[Short Studies in Private International Law] The Interconnection of the EU Regulations Brussels I Recast and Rome I (Jurisdiction and Law) ||

This book deals with the interconnection between the Brussels I Recast and Rome I Regulations and addresses the question of uniform interpretation. A consistent understanding of scope and provisions is suggested by the preamble of the Rome I Regulation. Without doubt, it is fair to presume that the same terms bear the same meaning throughout the Regulations. The author takes a closer look at the Regulations’ systems, guiding principles, and their balance of flexibility and legal certainty. He starts from the premise that such analysis should prove particularly rewarding as both legal acts have their specific DNA: The Brussels I Recast Regulation has a procedural focus when it governs the allocation of jurisdiction and the free circulation of judgments. The multilateral rules under the Rome I Regulation, by contrast, are animated by conflict of laws methods and focus on the delimitation of legal systems. This fourth volume in the Short Studies in Private International Law Series is primarily aimed at legal academics in private international law and advanced students. But it should also prove an intriguing read for legal practitioners in international litigation. Christoph Schmon is a legal expert in the fields of Private International Law, Consumer Law, and Digital Rights. After serving in research positions at academic institutes in Vienna and London, he focused on EU policy and law making. He is appointed expert of advisory groups to the EU Commission. Preface 6 Contents 8 1 Complementarity 13 Abstract 13 1.1 The Age of Conventions 14 1.1.1 The Brussels Convention 14 1.1.2 The Rome Convention 15 1.2 The Age of Regulations 16 1.2.1 An EC Policy on Judicial Cooperation 16 1.2.2 Brussels I Started, Rome I (II) Followed Suit 17 1.2.3 The Recast Regulation 18 1.2.4 Review of the Rome I Regulation? 19 1.3 An Indissoluble Set of Private International Law Rules 19 1.3.1 Complementary Instruments 19 1.3.2 Recital 7: Desire for Congruence 20 1.4 Vertical Continuity 22 1.4.1 General 22 1.4.2 Court of Justice 22 1.4.3 Lugano Convention 23 1.5 Conclusions 23 References 24 2 Reference Matrix of EU Law 25 Abstract 25 2.1 An EU Private International Law 26 2.1.1 Interconnection Through Harmonisation 26 2.1.2 Functional Integration 27 2.1.3 The Internal Market Perspective 28 2.1.4 Multi-level Governance 29 2.2 The Role of the EU Court of Justice 30 2.2.1 A Vehicle for Integration 30 2.2.2 More Competences 31 2.3 Selected Principles of Union Law 31 2.3.1 Duty of Sincere Co-operation 31 2.3.2 Mutual Confidence 32 2.3.3 Autonomous Interpretation 34 2.3.4 Due Consideration of Related Legal Acts 36 2.3.5 Legal Certainty 37 2.4 Conclusions 38 References 38 3 System and Scope 40 Abstract 40 3.1 General Scheme 41 3.1.1 Scaffold of Rome I 41 3.1.2 Scaffold of the Brussels I Recast Regulation 42 3.2 Hierarchy 44 3.2.1 The Hierarchy of Brussels I 44 3.2.2 The Hierarchy of Rome I 46 3.3 Corresponding Scope and Demarcation Lines 48 3.3.1 Contractual Matters 48 3.3.2 Demarcation Lines 49 3.4 Rule Exception Relationship in Favour of the Defendant 51 3.4.1 Actor Sequitur Forum Rei 51 3.4.2 Strict Interpretation of Special Grounds for Jurisdiction 52 3.4.3 Avoidance of Forum Actoris 53 3.5 Weighing of Party Interests and Antinomies 54 3.5.1 Congruence with Rome I at Stake? 54 3.5.2 Broad Interpretation of Contractual Matters 54 3.5.3 Strict Interpretation of Special Protective Provisions? 55 3.5.4 Court Accepts Classification Problems 56 3.6 Conclusions 57 References 57 4 Selected Concepts 59 Abstract 59 4.1 Civil and Commercial Matters 60 4.2 Domicile and Habitual Residence 61 4.2.1 Multiple Criteria Under the Brussels I Recast Regulation 61 4.2.2 Single Criterion Under Rome I 63 4.3 The Contract 63 4.3.1 Contractual Obligations Versus Contractual Matters 63 4.3.2 A Freely Assumed Obligation 64 4.3.3 Tort and Delict and Third-Party Obligations 65 4.4 Place of Performance Versus Habitual Residence of the Performer 66 4.4.1 Sale of Goods and the Provision of Services 66 4.4.2 Place of Performance: Autonomous Definition 67 4.5 Direct Activity—Harmonious Interpretation 69 4.6 Conclusions 71 References 71 5 Rationale 72 Abstract 72 5.1 De Esprit des Lois 73 5.2 Characteristics: International Jurisdiction Versus Conflict of Laws 74 5.3 Universality 75 5.4 Temporal Perspective 76 5.5 Legal Categories and Concepts 77 5.6 Neutrality 77 5.7 Access to