Max Planck Institute for Comparative and International Private Law University of Oxford, Faculty of Law Institute of European and Comparative Law 14 March 2008 Choice of Law and Choice of Forum in the European Union – Recent Developments – Giesela Rühl Max Planck Institute for Comparative and International Private Law, Hamburg European University Institute, Florence

Max Planck Institute for Comparative and International Private Law Overview Structure of the Presentation The principle of party autonomy Choice of law in the European Union – General development From the Rome Convention to the Rome-I Regulation – Important changes Choice of law in Community case Choice of law in consumer contracts Choice of a non-state law Choice of forum in the European Union – General development From the Brussels Convention to the Brussels-I Regulation – Important cases Choice of forum and the doctrine of lis pendens Choice of forum and antisuit injunctions

Max Planck Institute for Comparative and International Private Law The Principle of Party Autonomy The 2 Facets: Choice of Law and Choice of Forum Basic rationale – Certainty and efficiency – Competition and innovation Current state -Brussels Convention (1968), Rome Convention (1980) -Brussels-I Regulation (2001), Rome-I Regulation (2008) Historical development -19th century: Establishment as general principle -20th century: Debate on reach and legitimacy

Max Planck Institute for Comparative and International Private Law Choice of Law in the European Union From the Rome Convention to the Rome-I Regulation Rome Convention (1980) – International treaty – Art. 3: Choice of law as the basic principle Treaty of Amsterdam (1999) – Art. 65: Competence for Private International Law – Discussion about reform of the Rome Convention Green paper (2003) Proposal for a Rome-I Regulation (2005) Rome-I Regulation (2008) – Community instrument – Art. 3: Choice of law as the basic principle

Max Planck Institute for Comparative and International Private Law Choice of Law in the European Union Choice of Law in Community Cases Art. 3 Rome Convention – Limitation of choice of law in national cases No derogation from the mandatory provisions of national law Application of a „law mix“ – No limitation of choice of law in community cases Art. 3 Proposal for a Rome-I Regulation – Unclear provision on „mandatory provisions“ Art. 3 Rome-I Regulation – Limitation of choice of law in national cases – NEW: Limitation of choice of law community cases

Max Planck Institute for Comparative and International Private Law Choice of Law in the European Union Choice of Law and Consumer Contracts Art. 5 Rome Convention – Limitation of choice of law in certain cases – Application of a „law mix“ Art. 5 Proposal for a Rome-I Regulation – Exclusion of choice of law in all cases – Application of the law at the consumer‘s habitual residence Art. 6 Rome-I Regulation – Return to Art. 5 Rome Convention – NEW: Targeted activity criterion

Max Planck Institute for Comparative and International Private Law Choice of Law in the European Union Choice of a Non-State Law Art. 3 Rome Convention – Unclear wording: „law“ – Surrounding provisions: „law of a country“ Art. 3 Proposal for a Rome-I Regulation – Choice of „principles and rules of substantive contract law recognised internationally or in the Community“ Art. 3 Rome-I Regulation – Return to the Rome Convention – NEW: Exclusion of choice of non-state law in recitals

Max Planck Institute for Comparative and International Private Law Choice of Forum in the European Union From the Brussels Convention to the Brussels-I Regulation Brussels Convention (1968) – International treaty – Art. 17: Choice of forum as important principle Treaty of Amsterdam (1999) – Art. 65: Competence in the field of Private International Law – Discussion about reform of the Brussels Convention Brussels-I Regulation (2001) – Community instrument – Art. 23: Choice of forum as important principle

Max Planck Institute for Comparative and International Private Law Choice of Forum in the European Union Choice of Forum and the Doctrine of Lis Pendens Purpose of the doctrine of lis pendens – Avoiding parallel proceedings – Avoiding irreconcilable judgments Relation to a choice of forum – Problematic cases Two courts are seized. Court first seized is not the chosen court. – Possible solutions Prevalence of the doctrine of lis pendens Prevalence of a choice of forum ECJ, Gasser v. MISAT (2003) „Prevalence of the doctrine of lis pendens“

Max Planck Institute for Comparative and International Private Law Choice of Forum in the European Union Choice of Forum and Antisuit Injunctions Purpose of antisuit injunctions – Protecting national proceedings – Preventing injustice Relation to a choice of forum – Problematic cases Two courts are seized. One of them is not the chosen court. – Possible solutions Allowing a violation of the choice of forum Allowing an antisuit injunction ECJ, Turner v. Grovit (2004) „No antisuit injunctions under the Brussels Regime“

Max Planck Institute for Comparative and International Private Law Conclusion Choice of Law and Choice of Forum … … have been recognized in Europe ever since the adoption of the Rome and the Brussels Conventions. … have been transformed into European concepts with the conversion of the Rome and the Brussels Conventions into community instruments. … are shaped by the European Court of Justice and become more and more embedded in the complex European legal order. … are cornerstones of European private international law and important means for European integration.

Max Planck Institute for Comparative and International Private Law University of Oxford, Faculty of Law Institute of European and Comparative Law 14 March 2008 Choice of Law and Choice of Forum in the European Union – Recent Developments – Giesela Rühl Max Planck Institute for Comparative and International Private Law, Hamburg European University Institute, Florence