Dr. Anatol Dutta , M. Jur. (Oxford) ( dutta@mpipriv.de )

1. Two examples of recent developments in European private international law: Contracts of carriage and environmental damages Dr. Anatol Dutta, M. Jur. (Oxford)(dutta@mpipriv.de) Max Planck Institute for Comparative and International Private Law Hamburg

2. The three main issues of private international law Jurisdiction Applicable law Enforcement

3. Sources of private international law International level European level National level

4. Programme • Introduction: The Europeanisation of private international law • Example I: Contracts of carriage • Example II: Environmental damages

5. Introduction: The Europeanisation of private international law

6. Introduction: The Europeanisation of private international law Introduction: The Europeanisation of private international law Introduction: The Europeanisation of private international law The main legislative players in Europe International level Hague Conference on Private International Law (since 1893: 45 Conventions, www.hcch.net) European level European Union (notably: Commission, Parliament and Council) National level Member State legislators (recent examples: Slovenia [1999], Lithuania [2001], Estonia [2002], Belgium [2004] and Bulgaria [2005])

7. Introduction: The Europeanisation of private international law EU Competence Until 1998: no EU competence But Art. 293 EC: “Member States shall, so far as is necessary, enter into negotiations with each other with a view to securing for the benefit of their nationals […] the simplification of formalities governing the reciprocal recognition and enforcement of judgments of courts or tribunals and of arbitration awards.” Example: Brussels Convention on jurisdiction and the enforcement of judgments in civil and commercial matters 1968 Additionally: Rome Convention on the Law Applicable to Contractual Obligations 1980

8. Introduction: The Europeanisation of private international law EU Competence since Amsterdam and Lisbon Article 81(1) and (2) TFEU “(1) The Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Such cooperation may include the adoption of measures for the approximation of the laws and regulations of the Member States.(2) For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures, particularly when necessary for the proper functioning of the internal market, aimed at ensuring: (a) the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases; (b) the cross-border service of judicial and extrajudicial documents; (c) the compatibility of the rules applicable in the Member States concerning conflict of laws and of jurisdiction; (d) cooperation in the taking of evidence; (e) effective access to justice; […]”

9. Introduction: The Europeanisation of private international law EU Competence since Amsterdam and Lisbon Article 81(3) TFEU “(3) Notwithstanding paragraph 2, measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament. The Council, on a proposal from the Commission, may adopt a decision determining those aspects of family law with cross-border implications which may be the subject of acts adopted by the ordinary legislative procedure. The Council shall act unanimously after consulting the European Parliament.The proposal referred to in the second subparagraph shall be notified to the national Parliaments. If a national Parliament makes known its opposition within six months of the date of such notification, the decision shall not be adopted. In the absence of opposition, the Council may adopt the decision.”

10. Introduction: The Europeanisation of private international law Existing and future instruments Jurisdiction Applicable law Enforcement • Brussels I Regulation No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters • Rome I Regulation No 593/2008 on the law applicable to contractual obligations • Rome II Regulation No 864/2007 on the law applicable to non-contractual obligations

11. Introduction: The Europeanisation of private international law Existing and future examples Jurisdiction Applicable law Enforcement • Regulation No 1346/2000 on insolvency proceedings • Brussels IIbis Regulation No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility • Maintenance Regulation (EC) No. 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligation • Planned Rome III Regulation on applicable law in divorce matters (Proposal, COM(2006) 399 final) • Planned Matrimonial Property Regulation on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition (Green Paper, COM(2006) 400 final) • Planned Succession Regulation on succession and wills and a European Certificate for Inheritance (Proposal, COM(2009) 154 final)

12. Introduction: The Europeanisation of private international law Safeguarding a uniform interpretation Article 267 TFEU “The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning: (a) the interpretation of the Treaties; (b) the validity and interpretation of acts of the institutions, bodies, offices or agencies of the Union;Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the question is necessary to enable it to give judgment, request the Court to give a ruling thereon.Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the Court.If such a question is raised in a case pending before a court or tribunal of a Member State with regard to a person in custody, the Court of Justice of the European Union shall act with the minimum of delay.”