Justice 78 5.7.1 Conflict of Interests 78 5.7.2 Procedural Economy 79 5.8 EU Principles 80 5.8.1 The Internal Market and the Area of Justice 80 5.8.2 The Price of EU Integration 81 5.8.3 Further Adjustments of Dominant Doctrines 81 5.9 Conclusions 82 References 83 6 Certainty and Flexibility 85 Abstract 85 6.1 The General Tension 86 6.2 Party Autonomy 87 6.3 Procedural Certainty 87 6.3.1 The Perspective of the Defendant 87 6.3.2 The Perspective of the Court 88 6.3.3 The Sound Administration of Justice 89 6.3.4 Mutual Trust 90 6.4 Flexible Conflicts Rules 91 6.4.1 Predictability 91 6.4.2 Circumstances of the Case 91 6.5 No Jurisdictional Principle of Closest Connection 92 6.5.1 Proximity and Justice 92 6.5.2 A Priori Most Appropriate Rules 93 6.5.3 Foreseeability greaterthan Discretion 94 6.6 The Struggle to Achieve Justice 95 6.7 Conclusions 96 References 96 7 Party Autonomy 98 Abstract 98 7.1 Theoretical Foundations 99 7.1.1 Introduction 99 7.1.2 Freedom to Contract 99 7.1.3 Party Autonomy in Private International Law 100 7.2 Party Autonomy Under the Brussels I Recast and Rome I Regulations 102 7.2.1 Significance of Party Autonomy and Hierarchy 102 7.2.2 Universality and Internationality 105 7.2.3 Limits of Freedom 107 7.2.4 Formal and Material Validity 109 7.3 Conclusions 111 References 111 8 Social Justice—Consumer Protection 114 Abstract 114 8.1 The Weaker Party—Fundamentals 115 8.1.1 Asymmetries of Information, Experience, and Power 115 8.1.2 EU Consumer Law 116 8.1.3 Cross-Border Protection 117 8.1.4 The Privileges Under the Brussels I Recast and Rome I Regulations 117 8.2 Consumer Contract—Article 17 Brussels I Recast and Article 6 Rome I 118 8.2.1 Negative Definition 118 8.2.2 Consumer-to-Business Relations 119 8.2.3 The Targeting Criterion 120 8.3 Default Protection 120 8.4 Restrictions of Party Autonomy 121 8.5 Rule-Exception Relation 122 8.5.1 Strict Interpretation of Special Rules 122 8.5.2 Case Law: A Reconciliation Attempt 123 8.6 Ratio Legis 124 8.6.1 Familiar Legal Environment 124 8.6.2 Social Values 125 8.7 Congruence of Brussels I and Rome I 127 8.7.1 Discrepancies Reduced 127 8.7.2 Legislative History: Blueprints 127 8.7.3 Recitals 129 8.7.4 The Problem of Favor Defensoris 129 8.8 Conclusions 131 References 132 9 Appraisal 134 Abstract 134 9.1 Brussels I and Rome I Are Complementary Instruments 135 9.1.1 Firm Interconnection Due to Harmonisation 135 9.1.2 EU PIL Acts Are Reference Points for Interpretation 136 9.2 Infrastructural Commonalities and Differences 137 9.2.1 Similar Concepts, Different Demarcation Lines 137 9.2.2 Systematic Differences 138 9.3 De l’Esprit des Lois 140 9.3.1 Different Perspectives 140 9.3.2 Different Characteristics 140 9.3.3 Practicalities of International Trade and EU Focus Shift Boundaries 142 9.4 Party Autonomy—A Common Pillar 142 9.4.1 A Utilitarian Strive for Autonomy 142 9.4.2 Tribute to Distinctive Nature 143 9.5 Flexibility and Predictability 144 9.5.1 Fast and Hard Rules Under Brussels I 144 9.5.2 Flexibility Answers the Need of Justice in Individual Cases 145 9.5.3 No Principle of Closest Connection Under Brussels I 146 9.6 Both Regulations Protect the Weaker Party 146 9.6.1 Privileges for Consumers 146 9.6.2 Synchronisation of Forum and Law Achieved 147 9.7 Conclusions: No General Horizontal Consistency 148 References 149 Index 150 This book deals with the interconnection between the Brussels I Recast and Rome I Regulations and addresses the question of uniform interpretation. A consistent understanding of scope and common terms is suggested by Recital 7 of the Rome I Regulation. Indeed, what would be more reassuring than to always call a contract a contract? The author takes a closer look at the Regulations' systems, their individual justice models, guiding principles, and their balance of flexibility and legal certainty. It starts from the premise that such analysis should prove particularly rewarding as both legal acts have their specific DNA: The Brussels I Recast Regulation has a procedural focus when it governs the allocation of jurisdiction and the free circulation of judgments. The multilateral rules under the Rome I Regulation, by contrast, are animated by conflict of laws methods and focus on the delimitation of legal systems. 0This fourth volume in the 'Short Studies in Private International Law' Series is primarily aimed at legal academics in private international law and advanced students. But it should also prove an intriguing read for legal practitioners in international litigation