

Determining the Applicable law on the Individual Case

02.1.3.

Determining the Applicable Law ex post

02.2.

Characteristics of the European Union Approach

02.2.1.

Determining the Applicable Law by Legislation

02.2.2.

Determining the Applicable Law Based on Types

02.2.3.

Determining the Applicable Law ex ante

0.3

Suing and Being Sued Abroad – An Outline to Chances and Necessities to Enter into a Lawsuit in Europe and the Impact of Jurisdiction and Arbitration on the Applicable Law

0.4.

Jurisdiction

0.4.1

European and National Law on Jurisdiction in Europe

0.4.2

Federal and State Law on Jurisdiction in the U.S.










2. Session




Part 1

Applicable Law in Contractual Relationships Under the Rome I Regulation/Rome Convention/U.S. Law)







0.

Introduction

0.1

Unification of Private International Law Within the EU

0.2

Development of Private International Law of Contracts within the EU

0.3

Scope of Rome I in General

0.4

Excluded Matters

0.5

Application as to Time, Art. 28

0.6

Application as to Space. Art. 3

0.7

General System and System of Protecting or Favoring Weaker Parties







1.

Applicable Law - Law Chosen by the Parties

1.1

When is Choice of Law available?

1.2

What law can be chosen by the parties?

a) My law, your law or a neutral law

b) International law

c) Lex mercatoria (law merchant)

d) No national law contracts?

1.3

(No) Renvoi

1.4

Choice of Law and CISG

1.5

When to Choose the Applicable Law

1.6

How to Make a Proper Choice of Law

1.7

Choice of Law and the Battle of Forms

1.8

Implied Choice of Law







2.

Applicable Law in the Absence of Choice of Law

2.1

Balancing Predictability and Individual Justice – Typical and Individual

Determination of the Applicable Law

2.2.

Rome I Convention – Presumptions and Escape Clause

2.3.

Rome I Regulation – List, Habitual Residence of Party Effecting the Characteristic Performance, and Escape Clause

2.4.

Restatement 2d – Most Significant Relationship and List

2.5.

The Escape Clause




3. Session




3.

A Special Set of Rules to Protect and Favor “Weaker” Parties

3.1.

Rome I Convention

3.1.1.

Consumer protection

3.1.2.

Employee’s protection

3.2.

Rome I Regulation

3.2.1.

Consumer protection Consumer protection

3.2.2.

Individual Employment Contracts

3.2.3.

Insurance Contracts

3.3.

Restatement 2d







4.

Overriding Domestic or Foreign Interests

4.1.

The Purely Domestic Case

4.2.

The Purely European Case

4.3.

Domestic/Foreign Mandatory Provisions

4.4

Public Policy







5.

Scope of Applicable Law

5.1.

Consent and Material Validity

5.2.

Interpretation

5.3.

Rights and Obligations of the Parties

5.4.

Extinguishing of Obligations, Prescription and Limitation of Actions

5.5.

Burden of Proof







6.

Separately Treated Issues

6.1.

Formal Requirements

6.2.

Capacity

6.3.

Representation

6.4.

Mode of Proof




4. Session




Part 2

Applicable Law in Non-Contractual Relationships Under the Rome II Regulation/U.S. Law)







0.

Introduction

0.1

Conflict of Laws of Non-contractual Relationships Before Rome II

0.2

Unification of Conflict of laws before Rome II







1.

Regulation 864/2007 (Rome II) in General

1.1.

Development of Rome II

1.2.

Scope of Rome II

1.2.1.

Subject Matter

1.2.1.1.

Included Subjects

1.2.1.2.

Excluded Subjects

1.2.2.

Application as to Time

1.2.3.

Application in Space

1.3.

Rome II and Domestic Conflict of Laws







2.

Torts

2.1.

Basic Principles

2.2.

Applicable Law in General

2.2.1.

Country Where the Damage Occurs

2.2.2.

Exception Based on common Habitual Residence

2.2.3.

Escape Clause

2.2.4.

(Limited) Freedom of Choice

2.2.5.

Ranking

2.2.6.

(No) Renvoi

2.2.7.

Rules of Safety and Conduct

2.2.8.

Overriding Mandatory Provisions

2.2.9.

Public Policy

2.2.10.

Scope of Applicable Law

2.2.11.

Burden of Proof




5. Session




2.3.

Specific Torts

2.3.1.

Product Liability

2.3.2.

Unfair Competition and Restrictions to Free Competition

2.3.2.1.

Unfair Competition

2.3.2.2.

Restrictions to Free Competition

2.3.3.

Environmental Damages

2.3.4.

Intellectual Property

2.3.5.

Industrial Action

2.4.

Provisions of General Application

2.4.1.

Direct Action Against Insurer

2.4.2.

Subrogation

2.4.3.

Multiple Liability









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