13. Introduction: The Europeanisation of private international law Introduction: The Europeanisation of private international law Europeanisation of Pr. Int‘l Law Factors of success? Disadvantages of the Conventions: • Long and cumbersome negotiations and need for compromises between the Contracting States; • Long ratification periods: The Contracting States can decide whether they ratify a convention; • Reform of a convention practically impossible; • No guarantee for uniform interpretation because the national courts of the Contracting States decide; • Structural deficits in the Hague Conference:Member States could not speak for their own, because of the competences of the EU, even in relation to third states (see ECJ Lugano Opinion no 1/2003); but the EU was not a Member of the Hague Conference.However, since 2006: EU is a member of the Hague Conference, see Council Decision No 2006/719 on the accession of the Community to the Hague Conference on Private International Law.

14. Introduction: The Europeanisation of private international law Factors of success? Disadvantages of national private international law: • No harmonisation of private international law. • But: Harmonisation of private international law is very important because is creates at least a harmony of decisions: If all courts apply the same conflict rules, then to every case the same law is applied irrespectively of the forum; no incentive for forum shopping. • Advantages of European law: • Quick legislative procedure based on an institutional framework; • No ratifications necessary; • Quick reform of existing instruments; • Jurisdiction of the ECJ in order to secure uniform interpretation.

15. Example I: Contracts of carriage

16. Example I: Contracts of carriage Issues of private international law Jurisdiction Applicable law Enforcement

17. Introduction: The Europeanisation of private international law Introduction: The Europeanisation of private international law Example I: Contracts of carriage Example I: Contracts of carriage Contractual obligations Article II of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 Jurisdiction Jurisdiction If arbitration clause? “(1) Each Contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration. […](3) The court of a Contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, at the request of one of the parties, refers the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.”

18. Example I: Contracts of carriage Jurisdiction The Brussels I Regulation - Generalia • Autonomous interpretation The Regulation cannot not be interpreted by reference to the internal law of one of the Member States concerned. Rather the Regulation – as all other European Regulations in private international law – has to be interpreted autonomously (ECJ 8.11.2005 – Case C-443/03 (Leffler) E.C.R. 2005, I-9611, para. 45). Autonomous interpretation means that the Regulation has to be interpreted –– in the light of its wording, its origins, its objectives and its scheme (ECJ 3.5.2007 – Case C-386/05 (Color Drack), E.C.R. 2007, I-3699 paras. 17 et seq.) –– as well as by reference to the general principles which stem from the corpus of the national legal systems (ECJ 14.10.1976 – Case 29/76 (Eurocontrol), E.C.R. 1976, 1541, para. 3). • Principle of actor sequitur forum rei In interpreting the Regulation the primacy of the domiciliary jurisdiction in Article 2 Brussels I should always be supposed and exceptions should be interpreted restrictively.

19. Example I: Contracts of carriage Article 1 (1) Brussels I Regulation No. 44/2001 [Scope] Jurisdiction A. Scope of Brussels I “This Regulation shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.”

20. Example I: Contracts of carriage ECJ case 29/76 (Eurocontrol) [1976] ECR 1541 Jurisdiction “4 […] ALTHOUGH CERTAIN JUDGMENTS GIVEN IN ACTIONS BETWEEN A PUBLIC AUTHORITY AND A PERSON GOVERNED BY PRIVATE LAW MAY FALL WITHIN THE AREA OF APPLICATION OF THE CONVENTION, THIS IS NOT SO WHERE THE PUBLIC AUTHORITY ACTS IN THE EXERCISE OF ITS POWERS.SUCH IS THE CASE IN A DISPUTE WHICH , LIKE THAT BETWEEN THE PARTIES TO THE MAIN ACTION , CONCERNS THE RECOVERY OF CHARGES PAYABLEBY A PERSON GOVERNED BY PRIVATE LAW TO A NATIONAL OR INTERNATIONAL BODY GOVERNED BY PUBLIC LAW FOR THE USE OF EQUIPMENT AND SERVICES PROVIDED BY SUCH BODY, IN PARTICULAR WHERE SUCH USE IS OBLIGATORY AND EXCLUSIVE .THIS APPLIES IN PARTICULAR WHERE THE RATE OF CHARGES , THE METHODS OF CALCULATION AND THE PROCEDURES FOR COLLECTION ARE FIXED UNILATERALLY IN RELATION TO THE USERS, AS IS THE POSITION IN THE PRESENT CASE WHERE THE BODY IN QUESTION UNILATERALLY FIXED THE PLACE OF PERFORMANCE OF THE OBLIGATION AT ITS REGISTERED OFFICE AND SELECTED THE NATIONAL COURTS WITH JURISDICTION TO ADJUDICATE UPON THE PERFORMANCE OF THE OBLIGATION.”

