Just How Free is a Free Choice of Law? Prof. Dr. Peter Mankowski JPrIL 10the Annual Conference, Cambridge 4 September 2015

Prof. Dr. Peter Mankowski2 Introduction  Party autonomy as the bedrock of international commercial contracts  Is not Art. 3 (1) Rome I Regulation pretty clear and conclusive?

Prof. Dr. Peter Mankowski3 Introduction II  Recent challenges  from the Unfair Contract Terms Directive  the quarters of the law against unfair commercial practices  under the Injunctions Directive  Amazon Luxemburg and Case C-191/15

Prof. Dr. Peter Mankowski4 Parties‘ choice of law and the Unfair Contract Terms Directive I  Annex 1 (q) Unfair Contract Terms Directive:  only jurisdiction and arbitration clauses expressly listed  > argumentum e contrario for choice of law clauses?

Prof. Dr. Peter Mankowski5 Parties‘ choice of law and the Unfair Contract Terms Directive II  Transparency review under Art. 5 cl. 1 Unfair Contract Terms Directive?  Is „This contract is subject to English law“ really intransparent?  Seemingly unconditional choice of law clause in consumer contracts and more favourable law principle

Prof. Dr. Peter Mankowski6 Parties‘ choice of law and the law against unfair contract terms  Distinction between the choice as such and the content of the chosen law  Lack of objective connections between the chosen law and the contract

Prof. Dr. Peter Mankowski7 Parties‘ choice of law and the law against unfair commercial practices  Abstract approach, looking on the effect on the market vs. relevance of the concrete contract  Two tier approach in conflicts law  Determining the law applicable to unfair commercial practices: Art. 6 Rome II Regulation  Incidental question: law applicable to the contract  Art. 3 (5) iuncto Art. 10 (1) Rome I Regulation inapplicable

Prof. Dr. Peter Mankowski8 Is there a protection paradox ensuing?  Negative outcome of a review under the auspices of the law against unfair commercial practices  > striking out the choice of law clause?  > destroying the ground for the more favourable law principle for consumer contracts in particular?  Relief under law against unfair commercial practices generally has effects only pro futuro

Prof. Dr. Peter Mankowski9 Does the Injunctions Directive 2009/22/EC add anything to the overall picture?  Limited substantive scope: consumer affairs  Accessory nature:  Only different procedural means are added to the enforcement of the Directives listed in the Annex to the Injunctions Directive  The Injunctions Directive does not implement own substantive standards.  Yet again: Is there a protection paradox ensuing?

Prof. Dr. Peter Mankowski10 Review of content as to substance?  argumentum e contrario from Arts. 3 (3); 3 (4); 5 (2); 6 (2); 7 (3); 8 (2) Rome I Regulation  True conflicts mechanisms employed where wanted  Art. 3 (5) Rome I Regulation is only applicable where Art. 3 (1) Rome I Regulation is not already determinative  A review based on the chosen law would collide with Art. 20 Rome I Regulation

Prof. Dr. Peter Mankowski11 Concluding remarks  Interesting challenges to party autonomy are not only ahead, but already present.  Art. 3 (1) Rome I Regulation is not a solitaire but has to be seen in wider contexts.  Most challenges are arguable at best, though.

Prof. Dr. Peter Mankowski12 Contact Prof. Dr. Peter Mankowski Director of the Institute for Private International Law Fakulty of Law University of Hamburg Rothenbaumchaussee 33 D Hamburg