Party Autonomy in International Property Law - Peace Palace Library

C. Developments and Prospects in Europe and in European Law Projects
What I will do here is describe where we came from with Article 12 of the
Rome Convention 4 , how we started in 2006 with a Commission proposal
on Article 14 on assignment, and how we struggled and failed. I shall
finish with some thoughts about the future of Article 14 Rome I, and a
short conclusion.
7.2. Where we came from: the legal chaos under
Article 12 of the Rome Convention
In the 1970s, it took the negotiators of the Rome Convention a long time
to conclude an agreement on a harmonised set of rules on the applicable
law to contracts. The wording of the Rome Convention has certainly
not guaranteed a uniform interpretation and application of the rules contained
therein. Still, the Convention was a big success.
Therefore, the original idea of the European Commission, at least its JLS
section – Justice Liberty and Security – was to transform the Convention
into a Regulation without many changes, simply because Regulations had
become the suitable instrument under the Treaty of Amsterdam. 5 Some
amendments might have to be made in areas known to have caused problems
in practice, but otherwise the rules should remain more or less the
same. 6
4
Rome Convention of 19 June 1980 on the law applicable to contractual obligations
(80 / 934 / ​EEC), OJ L 266, 09 / 10 / 1980 p. 1-19, consolidated version
30 December 2005, OJ 2005, C 334 / 3.
5
Treaty of Amsterdam amending the Treaty on the European Union, the Treaties
establishing the European Communities and related acts, OJ C 340, 10
November 1997.
6
Looking at Article 4 Rome I on the applicable law in absence of a party
choice-of-law, it is clear that this Article has changed considerably as compared
with Article 4 of the Rome Convention. The ‘hard and fast’ rules in
Article 4 of the Rome I Regulation serve mainly to meet the criticism of others
within the Commission (e.g. Internal Market), who thought that Private International
Law lacked legal certainty and predictability, and that it should
better be replaced by mutual recognition based on the law of the country of
origin. In order to arrive at maximum legal certainty, the scope of the ‘closest
connection’ rule in Article 4 of the Rome Convention has been narrowed
down.
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Paulien M. M. van der Grinten
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