Edited by Peter Stone and Youseph Farah
Chapter 8: The Rome I Regulation and the relevance of non-State law
In the course of the conversion of the Convention on the Law Applicable to Contractual Obligations 1980 (Rome Convention) into a Community instrument, the European Commission initially proposed that contractual parties should be authorised ‘to choose as the applicable law a non-State body of law’. Examples of non-State bodies of law contemplated in the proposal included the UNIDROIT Principles and the Principles of European Contract Law but excluded the lex mercatoria, which was considered not precise enough, as well as private codifications that are ‘not adequately recognised by the international community’. One reason for the proposal to authorise the choice of a non-State body of law was stated to be in order ‘to further boost the impact of the parties’ will’, which was seen as a key principle of the Rome Convention. Eventually, however, the proposal to allow contract parties to choose a non-State body of law was dropped in the final version of the Rome I Regulation that was adopted, apparently because of lack of sufficient support for the proposal. In the wake of the final version of the Rome I Regulation as adopted, it has been widely commented that the applicable law under the Regulation (whether by parties’ choice or otherwise) must be the law of a country or, in other words, that the Regulation excludes non-State law as applicable law. This is comparable to what had become the accepted position in respect of the Rome Convention.
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