scholarly journals Incidencia de las normas imperativas en los contratos internacionales: especial referencia a las normas de terceros estados desde una aproximación europea = Overriding mandatory provisions in international contracts: a special reference to foreign overriding mandatory provisions from a European approach

2017 ◽  
Vol 9 (2) ◽  
pp. 174
Author(s):  
Clara Isabel Cordero Álvarez
Keyword(s):  
Contract Law ◽  
European Contract ◽  
Applicable Law ◽  
European Approach ◽  
European Court ◽  
Palabras Clave ◽  
Rome Convention ◽  
Mandatory Rules ◽  
Rome I ◽  
European Contract Law

Resumen: Este trabajo analiza algunas cuestiones que plantea la aplicación de las leyes de policía en el ámbito del Derecho contractual de la UE. Por cuanto se refiere a las normas de este tipo de terceros Estados su aplicación resulta significativamente más compleja, en especial si analizamos su tratamiento en el Reglamento Roma I, mucho más restrictivo que su predecesor el Convenio de Roma de 1980. En este contexto la reciente sentencia del Tribunal de Justicia (Nikiforidis) resulta muy relevante, ya que abre la posibilidad a los Estados miembros para tomar en consideración normas de policía de terceros Estados como elemento fáctico en el marco de la lex contractus, sin sujetarla a las restricciones y condicionantes previstos en el art. 9.3.Palabras clave: leyes de policía, normas imperativas, Derecho contractual europeo, Reglamento Roma I, sentencia Nikiforidis.Abstract: This paper addresses some of the issues raised by the application of overriding mandatory provisions, from a European approach. With regard to foreign overriding mandatory provisions, their application is significantly more complex. This approach appears in European Contract Law, particularly regarding the treatment of this issue in the Rome I Regulation, which is much more restrictive than the Rome Convention of 1980. In this context, the recent case law of European Court of Justice (Nikiforidis case) is very significant. Since the judgment gives Member States the possibility to take into account foreign overriding mandatory provisions, as a factual element within the framework of the applicable law to the contract, outside the scope of article 9.3 of the Rome I Regulation.Keywords: overriding mandatory provisions, mandatory rules, European Contract Law, Rome I Regulation, Nikiforidis case.

Part IV The Law of Obligations, 19 Contracts

2017 ◽  
Author(s):  
Torremans Paul
Keyword(s):  
Contract Law ◽  
Eu Law ◽  
Applicable Law ◽  
Rome Convention ◽  
Mandatory Rules ◽  
The Law ◽  
International Conventions ◽  
Rome I

This chapter examines the applicable law for contracts. Domestic contract law consists of two very different sorts of rules: the traditional rules and the more modern rules. The concept of mandatory rules only deals with the second class of rules. This chapter first considers the nature of the problem of ascertaining the applicable law with respect to contracts and a number of different solutions that have been tried in different countries to address it. It then discusses the history and purpose of the Rome Convention, as well as its relevant provisions and those of the Contracts (Applicable Law) Act 1990. It also analyses the Rome I Regulation, the circumstances under which it applies, and how it deals with special contracts. Finally, it looks at the Rome I Regulation's relationship with other provisions of EU law and international conventions.

scholarly journals The Revision of the Rome Convention of 1980 on the Law Applicable to Contractual Obligations–A Crucial Role within the European Contract Law Project?

