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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Furthermore, in the French text the word “loi” has been replaced by the word “droit” in order to avoid any doubts as to the scope of the rule, which is to cover both “legislative” provisions of any other country and also common law rules.

Compared with the unification of ,agarde law, unification of the rules of conflict of laws is more hiuliano, especially in the field of property law, because the rules of conflict apply solely to legal relations involving an international element” 1. In certain areas the parties’ freedom of choice is subject to limitations imposed by statute 20athe most important of these being in the field of exemption lagwrde 20b.

It was also pointed out that so far as concerns relationships within the Community, the most important matters valitidity of the clause and form are governed by Article 17 of gihliano Convention of 27 September According to the circumstances, the words “a party” can relate either to the offeror or to the offeree. Such a situation is governed by Article 4.

To set a reading intention, click through to any list item, and look for the panel on the left hand side:. On 8 September the Permanent Representative of Belgium extended to the Commission, in the name of his own Government and those of the Kingdom of the Netherlands and the Grand Duchy of Luxembourg, an invitation to collaborate with the experts of the Member States, on the basis of the draft Benelux convention, in the unification of private international law and codification of the rules of conflict of repoet within the Community.

In the case of work on an oil-rig platform on the high seas, the law of the country of the undertaking which engaged the employee should be applied.

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

Given the entirely general nature of the conflict rule giiliano in Article 4, the guuliano exemptions to which are certain contracts made by consumers and contracts of employment, it seemed essential to provide for the possibility of applying a law other than those referred to in the presumptions in paragraphs 2, 3 and 4 whenever all the circumstances show the contract to be more closely connected with another country.

According to Article 6 2in the absence of choice by the parties and notwithstanding the provisions of Article 4, the contract of employment is governed as follows: The Group intended this enumeration to exclude from the scope of the Convention all matters of family law. The question of accession by third States gijliano not dealt with in the Convention see page 41, penultimate paragraph.

For example, the principle was recognized in the abovementioned judgment of the Netherlands Supreme Court in the Alnati case cited supra, commentary on Article 3 1 in which the Court said that, although the law applicable to contracts of an international character can, as a matter of principle, only be that which the parties themselves have chosen, “it may be that, for a foreign State, the observance of certain of its rules, even outside its own territory, is of such importance that the courts must take account of them, and hence apply them in preference to the law of another State which may have been chosen by the parties to govern their contract”.


At the meeting in February the Group finished the draft convention, decided upon the procedure for transmitting the draft to the Council before the end of April and instructed Professors Giuliano and Lagarde to draw up the report ; this was then finalized at a meeting of rapporteurs on 18 to 20 June in which one expert per delegation participated, and transmitted in turn to the Council and to the Governments by the chairman, Mr Jenard.

Moreover the Geneva Conventions to which several Member States of the Community are parties govern most of these areas.

On 18 May the Group’s chairman, Mr Jenard, sent the draft Convention to the President of the Council of the European Communities with a request that the Governments make their comments on the draft by the end of the year so that the Convention could then be concluded during Acts to which they apply. It should be stated, however, that the rule in Article 6 also covers the case of void contracts and also de facto employment relationships in particular those characterized by failure to respect the contract imposed by law for the protection of employees.

If, on the other reportt, the German replies to an advertisement in American publications, even if lagaarde are sold in Germany, the rule does not apply unless the advertisement appeared in special editions of the publication intended for European countries. On 16 January the Permanent Representatives Commitee set up an ad hoc working party on private international law, whose terms of reference were twofold: The text follows that of the Hague Convention drafted during the XIIIth session Layarde of 14 March on the law applicable to matrimonial property regimes, Article 2, and on the law applicable to agency, Article 4.

This is because the main subject-matter of these contracts is the construction or repair rather than the immovable property itself. The same attitude, at any event, underlies Article 16 of the Hague Convention of 14 March 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.

Given the nature of these provisions and their fundamental diversity, no rule of conflict can lead to a uniform solution. The exclusion of arbitration agreements does not relate solely to the procedural aspects, but also to the formation, validity and giulianoo of such agreements.

Giuliano Lagarde Report | gavc law – geert van calster

The AG focuses his analysis entirely on the specific qualification of the contract at issue conclusion: Miccio, Counsellor to the Italian Court of Cassation.


I am now quite curious what the CJEU will make of it all.

The previous decisions of the Supreme Court and the differing views of writers on the precise scope of the freedom of contract rule would not have permitted definition of the state of Netherlands law in this matter with sufficient certainty You can filter on reading intentions from the listas well as view them within your profile. For example, an “index-linking clause” may be made subject to a different law ; on the other hand it is unlikely that repudiation of the contract for non-performance would be subjected to two different laws, one for the vendor and the other for the purchaser.

Insurance contracts, where they cover risks situate outside the Community, may also, in appropriate cases, fall under Article 5 of the Convention. However, the Group thought it inappropriate to specify this exclusion in the text of the Convention itself, thereby intending to avoid an a contrario interpretation of the Convention of 27 September What are reading intentions? This is a particularly delicate matter in the situations referred to, because it involves international contracts normally concluded by correspondence.

The parties’ choice must be express or be demonstrated with reasonable certainty by the terms of the contract or the circumstances of the case. On this basis, Article 6 1 sets a limit on the parties’ freedom to choose the applicable law, as permitted by Article 3 of the convention, affirming that this choice in contracts of employment “shall not have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable under paragraph 2 in the absence of choice”.

The paragraph is intended to cover all aspects of formation of the contract other than general validity. Thus if the receiver of goods or services holds himself out as a professional, e.

The words “by way of exception” are therefore to be interpreted in the sense that the court must have recourse to severance as seldom as possible. Article 4 3 establishes that the presumption in paragraph 2 does not operate to the extent that the subject of the contract is a right in immovable property or a right to use immovable property.

On the normally general nature of the uniform rules in the Convention and their significance in the unification of laws already undertaken in the field of private international law.

Recourse must be had to Article 4 of the Convention if the chosen laws cannot be logically reconciled. Additionally, in considering whether to give effect to these mandatory rules, regard must be had to “the consequences of their application or non-application”.

Under the terms of paragraph 4 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 giulianoo that in which the consumer is resident b.

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