MarIus

4.3.1 Overview

The Norwegian expert report on draft legislation (the Report)(1) See footnote 4. takes a dramatically differing view from that of the Swedish legislator, concerning both central aspects of Rome I as well as the nature of the relevant provisions of the Maritime Code.

The Report takes the view that the Hague-Visby is not a convention containing choice of law rules within the ambit of Rome I Article 25. The Report simply states this as a fact, despite the obvious complexity of the question, and despite the Swedish legislator having taken the opposite view.(2) The Swedish views are merely referred to in footnotes, with no principled discussion as to the differences of views, see Report pp. 61 and 138. This means – according to the Report – that the Norwegian Maritime Code, with its implementation of the Hague-Visby Rules, would as a starting point not be exempted from the general rule of party autonomy of Rome I.(3) The Report also seems to take the view that the substantive mandatory rules of the Hague-Visby (as implemented in the Maritime Code) would not qualify as ‘overriding mandatory provisions’ within the meaning of Rome I Article 9, again, contrary to the view taken by the Swedish legislator. Consequently, the rules of the Maritime Code would also on that basis have to yield to the general rule of party autonomy of Rome I. The question is not discussed explicitly but there are remarks to that effect, see pp. 33 and 97. See also p. 153 where doubt is expressed as to whether the passenger liability rules of the Maritime Code Section 430 deserve the characterization of ‘overriding mandatory provisions’.

The Report suggests, however, on overall policy grounds and due to the fact that Norway is not bound by Rome I, that the current maritime law system should not be disturbed. To achieve this, the Report suggests certain amendments to the Norwegian version of Rome I (the Norwegian draft choice of law Act), first, by explicitly retaining parts of the current scope provision of Section 252 of the Maritime Code as an exception to the otherwise applicable rule of giving effect to party autonomy, and second, by adding a provision to the Norwegian equivalent to Rome I Article 25, stating that the exception for existing conventions shall apply not only to conventions laying down conflict-of-law rules, but also to conventions harmonizing substantive law rules, thus intended to cover the Hague-Visby Rules. We shall revert to these provisions in more detail.

The approach taken by the Report is in the author’s view in many ways puzzling, since what it states it aims to achieve seems generally not to accord with the reasoning given for achieving it. This, in turn, pertains to our main interest in this article; to explore differences in perspectives relating to choice of law and substantive law questions. At the same time it touches upon an important policy matter, namely the Nordic tradition of substantive maritime law cooperation and how this may be under threat from choice of law legislators – a threat which, in the author’s view, seems more real from the Norwegian choice of law legislator than from the Swedish, which is paradoxical in view of the fact that while Sweden is bound by Rome I, Norway is not.

4.3.2 Perspectives taken on choice of law versus scope of application – a critical review

We recall the main point as set out in Section 2 above: the Maritime Code Section 252 has as its function to implement the scope provision of the Hague-Visby Rules.(4) This follows from Section 252 second paragraph, implementing Hague-Visby Rules, Article 10, see Section 2.3.3. At the same time it serves the function of establishing the scope of application of the modernized, expanded substantive law scheme of the Code: the ‘Hague-Visby surplus system’.(5) As this follows from Section 252 first paragraph, combined with the geographical connecting factors in the second paragraph, see Section 2.3.3 above. For present purposes we start out by holding onto the simple point: Section 252 as the means of implementing the Hague-Visby Rules. In this sense Section 252 is a scope provision while at the same time excluding choice of law in the traditional sense; allowance for contractual choice to laws which do not implement the Hague-Visby Rules would render the harmonized rules covered by the scope provision redundant – while also violating Norway’s international obligation under the Hague-Visby Rules.

With this starting point in mind, it is surprising to see the approach taken in the Report.

The Report takes the view that rules like Maritime Code Section 252 are scope provisions that “become applicable only after choice of law rules have designated(6) Norwegian: ‘utpekt’ which literally means ‘pointed out’ – but here we use the term ‘designated’. Norwegian law as the governing law”.(7) Report p. 15 (author’s translation). In Norwegian the term ‘bakgrunnsrett’ which translates ’background law’ is used, which in the author’s view is an unfortunate term. The term is ordinarily used in contract law, signifying that contract law legislation may serve as a complementary source of construction of contracts. In choice of law matters, the designated law is not merely ‘in the background’.