2003 ◽  
Vol 72 (3) ◽  
pp. 341-367
Author(s):  
Ana López-Rodríguez
Keyword(s):  
European Commission ◽  
Crucial Role ◽  
Action Plan ◽  
Contract Law ◽  
Green Paper ◽  
European Contract ◽  
Rome Convention ◽  
The Law ◽  
Contractual Obligations ◽  
European Contract Law

AbstractThis article deals with some of the issues addressed in the Action Plan on a more coherent European contract law, COM (2003) 68 final, in connection with the Green Paper of the European Commission of 14 January 2003, COM (2003) 654 final, on the conversion of the Rome Convention of 1980 on the law applicable to contractual obligations into a Community instrument and its modernization. It argues ways in which both initiatives may complement each other towards a smoother functioning of the internal market.

scholarly journals The Role of Subsidiarity and Proportionality Principles in the Development of a Future Digital Single Market and a Common European Contract Law

2020 ◽  
Vol 14 (1) ◽  
pp. 1178-1186
Author(s):  
Ovidiu Ioan Dumitru
Keyword(s):  
European Union ◽  
Member State ◽  
Contract Law ◽  
Single Market ◽  
European Court Of Justice ◽  
The European Union ◽  
European Contract ◽  
Court Of Justice ◽  
European Court ◽  
European Contract Law

AbstractFrom the far beginning of the European Communities, with broader objective of creating a perfect unique market for the member states, it must be underlined the importance of the results of the harmonisation process of the contract law and the single market and that, in time, the institutions struggled in their tumultuous work for fulfilling the indicated objectives to overcome the interventions from each Member State, interested, also, in shaping a great and prosperous common market, but trying, subsequently, to reason with their traditions, culture, ideological and political choices. The legislation on single market and European contract law is a subjected to the three guiding principles of the European Union: the principle of conferral, which empowers the European Union in terms of competence, the principle of subsidiarity, which underlines the European Union’s competence in a certain field that is shared with a Member State and the principle of proportionality, which applies if the first two principles are validated, dealing with the how the European Union should legislate. However, there are some critics who express their worries in that there are insufficient empirical proofs for redefining the harmonisation process. Taking into account the criticism, the European Court of Justice has ruled in numerous occasions that the authorisation to harmonise laws, with the scope of safeguarding the proper functioning of the European internal market does not grant the European Union a carte blanche in order to interfere with the sake of harmonisation any law it wishes. The way the above indicated principles maintained their roles provided by the treaties or they were subject of modification, by enrichment or limitation, by the caselaw provided by the European Court of Justice, we must investigate in order to picture a possible “finale” of our Single Market and this paper will concentrate of the influence of subsidiarity and proportionality on the fields most dynamic in the past years, the Digital Single Market and its contract law. This paper wishes to clarify how the two fundamental principles, of subsidiarity and proportionality, provided in time by the modifying treaties and consolidated by the European Court of Justice, influenced the evolution of the legislation regarding the Single Market and how those two may help or block the future evolution in the context of a continuous pressure coming from the development of the digital framework and online contracts.

scholarly journals An Overview of Good Faith as a Principle of Contractual Interpretation with Special References to the Albanian Law

2017 ◽  
Vol 13 (25) ◽  
pp. 288
Author(s):  
Gjin Gjoni ◽  
Zhaklina Peto
Keyword(s):  
Contract Law ◽  
Good Faith ◽  
Third Party ◽  
European Contract ◽  
Applicable Law ◽  
Objective Sense ◽  
Contractual Obligations ◽  
Subjective View ◽  
European Contract Law

Good faith is one of the most discussed topics in the jurists' circle, seen as a key argument in European contract law. Though it is an accepted concept, there is no consensus regarding the role of good faith in modern civil contractual obligations. The purpose of this paper is to analyze the principle of good faith, shedding light on the concept and the description of this principle on Albanian legislation. Good faith is dealt with in its two meanings; subjective and objective, where in the objective sense of good faith is perceived as a method used to dress with moral contractual relations and to mitigate the inequalities that may result from the dogma of parties autonomy. While in the subjective view, good faith may refer to the situation in which a person acts with the confidence that he is acting in accordance with the applicable law or in a situation where a third party seeks protection. The aim of this paper is also to treat the principle of good faith under the optics of Albanian legal system. It is concluded that the doctrine in Albania is not very developed. It should be noted that there is no uniformity in jurisprudence and the debate if good faith can be excluded from the contract remains open.

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