5.5 Do choice of law instruments contain elements of substantive law?
As part of our attempt to circle in aspects of relevance to our recurring theme of clashing perspectives, it could be asked whether Rome I, as a choice of law instrument, must, by virtue of its own provisions, be said to contain directions on, as it were, a substantive law meta-level which must, or should, lead to choice of law rules being given priority, contrary to what has been argued in this article – for example along the following lines:
Rome I sets out the main rule of party autonomy and, by its own terms, provides the relevant exceptions to such main rule, by allowing for mandatory laws of the forum to prevail, and in certain situations ‘international mandatory rules’ as well, as this term is understood by the law of the forum.(1) Sections 3.2 and 3.3. In that way it may be said that since the instrument itself sets the premise for what part of substantive rules shall be allowed to prevail, then by the very design and status of the instrument, other substantive law rules, including those which (indirectly) regulate choice of law as part of international harmonizing rules, are disallowed; they are set aside as a result of Rome I being considered ‘a complete code’.
Such a notion seems to underlie much of the thinking behind both the Swedish choice of law legislation and the Norwegian draft legislation. However, we have taken an opposite view: There is no reason to believe that the intention of Rome I is to set aside substantive law regulation which contains scope provision which (indirectly) governs the choice of law for the purpose of harmonizing substantive law, since such a solution (primacy given to Rome I), would have the effect of undermining the substantive law harmonizing rules. This is what has been illustrated by the European court cases relating to the application of CISG; priority is given to harmonizing substantive rules over harmonizing choice of law rules.
The better approach must therefore be to construe Rome I in light of its purpose, namely to designate the governing law, and as part of it party autonomy, in situations in need of being so regulated. If a subject matter is already regulated by a different scheme of harmonizing rules, then there is no need for the purpose underlying Rome I – or on more formal grounds: there are no ‘conflicts of laws’ within the scope provision of Rome I itself, in Article 1.
This has therefore the effect of recognizing substantive law scope provisions (which may contain restrictions on choice of law and also that of ‘quasi choice’ provisions)(2) Section 2.3. in existing legislation, and thus accord with our general argument that choice of law provisions yield to substantive law scope provisions, as a matter of ordinary legal methodology of construction of such scope provisions.
This has some further implications. It mean, first, that international harmonizing instruments, such as the Hague-Visby Rules, and national implementation provisions based thereon, are fully recognized by Rome I – or they fall outside the ambit of Rome I (again as held by the European courts relating to CISG). But it also means that the same reasoning should apply to international harmonizing instruments not being rooted in (formalized) international instruments, such as the Nordic Maritime Codes. This is so because here as well there is no need for provision for harmonizing choice of law (Rome I), and there is, here again, the question of recognizing the legislators’ intent when promulgating such harmonizing rules.
This perspective also has a further twist of methodology of construction of interest to the views taken by the Nordic choice of law legislators when construing Rome I Article 25. This provision makes an exemption for prior ‘conflict of law conventions’ and not (at least not expressly) for prior substantive law harmonizing conventions. The Swedish legislator here took the view that Article 25, through an expansive construction, did also contemplate substantive law conventions, so as to effectively retain the prior Maritime Code under Rome I. The Norwegian draft legislator took the opposite view and, as part of the draft Act modelled on Rome I, found reason to make a ‘rectifying’ additional provision to Rome I Article 25, in order to ensure that the Maritime Code as based on the Hague-Visby Rules would be retained.
But neither of these views and solutions are in the author’s view tenable. The better view seems to be that those international substantive law harmonizing rules, which do resolve questions of choice of law, are outside the ambit of Rome I altogether, and not in conflict with it. According to this view it makes perfect sense that Rome I Article 25 is formulated in the way it is. It means that Sweden was wrong in viewing the Hague-Visby Rules as a choice of law convention within the meaning of Rome I, and would not have needed to make its amendments in purported compliance with Rome I. It also means that the expansive choice of law perspective taken by the Norwegian draft legislator was misplaced: there would be no need for a ‘rectifying’ provision to Article 25, since such ‘rectification’ is outside the ambit of Rome I, and thus also outside the ambit of the Norwegian draft choice of law Act.