The same point is formulated elsewhere: “These are rules that pre-suppose that Norwegian law has been designated as the governing law. If the choice of law rules have designated Norwegian law as the governing law, these rules will determine whether [Maritime Code Chapter 13] becomes applicable. These rules are therefore no choice of law rules which compete with the choice of law rules [of Rome I as implemented in the draft legislation].”(8) Report p. 137 (author’s translation). Similar statements are given several places, e.g. at pp. 141 and 180.

This is a surprising stance. It gives overall priority, and supremacy, to choice of law rules. According to the Report this supremacy follows from “the ordinary methodology of private international law”.(9) Report p. 15 and p. 139 – in Norwegian: ‘den alminnelige internasjonalprivatrettslige metode’. As far as the author can see, no analytical or other justification is given in the Report for this proposition, other than examples from provisions of conventions, or legislation implementing conventions, which make use of the term, but such use forms part of the directions to adjudicators given in the relevant provisions, thus not giving justification for any a-priori application of such principle unrelated to the application of the relevant provision itself, see e.g. the example given in the Report on p. 103 concerning CISG Article 1 first paragraph litra a) (probably erroneous for litra b)). However, one could ask, in general terms: why should such a ‘methodology’ take precedence over a competing result which follows from a plain reading of a legislative provision, such as the Maritime Code Section 252? Rather, it would seem that ordinary legal methodology of adjudication will need to start by looking at a relevant legal provision, such as the Maritime Code Section 252. If such a provision gives unreserved directions as to when it becomes applicable, there is no room for a ‘presupposition’ that a legal norm of a different or ‘higher’ order (i.e. the norm of choice of law) has first been consulted. We have seen that Section 252 contains such unreserved directions, as bolstered by the history and purpose of the provision.(10) Section 2.3 above.

We are therefore now at the core of the main topic of this article, namely the fundamental ‘clash’ between a choice of law perspective and a (substantive law) scope perspective.

The Report briefly discusses this contrary (substantive law) scope perspective, which would exclude any a-priori application of choice of law rules, but dismisses it by finding that Section 252 is not sufficiently clearly drafted to yield such a result, with the following reasoning:

“As a starting point the parties can avoid application of this scope provision [Section 252] by choosing the law of a different state. To what extent it can be argued that this scope provision is based on an implicit choice of law rule, is uncertain. Such an extensive(11) Norwegian: ‘inngripende’. rule excluding party autonomy as the primary choice of law rule in contract law, ought to be explicit. […](12) The omitted part reads: «Furthermore, such an implicit choice of law rule would not have a connecting factor which designates the governing law in those cases which are not covered by the rule.» That is, however, a circular argument in the sense that the answer to it follows from a reading of the provision itself, seen in light of its expansive scope and the history of it, see Section 2 above. The statement seems therefore to reflect an insufficient understanding of the substantive law involved. It must be concluded that the provision does not replace choice of law rules but comes in addition to them. It is, therefore, as a starting point possible for the parties to avoid its application by making a choice of law.”(13) Report p. 103.

From the perspective of a maritime lawyer, these statements are indeed puzzling.

First, it seems obvious from a plain reading of Section 252, in view of its history and purpose, that there is indeed such an ‘implicit’ restriction on party autonomy.(14) It would seem more appropriate to call such restriction ‘patent’ or ‘explicit’, since it is apparent from a mere reading of the provision. It could be asked rhetorically: would an adjudicator, such as a Norwegian judge, when applying Section 252, entertain such an idea of allowing for party autonomy to set aside the mandatory substantive rules of the Code? It seems clear to the author that he or she would not. Why then should a choice of law expert as part of choice of law legislation introduce such a novel construction of the Code?

Second, the statements are puzzling because one could ask: Why introduce the notion of ‘sanctity’ of party autonomy into this equation at all – that is, why does such an argument belong here at all? To start from the other end: clearly the draftsmen of the Hague-Visby Rules took a stance on this policy question, which later became adopted into national law by the state parties to the Convention. That is a plain legal fact, belonging to the constituents of the relevant provision. One may like or dislike that policy decision, but it does not belong to the task of a choice of law legislator to ‘censor’ or ‘second guess’ it by introducing (retrospectively) an overriding principle of party autonomy, together with requirements of ‘clear wording’ to rebut it.

Third, the statements are puzzling on the following premise: If the wording had been sufficiently clearly drafted in exclusion of party autonomy so as to satisfy the choice of law expert’s need for clarity, where would that take us in terms of methodology? Would that not confirm the point that a plain construction of a (substantive law) scope provision eliminates any (prior) choice of law inquiry? The answer seems to be in the confirmative. In other words, a plain legal method of application and adjudication – which could be called ‘the ordinary methodology of construction of legal provisions’ – would override what the Report calls ‘methodology of international private law’.

