1. Introduction
Rome I(1) Regulation (EC) No 593/2008 on the law applicable to contractual obligations (Rome I). Rome I is within the EU coordinated with the Brussels I Regulation (No 1215/2012) on choice of jurisdiction, and in that respect constitutes a combined ‘package’ of choice of law and choice of jurisdiction. Moreover, Nordic states which are not bound by Brussels (e.g. Norway as non-EU member) are similarly bound on questions of choice of jurisdiction through the Lugano Convention (‘Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters’, between the EEA and EU countries, originally from 1988, renegotiated in 2007). This article will deal solely with choice of law questions, on the footing that the relationship between Rome I and the Hague-Visby Rules has wider implications than those of European law: the Hague-Visby Rules have worldwide application. is a choice of law instrument, providing for designation of the applicable law(2) ‘Applicable law’ and ‘governing law’ is in this article used interchangeably. in contractual relations which are potentially affected by more than one national law system, and with a primary rule allowing the contracting parties to choose such applicable law (party autonomy).
The Hague-Visby Rules(3) Hague Rules from 1924 as amended by the 1968 and 1979 Protocols. The terms Hague-Visby Rules, the Rules, and the Convention are used interchangeably in this article. is an international convention providing for mandatory substantive rules in respect of certain liability questions arising under international contracts of carriage of goods by sea. Choice of law questions are not explicitly regulated in the Convention, but restrictions on freedom of choice of law follow implicitly as it would defeat the very purpose of the Convention if contracting parties were to be allowed to contract out of the mandatory rules of the Convention by choosing the laws of a state not giving effect to the rules of the Convention.
There is, therefore, a potential conflict between Rome I and the Hague-Visby Rules, in that contracts of carriage of goods falling within the scope of application of the Hague-Visby Rules are also prima facie covered by Rome I and its primary rule of party autonomy.
This potential conflict between the two sets of rules is from a Nordic perspective exacerbated by the fact that the Nordic states – which are parties to the Hague-Visby Convention – have, in their Maritime Codes (in a revision made in 1994), expanded on the scope of the mandatory substantive rules of the Convention, thus creating further questions as to how to delineate the scope provision of the Maritime Codes with the choice of law provisions contained in Rome I.
This dilemma has come to light in recent times in connection with choice of law legislation in Sweden and Norway.
Sweden – which is bound by Rome I as an EU-member – amended its Maritime Code in 2013 according to the legislator’s perception of the extent to which the Maritime Code’s scope provision contained choice of law elements in violation of Rome I.
Norway – which is not bound by Rome I as a non-EU-member – produced draft choice of law legislation in 2018, modelled on Rome I.(4) The draft legislation was produced as part of a report, entitled Utredning om formuerettslige lovvalgsregler (‘Report on choice of law rules in private law relations’ – hereinafter: the Report) by professor Giuditta Cordero-Moss, appointed by the Ministry of Justice. The Report, dated 2 June 2018, has been the subject of public hearing and currently sits with the Ministry of Justice. The author is unfamiliar with whether or not the Report will lead to legislation. It is available at the Ministry of Justice’s homepage - https://www.regjeringen.no/contentassets/aa11d98c5c144dac8361c7af7677f303/enpersonutredningen-om-formuerettslige-lovvalgsregler.pdf. In this draft, the Norwegian choice of law expert departed from the opinion of the Swedish choice of law legislator on important aspects relevant to the Maritime Code. This difference of opinion concerned, first, the legal status of the Maritime Code scope provision (whether to categorize it as a scope or choice of law provision); second, the construction of important provisions of Rome I (whether Rome I by its own provisions yielded to substantive law conventions like the Hague-Visby Rules); and third, methodological aspects relating to choice of law versus substantive law (whether the one set of rules ‘overrides’ the other).
That divergence of opinion is the background for this article, in the sense that the article aims at understanding the complexity of what could be called meeting points between substantive law and choice of law relating to the Maritime Code – as seen from a substantive law (maritime lawyer’s) perspective. The topic is important since the Maritime Codes, being common to the Nordic states, are the product of long lasting cooperation between Nordic maritime lawyers, and it would, as a matter of unified Nordic maritime law, be undesirable if whatever impact was made by Rome I on the Maritime Codes, were to differ by reason of divergent views taken by choice of law experts involved in choice of law legislation in the different Nordic states.(5) Denmark, although a EU-member, is exempted from Rome I by reason of the 1997 Treaty of Amsterdam Protocol and has, to the author’s knowledge, as of yet not entertained similar choice of law legislation as Norway. Finland, being by Rome I an EU-member on a par with Sweden, has, to the author’s knowledge, commenced but not completed choice of law legislation relating to its Maritime Code.
One main premise of the article is what is called ‘clashing’ of perspectives, which, somewhat simplified, denotes that it makes a dramatic difference if one starts from the end of the Hague-Visby Rules and its purpose of providing harmonized substantive rules, and pursues that purpose also into the expanded version of the Rules in the Maritime Codes – or if one starts from the end of Rome I and its primary rule of party autonomy. We shall call these two opposing perspectives ‘clashing’, in the sense that it is difficult to see how they can be reconciled in a principled manner.
This in turn means that the question of determining what impact Rome I has on the scope of the Maritime Codes, becomes a question of construing the relevant legal sources involved; those pertaining to the substantive law aspects (the Hague-Visby Rules and national legislation implementing and expanding on the Rules) and those pertaining to the choice of law aspects (Rome I and national choice of law legislation).
In that respect, the article will use the term ‘substantive law scope perspective’ (or sometimes merely ‘scope perspective’ or ‘substantive law perspective’) to denote that one starts from the end of looking at, and construing, the scope of application provision of the relevant substantive law instrument (the Hague-Visby Rules or the relevant provision of the Maritime Codes). The opposing term ‘choice of law perspective’ denotes that one starts from the end of the choice of law instrument (Rome I). The article will advocate the prevalence of such ‘substantive law scope perspective’ in the discussion of whatever impact Rome I has, or should have, on the scope provisions of the Nordic Maritime Codes. In this respect the article will argue that the contents of the perspectives of choice of law legislators in Sweden and Norway are too narrow, in that they seem not to give sufficient account of, and to some extent lack control over, the substantive law aspects as propagated in this article. In this respect the term ‘holistic perspective’ will occasionally be used, signifying a suggested need for choice of law experts to better integrate substantive law aspects into their perspective.
With this overriding aim of lending a critical eye to what we call choice of law perspectives, the article starts out by giving an account of the scope provisions of the Hague-Visby Rules and the corresponding provisions of the Maritime Codes, while bringing into discussion some aspects of choice of law and how these are countered by the purpose of such scope provisions – Section 2.
The article proceeds by then taking the opposite perspective, by giving an account of the relevant provisions of Rome I, while at the same time pointing to problematic aspects of those provisions in light of the opposing substantive law perspective – Section 3.
Thereafter, the article reviews the said Swedish and Norwegian choice of law legislation,(6) Which for Norway’s part is currently mere draft legislation, see above. with particular emphasis on and analysis of the reasoning and methodology advanced in the preparatory works of the Norwegian draft legislation – Section 4.
Finally, some concluding observations are made, with a view to suggesting some principled topics intrinsic to the sources and perspectives presented, suited to being elevated to a more overarching level of analyses and theories of norms – Section 5.