3.4 Article 25
Another important provision is Article 25 which gives priority to pre-Rome I choice of law conventions to which EU member states are parties. The idea is that Rome I shall not have the effect of placing EU states in violation of their obligations under existing conventions, nor of forcing those states to repeal such conventions.
According to Article 25, the conventions in question are those “… which lay down conflict-of-law rules relating to contractual obligations”.(1) For the purpose of this article the term choice of law is used, rather than conflicts of law. In some contexts the terms may denote different meanings but for present purposes the terms are used interchangeably.The question then becomes: Do the Hague-Visby Rules ‘lay down conflict-of-law rules’ within the meaning of Article 25?
As we have seen, the topic of delineating the concept of choice of law rules is complex. The Hague-Visby is not like e.g. the Hague Convention of 1955 laying down genuine conflict of law rules in international sale of goods matters.(2) Convention on the Law Applicable to International Sales of Goods, enacted at The Hague 1955. However, as we already have seen, the scope provision of the Hague-Visby has the effect of restricting contractual choice to those legal systems which give effect to the Rules. It is therefore to a large extent a question of what perspective to adopt when considering Article 25 in the light of the Hague-Visby Rules. A diversity of perspectives is reflected in scholarly works on this topic,(3) Views among international scholars differ, see e.g. Marion Hoeks, Multimodal Transport: Law Applicable to Multimodal Contracts, Kluwer, 2010, pp. 128 et seq. Yvonne Baatz (above) takes the view that the Hague-Visby contains a scope provision, not a choice of law provision. and we shall later see that differing views are taken by the Swedish and Norwegian choice of law legislatures.
It is worth adding that if one takes the view that the scope provision of Hague-Visby Rules is rendered unaffected by Rome I by reason of Article 25, this does not resolve our problem, namely that the scope provision of the Hague-Visby Rules was substantially extended in the scope implementation provision of the Nordic Codes in 1994, and with the question: shall the scope of the Hague-Visby or that of the Nordic implementing rules, govern under Article 25?
Moreover, we have seen that extension of the scope of application of the Nordic Codes was made in tandem with an expansion of the Codes’ substantive law system; what we have called the ‘Hague-Visby surplus system’. The question therefore also arises here: if Article 25 is taken to allow for application of the scope provision of the Hague-Visby Rules (construed as a choice of law provision), shall then, as a matter of substantive law, only the contents of the Hague-Visby Convention be exempted from Rome I, or shall the entire ‘Hague-Visby surplus system’ of the Nordic Codes be exempted from Rome I?(4) An example: if only bills of lading were to be ‘acknowledged’ as contracts of carriage exempt from party autonomy under Rome I (and due to bills of lading only being covered by the scope provision of Hague-Visby Article 10), how would this be dealt with if a case falling within the scope of the Nordic Codes involved a sea waybill which referred to the laws of state B not containing provisions for sea waybills (in line with the Hague-Visby rules)? Clearly, the only practical solution would be to apply the mandatory rules of the Nordic Codes. Similarly: if a claim is made against a performing carrier under the Nordic Codes, and the contract refers to the law of a state not having similar rules, how should this be resolved? If the contract referred to English law, should here the English rules of tort of bailment (on terms) be applied? Obviously this alternative is not attractive; it involves fundamental structural differences in legal systems. We shall later see that differing approaches are taken and different techniques adopted by the Swedish and Norwegian choice of law experts in this respect.