5.6 Does the primacy of party autonomy of Rome I constitute ‘substantive’ law?
Similar to the above notion that Rome I, with its selection of substantive law areas allowed to interrupt the main rule of party autonomy, could be seen as a norm of higher order, another proposition could perhaps be made by proponents of a choice of law perspective, along the following lines:
Rome I is not merely a system of formalistic nature by allocating connecting factors in order to establish a unified system for designating the governing law in contractual relations, it is also a ‘substantive law’ system in the sense that it provides policy grounds for promoting the value of freedom of contract, as reflected in its main rule of party autonomy in the choice of law.(1) Rome I Preamble (11) reads: “The parties’ freedom to choose the applicable law should be one of the cornerstones of the system of conflict-of-law rules in matters of contractual obligations.” See also the opening words of the Preamble (1): “The Community has set itself the objective of maintaining and developing an area of freedom, security and justice.” One could therefore argue that this overriding aim should also be given effect in relation to our topic: the conflict between choice of law rules (Rome I) and restrictions on choice of law (indirectly) following from substantive harmonizing schemes.
We have seen such arguments raised by the Norwegian draft choice of law legislator, submitting that the paramount value of freedom of choice should form a principle of presumption when construing (other) statutory provisions which may lead to restriction of party autonomy, such as the scope provision of Maritime Code Section 252. In other words, Rome I and its (substantive law) part in promoting party autonomy, is generally used as a substantive law argument of construction: if the relevant provision (Section 252) is not clearly enough drafted so as to exclude it from being made subject to prior consultation of choice of law rules, it will be construed to the contrary: that it yields to party autonomy and choice of law rules.
We have argued that this is a highly artificial way of construing a substantive law scope provision: if it is clear from its wording, together with its history and purpose, that it applies (and restricts choice of law), then it is not viable to introduce freedom of choice as an argument on its own account, unrelated to the sources otherwise relevant to construing the scope provision. Put differently: A principle of party autonomy does not extend beyond the purpose of Rome I as a choice of law instrument. First, Rome I does in itself provide restrictions on party autonomy(2) A digression is that Rome I contains a policy statement to the effect that protection of the weaker party should prevail over party autonomy, in Preamble (23): “As regards contracts concluded with parties regarded as being weaker, those parties should be protected by conflict-of-law rules that are more favourable to their interests than the general rules.” This is the very thinking behind the Hague-Visby Rules and behind the modernization of these rules in the ‘Hague-Visby surplus system’ of the Nordic Maritime Codes. However, Rome I has no specific provision within the area of transportation contracts which are aligned with this policy statement. and, second, those policy statements cannot be detached from the scope of application of Rome I itself.
We are then back to the same point discussed in the previous Section: The purpose of applying Rome I does not extend to situations where choice of law questions are regulated by a harmonizing scheme of a different nature from Rome I, namely that of providing harmonized substantive law rules. Moreover, if it follows from ordinary methodology of construction applied to such other rules (scope provisions of substantive law harmonizing rules) that these govern irrespective of Rome I, there is no room for introducing arguments of construction derived from Rome I.(3) See the more detailed account of the methodological aspects in Section 4.3.2