Fourth, the statements are puzzling in view of the fact that Section 252 does implement the Hague-Visby Rules and that this Convention does not allow for party autonomy to circumvent its substantive liability rules, which means that allowing for party autonomy to set aside the application of Section 252, would render Norway in violation of its obligation under the Convention – a phenomenon that forms an important part of the Swedish legislator’s position but which is left unaddressed in the Report.(15) According to the Report this is ‘resolved’ indirectly by adding a draft section 40 but this is also problematic, see below.

4.3.3 Perspectives taken on substantive harmonizing law Conventions

When the Report takes the position that Maritime Code Section 252, which incorporates the Hague-Visby Rules, has to yield to some kind of a-priori choice of law perspective, it is not surprising that the Report also takes the same starting point with respect to substantive harmonizing rules as contained in the Hague-Visby Rules themselves. The Report states:

“There are quite a few conventions which harmonize the substantive law in certain areas, so called ‘uniform law’. Examples of such Conventions are the 1980 Wien Convention on international sale of goods (CISG) and the 1924 Convention on bills of lading as amended by Protocols in 1968 and 1979 (Hague-Visby Rules). According to the traditional approach(16) Norwegian: ‘den tradisjonelle tilnærming’ – which is the very methodological question at stake. these Conventions become applicable if choice of law rules designate the law of a state which has ratified the Convention as the governing law. This means that the parties can avoid the application of these harmonizing rules by choosing the law of a state where the Convention is not in force.”(17) Report p. 35 (author’s translation).

Then there is a sudden and dramatic twist:

“This is not a result wished for, since it must be assumed that the intention behind a convention which harmonizes the substantive law is that the unified regulation becomes applicable. According to recent case law in a number of countries(18) The following cases dealing with CISG are referred to: In Austria: OLG Wien, 27.2.2017 (http://www.globalsaleslaw.org/content/api/cisg/urteile/2814.pdf); in France: CA Bordeaux, 12.9. 2013 (http://www.globalsaleslaw.org/content/api/cisg/urteile/2552.pdf); CA Rouen, 26.9. 2013 (http://www.globalsaleslaw.org/content/api/cisg/urteile/2551.pdf); in Germany: OLG Naumburg, 18.7.2013 (http://www.globalsaleslaw.org/content/ api/cisg/urteile/2717.pdf); in Italy:Trib. Foggia, 21.6.2013, (http://www.uncitral.org/ docs/clout/ITA/ITA_210613_FT.pdf#); Trib. Padova, 25.2.2004 (http://cisgw3.law. pace.edu/cases/040225i3.html). it should therefore first be investigated whether these unified rules become applicable, before a choice of law is made. If there is such a unifying instrument,(19) Norwegian: ‘den ensartede kilden’. and if the case falls within its scope of application according to the instrument’s own delimitation rules,(20) Norwegian: ‘avgrensingsregler’. there is no need to make a choice of law. This means that a possible choice of law made by the parties will have effect only within the framework of the mandatory(21) ‘Mandatory’ must be a mistake for ‘substantive’, since CISG contains no mandatory rules. rules of the unified source.”(22) Report p. 35 (author’s translation). (emphases added)

This twist is dramatic, for several reasons.

First, it is obvious that the European case law referred to in the quoted passage takes the very approach we have advocated above: The adjudicator starts with the scope provision of the relevant substantive law harmonizing instrument, which overrides – or renders inapplicable – any (otherwise) applicable choice of law rules, such as those contained in Rome I.

Second, it is surprising that the Report does not address this point as a matter of legal analysis. It is in that respect not appropriate to state that there is ‘no need’ to make a choice of law in these situations. Such a mere explanatory phrase of ‘no-need’ is no term of legal analysis. Rather, it would be appropriate to state that it is not ‘right’ as a matter of legal analysis to consider any (prior) choice of law when the relevant scope provisions provide otherwise.(23) This does not exclude a contractual choice being made applicable as a ‘quasi choice’ within the ambit of a scope provision but that is a fact beyond the principled point made here. This follows from ‘an ordinary methodology of construction of legal provisions’, as explained above.

Third, the European case law referred to concerns the CISG but its rationale is clearly just as applicable to the Hague-Visby Rules, and perhaps even more so, since the latter provides for mandatory substantive harmonizing rules, the former for mere non-mandatory harmonizing rules.