21. Example I: Contracts of carriage Article 1 (2) Brussels I Regulation No. 44/2001 [Scope] Jurisdiction A. Scope of Brussels I “The Regulation shall notapply to: (a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession; (b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings; (c) social security; (d) arbitration.”

22. Example I: Contracts of carriage Jurisdiction Jurisdiction under the Brussels I Regulation • Exclusive jurisdiction (Article 22) • Jurisdiction by appearance (Article 24)

23. Example I: Contracts of carriage Article 24 Brussels I Regulation No. 44/2001 [Jurisdiction by appearance] Jurisdiction […] a court of a Member State before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.

24. Example I: Contracts of carriage Jurisdiction Jurisdiction under the Brussels I Regulation • Exclusive jurisdiction (Article 22) • Jurisdiction by appearance (Article 24) • Special mandatory rules on insurance (Articles 8 et seq.), consumer (Articles 15 et seq.) and employment contracts (Articles 18 et seq.) • Jurisdiction agreement (Article 23)

25. Example I: Contracts of carriage Article 23 (1) Brussels I Regulation No. 44/2001 [Jurisdiction agreement] Jurisdiction Article 23 (1) Brussels I Regulation No. 44/2001 [Jurisdiction agreement] “(1) If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; or (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned. […]” “(1) If the parties, one or more of whom is domiciled in a Member State, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either: (a) in writing or evidenced in writing; or (b) in a form which accords with practices which the parties have established between themselves; or (c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned. […]”

26. Example I: Contracts of carriage ECJ case C-387/98 (Coreck Maritime) [2000] ECR I-9337 Jurisdiction “23. It is sufficient to note […] that, in so far as the jurisdiction clause incorporated in a bill of lading is valid under Article 17 of the Convention [= Art. 23 of the Regulation] as between the shipper and the carrier, it can be pleaded against the third party holding the bill of lading so long as, under the relevant national law, the holder of the bill of lading succeeds to the shipper’s rights and obligations […].24. It follows that the question whether a party not privy to the original contract against whom a jurisdiction clause is relied on has succeeded to the rights and obligations of one of the original parties must be determined according to the applicable national law.25. If he did, there is no need to ascertain whether he accepted the jurisdiction clause in the original contract. In such circumstances, acquisition of the bill of lading could not confer upon the third party more rights than those attaching to the shipper under it. The third party holding the bill of lading thus becomes vested with all the rights, and at the same time becomes subject to all the obligations, mentioned in the bill of lading, including those relating to the agreement on jurisdiction […].26. On the other hand, if, under the applicable national law, the party not privy to the original contract did not succeed to the rights and obligations of one of the original parties, the court seised must ascertain, having regard to the requirements laid down in the first paragraph of Article 17 of the Convention [= Art. 23 of the Regulation], whether he actually accepted the jurisdiction clause relied on against him.”

27. Example I: Contracts of carriage Jurisdiction Jurisdiction under the Brussels I Regulation • Exclusive jurisdiction (Article 22) • Jurisdiction by appearance (Article 24) • Special mandatory rules on insurance (Articles 8 et seq.), consumer (Articles 15 et seq.) and employment contracts (Articles 18 et seq.) • Jurisdiction agreement (Article 23) • General jurisdiction (Article 2 [1])

28. Example I: Contracts of carriage Example I: Contracts of carriage Article 2 (1) Brussels I Regulation No. 44/2001 [General jurisdiction] Jurisdiction “Subject to this Regulation, persons domiciled in a Member State shall, whatever their nationality, be sued in the courts of that Member State.”

29. Example I: Contracts of carriage Article 60 (1) Brussels I Regulation No. 44/2001 [Definition] Jurisdiction “(1) For the purposes of this Regulation, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its: (a) statutory seat, or (b) central administration, or (c) principal place of business.”

