2.4 Summary
The essence so far has been to show the complexity of the interrelation between what may be called scope of application provisions and choice of law provisions in legal instruments.
First, we have seen that Hague-Visby Rules Article 10 may properly be called a scope provision; it sets out the subject matter of the Convention and the connecting factors which make the Convention applicable. At the same time, Article 10 has the effect of being a choice of law provision; in matters falling within its scope, it restricts the application of substantive law to the mandatory protective scheme of the Convention.
These considerations apply correspondingly to state parties implementing the Convention; the state parties undertake to apply the mandatory protective rules of the Convention, which means that courts within their jurisdiction are disallowed from recognising contractual choice to legal systems which do not give effect to the protective scheme of the Convention. In that sense, also the relevant scope provisions of national law implementing the Convention entail restriction on the choice of law, and such national law scope provisions may be combined with what we have called ‘quasi choice’ of law provisions; there may be a need to allocate the contractual choice to the law of those states which give effect to the rules of the Convention.
Moreover, we have seen that this complexity is enhanced when national law expands on the substantive protective scheme of the Hague-Visby Convention, as illustrated by the Nordic Maritime Codes and what we have called the ‘Hague-Visby surplus system’. Such national substantive law expansion means, on the one hand, that the basic structure of the scope provision (as derived from the Convention) is retained, including that of restricting contractual freedom of choice of law and providing for ‘quasi choice’ of law within their scope. On the other hand, such expanded scope provisions, partly detached from the Nordic states’ obligations under the Hague-Visby Rules, create added complexity when confronted with the choice of law system of Rome I, as we shall see in the following sections.