Fourth, as a matter of legal analysis, the reference to European case law concerning the CISG has an aspect directly pertaining to Maritime Code Section 252. This provision is a national law provision which implements the Hague-Visby Rules, just as the national law provisions being applied by the European courts referred to above, implement the CISG. Therefore, there is no room, by parity, for making any choice of law inquiry before applying Section 252, any more than there is before applying the corresponding provisions in the European case law referred to above. But this fact also escapes any principled analyses in the Report.

Furthermore, Section 252 is a complex provision, in that it incorporates the scope provision of the Hague-Visby Rules, while also containing the scope for the expanded Nordic ‘Hague-Visby surplus system’.(24) Section 2.3.3. This is in itself a phenomenon which invites legal analysis: Clearly the intention of the Nordic Maritime Code legislators has been that the entire scope of (the Norwegian) Section 252 should apply as a scope provision, not only that part of Section 252 which originates from, and implements, the Hague-Visby Rules.(25) Which pertains to Section 252 second paragraph, No’s. 1), 4) and 5), as compared to Hague-Visby Article 10 – see Section 2.3.3.

Therefore, by applying the rationale of the European courts referred to above, there is no principled reason why the entire Section 252 should not be exempted from any (prior) choice of law perspective as a matter of acknowledging the intent of the legislator – in the same way as the intent of those drafting the scope provision of the CISG and the intent of the national legislators implementing that Convention, has been acknowledged in the European court cases referred to above. This perspective is, however, entirely left out of the Report. Rather, the Report carries on the – in the author’s view untenable – perspective that application of Section 252 ‘presupposes’ that choice of law rules already have designated Norwegian law as the governing law.

We now turn to the more concrete consequences of this perspective, as reflected in the draft choice of law legislation itself.

4.3.4 The draft Act and ‘rectification’ of Rome I Article 25

The Report takes the view that Conventions providing for international substantive law harmonized rules, such as the Hague-Visby Rules, are not exempted from the application of Rome I, since such Conventions do not fall within the ambit of Rome I Article 25, which provides an exemption for ‘conflict-of-law rules relating to contractual obligations’ while, according to the Report, the Hague-Visby Rules provide substantive rules, not choice of law (conflict of law) rules. Since the draft legislation in the Report is modelled on Rome I, the Report finds it necessary to ‘rectify’ Rome I in this respect, by introducing an added part to the draft Act Section 40, which otherwise corresponds to Rome I Article 25.(26) Report p. 180.

A second limb to this provision – draft Act Section 40 – is introduced, stating:

“This Act does not affect the application of provisions which follow from Norway’s international law obligations and which harmonize the substantive law in given legal areas.”(27) Report p. 202 (author’s translation).

But also this raises the type of questions we have discussed above.

First, since European case law, in states being bound by Rome I, applies such international substantive law harmonizing instruments irrespective of Rome I, and the Report (elsewhere) seems to acknowledge the correctness of such an approach, it could be asked why the Report does not take the consequences of this stance, or at least discuss whether there really is a need under Rome I (or equivalent legislation) to insert such an exemption.

This goes to the fundamental question of what belongs to choice of law rules and what does not – as discussed in the previous section. In furtherance of that discussion, one could ask: If Norway were bound by Rome I (like Sweden), then there would clearly be no room for such a ‘rectifying’ provision to Rome I Article 25, and where would that take us as a matter of legal analyses?

Would Norway then be unable to apply the Hague-Visby Rules in situations where party autonomy provides otherwise (by the contract designating the laws of a non-Hague-Visby state)? That would clearly be untenable, amongst other reasons as a matter of Norway’s international law obligation under the Hague-Visby Convention. This means that such a solution (recognition of the Hague-Visby Rules) would have to be upheld in any event, either through the approach taken by Sweden (that the Hague-Visby is a conflict-of-laws Convention within the meaning of Rome I Article 25), or through the approach taken by the European courts relating to application of the CISG (that such international harmonizing instruments are applied beyond the scope and irrespective of Rome I).

The attempt by the Report to ‘rectify’ perceived shortcomings of Rome I Article 25 therefore has the paradoxical effect of destabilizing the uniformity of the law in this area, while at the same time not addressing fundamental questions concerning what belongs, and does not belong, to the ambit of choice of law legislation, as evidenced by the European jurisprudence relating to the application of the CISG, and as evidenced by the opposing view taken by the Swedish choice of law legislator.

