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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 lawDetermining the law applicable to unfair
commercial practices: Art. 6 Rome II RegulationIncidental 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 LawFakulty of LawUniversity of HamburgRothenbaumchaussee 33D 20148 Hamburg
