5.3 Legal sources determining choice of law – their influence on terminology
A further observation is that what we have called clashing of perspectives between choice of law and substantive law, will also have the potential to result in the clashing, or at least confusion of, terminology. The phenomenon of ‘choice of law’ does not belong solely to the approach of harmonizing choice to national legal systems in the Rome I sense. Choice of law (or restriction of it) may also be contained in and governed by substantive law systems – through application of the relevant scope provisions.
Therefore, substantive law scope provisions may well be a legal source of determining choice of law questions. In that sense, within the realm of contract law, the legal sources which determine choice of law questions could, generally speaking, consist of: a) contractual provisions, b) choice of law instruments (Rome I), and c) substantive law regulations. As we have seen in this article, alternative c) may override b) and a).
This in turn means that categorization of legal concepts may have floating transitions. One example: When choice of law is contained in the implementing provision of the Hague-Visby Rules in the Maritime Code Section 252, that is a choice of law regulation of a different order from that of the traditional choice regulation, as in Rome 1. We have called this different-order type of choice regulation ‘quasi choice’, since it operates within the confines of the substantive law system to be exempt from regular choice of law rules, as in Rome I. Put differently, when substantive law harmonizing systems, such as the Hague-Visby Rules or legislation originating from it, must be considered exempted from (otherwise) choice of law regulation, such an exemption pertains just as much to the ‘quasi choice’ regulation contained within the ambit of such a substantive law harmonizing scheme. An opposite approach – to give the term ‘choice of law’ a formalistic and homogenous meaning, and let such meaning govern as part of a legislative programme – would, as we have seen, lead to untenable solutions as a matter of substantive law and practical adjudication.(1) See e.g. Section 4.3.6.
One cannot, therefore, operate with concepts or categories that are pre-defined, or made a-priori, such as saying that a given legal provision is a ‘scope provision’ and thus must yield to a ‘choice of law provision’ as if the latter belongs to some kind of higher legal order – or that ‘scope provisions’ generally ‘presuppose’ that choice of law rules have already been consulted – as we have seen demonstrated in the review of the Norwegian draft choice of law Report. Mere categorization of legal phenomena does not have the effect of ‘governing’ the outcome of conflicts between opposing sets of legal rules, nor does it ‘govern’ the outcome of concrete adjudication.
Rather, one must take a holistic perspective, realizing the intricate interplay between the two sets of rules (choice of law instruments versus substantive law instruments), which – as we have submitted – is resolved by ordinary legal methodology of construction of legal provisions,(2) Section 4.3.2.which may well lead to primacy of a substantive law scope perspective, as illustrated in the area of law inquired into in this article.