Giuliano-Lagarde Report on the Rome Convention [] OJ C/1. Introduction para 2 and commentary of Arts 3 and 4. Add to My Bookmarks Export citation. Giuliano-Lagarde Report on the Rome Convention [] OJ C/1. Commentary of Art 7. Add to My Bookmarks Export citation. Giuliano-Lagarde Report on. Posts about Giuliano Lagarde Report written by Geert van Calster.

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If the contract is concluded giulino that party in the course of his trade or profession, the country concerned is that in which his principal place of business is situated or, if the contract is to be performed through a place of business other than the principal place of business, the country in which that other place of business is situated.

These are situations which involve one or more elements foreign to the internal social system of a country for example, the fact that one or all of the parties to the contract are foreign nationals or persons habitually resident abroad, the fact that the contract was made abroad, the fact that one or more of the obligations of the parties are to be performed lagaede a foreign country, etc.

Review of the internal sources and nature of the rules in force in the EEC Member States relating to the law applicable to contractual obligations.

Giuliano-Lagarde Report on the Rome Convention [] OJ C/1 | University of Nottingham

Most of the delegations favoured the inclusion of gifts where they arise from a contract within the scope of the Convention, even when made within the family, provided they are not covered by family law. As provided in Article 1 1 the uniform rules in this Convention apply generally to contractual obligations in situations involving a conflict of laws. Such a situation is governed by Article 4. The preservation of third-party rights appears to be entirely justified. This localization is sometimes regarded subjectively as equivalent to the probable wish of the parties had such a wish been expressed, sometimes objectively as equivalent to the country with which the transaction is most closely connected Most of the experts who have participated in the Group’s work since have taken the view that consumer protection, the present aim of several national legislatures, would entail a reversal of the connecting factor provided for in Article 4 or a modification of the principle of freedom of choice provided for in Article 3.

In so far as the provisions of the law applicable pursuant to paragraph 2 give employees better protection than the chosen law, for example by giving a longer period of notice, these provisions set the provisions of the chosen law aside and are applicable in their place.

It is of universal application in the sense that the choice lagafde law which it lays down may result in the law of a State not party to the Convention being applied. From the very beginning of its work the Group has professed repotr to be in favour of uniform rules which would apply not repot to the nationals of Member States and to lsgarde domiciled or resident within the Community but also to the nationals of third States and to persons domiciled or resident therein.


The subject may be a body with or without legal personality, profit-making or non-profit-making. This oral analysis was further supplemented by the written replies given by each rapporteur on the basis of the statutes, case law and legal theory of his own country of the three Benelux countries in the case of Mr van Sasse to the questionnaires drawn up by his colleagues and himself 7.

When formulating paragraph 5, the Group met with difficulty in defining a “package tour”. Have you read this? The purpose of the reservation concerning the formal validity of the contract is to avoid a situation whereby the agreement between the parties to subject the contract to a law other than that which previously governed it could create doubts as to the validity of the contract during the period preceding the agreement between the parties.

Under the terms of paragraph lafarde thereof, Article 5 applies neither to contracts of carriage a nor to contracts relating to the supply of services provided exclusively in a country other than that in which the consumer is resident b.

Thus the uniform rules apply to contracts of insurance covering risks situate outside those territories. However, Article 5 of course only applies to package tours where the general conditions of paragraphs 1 and 2 are fulfilled, i.

Report on the Rome Convention by Professors Mario Giuliano and Paul Lagarde (OJ 1980 No C282/1)

The novelty of this provision, and the fear of the uncertainty to which it could give rise, have led some delegations to ask that a reservation may be entered on Article lagard 1 see Article 22 1 a. Lxgarde is presumed in this case that the contract is most closely connected with the country in which the immovable property lagardr situated. The original preliminary draft, with the limitation referred to, was re-examined in the course of 14 plenary sessions of the Group giulianp three special meetings on transport and insurance contracts ; each of the plenary sessions lasted two to five days In the new text it has therefore stated that the legal system of the country of which these mandatory provisions are an integral part must be examined to find out whether these provisions apply in the particular case whatever the law applicable to the contract.

Article 6 applies to individual employment contracts and not to collective agreements. Manufacturers Life Insurance Co. Several experts have observed that this omission might oblige the court in certain cases to take a large number of different and even contradictory laws into account.

The same principle forms the basis of the Convention for the settlement of disputes relating to investments between States and nationals of other States, which entered into force on 14 Octoberwhen it provides in Article 42 that “the Tribunal shall rule on the dispute in accordance with the rules of law lagardee by the parties”.

When the Group tackled the question of whether to supplement the general rules for determining the law applicable to the contract by some giuilano rules for certain categories of contract it became clear that the point was no longer as significant as it had been in the context of the rapporteur’s initial proposals.


Giuliano Lagarde Report | gavc law – geert van calster

The rule conferring upon guiliano parties the power to specify the law applicable to their contract is nevertheless founded on case law which has been developed and strengthened in recent decades despite the opposition of the great majority of earlier Giyliano legal theorists. This exclusion in no way implies that this aspect was considered unimportant in the economic life of the Member States of the Community.

The same attitude, at any event, underlies Article 16 of the Hague Convention of 14 Lagxrde on the law applicable to agency, whereby, in the application of that convention, effect may be given to the mandatory rules of any State with which the situation has a significant connection, if and to the extent that, by the law of that State, those rules are applicable irrespective of the law indicated by its confluct rules.

Similarly references in a contract to specific Articles of the French Civil Code may leave the court in no doubt that the parties have deliberately chosen French law, although there is no expressly stated choice of law. It was agreed that Giu,iano Arndt’s report on the law applicable to corporeal and incorporeal property would be discussed later, Mr Arndt having explained that a comparative study of the principal laws on security rights and interests should precede his report and that the need for such a study had been generally recognized.

Article 9 applies to contracts and unilateral acts intended to have legal effect.

The problem of the law to be applied will therefore continue to arise as long as substantive law is not unified. Article 7 2 states that “nothing in this Convention shall restrict the application of the rules of the law of the forum in a situation where they are mandatory irrespective of the law otherwise applicable to the contract”.

Type Webpage Web address http: As regards arbitration agreements, certain delegations, notably the United Kingdom delegation, had proposed that these should not be excluded from the Convention. Failing a choice of law by the parties, the obligations arising from the contract are governed by the following: I have a little more on the background in previous posting.

An Article in the original preliminary draft had expressly so provided. The objective concept seems to be receiving more and more support from legal writers and from case law. The liberal solution adopted by the Group seems to be in accordance with the requirement of logical consistency. Other matters were dealt with at the same meeting, notably the kind of cenvention to be prepared, as to which the great majority of delegates favoured a universal convention not based upon reciprocity ; the method of work ; participation of observers from the Hague Conference on Private International Law and the Benelux Commission on Unification of Law 6.

Consequently, the law which was applicable to those contracts before the merger continues to be applicable after the merger.