The approach of the Rome Convention to the other provisions of private international law rules regulating conflicts of law in obligations

In a report prepared by M. Giuliano and P. Lagarde it was stated that among the nine Member States, only Italy applies its rules of private international law rules in conflicts of substantive law to the extent to which the committee has completed the preparation of the legislative work of the Rome Convention. [footnote 45] In other Member States conflicts of law are resolved on the basis of customs, judicial precedents and the position of the doctrine of private international law and private international labour law. Authorities of the five Member States of the European Economic Community (Belgium, Denmark, Holland, Luxembourg and Germany) included conflict of law norms of the Convention to their

internal international private law. [footnote 46] In relation to other treaties and international conventions, the Rome Convention does not interfere with the other conflict of law rules formulated in the legislation of the European Communities.

In Article 20 of the Rome Convention it was decided that this Convention accepts the primacy of the conflict of law rules of Community law and the internal standards issued by the authorities of the Member States in implementation of obligations arising from the necessity to introduce into domestic conflict of law rules laid down by the European Communities.

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The authorities of the Member States and the European Communities declared that they will not take action to introduce into the law of the European Communities regulations conflicting with the rules of conflict of laws formulated in the Rome Convention. A report by M. Giuliano and P. Lagarde stated that the principle of primacy of Community law in

relation to conflict of law rules formulated in the Rome Convention refers to the Community provisions, which were issued in the period preceding and following the entry into force of the Rome Convention. [footnote 47]

The statements is contained in the provision of Article 21 of the Rome Convention, under which the analysed Convention does not prejudice the application of other international conventions to which the parties are or will become Member States of, having ratified the Rome Convention cannot be interpreted in isolation from the provisions of Article 24 and Article 25 of the Convention. In Article 24 the requirements for Member States are set out which, after the entry into force of this Convention, they intend to join another multilateral convention whose principal aim or one of its main objectives is to establish rules of private international law rules governing conflicts of law in any of the matters regulated by the Rome Convention. Article 24, paragraph 1 of the Rome Convention defines requirements for Member States that have ratified the Rome Convention and intend to join other

international conventions to which the parties are countries that have not ratified the Rome Convention. From the above it can be deduced that Article 24, paragraph 1 of the Rome Convention does not govern the relationship between this Convention and other

conventions that are “competitive” with the Rome Convention. The competition between these conventions, the Rome Convention and another multilateral convention adopted in order to resolve a conflict between national legislation governing the contractual

obligations could be written about, if both parties to these conventions were the same countries. Despite the overlapping planes of legal regulation (law applicable to contractual obligations), it is conceivable that, without harming the interests of citizens of a Member State which, under the European Communities is required to comply with laws rules formulated in the Rome Convention, and in legal relations with third countries is obligation

to comply with the rules of conflict of laws laid down in other multilateral convention. The object of the legal protection assured by the Rome Convention, Article 24, paragraph 1 is of legal certainty, in which individuals are involved and other legal entities acting on the basis of national substantive laws of the Member States. Unification of the conflict rules of substantive law applicable to contractual obligations forces the Member States of the European Communities to the exclusive use of the rules set out in the Rome Convention in the legal relations in which the relations of the EC Member States and third countries are its citizens and entities taking part in legal relations that are subject to the competing obligations regulations.

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The legal good protected by the Rome Convention is the transparency, predictability, efficiency and the identical nature of the regulations used in obligation relations involving a foreign element. The consultation procedure laid down in Article 23 of the Rome

Convention applies, mutatis mutandis, to cases in which a Member State bound by the Convention, intends to depart from it and ratify another multilateral convention, which regulates conflicts of substantive law applicable in obligation relations involving a foreign element.

Although neither the Polish or the English text of the Rome Convention makes use of the term, it is possible to conclude that Article 24, paragraph 1 of this Convention regulates derogation procedures. It applies in all situations where a Member State relating to the Rome Convention will replace the convention by other multilateral conventions.

One should consider whether the procedure laid down in Article 23, which should be used in cases relating to the replacement of the Rome Convention by another multilateral convention must be applied even if the country has ratified the Rome Convention but intends to accede to a bilateral convention. Grammatical rules of interpretation of Article 24, paragraph 1 of the Rome Convention does not give rise to extend the obligation to conduct consultations with other Member States that have ratified the Rome Convention concerning goals related to the ratification of a bilateral convention. Teleological

interpretation of the rule also does not require to carry out such consultation. The good of the European Communities, protected by the Rome Convention (uniformity, transparency, predictability and effectiveness of the conflict rules) are not jeopardized in the event of accession by the Member States of the European Communities to bilateral conventions which may govern in a different way to the Rome Convention rules. This observation could not be repeated, however, if the conclusion of a bilateral convention was entered into

between two Member States or if many bilateral conventions are entered into between Member States and third countries.

In my opinion, the legal values protected by Article 24, paragraph 1 of the Rome Convention shall be depleted in all cases when Member States of the European

Communities enter into any convention, including bilateral agreements with other countries – either with members of the EC or third countries.

Article 24, paragraph 1 of the Rome Convention establishes a procedure for which the authors report on the Convention on the law applicable to contractual obligations called

“freedom under supervision.” [footnote 48] Signatories of the Rome Convention through the above procedure, enable authorities of Member States, parties to the Rome

Convention, to ratify a multilateral convention with prior notification – via the Secretary General of the Council of the European Communities.