30. Example I: Contracts of carriage Jurisdiction Jurisdiction under the Brussels I Regulation • Exclusive jurisdiction (Article 22) • Jurisdiction by appearance (Article 24) • Special mandatory rules on insurance (Articles 8 et seq.), consumer (Articles 15 et seq.) and employment contracts (Articles 18 et seq.) • Jurisdiction agreement (Article 23) • General jurisdiction (Article 2 [1]) • Special jurisdictions (Article 5 & 6)

31. Example I: Contracts of carriage Article 5 (1) Brussels I Regulation No. 44/2001 [Special jurisdiction] Jurisdiction “A person domiciled in a Member State may, in another Member State, be sued:(1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: –– in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, –– in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided,(c) if subparagraph (b) does not apply then subparagraph (a) applies;”

32. Example I: Contracts of carriage Example I: Contracts of carriage ECJ case 26/91 (Handte) [1992] ECR I-3967 Jurisdiction Article 5 (1) Brussels I Regulation No. 44/2001 [Special jurisdiction] “A person domiciled in a Member State may, in another Member State, be sued:(1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;(b) for the […] “It follows that the phrase ‘matters relating to a contract’, as used in Article 5(1) of the Convention, is not to be understood as covering a situation in which there is no obligation freely assumed by one party towards another.”

33. Example I: Contracts of carriage Jurisdiction Article 5 (1) Brussels I Regulation No. 44/2001 [Special jurisdiction] “A person domiciled in a Member State may, in another Member State, be sued:(1) […] (b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be […] –– in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided […] • Contracts of carriage as service contracts? → Contracts for the carriage of passengers and goods are service contracts; the carriage has to be characterised as a “provision of service”. → See notably ECJ 9 July 2009 Case C-204/08 (Rehder v. Air Baltic) where the court applied Art. 5(1)(b) Brussels I to a contract for the carriage of passengers by air. • Place where the service was or should have been provided? However, it is a quite intricate question, where the carrier provides the service for purposes of Art. 5(1)(b) Brussels I, especially in cross-border carriages. → Where is the place of performance? –– Place of departure/receipt? –– Place of destination/delivery? –– All places in between? → The ECJ held in Case C-204/08 (Rehder v. Air Baltic) that the claimant has the choice (para.44) between the place of departure and the place of arrival –– The ECJ argued: “The only places which have a direct link to those services, provided in performance of obligations linked to the subject-matter of the contract, are those of the departure and arrival of the aircraft, since the words ‘places of departure and arrival’ must be understood as agreed in the contract of carriage in question, made with one sole airline which is the operating carrier” (para. 41).

34. Example I: Contracts of carriage Jurisdiction Jurisdiction under the Brussels I Regulation • Exclusive Jurisdiction (Article 22) • Jurisdiction by appearance (Article 24) • Special mandatory rules on insurance (Articles 8 et seq.), consumer (Articles 15 et seq.) and employment contracts (Articles 18 et seq.) • Jurisdiction agreement (Article 23) • General jurisdiction (Article 2 [1]) • Special jurisdictions (Article 5 & 6) • No lis alibi pendens (Article 27)

35. Example I: Contracts of carriage Article 27 Brussels I Regulation No. 44/2001 [No lis alibi pendens] Jurisdiction “(1) Where proceedings involving the same cause of action and between the same parties are brought in the courts of different Member States, any court other than the court first seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established.(2) Where the jurisdiction of the court first seised is established, any court other than the court first seised shall decline jurisdiction in favour of that court.”

36. Example I: Contracts of carriage Example I: Contracts of carriage Example I: Contracts of carriage Jurisdiction Jurisdiction Jurisdiction under the Brussels I Regulation • Exclusive Jurisdiction (Article 22) • Jurisdiction by appearance (Article 24) • Special mandatory rules on insurance (Articles 8 et seq.), consumer (Articles 15 et seq.) and employment contracts (Articles 18 et seq.) • Jurisdiction agreement (Article 23) • General jurisdiction (Article 2 [1]) • Special jurisdictions (Article 5 & 6) • No lis alibi pendens (Article 27)