Moreover, this approach by the Report of suggesting an addition to Rome I Article 25, brings up a further dilemma, namely that of the Nordic Maritime Code’s substantive law expansion of the Hague-Visby Rules into the realm of the Hamburg Rules; what we have called the ‘Hague-Visby surplus system’.(28) Section 2.3.2.As a consequence of its novelty of introducing such an addition to Rome I Article 25, the Report finds that this suggested provision has the effect of retaining only Norway’s obligations under the Hague-Visby Rules, and thus abolishing (as yielding to party autonomy) those parts of the Maritime Code which are modelled on the Hamburg Rules, since these do not ‘follow from Norway’s international obligations’, according to the draft Act Section 40.

The Report states in this respect:

“Some of the provisions of the Maritime Code Chapter 13 […](29) Chapter 14 is also mentioned, which involves a discussion lying beyond the scope of this article.are modeled on such a Convention (the Hamburg Rules) without Norway having ratified the Convention. If it should be considered desirable that such rules are also given primacy, draft Section 40 may be formulated so as to achieve this. […] However, such an alternative would be fairly complicated, since it would be necessary in respect of each and every provision to determine whether it is written on an independent basis or whether it is inspired by a convention.”(30) Report p. 15 (author’s translation). See also Report p. 153 where the same point is discussed.

This statement is also paradoxical from a substantive law viewpoint. First, it ignores the fundamental point that substantive rules taken from the Hamburg Rules form an integrated part of the ‘Hague-Visby surplus system’ of the Maritime Codes. Second, it ignores the point that the solution recommended by the Report (to only give primacy to provisions stemming from the Hague-Visby Rules), would lead to the practical need of ‘deciphering’ each and every provision of the Maritime Code to determine whether or not it is rooted in the Hague-Visby Rules or not – the very complication which the Report recommends should be avoided.

Moreover, in furtherance of this suggestion to, effectively, abolish the majority of the substantive parts of the current Maritime Code as yielding to party autonomy, the Report suggests that Norway enter into discussions with Denmark on whether (also) the remainder of the substantive rules of the Code resulting from Nordic maritime law cooperation should be abandoned, based on the reasoning that Sweden, being bound by Rome I, has already had to depart from the results of such Nordic cooperation in its Maritime Code.(31) Report p. 153 and pp. 15–16 where it is stated that to retain such an inter-Nordic substantive law system would entail departing from the main rule of party autonomy under Rome I and that such restriction of party autonomy must be stated ‘expressly’ in the draft Act – and that such restriction “would mean that Norway has a separate regime for these contracts for carriage of goods, which departs from the regime of Rome I and therefore also from the regimes of Sweden and Finland. This does not promote harmonization of the law.” (author’s translation). But that premise is imprecise and leads to another paradox: Sweden has managed to retain these parts of the Swedish Code (the ‘Hague-Visby surplus system’) by considering them matters of substantive law, lying outside the mandate (and thus the scope) of choice of law legislation.(32) Section 4.2.

4.3.5 The draft Act and retention of Maritime Code Section 252

We make a halt to recapitulate the position at this point, from the polarized positions of a choice of law and a (substantive law) scope perspective:

From a scope perspective it would follow from a plain construction of Maritime Code Section 252 that it does not yield to party autonomy with respect to choice of law (other than such ‘quasi choice’ which follows from the provision itself).(33) Section 2.3.3. Therefore, since this scope provision of Section 252 simply applies as a matter of plain construction, the complicated factors of the draft choice of law Act and its provision for allowing for exception from party autonomy provisions derived from international substantive law harmonizing rules (draft Act Section 40, second paragraph), would simply not come into play, as being irrelevant to the construction of Section 252 – in the same way as Rome I is deemed irrelevant by the European case law giving effect to the CISG, through its scope provision as implemented into national law.

The Report takes the opposite view. It leaves Maritime Code Section 252 itself unaffected by the choice of law legislation,(34) Unlike the Swedish legislator who amended it, viewing it as a choice of law provision, Section 4.2. by considering Section 252 to be a scope provision not affected by choice of law rules but which ‘presupposes’ that choice of law rules – and the rule of party autonomy – have already led to it becoming applicable. By this primacy given to choice of law rules, the Report then sees a need to provide express exemption from such primacy of choice of law rules – and the rule of party autonomy – by allowing rules which originate from international substantive harmonizing law Conventions, to override the otherwise primacy of choice of law rules – as provided for in draft Act Section 40 second paragraph.(35) To further complement, or confuse, the picture, we have seen that the Swedish choice of law legislator takes yet another perspective. Here, Section 252 is seen as a choice of law provision – not a scope provision as is the view of the Norwegian choice of law legislator – which, as such, was found to require (slight) amendments to be aligned with the choice of law instrument; Rome I. Moreover, according to the Swedish choice of law perspective, such a novel provision as introduced by the Norwegian draft Act Section 40 in ‘rectifying’ Rome I Article 25, would be superfluous, since the Swedish choice of law legislator sees Rome I Article 25 as covering substantive law Conventions such as the Hague-Visby Rules, a view not shared by the Norwegian Report.

