Lloyd's Maritime and Commercial Law Quarterly
Choice of law under the Rome Convention: the dancer or the dance†
William E. O’Brian Jr. *
The courts have used different approaches in deciding on the applicable law in cases arising under the Rome Convention, ranging from the case-by-case approach seemingly favoured by English courts to the more rule-based approach that obtains in the Netherlands and, apparently, in Scotland. A third approach is advocated, based on the use of a set of presumptive rules that are both consistent with the case law to date and responsive to the language and purposes of the Rome Convention
.
A. INTRODUCTION
During one of the perennial quarrels between the Gallagher Brothers, Noel and Liam, of the rock group Oasis, the group performed a concert in Germany. Noel Gallagher, the lead guitarist, songwriter and occasional lead vocalist, did not make the trip and the group had a stand-in on guitar. The promoter of the concert refused to pay the previously agreed contract price, arguing that Oasis without Noel Gallagher was not the performance contracted for. Definitely Maybe (Touring) Ltd, which provided Oasis’s services, sued in the High Court in London. A preliminary but potentially critical issue was whether the High Court had jurisdiction, or the claimant would have to go to Germany and litigate there. For complicated reasons, this issue depended on what the law governing the contract was: if it was English law, the case could be heard in England; if it was German law, the case would have to proceed in Germany.1
The contract did not contain a provision specifying the governing law.
In the European Union the issue of what law governs a contractual matter is generally determined by the Rome Convention on the Law Applicable to Contractual Obligations, made applicable in the United Kingdom by the Contracts (Applicable Law) Act 1990. Somewhat surprisingly however, the Rome Convention does not provide an obvious and straightforward answer to a case such as the Oasis
case, even though it appears to be a run-
†‘ O Body swayed to music, O brightening glance, How can we know the dancer from the dance?’ William Butler Yeats, Among School Children
.
* Lecturer in Law, University of Warwick. The author wishes to thank Roger Leng and Julio Faundez for helpful comments on earlier drafts.
1. Jurisdiction was governed by the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968, Art 5(1), which grants jurisdiction to the courts of the place of performance of the obligation being sued on. Under English law the place of performance of the obligation to pay was in England, where the creditor resides, while under German law the place of performance of the obligation to pay was Germany, where the debtor was.
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