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Giuliano-Lagarde Report on the Rome Convention [] OJ C/1. Introduction para 2 and commentary of Arts 3 and 4. Add to My Bookmarks Export citation. Giuliano-Lagarde Report on the Rome Convention [] OJ C/1. Commentary of Art 7. Add to My Bookmarks Export citation. Giuliano-Lagarde Report on. Posts about Giuliano Lagarde Report written by Geert van Calster.

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The Group unanimously affirmed that matters relating to the custody of children are outside the scope of the Convention, since they fall within the sphere of personal status and capacity. On the other hand, acts gijliano preliminary contracts whose sole purpose is to create obligations between interested parties promoters with a view to forming a company or firm are not covered by the exclusion.


The English word “trust” is properly used to define the scope of the exclusion. The Group therefore merely provided for some exceptions to the rule contained in Article 4, notably those in Articles 5 and 6 concerning the law applicable respectively to certain consumer contracts and to contracts of employment in default of an express or implied choice by the parties.

The mandatory rules from which the parties may not derogate consist not only of the provisions relating to the contract of employment itself, but also provisions such as those concerning industrial safety and hygiene which are regarded in certain Member States as being provisions of public law.

As a result the following were appointed: To prevent repodt “forum shopping”, increase legal certainty, and anticipate more easily the law which will be applied, it would be advisable for the rules of conflict to be unified in fields of particular economic importance so that the same law is applied irrespective of the State in which the decision is given.

However, harmonization of substantive law does not always contrive to keep pace with the dismantling of economic frontiers. Unlike the situation in France and Germany, in Italy the principle of freedom of contract of the contracting parties was expressly enacted as early as in the preliminary provisions of the Civil Code.

Thus in each of our six countries, instead of the existing rules of conflict and apart from cases of application of international Giulaino binding any Member State, identical rules of conflict would enter into force both in Member States’ relations inter se and in relations with non-Community States.

On the other hand the Group did not adopt the proposal that mergers and groupings should also be expressly mentioned, most of the delegations being of the opinion that mergers and groupings were already covered by the present wording.

The second sentence of paragraph 2 also leaves the parties maximum freedom as to amendment of the choice of applicable law previously made.

At the time of adoption of the convention, the Giuliano Lagarde Report went into a bit more detail as to what is and is not excluded:. This judgment formed the basis for the second paragraph of Article 13 of the non-entered-into-force Benelux Treaty of on uniform rules of private international law, which provides that “where the contract is manifestly connected with a particular country, the intention of the parties shall not have the effect of excluding the provisions of the law of that country which, by reason of their special nature and subject-matter, exclude the application of any other law”.


The first sentence of Article 3 2 leaves the parties maximum freedom as to the time at which the choice of applicable law can be made. English law recognizes that the parties to a contract are free to choose the law which is to govern it “the proper law of the contract”. This localization is sometimes regarded subjectively as equivalent to the probable wish of the parties had such a wish been expressed, sometimes objectively as equivalent to the country with which the transaction is most closely connected Confirming this exclusion, the Group stated that it affects all the complex acts contractual, administrative, registration which are necessary to the creation of a company or firm and to the regulation of its internal organization and winding-up, i.

A merger by acquisition therefore entails the acquisition by the acquiring company of the company being acquired in its entirety, without extinguishing the obligations that a winding-up would have brought about, and, without novation, has the effect of substituting the acquiring company for the company being acquired as party to all of the contracts concluded by the latter. This exclusion takes account of work being done within the Community in the field of insurance.

The preliminary draft of used giyliano the term “act intended to have legal effect” acte juridique which, in the terminology originating from Roman law, includes both categories. In fact these contracts do not raise the same problems as contracts of insurance, where the need to protect the persons insured must necessarily be taken into account. It must be stressed that the uniform rules apply to the abovementioned obligations only “in situations involving a choice between the laws of different countries”.

However, the flexibility of the general principle established by paragraph 1 is substantially modified by the presumptions in paragraphs 2, 3 and lagardde, and by a strictly limited exception in favour of severability at the end of paragraph 1. Acts to which they apply. In retaining this exclusion, for which provision had already been made in giuoiano original preliminary draft, the Group took the view that the provisions of the Convention were not suited to the regulation of obligations of this kind.

As regards international treaties, the rule of freedom of choice has been adopted in the Convention on the law applicable to international sales of goods concluded at the Hague on 15 June which entered into force on 1 September Following the abovementioned decision of the Permanent Representatives Committee, the Group met on 2 and 3 February and elected its chairman, Mr P.

This Article does not permit the court to infer a choice of law that the parties might have made where they had no clear intention of making a choice. Also, certain Member States of the Community regard these obligations as non-contractual.

Report on the Rome Convention by Professors Mario Giuliano and Paul Lagarde (OJ 1980 No C282/1)

According to Article 4 2it is presumed that the contract has the closest connection with the country in which the party who is to effect the performance which is characteristic of the contract has his habitual residence at the time when the contract is concluded, or, in the case of a body corporate or unincorporate, its central administration.


At the same time it provided solutions relating to the law governing the form of legal transactions and evidence, questions of interpretation of uniform rules and their relationship with other rules of conflict of international origin, to the extent to which these were connected with the subject of the preliminary draft.

At that meeting, a final round of negotiations produced agreement on a number of seven Member States required to ratify in order for the Convention to come into force.

If the employee habitually works in one and the same country the contract of employment is governed by the law of that country even if the employee is temporarily employed in another country. However, the Group deemed it inappropriate to submit contracts for the carriage of goods to the presumption contained in paragraph 2, having regard to the peculiarities of this type of transport.

The third indent is, unlike the rest of paragraph 2, limited to contracts for the sale of goods. The Group confined itself to a definition which underlines the main elements of this type of contract well known in practice, leaving it to the courts to solve any possible doubt as to the exact delimitation.

EUR-Lex – Y(01) – EN

It follows from the foregoing observations that the draft dealt both with the law applicable to contractual obligations and with that applicable to non-contractual obligations.

It was added that there would not be unification within the Community on this important matter in international commerce. The use of these giulinao is justified by reference to what has been said in paragraph 4 of the commentary on Article 3.

They arose in particular in determining the number of ratifications required for the Convention to come into force and in drafting a statement by the Governments of the Member States on the conferral of jurisdiction on the Court of Justice.

Here’s an example of what they look like: The meeting in question took place on lagaede to 28 February Moreover, these rules would in any case be frustated if the disputes were brought before a court in a third country. From the very beginning of its work the Group has professed itself to be in favour of uniform rules which would apply not only to the nationals of Member States and to persons domiciled or resident within the Community but also to the nationals of third States and to persons domiciled or resident therein.

At the same time there will be a growing number of cases in which the courts have to apply a foreign-law. This item appears on List: It follows that EU law must be interpreted as meaning that the law applicable following a cross-border merger by giuliani to the interpretation of a loan contract taken out by the acquired company, such as laagrde loan contracts at issue in the main proceedings, to the performance of the obligations under the contract and to how those obligations are extinguished is the law which was applicable to that contract before the merger.