If we, once more, stick to a (substantive law) scope perspective, the point at this stage is that draft Act Section 40 would not lead any complication; a plain construction of Maritime Code Section 252 would simply mean that draft Act Section 40 is rendered moot or inapplicable. In other words, a substantive law scope perspective takes primacy over a choice of law perspective – and over a choice of law instrument, such as the draft Act.

However, matters become more complicated, since the Report suggests another provision in the draft Act, expressly referring to and retaining (parts of) Maritime Code Section 252. This leads to possible complications also from a scope perspective, since the draft Act aims (as it were) at expanding choice of law legislation into substantive law, by purporting to incorporate substantive law scope provisions (Maritime Code Section 252) into the choice of law instrument.

There is, therefore, a need to look into the relevant part of the draft Act, even if one were to disagree with the perspective taken in the Report.

Draft Section 40 (as discussed above) is contained in a general provision of the draft Act, not particularly directed at contracts of carriage. However, draft Act Section 5 is directed at contracts of carriage and allocation of choice of law in that respect.

Draft Act Section 5 is entitled “Contracts of carriage”. It starts out by providing for party autonomy with respect to choice of law. It then provides choice of law rules for situations where the parties have not so chosen. This part of the provision is modelled on Rome I Article 5.(36) See Section 3.5 above.Thereafter, the part follows which relates to the Maritime Code. A final (fourth) paragraph is proposed, which reads:

“In domestic trade, or trade between Norway, Denmark, Sweden and Finland, the Maritime Code […] Section 252 […](37) Maritime Code Section 321 is also mentioned which concerns chartering of ship and which lies beyond the scope of this article. shall apply.”

From a mere reading of this draft provision the following questions may spring to mind:

First, it may not be obvious, from a plain reading of draft Section 5 as a whole, that this last provision overrides the main rule of party autonomy at the opening of the provision. Rather, it may be read in such a way that only the connecting factors provided elsewhere,(38) That is, the second and third paragraph of the provision which corresponds to Rome I Article 9, see Section 3.3 above. where the parties have not decided on the governing law, are set aside by the reference to the Maritime Code.(39) Such an understanding would make sense in itself, since the connecting factors in the second and third paragraphs depart from those of the Hague-Visby Rules (as implemented into national law), see the similar discussion relating to Rome I Article 9 – see Section 3.3.

Second, and to the same point: if the methodology of choice of law, as set out elsewhere in the Report,(40) Section 4.3.2 above. is to be followed, then reference in a choice of law instrument to a Maritime Code scope provision would entail a kind of circuity of logic: if it is right (i.e. a justifiable legal methodology) to consider the scope provision in Maritime Code Section 252 only applicable if choice of law rules designate Norwegian law as the governing law, then it would not ‘help’ to make reference in a choice of law instrument to Section 252: it would simply beg the same question: is Norwegian law made applicable according to choice of law rules? And if the parties have chosen a different legal system, the rule on party autonomy would seem to prevail. In other words, the reference in the draft Act to the Maritime Code lacks in clarity.(41) In the same way as the Report considers the current Maritime Code Section 252 to be lacking in clarity, Section 4.3.2 above.

However, reading the comments on draft Act Section 5 in the Report, it seems the answer to these questions is intended to be that the reference to Maritime Code Section 252 should have the effect of setting aside the otherwise applicable rule of party autonomy:

“These provisions [Section 252] delimit the scope of application of the Maritime Code, but say nothing about when Norwegian law (and thus the Maritime Code) is the governing law [ref.]. These provisions become applicable only after the choice of law rules first have designated Norwegian law as the governing law. Norwegian law is the governing law if the draft Act Sections 3 [providing for party autonomy] or 5 designate Norwegian law. This means that the parties, if having made a choice pursuant to Section 3, can achieve the provisions delimiting the scope of application of the Maritime Code not becoming applicable. To ensure that these provisions do become applicable, there is a need to make express exemption for them in the draft Act. Therefore, a sentence is suggested in Section 5 fourth paragraph to achieve this.”(42) Report p. 153.