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Within six months of notification of this intention, each Member State may request the initiation of the consultation procedures in order to reach agreement on the admissibility of the intention to complete the ratification of other multilateral conventions regulating the conflicts of the substantive rules on matters referred to in the Rome Convention. The intention of ratifying other multilateral conventions by the Member State can be achieved if other countries – signatories of the Convention do not require consultation within six months from the date of notification of the Secretary General of the Council of the EC, or if during the year following the notification, the Secretary-General carries out consultations between the authorities of the Member States concerned, which do not lead to the conclusion of the relevant agreement. Having the appropriate application of Article 23, paragraph 2 of the Rome Convention, the provision does not comment on the admissibility of any other multilateral convention ratified by the Member State which also ratified the Rome Convention. The provision provides that if the implementation of this intention, the Member State which has become a party to other multilateral conventions may change its rules of private international law.

There is no obligation to use the procedure laid down in the Article 23 of the Rome Convention, if one of the Member States, a signatory of the Rome Convention has also been during that moment a ratifier of another multilateral convention, or if any other multilateral convention has been ratified by a country (a party to the Rome Convention) intending to revise the multilateral convention to which the country acceded before ratifying the Rome Convention. There is no need to bring information and consultation procedures

as governed by Article 23 and Article 24 of the Rome Convention where a Member State, party to the Convention intends to ratify the convention of other multilateral treaties

establishing the European Community (Article 24, paragraph 2).

As it was mentioned above, the good protected by the Rome Convention is the unification of conflict of law rules used by Member States to designate the law applicable to the obligations arising from contracts involving a foreign element. Authorities of each Member State which has ratified the Rome Convention may invite the Secretary General of the Council of the European Communities to arrange consultations between the countries – signatories of the Convention if it considers that the unification of conflict of law rules made by the Rome Convention is in danger as a result of the accession of a particular Member State or States to another or other multilateral conventions established or establishing a separate order of private international law on matters referred to in the Rome Convention (Article 25). This provision does not oblige the Secretary General of the Council of the EC to initiate the consultation procedure. It does not specify the powers of European

institutions over Member States which have ratified the multilateral conventions indicating the law applicable to the obligations arising from contracts involving a foreign element.

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The consultation procedures between Member States which have ratified the Rome

Convention are widely used not only in matters related with the intentions of ratifying other multilateral conventions.

In the annex to the Rome Convention it was agreed that Member States carry out consultations before deciding on the ratification of this Convention by any member, including the Member States of the European Communities. The Rome Convention does not contain legal standards that hinder or make it impossible for Member States decided upon the adoption into their national system of unified private law conflict of law rules used to indicate the relevant national regime of substantive law for the obligations arising from contracts involving a foreign element.

It also does not contain the standards for determining legal consequences in accordance with the legal order established by that convention, ratified by a Member State – a party to the Rome Convention and to other multilateral conventions, establishing a different legal order of private international law of contractual obligations, in which there are foreign elements.

The Secretary-General of the Council of the European Communities, using the discretionary powers granted to him by Article 25 of the Rome Convention may not

respond to the request of the authorities of a Member State, which considers that the ratification or any other multilateral convention ratifications represent a threat to the

uniformity of conflict of law rules. However he may call for consultations, which may cause a change in attitude of the authorities of certain Member States to resolve a conflict of law in contractual obligations, according to the different standards of private international law.

From a strict legal point of view, the Member States may decide to modify the content of the conflict of law rules laid down in order to resolve the conflicts based on agreements in which there are foreign elements. Application containing the request to revise the Rome Convention may be made by the authorities of each Member State which has ratified the above Convention. Such a request is addressed to the Chairman of the Council of the European Communities. Article 26 of the Rome Convention requires the Chairperson of the EC to convene a conference for the revision of the Rome Convention. The decision to change the system for resolving conflict of law applicable to the obligations arising from contracts involving an international element is taken up by the Member States at the conference.

At the core of international regulatory policy adopted by private international law in international organizations prior to the European Union is the principle of voluntary

settlement of a conflict of substantive law relating to the obligations arising from contracts involving a foreign element to one, unified international legal regime. The same rule should apply in the event of a decision to revise the provisions of the Rome Convention. Although no Member State of the EEC, EC and the EU demanded the convening of a conference on the revision of the Rome Convention, this Convention until its replacement by European Parliament and the Council of the European Communities No. 593/2008 of June 17, 2008 on the law applicable to contractual obligations (“Rome 1”) may be amended only by a unanimous decision of the authorities of all Member States which have ratified it.

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Although no provision in the Rome Convention contains the wording concerning

“competing” multilateral conventions, in commentary contained in the Convention, lists the conditions for determining the conditions of implementation of the consultative procedure prior to the possibility of ratification by a Member States – a signatory of the Rome

Convention of another multilateral convention whose principal aim or one of the main objectives is to establish rules of private international law relating to any of the matters governed by the Rome Convention. [footnote 49 ]

The system of “controlled freedom” in selecting multilateral conventions used in the Rome

Convention, allows Member States to ratify the multilateral conventions that do not regulate conflicts of substantive law relating to obligations not arising from contracts and conflicts of provisions other than the standard of obligations (Article 24, paragraph 1). In Article 24, paragraph 2 of the Rome Convention there were further restrictions included on the use of the consultation procedure. This provision provides the legal basis for the

differentiation of multilateral conventions, such that without risk to initiate the consultation procedure may be ratified by the Member States which have ratified the Rome Convention and the multilateral conventions to which Member States may join after the exhaustion of the consultation period. The purpose of this is to maintain and ensure a uniform, universal within the European Communities system for resolving conflict of substantive law

regulating the conflict between the contracts with foreign elements.