37. Example I: Contracts of carriage Example I: Contracts of carriage Issues of private international law Jurisdiction Applicable law Enforcement

38. Example I: Contracts of carriage Applicable law Rome I Regulation – Outline • Scope (Article 1) • Free choice of law (Article 3) • Applicable law in absence of a choice of law (Article 4) • Special rules for certain contracts (Articles 5, 6, 7 and 8) • Special rules for certain issues (Articles 11, 13–17) • Scope of the applicable law (Articles 10, 12, 18) • General limitations on the applicable law (Articles 3[4], 3[5], 9 and 21)

39. Example I: Contracts of carriage Applicable law Article 5 Rome I Regulation [Contracts of carriage] (1) To the extent that the law applicable to a contract for the carriage of goods has not been chosen in accordance with Article 3, the law applicable shall be the law of the country of habitual residence of the carrier, provided that the place of receipt or the place of delivery or the habitual residence of the consignor is also situated in that country. If those requirements are not met, the law of the country where the place of delivery as agreed by the parties is situated shall apply.(2) To the extent that the law applicable to a contract for the carriage of passengers has not been chosen by the parties in accordance with the second subparagraph, the law applicable shall be the law of the country where the passenger has his habitual residence, provided that either the place of departure or the place of destination is situated in that country. If these requirements are not met, the law of the country where the carrier has his habitual residence shall apply.The parties may choose as the law applicable to a contract for the carriage of passengers in accordance with Article 3 only the law of the country where: (a) the passenger has his habitual residence; or (b) the carrier has his habitual residence; or (c) the carrier has his place of central administration; or (d) the place of departure is situated; or (e) the place of destination is situated.(3) Where it is clear from all the circumstances of the case that the contract, in the absence of a choice of law, is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply.

40. Example I: Contracts of carriage Applicable law • Scope of Article 5 • Contracts for the carriage of passengers (Article 5[2]) • Contracts for the carriage of goods (Article 5[1]) • Escape clause of Article 5(3) Art. 5 Rome I – Overview

41. Example I: Contracts of carriage Applicable law Scope of Article 5 Rome I • Substantive scope: Definition of “contracts of carriage” (I) –– Autonomous interpretation: The term “contract of carriage” in Article 5 Rome I cannot be defined by reference to the lex fori or national law, but has to be defined autonomously as a term of European law. →Recital 22 says that “single-voyage charter parties and other contracts the main purpose of which is the carriage of goods should be treated as contracts for the carriage of goods”. The same definition can also be used for contracts for the carriage of passengers. It does not matter whether the carriage shall be carried out air, road, railway or sea. –– The ECJ has stated in a recent case on the predecessor of Art. 5 Rome I in the Rome Convention (there: Art. 4[4]) that the term “contracts of carriage” has to be understood broadly (ECJ 6.10.2009, Case C-133/08 – Intercontainer, para. 34) →The case concerned the characterisation of a charter party; the ECJ held: “In a charter-party, the owner, who effects such a performance, undertakes as a matter of course to make a means of transport available to the charterer. However, it is conceivable that the owner’s obligations relate not merely to making available the means of transport but also to the carriage of goods proper. In such circumstances, the contract in question comes within the scope of [Art. 5] where its main purpose is the carriage of goods” (ECJ 6 Oct 2009, Case C-133/08 – Intercontainer, para. 35). –– Hence, one can conclude that contracts of carriage are all contracts where one party is obliged to carry goods or passengers from one place to the other.

42. Example I: Contracts of carriage Applicable law Scope of Article 5 Rome I • Substantive scope: Definition of “contracts of carriage” (II) → As a result the following contracts can be considered to be contracts of carriage in the sense of Art. 5 Rome I: voyage charter parties, time charter and multi-voyage or consecutive voyage charter contracts and freight contracts. →Not covered are, however, demise charter contracts (the hiring of a ship), because in such contracts the main purpose of the contract is merely to make available a means of transport. → Art. 5 Rome I is, however, not applicable to obligations arising from bills of lading –– This follows in general from Art. 1(2)(d) Rome I, which says: “The following shall be excluded from the scope of this Regulation: […] obligations arising under bills of exchange, cheques and promissory notes and other negotiable instruments to the extent that the obligations under such other negotiable instruments arise out of their negotiable character”. –– The fact that bills of lading are negotiable instruments in that sense is stressed by Recital 9 of the Rome I Regulation which clarifies: “Obligations under bills of exchange, cheques and promissory notes and other negotiable instruments should also cover bills of lading to the extent that the obligations under the bill of lading arise out of its negotiable character”. –– The exclusion of bills of lading from the scope of the Rome I Regulation does, however, not exclude a contract of carriage which is evidenced by the bills of lading.