Apart from the indicated methodology of construction of Section 252, which in the author’s view is misconceived (see Section 2.3), the statement makes it clear that the intention is to have this reference to Section 252 prevail.

However, a further question arises: Why does draft Act Section 5 only refer to the first paragraph of Section 252 (dealing with domestic and inter-Nordic trade), not to the remainder of Section 252, which gives the connection factors for application of the Maritime Code (Chapter 13 of the Code) and which contains the factors which implement the Hague-Visby Rules into Norwegian/Nordic law? As we have seen, inter-Nordic trade is Hague-Visby trade, and what is mentioned about inter-Nordic trade in Section 252 is in reality superfluous, since the same would follow from the connecting factors of Section 252 second paragraph. Is then Hague-Visby trade (or the expanded version of it in the Nordic Codes) not intended to be retained as part of the draft choice of law Act?

The purported answer as given in the Report is obscure. The approach to it seems to be:

First, the view seems to be that the need to retain the substantive law parts of the Hague-Visby Rules is sufficiently achieved through the draft Act Section 40 second paragraph. However, this is without realizing that such retention of the Hague-Visby Rules would need to retain the Norwegian law incorporation of the Hague-Visby Rules, and thus Maritime Code Section 252 second and third paragraph.(43) Section 2.3.3.

Second, the view seems to be that Maritime Code Section 252 first paragraph (being expressly retained), reflects some kind of obscure Nordic substantive law cooperation which, from a choice of law perspective, should, ideally, be abolished. The report states:

“It is, however, recommended [ref.] to consider whether there is today sufficient grounds for retaining these provisions [Maritime Code Section 252 first paragraph(44) Also Section 321 concerning chartering of ships is here mentioned, which falls outside the scope of this article.], particularly in light of the fact that Sweden and Finland are no longer in a position to retain them. If such consideration leads to these provisions [Maritime Code Section 252 first paragraph] being abolished, then the draft Act Section 5 fourth paragraph can be omitted.”(45) Report p. 153.

This creates a further mixture of unfounded premises:

First, Sweden does not take the same view on Section 252 and Rome I as does the Norwegian Report, thus Sweden does not abolish the relevant provision. Second, it seems to ignore the relationship between Section 252’s first and second paragraphs (as explained above). Third, if the legislator were to go along with this recommendation in the Report, then the domestic law part of Section 252 first paragraph would also disappear, seemingly with the effect that domestic trade would also be subject to the rule of party autonomy pursuant to draft Act Sections 3 and 5. This alternative is not discussed in the Report, despite its dramatic consequences, and despite the Swedish choice of law legislator having expressly avoided it by making domestic trade subject to the exceptions in Rome I Articles 3 and 9,(46) Section 4.2.2. something which is not commented on in the Norwegian Report, and with no corresponding provisions (to Rome I Article 9) in the draft Act itself.(47) The view is generally taken that one should take a restrictive approach as to what substantive law should qualify as being of ‘international mandatory nature’, unlike views expressed by the Swedish choice of law legislator, Report p. 153.

Moreover, going back to our recurring theme of conflicting perspectives, the following paradox ensues: If the legislator were to go along with the recommendation in the Report to omit the reference to Maritime Code Section 252 from the draft Act Section 5, this would strengthen, rather than weaken, the position submitted in this article, namely that it follows from a plain construction of Section 252 that there is no room for any (prior) consultation on choice of law rules, including that of party autonomy. This position would, if the said omission is made in the draft Act Section 5, live (as it were) undisturbed by any competing provision of the draft choice of law Act, albeit contrary to the intention of the Report, which is – in principle – to have Maritime Code 252 yield to choice of law rules, including that of party autonomy.

4.3.6 Summary – a test case on practical effects of the draft Act

It will have transpired that in the author’s view the draft choice of law Act and its underlying premises suffer from significant shortcomings of both a methodological and a practical nature. This can best be illustrated by posing a hypothetical case, capturing the main points made in the previous sections.

We assume that a cargo claim dispute is seized by a Norwegian court. Discharge of the goods has taken place in Norway. The cargo document(48) We simplify by saying ‘cargo document’, not ‘bill of lading’, ‘sea waybill’, etc. which would complicate the example.refers to Panamanian law. By plain application of the Maritime Code Section 252 second paragraph No. 2,(49) See Section 2.3.3. the liability provisions of the Code apply. But Section 252 second paragraph is not retained as being exempted from party autonomy in the draft choice of law Act (only the first paragraph involving domestic and inter-Nordic trade is), so what does this mean?

