5.2 National law and a ‘second order’ clash of perspectives
From this simplified illustration of potential conflicts between international instruments – the Rome I and the Hague-Visby Rules – we take the matter one step further.
The relevant scope provisions of international conventions, such as the Hague-Visby Rules, are, naturally, incorporated into national law, and it is no anomaly that they may become amended or extended as part of national law implementation, as we have seen with the Nordic Maritime Codes. Such amendment or extension is made in furtherance of, and cannot be separated from, the scope perspective: scope provisions of international instruments do not exist in a legal void.
This renders us into a ‘second order’ clash of perspectives where traditional choice of law perspectives seem to miss out on important points. This potential ‘clash’ between choice of law instruments (Rome I) and national law also needs to be resolved, and clearly the starting point must be to acknowledge the intent of the national legislator when he/she expands on the substantive law as part of, or in connection with, implementation of international law instruments, as we have seen with respect to the Nordic legislators’ promulgation of the ‘Hague-Visby surplus system’ as part of the Maritime Codes.
Such an acknowledgment of the legislator’s intent is a matter of fostering, in a principled way, the stated scope perspective. But it is also a matter of practical adjudication. A different result would simply lead to unworkable substantive law solutions, such as having to ‘decipher’ the content of substantive law rules (the Maritime Codes), as part of a piecemeal effect of a choice of law perspective – as we have seen illustrated in the Norwegian draft choice of law Report, aiming at treating differently those parts of substantive law (the Norwegian Maritime Code) which originate, or do not originate, from an international instrument, such as the Hague-Visby Rules.
This brings us to an important part of this article: to cast a critical eye over choice of law perspectives, by using as illustration the approaches taken by the Swedish and Norwegian choice of law legislators. This comparison has demonstrated, first, a striking difference of opinion as to the very nature of choice of law rules versus substantive law rules, second, a striking difference of opinion of how to try to reconcile these sets of rules.
In the author’s view, this disparity between opinions and perspectives is a diagnosis of the choice of law perspective in itself – being of a formalistic and non-holistic nature (Sections 5.4 and 5.7 below). That could in itself perhaps be harmless, but it has the further implication of trespassing into the realm of substantive law, and it has, in the Nordic context, a potentially stunning negative effect on the efforts made over the years by substantive (maritime) law experts, who established what they viewed as sensible regulation of uniform Nordic substantive law, in furtherance of the more simplistic ideas embedded in the Hague-Visby Rules. Put succinctly: by a whim of formalistically oriented choice of law experts, this uniform substantive law system risks being undermined.