Rome I. Rome Protocols

Paul Lagarde was bom in Rennes on 3 March 1934, and is Professor Emeritus of the University of Paris I Pantheon-Sorbonne, Editor of the Revue critique du droit international prive, and also a member of the Institute of International Law. He was co-rapporteur (with Mario Giuliano) on the Rome Convention of 19 June 1980.

Main publications

Droit international prive (collaboration with Henri Battifol), Vol. I; Eighth edition, 1993 Vol. II, Seventh edition, 1983.

La nationalitè française, Third edition, Dalloz, Paris, 1997.

'Le principe de proximite dans le droit international prive contemporain', Recueil des cours de l'Academie de droit international, Vol. 196 (1986-1), pp. 1-237.

The Rome Convention of 19 June 1980 on the Law applicable to Contractual Obligations is, after the Brussels Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, the second successful attempt to unify private international law within the European Union.

Moreover, in this respect, it occupies a special place in Community private international law. It is the only convention still in force, the others having been replaced by regulations, either after proving their effectiveness over many years, such as the 1968 Brussels Convention, or before even entering into force, such as the Brussels II Convention of 28 May 1998 or the Convention of 23 November 1995 on Insolvency Proceedings. It is also the only one which does not, strictly speaking, have its legal basis in the Treaty of Rome. Unlike the Brussels I Convention, which was based on Article 220 (now Article 293) of the Treaty and the Brussels II Convention, drawn up pursuant to Article K.3 of the Treaty on European Union (Maastricht), the Rome Convention is simply a convention concluded between the Member States of what was then the European Economic Community. In spirit, however, the Rome Convention is a Community convention and the question of whether to transform it into a regulation now arises.

This text refers to the origins of the convention (I), briefly analyses its content (II), introduces the protocols on its interpretation (III) and, finally, raises questions about its likely future (IV).

I. Origins of the Rome Convention

Unification of the rules on jurisdiction by the Brussels Convention of 27 September 1968 necessitated, in order to avoid the danger of forum shopping resulting from the many choices of jurisdiction which the convention opened up, corresponding unification of the rules on conflict of laws. Hence, as early as 1970, the Permanent Representatives Committee (Coreper) decided to follow up an initiative by the Belgian Government and to set up a working party for the purpose.

The original ambition was to unify the rules on conflict of laws in all matters to which the Brussels Convention applied, with the exception of maintenance obligations, which were then the subject of proceedings in the Hague Conference on Private International Law. The working party's remit, therefore, initially covered not only contractual obligations, but also extra-contractual obligations and the law on property and valuable securities. After a few exploratory studies, the working party very quickly postponed the rest of its work on property sine die. On the other hand, in 1972, it achieved a preliminary draft convention, drawn up by the six founding States of the European Economic Community, on the law applicable to contractual and non-contractual obligations. This preliminary draft was the subject of wide discussion and many scientific colloquia. It served as the basis of discussion for further negotiations with the three new States which joined the Community in 1973: Denmark, Ireland and the United Kingdom. The negotiations were to result in 1978 in a draft convention finalised in 1980 and limited to conflicts of laws relating to contractual obligations.

Non-contractual obligations were taken out of the draft for two main reasons. It had emerged that very long negotiations, the success of which was not ensured in advance, would be necessary to bring the United Kingdom representatives to abandon the Philipps v Eyre rule unjustifiably favouring the defendant in an action relating to liability by cumulative application of the lex loci delicti and the lex fori. In addition, it had to be recognised that the unification brought about by the preliminary draft would be largely illusory since the

Hague Conference had just drawn up two special conventions unifying conflicts of laws applicable to traffic accidents and accidents caused by products, and only some Member States of the European Economic Community were prepared to ratify them. This defect should be remedied in the not-too-distant future, since the Commission's Directorat...

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