Limitations of Party Autonomy Under the Rome I Regulation on the Law Applicable to Contractual Obligations
Sözleşmeden Doğan Borç İlişkilerinde Uygulanacak Hukuka İlişkin Roma I Tüzüğü ile Taraf İradelerine Getirilen Sınırlamalar
Emre CİFTCİ
The Rome I Regulation is the uniform rules for choice of law which was enacted for governing the law applicable to contractual obligations in the European Union. Generally, parties to a contract are free to choose the terms of the contract and modern contract law is widely respectful to parties’ intention. However, in some limited circumstances, the law does not recognize the will of the parties when it has reasonable grounds. Articles 3 and 9 of the Rome I Regulation also bring some limitations to party autonomy.
Party Autonomy, Choice of Law, Rome I Regulation, European Union.
Roma I Tüzüğü, Avrupa Birliği’nde sözleşmeden doğan borç ilişkilerinde uygulanacak hukuk seçimini düzenlemek amacıyla yürürlüğe girmiştir. Genel olarak, taraflar, akdedecekleri sözleşmenin hükümlerini belirleme konusunda serbesttirler ve hukuk tarafların iradelerine geniş ölçüde saygı duymaktadır. Bununla birlikte, bazı sınırlı hallerde, tarafların bu konudaki iradelerine haklı gerekçeler mevcut olduğunda hukuk tarafından müdahale edilmektedir. Roma Tüzüğü’nün 3. ve 9. maddeleri de taraf iradelerine sınırlama getirmektedir.
Sözleşmeden Doğan Borç İlişkileri, Hukuk Seçimi, Roma I Tüzüğü, Avrupa Birliği.
1. INTRODUCTION
The Rome I Regulation1 is the uniform rules for choice of law which was enacted for governing the law applicable to contractual obligations in the European Union. Contractual obligations take it source from an underlying contract between two or more parties. Generally, parties to a contract are free to choose the terms of the contract and modern contract law is widely respectful to parties’ intention.2 This rule is called “Principle of Party Autonomy”. Party autonomy is also the main principle for choice of law agreements and clauses. However, in some limited circumstances, the law does not recognize the will of the parties when it has reasonable grounds.3 These are generally related to social economic and cultural interests of the society which override the parties’ wish or private interests that should be protected to save the weak party. ‘In all situations, the result is the same: what the parties agreed on is overridden by the law.’4
The Rome I Regulation brings also some limitations to Principle of Party Autonomy with “Internally Mandatory Rules” (Articles 3(3) and 3(4) of Rome I Regulation) and “Internationally Mandatory Rules” (Article 9 of Rome I Regulation). This work is designed to give a brief account by comparing these two kinds of provisions under the Rome I Regulation which are called as the provisions which cannot be derogated from by agreement and overriding mandatory provisions.
2. OVERVIEW
The steps to Rome I Regulation have been on agenda for nearly a decade and it was called as “priority action” in the 1998 Vienna Action Plan.5 Finally, in 2005, the Commission produced a proposal for a Regulation.6 The Regulation (EC) No 593/2008 of the European Parliament and of the Council on the law applicable to contractual obligations (“Rome I Regulation” or “the Regulation”) came into force on 17 December, 2009 and it has effects on contracts which concluded after that date. The Regulation has a predecessor; the Rome Convention of 1980 on the law applicable to contractual obligations (“Rome Convention” or “the Convention”) which will continue to be relevant to contracts concluded before that date.7 In addition, the Rome I Regulation does not apply to Denmark8 who preferred to continue to apply the Rome Convention instead of Rome I Regulation.9
