4.1 Opening remarks
In the previous section we reviewed those exceptions to the main rule of party autonomy in Rome I which might be of relevance to resolving our dilemma, namely that substantive law harmonizing rules emanating from the Hague-Visby Rules are essentially incompatible with the choice of law perspective underlying Rome I.
We now turn to how this dilemma is resolved in Swedish choice of law legislation and in the corresponding Norwegian draft legislation (the Report). Sweden is bound by Rome I, so its efforts have been directed towards amending the Maritime Code in order to align it with the content of Rome I. Norway is not bound by Rome I but here the aim has been to introduce new legislation by way of a separate choice of law Act, essentially modelled on Rome I, for purposes of conformity to EU law.
We shall see that there is a striking divergence of approach taken by the respective legislators. This divergence does not only exist in differences of opinion as to how to go about the task of aligning the system of Maritime Codes with Rome I. Differences of opinion also concern basic conceptual points as to what constitutes choice of law rules and what constitutes substantive law scope provisions. The paradox ensues that Sweden, being bound by Rome I, ends up with a solution seemingly closer to the current system(1) In Norwegian terminology it is the current system, since the Norwegian draft legislation has not yet taken effect. In Swedish terminology it would rather be the previous system of the Code, since the choice of law amendments were enacted in 2013.of the Maritime Code than does Norway, not being bound by Rome I. Or perhaps more precisely: the Norwegian draft legislator states that the current system of the Code will be fully retained while there are explanatory remarks in the Report which, as far as the author can see, points in the opposite direction, leaving the topic in considerable confusion.