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Conflict of laws: Which law is applicable? - Sources of private international law - Harmonized EU-law (Rome I and Rome II)

9 important questions on Conflict of laws: Which law is applicable? - Sources of private international law - Harmonized EU-law (Rome I and Rome II)

What is the material scope of the Rome I regulation?

The material scope of the Rome I covers conflicts in situations with contractual obligations. Rome I applies in civil and commercial matters when there was a contract involved.

What is the scope of Rome II?

Rome II is used in situations concerning a conflict of laws in civil and commercial matters with a non-contractual obligation. Rome II is not applied in certain situations e.g. Matters concerning revenue, customs or administrative matters.

When would the private international law of Germany be applicable?

The German private international law will become applicable in situations where neither Rome I nor Rome II are applicable.
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What does article 3, no.1 in Rome I say about freedom of choice of law?

Article 3 in Rome I says that the law clearly chosen by the parties shall apply to the contract. The parties can choose to let the law applicable to the contract be applicable for the whole or just part of the contract.

What does article 3, no. 3 in Rome I say about provisions that cannot be derogated from by choosing another law? Why is this made?

If the parties choose the law of a country that has little to do with the connection of the contract, as they are free to do, they cannot avoid the mandatory laws of the country whereto the contract has its strongest connection. This is made so that individuals and businesses cannot commit fraud by e.g. Avoiding taxes in their own country by applying the law of another country to their contract.

What law is applicable if there is no specific type of contract according to Rome I, article 4, para. 2?

The applicable law if there has been no choice of law and the contract has a scope of more than one type of contract, the applicable law is the of the country, where the party, who are required to effect the characteristic performance of the contract, has his habitual residence. This means that the applicable law is that of the country where the service has its roots.

What law is applicable according to Rome I article 4, para. 3 and 4 if no law has been chosen and can be determined after paragraph 1 and 2?

The applicable law according to Rome I article 4, para. 4 is that of the country of the party that has the closest connection to the contract.

What is the habitual residence of businesses and individuals according to Rome I, article 19?

The habitual residence of businesses according to Rome I, article 19 is the place of central administration. The habitual residence of a person acting on behalf of his business, is his principal place of business.

Can a German court apply a foreign law? When can it not be applied?

Yes, a German court can apply a foreign law as judges can choose to investigate themselves and bring references to other laws. However, a foreign law cannot be applied in Germany if its applicability would be manifestly incompatible with the fundamental principles of the German law.

The question on the page originate from the summary of the following study material:

International Business law

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