Unification of the legal regulation of contractual obligations in the law of EU

Abstract

This article examines the issue of the development of the conflict regulation of contractual obligations in the law of the European Union.
Today, the final stage of the process of unification of these norms in the EU is the adoption of Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17.06.2008 on the law applicable to contractual obligations (Regulation «Rome I»).
Regulation «Rome I» establishes a system of conflict rules for the settlement of conflicts of laws (national legal systems) applicable to contractual obligations in the fields of civil and commercial legal relations (Part 1, Article 1). This system is based on the general rule according to which the relevant contract is governed by the law chosen by the parties to this contract (Part 1, Article 3). Regulation «Rome I» provides for broad discretion («autonomy of will») regarding the choice of applicable law by the parties to the contract, however, it is criticized in the literature due to the lack of a provision on the possibility of choosing the so-called «non-state law», in particular international trade customs (lex mercatoria).
In the absence of a choice of law made by the parties, the law determined in accordance with the provisions of Article 4 of Regulation «Rome I», which is based on the principle of «characteristic performance» (the law of the habitual residence of the party who must perform the performance decisive for the content of the relevant contract, shall apply to the relevant contract). At the same time, Articles 5-8 of Regulation «Rome I» set out special provisions on the conflict of laws regulation of certain types of contracts (carriage contracts, consumer contracts, insurance contracts, individual employment contracts), according to which, in the absence of a choice of law made by the parties, the most closely related law shall apply.