5.1 International instruments and ‘clash’ of perspectives
Going back to the opening of this article, we started out with the simple statement: Rome I takes as a starting point that legal subject matters (contractual relations) may be affected by more than one national law system, with a perceived need to harmonize the relevant choice of law and providing as the main rule freedom of contract (party autonomy). Such a legal instrument, sorting out factors pertaining to more than one legal system and harmonizing the designation of the governing law, takes – in our terminology – a choice of law perspective.
We have then seen a different perspective. Succinctly put: long before the idea of creating legal instruments to harmonize conflict of laws – such as Rome I – came the idea of harmonizing legal rules in areas which had a potential for conflicts of laws, but where conflicts of law was consumed into, and thus resolved through, the substantive law harmonizing scheme – such as the Hague-Visby Rules. Such substantive law harmonizing instruments require a scope of application provision to allocate the legal subject matter – e.g. contracts for international carriage by sea – to the relevant rules of harmonized substantive law. Generally, such substantive law harmonizing instruments take – in our terminology – a (substantive law) scope perspective.
Moreover, legal subject matters falling within such scope of substantive law harmonizing instruments may at the same time fall within the (otherwise) applicable choice of law rules. In our example of the Hague-Visby Rules, the legal subject matter (international contracts of carriage) is prima facie also covered by Rome I. But, as we have seen, it would be close to meaningless if Rome I and its primary rule of party autonomy were here to govern. The very purpose of substantive law regulation would then potentially be rendered inoperative, while at the same time – and for the same reason – state parties to the Hague-Visby Rules would potentially be rendered in violation of their obligations under that Convention.
Clearly, such a solution is not tenable, which means that somehow the substantive law rules of the Hague-Visby must be given primacy over the main rule of party autonomy of Rome I, which in turn means that – in our terminology – the scope perspective must prevail over the choice of law perspective.