3.2 Article 3
Article 3.1 sets out the main rule of recognition of party autonomy relating to choice of law.
Article 3.3 then provides an exception to this main rule: if a contractual relation has its connecting factors to one state only – state A – but the parties have nevertheless agreed for the law of state B to apply, then Article 3.3 allows for the application of mandatory provisions of the state of the forum (state A) despite the contractual choice to the laws of state B. This situation is referred to by some as ‘non-genuine choice of law’,(1) In Norwegian: ‘uekte lovvalg’, see Report p. 29.since the contractual relation has no international aspect occasioning conflict of laws other than the choice of law provision of the contract.
The exception in Article 3.3 therefore makes good sense; the parties should not be allowed to circumvent such national mandatory rules being applicable to all contractual relations falling within their scope.(2) It should be noted that Article 3.3 does not make the contractual choice of law to state B invalid. The choice is upheld as such, however, so that the choice shall not ‘prejudice the application of’ the mandatory provisions of state A. This is an impractical approach if applied to our context involving the mandatory scope of the Nordic Maritime Codes. Rather than comparing how the substantive laws of state B would venture compared to the mandatory provisions of the Codes, the more practical approach would be to simply apply the mandatory rules of the Code – a view which would accord with how the Nordic legislators intended the scope provisions of the Code to apply, as described in the previous Section. This, therefore, illustrates the incompatibility between what we have called the (substantive law) scope perspective and the (formalistic) choice of law perspective.
We shall later see that the Swedish choice of law legislator invokes Article 3.3 by upholding the mandatory rules of the Swedish Maritime Code to domestic trade in Sweden.(3) See Section 4.2. The Norwegian draft legislator seems not to take a stance, see Section 4.3 below.
Article 3.4 should also be mentioned. It is not directly applicable to our situation but is still of interest, since the spirit of it is the same as that of Article 3.3. The point in Article 3.4 is that if the contract has a connection to several EU member states and the contractual relation involves mandatory EU law, and the dispute is brought before the courts of a EU state, then a contractual choice to the laws of a non-EU state shall not ‘prejudice the application of’ the relevant mandatory EU law, as implemented in the law of the forum.
Looking at the Nordic Maritime Codes, the idea has been to make uniform mandatory rules for contractual relations with connecting factors to the Nordic states, so that there is a ‘region’ (the Nordic states) with uniform mandatory rules, in the same way as Article 3.4 gives effect to a ‘region’ (the EU states) with uniform mandatory rules. There would therefore be strong policy grounds for the Nordic states to give effect to the mandatory rules of the Nordic Codes, at least for those states – Norway and Denmark(4) Denmark is not bound by Rome I, as explained in earlier footnote. – which are not bound by Rome I.