43. Example I: Contracts of carriage Applicable law Scope of Article 5 Rome I • Personal scope: Definition of “carrier” Art. 5 applies only to contracts of a “carrier”. → Recital 22 defines the term carrier as referring “to the party to the contract who undertakes to carry the goods, whether or not he performs the carriage himself”. Hence, the personal scope of the provision is broader as one thinks on first sight. Covered are thus also contracts concluded by forwarders and agents. → According to Recital 22 the term consignor shall refer to the “any person who enters into a contract of carriage with the carrier”.

44. Example I: Contracts of carriage Applicable law Scope of Article 5 Rome I • Precedence of uniform substantive law – first point of criticism Article 5 Rome I has a very limited scope. It does only apply as far as there are no uniform rules on contracts of carriage in international conventions or European law which enjoy precedence over the Rome I Regulation, cf. Article 23 and 25. Examples: • →International conventions, Art. 25 Rome I, e.g. –– Convention on the Contract for the International Carriage of Passengers and Luggage by Road of 1973 (CVR Convention) –– Convention relating to the Carriage of Passengers and their Luggage by Sea of 1974 as amended in 1976 (Athens Convention) –– Hague Rules of 1924 as amended by the Brussels Protocol of 1968 (the Hague-Visby Rules) –– UNIDROIT Convention on Contracts of Carriage of Goods Wholly or Partly by Sea of 2009 (Rotterdam Rules) –– Berne Convention concerning International Carriage by Rail of 1980 (COTIF Convention) –– Convention on the Contract for the International Carriage of Goods by Road of 1956 (CMR Convention) –– Warsaw Convention for the Unification of Certain Rules relating to International Carriage by Air of 1929 (Warsaw Convention) with Additional Protocols Nos. 1 and 2 of 1975 (Montreal Protocols) • →European law, Art. 23 Rome I, e.g. –– Regulation (EC) No 261/2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights –– Regulation (EC) No 2027/97 on air carrier liability in the event of accidents –– Regulation (EC) No 1371/2007 on rail passengers’ rights and obligations

45. Example I: Contracts of carriage Applicable law Scope of Article 5 Rome I • Relation to Article 6 Rome I on consumer contracts On first sight, rather unclear is the relationship between Article 5 and Article 6 on consumer contracts. Contracts of carriage can also be consumer contracts. In principle, Article 5 is a special provision for contracts of carriage and therefore takes precedence over Article 6. –– General principle of Lex specialis derogat legi generali; –– See also the opening words to Article 6(1): “Without prejudice to Articles 5 and 7 […]” and Recital 32. → One exception: Package travel contracts which do not only consist of carriage services but also contain other elements (rent, sale and other services) –– Package travel contracts are treated as consumer contracts and subject to Article 6, as Article 6(4)(b) Rome I clarifies, cf. also Directive 90/314/EEC on package travel, package holidays and package tours.

46. Example I: Contracts of carriage Applicable law Contracts for the carriage of passengers • Definition of the term “carriage of passengers”? Article 5(2) contains the conflict rules for contracts on the carriage of passengers. Recital 22: Main purpose of the contract is decisive; hence also a contract which oblige the carrier to carry mainly the person but, additionally, also goods, e.g. luggage, is a contract for the carriage of passengers and not partly a contract for the carriage of goods. • The purpose of Article 5(2) is the protection of the passenger as the – presumably – weaker party. → See also Recital 32, which says: “Owing to the particular nature of contracts of carriage […] contracts, specific provisions should ensure an adequate level of protection of passengers […].” → However, unlike in Art. 6 the passengers do not need to be consumers. –– Rather Art. 5(2) applies also to business trips. However, due to its character as a compromise, the protection awarded by Art. 5(2) is quite weak, as will be seen in a minute.