Shall then Section 252 second paragraph be allowed to be derogated from, by reference to Panamanian law? But that second paragraph incorporates the (scope provision of the) Hague-Visby Rules,(50) As per Section 252 second paragraph No’s. 1), 4) and 5) although that cannot be discerned from the provision itself, see the discussion in Section 2.3.3. and it follows from the draft Act Section 40 second paragraph that substantive law harmonizing Conventions to which Norway is a state party, such as the Hague-Visby Rules, are to be retained. But to ‘retain’ such provisions cannot be made in the abstract. An adjudicator would need to know how and where such a Convention is implemented into Norwegian law, and then apply the relevant Norwegian law provision. An adjudicator would not apply a Convention ‘in the abstract’. That Norwegian law implementing provision is contained in Maritime Code Section 252 second paragraph which, again, the choice of law legislator seemingly has directed shall yield to party autonomy, which in turn is in violation of Norway’s Hague-Visby obligation (and of the draft Act Section 40, second paragraph) – and so on, in endless retrogression.

In addition: If an adjudicator were to follow the draft legislator’s suggestion that Maritime Code section 252 second paragraph shall yield to party autonomy, he or she would then have to check whether Panama is a Hague-Visby state, for the purpose of deciding whether Norway is internationally bound to apply the Convention, as directed in draft Act Second 40 second paragraph. Assuming Panama is, the adjudicator would then have to do the balancing act of accepting the derogation from the Maritime Code (by reason of the choice made to Panamanian law) but nevertheless retain the Hague-Visby, as implemented into the Maritime Code. But that is an entirely impractical exercise, since no indication of such ‘origin’ of the respective provisions is given in the Maritime Code itself. One would have to do a theoretical-historical extensive research of ‘deciphering’ the respective parts of the Code’s law provisions to find this out.(51) Section 2.3.2 And even if this were to be achieved, it would not resolve the question of application of provisions not (directly) originating from the Hague-Visby Rules.(52) See the examples given in footnotes 38 and 47.

The above discussion was made on the assumption that Panama is a Hague-Visby state, but that was an incorrect assumption (for the purpose of our example), since Panama is not. And what would that mean? According to the draft choice of law Act it would seem to mean that despite the subject matter at hand clearly being covered by scope of the Maritime Code,(53) Discharge having taken place in Norway, Section 252 second paragraph. an adjudicator should instead look to choice of law legislation and its directive of letting party autonomy override the scope of the Code, and instead apply Panamanian law in toto to the dispute.

As a matter of straightforward adjudication of a dispute falling within the plain wording of the Maritime Code through its scope provision, an adjudicator would – it is submitted – not reach such a conclusion, which – it is submitted – would be legally wrong, as a matter of ordinary legal methodology of ‘applying the Code’.(54) See Section 4.3.2 above and the stated contrast between ‘the ordinary methodology of construction of legal provisions’ as opposed to the Report’s suggestion of ‘the ordinary methodology of international private law’. Thus, the draft choice of law Act would not only have the effect of muddling this area of substantive law, but also of bringing genuine confusion into the fundamental methodology of application of law and adjudication.

The example illustrates that the draft legislation is simply not tenable as an instrument for practical adjudication. Moreover, it is in the author’s view conceptually untenable due to the methodological shortcomings discussed earlier. The legislator starts in the abstract by taking as a premise that Section 252 must be categorized as a ‘scope provision’ not embedding elements of choice of law, and derives formalistic conclusions from such an a-priori, conceptually based, premise.

Rather than starting out from such a conceptually based premise, it seems clear that a holistic approach is required, where the choice of law legislator possesses sufficient insight also into the substantive law areas impacted by choice of law legislation, and what the interrelations are between substantive law and choice of law. Only through such an holistic approach does it seem possible to avoid undue simplification whereby some statutory provisions are categorized as ‘scope’ provisions, not containing choice of law elements, and others as ‘choice of law’ provisions, not containing substantive law elements.

This topic is complex but we have seen that, paradoxically, the Swedish choice of law legislator, being bound by Rome I, has – through a balancing act of weighing substantive law and choice of law elements – ended up with a much more pragmatic and workable legislative product than that of the Norwegian choice of law legislator, with Norway not being bound by Rome I.