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THE APPLICABLE LAW

THE APPLICABLE LAW. International Business Law. I- The Rome Convention. A- Presentation of the Rome convention B- Who must apply it ?. B- Which relations does it regulate ? 1) Contract 2) International. II- The choice of the applicable law. A- The autonomy principle Free choice.

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THE APPLICABLE LAW

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  1. THE APPLICABLE LAW International Business Law

  2. I- The Rome Convention • A- Presentation of the Rome convention • B- Who must apply it ?

  3. B- Which relations does it regulate ?1) Contract • 2) International

  4. II- The choice of the applicable law • A- The autonomy principle • Free choice

  5. 3) Advantages et inconvenient • - Advantages • Parties’ will • Efficiency • Inconvenient • Fraud • Absence of choice

  6. B- The Rome Convention • 1) Form of the choice • No needed formality • Separate contract or contract term • 2) Moment of the choice • Any moment • 3) Law chosen • - Need to chose a law ? Only one ? • - Link with the contract ?

  7. C- Limits to the power to chose • 1) International contract • 2) Fraud • Example : Contract for the sale of cannabis applying Columbian law. • 3) Public order • Example : Surrogate mother contract between two English people living in France.

  8. III- Absence of choice • Rome Convention Art 4 • A) Close connection

  9. B) Presumption : Characteristic performance • Definition : What a party receives in exchange of a payment • Example : A sells 10 computers to B for 10.000 Euros

  10. C) Exceptions • - Immovable Property • - Carriage of goods • - Closer connection • Example : A Belgian company, settled in France, sells computers produced in Belgium to a Belgian client settled in Belgium. The computers are delivered in Belgium and paid on the seller’s Belgian bank account.

  11. IV- Competing principles • Definition

  12. A- Rules of protection • 1) Labour contract • - Absence of choice • Art 6 : habitual place of performance • If not single, place through which the employee was hired • Example : German employee hired by the French factory of a Japanese company’s French factory as a commercial agent for the Belgium and Luxemburg markets. • - Choice of the parties • Example: The parties chose American law in the contract

  13. 2) Consumer contracts • - Absence of choice • Example : A French Company sends an offer to a Greek consumer to sell him a MP3 player for 50 euros. The Greek consumer claims that the MP3 player is defective. • - Choice of the parties • Example : The contract applies French law. French law imposes to have a lawyer to go to court (what Greek law does not) and gives the consumer 2 years to claim for hidden defects (whereas Greek law gives only 1 year to do this).

  14. B- Public policy rules • 1) Rationale

  15. 2) Public policy rules • - Applicable law public policy rules • Example : A Belgian seller sells cigarettes to a French buyer. The parties chose to apply French law. (allowed in Belgian law but illegal in French law) • - Forum (judge) public policy rules (art 16) • Example : A Belgian seller sells cigarettes to a French buyer. The parties chose Belgian law (or the contract is silent). The Buyer does not pay • - Other public policy rules • Example : A French seller sells cigarettes to a Belgian buyer. The parties chose Belgian law and the seller does not deliver.

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