47. Example I: Contracts of carriage Applicable law Contracts for the carriage of passengers • Freedom of choice of law, Art. 5(2) subpara. 2 General provision in Article 3 applies, in principle. Hence a choice of law in a contract for the carriage of passengers must first meet the general conditions laid down in Art. 3 Rome I. Additionally, Article 5(2) subpara. 2 limits the freedom of choice by limiting the eligible laws. The parties of a contract for the carriage of passengers can only choose the law of a country in which – → the passenger has his habitual residence (Art. 5[2]2 lit. a) → the carrier has his habitual residence (Art. 5[2]2 lit. b) → the carrier has his place of central administration (Art. 5[2]2 lit. c) → the place of departure is situated (Art. 5[2]2 lit. d) → the place of destination is situated (Art. 5[2]2 lit. e). Criticism of Article 5(2) subpara 2: → The carrier will always choose in its standard terms the law of his habitual residence. → Hence, Art. 5(2) subpara. 2 does not protect the passenger at all; the provision does therefore not serve its purpose. → Passengers as consumers would be better protected by Art. 6 with the limited choice of law in Art. 6(2).

48. Example I: Contracts of carriage Applicable law Contracts for the carriage of passengers • Applicable law in absence of a choice (I) General provision in Article 4: → According the general rules, probably Art. 4(1)(b) would apply, if one regards the contract for the carriage of passengers as a “service contract”. Otherwise the general rule in Art. 4(2) would apply. –– Under both conflict rules (Art. 4[1][b] and 4[2] Rome I), the law of the carrier would govern the carriage contract. → However, Art. 5(2) subpara. 1 contains a special conflict rule in cases the parties have not chosen an applicable law: –– In principle, the law applicable to the contract shall be the law of the country where the passenger has his habitual residence, provided that either the place of departure or the place of destination is situated in that country, cf. Art. 5(2) subpara. 1 sentence 1. –– The “passenger” (whose habitual residence is decisive) must not be a party to the contract of carriage; for instance business trips are not booked by the passenger (employee) but but by the employer. –– No definition of habitual residence in the Rome I Regulation. Only Art. 19 of the Rome I Regulation contains some clarifications. –– “Place of departure” and “place of destination” refers to the places as defined in the contract which might not coincide with the places of the voyage as a whole, for example, if a train goes from Paris to Copenhagen via Hamburg and the passenger only buy a ticket from Paris to Hamburg, the place of destination for the carriage contract is Hamburg and not Copenhagen.

49. Example I: Contracts of carriage Applicable law Contracts for the carriage of passengers • Applicable law in absence of a choice (II) –– If the requirements of Art. 5(2) subpara. 1 sentence 1 are not met (because the place of departure or destination is not situated in the country where the passenger has his habitual residence), the law of the country where the carrier has his habitual residence shall apply, Art. 5(2) subpara. 1 sentence 2. Criticism of Art. 5(2) subpara 1: → On first sight, the passenger is protected by Art. 5(2) subpara. 1 sentence 1 because his law applies if there is a connection of the contract to that law because the place of departure or destination is the country where the passenger habitually resides. –– However, it is very doubtful whether one can effectively protect the passenger by an objective conflict rule which allows – as here – a choice of law by the parties according to Art. 5(2) subpara. 2. –– Again: The carrier can evade the law of the passenger by a simple choice of law clause in the standard terms → The protection of the passenger is incomplete: if the habitual residence of the passenger lies not at the place of departure or destination, the law of the carrier applies according to Art. 5(2) subpara. 1 sentence 2.

50. Example I: Contracts of carriage Applicable law Contracts for the carriage of goods • Roots of Article 5(1) Unlike Art. 5(2), the special provision for the contracts for the carriage of goods in Art. 5(1) could also – at least in its first sentence – be found in the predecessor of the Rome I Regulation, the 1980 Rome Convention on the law applicable to contractual obligations. The Rome I Regulation is not intended to change the old rule, see Recital 22. • No limitations of the freedom of choice of law Art. 5(1) does not limit the freedom of the parties to choose the law applicable to their contract for the carriage of goods granted by Art. 3 Rome I. The general limits of party autonomy apply, especially contained in Art. 3 (3) and (4), Art. 9 and Art. 22.