Party Autonomy in International Property Law - Peace Palace Library

5. Party Autonomy in International Property Law: A German Perspective
5.3.2. Limitation of eligible laws
Under both the Rome I and the Rome II Regulation, it is accepted as a
general principle that no substantial connection between the chosen law
and the object of choice (contract, tort) is required (Article 3 Rome I;
Article 14 Rome II). Important exceptions exist, however, for contracts
for the carriage of persons (Article 5[2] Rome I) and insurance contracts
covering mass risks (Article 7(3) Rome I). Thus, a limitation of eligible
legal orders in international property law (e.g. country of destination,
country of origin) would not be incompatible with a systemic approach.
5.3.3. Explicit or tacit choice of law
Both the Rome I and the Rome II Regulation allow for a tacit choice
of law clause (Article 3 Rome I; Article 14 Rome II). However, legal
certainty may be a more important consideration in property law than
in contract / ​tort law. Thus, it would be legitimate to insist on an explicit
clause or to define strictly the terms under which a tacit choice of law
may be honoured.
5.3.4. Protection of weaker parties
Under both the Rome I and the Rome II Regulation, it is accepted as
a general principle that weaker parties (consumers, employees) deserve
specific protection (Articles 6, 8 Rome I; Article 14[1][a] Rome II). The
instruments employed to achieve this goal differ considerably, however.
In the field of consumer and employee protection, the Rome I Regulation
follows a more favourable law approach. With regard to protecting persons
who are parties to a contract of transportation and as far as the insurance
of mass risks is concerned, the Rome I Regulation opts for a limitation of
eligible laws (Article 5[2] subparagraph 2 Rome I; Article 7(3) Rome I).
The Rome II Regulation tries to protect weaker parties by differentiating
the accepted time of choice: ex ante for B2B agreements and ex post for
B2C clauses (Article 14[1] Rome II). No matter which specific technique
is adopted, international property law will also have to accommodate the
need to protect weaker parties.
Jan von Hein
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