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The history and rationale of Rome I Art 5
INTRODUCTION
• Carriage of goods
• The archetypical kind of cross‐border transaction
• The practical importance of Art 5
• Most commercial contracts have a choice of law clause
• Does it mean that choice of law rules concerning carriage of goods are of limited relevancy, from a practical point of view?
THE RATIONALE OF ART 5
• What is the rationale of Rome I?
• The legal technique used to meet this rationale
THE HISTORY OF ART 5: AN EVOLUTION
• Primarily an evolution from the Rome Conv. Art 4 (4)
• Refinement and clarification
• No major change in the scope, mainly clarification
• Art 4(4) third sentence read:
• In applying this paragraph single voyage charter‐parties and other contracts the main purpose of which is the carriage of goods shall be treated as contracts for the carriage of goods
• Rome I, recital (22):
• «… no change is intended with respect to Article 4(4), third sentence of the Rome Convention …»
BRIEFLY ON THE SCOPE OF ART 5 AND INTERNATIONAL CONVENTIONS
• The practical importance of Art 5
• Traditionally, unification of the law for carriage of goods has been achieved by harmonising the material rules
• Rome I Art 25 provides that:
• «This Regulation shall not prejudice the application of international conventions …»
SHOULD A NORWEGIAN STATUTE ON CHOICE OF LAW MERELY REFLECT ART 5?
• Two key questions
• Q1: are there any such particular Norwegian aspects?
• The nature of carriage of goods; truly international
• Preliminary conclusion
Q2: SHOULD A NORWEGIAN STATUTE ON
CHOICE OF LAW FILL CERTAIN «GAPS» IN ART 5?
• Selected examples of matters of interpretation which may be addressd in the statute or the prepratatory work
• 1). In the absence of an express choice of law; may an arbitration clause imply a choice of law as per the agreed venue?
• 2). What is the «place of delivery as agreed by the parties»?
• 3). Bills of lading to be expressly included?
• 4). Commission services concerning carriage of goods to be expressly included? C‐305/13 (Haeger)
«GAP ‐ FILLING» CONT´D
• Policy considerations
• Pro «gap‐filling in the Norwegian statute (or its preparatory work)
• Contra
