Lloyd's Maritime and Commercial Law Quarterly
SOME DUTCH JUDICIAL REFLECTIONS ON THE ROME CONVENTION, ART. 4(5)
Société Nouvelle des Papéteries de l’Aa v. Machinefabriek BOA
Article 4 of the Rome Convention on the Law Applicable to Contractual Obligations enacts1 the choice of law rule for contracts in the absence of a choice of law by the parties. After stating2 the general principle that the law of the country with which the contract is most closely connected applies as the governing law, Art. 4 amplifies this by means of presumptions. According to Art. 4(2), the contract is presumed to be most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has his habitual residence or its central administration. But Art. 4(5) allows the judge to disapply the presumption in Art. 4(2) if the characteristic performance cannot be determined, and to disregard all the presumptions in Art. 4 if it appears from the circumstances as a whole that the contract is more closely connected with another country.
The application of Art. 4(5) is controversial. The official report on the Rome Convention offers little guidance.3 The uncertainty is also reflected in the words used in descriptions of Art. 4(5). Kaye speaks of it as a “get-out clause” and of “a presumption-rebuttal claim under art. 4(5)”.4 On the Continent, however, Art. 4(5) is generally referred to as a “rule of exception”. This emphasizes that it is not a rule of evidence. It may also imply a restrictive view on its scope of application, nomen est omen?
1. In the United Kingdom, as Sched. 1 to the Contracts (Applicable Law) Act 1990.
2. Art. 4(1).
3. Giuliano-Lagarde Report 1980 O.J. C282/1, 22–23: the presumptions are “only rebuttable presumptions”, and the court has a “margin of discretion” in disregarding them.
4. Peter Kaye, The New Private InternationaI Law of Contract of the European Community (1993), 186 et seq.
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