ELJ-2020-1__press 2020.12.22. 11:17 Page 89
Uglješa Grušić*
Some Recent Developments Regarding the Treatment of Overriding Mandatory Rules of Third Countries Introduction The story of the treatment of overriding mandatory rules of third countries (i.e. the law of which is neither the lex fori nor the lex causae)1 in private international law in Europe2 is well known. Before the adoption of the Rome Convention,3 national systems of private international law had dealt with third countries’ overriding mandatory rules in different ways. English courts pursued a relatively strict approach in the field of choice of law in contract. Most other national systems of private international law were at least as, if not more, open to the idea of giving effect to third countries’ overriding mandatory rules. The Rome Convention introduced an era of partially unified treatment of mandatory rules in the field of contract in the European Economic Community. Article 7(1) of the convention allowed the courts of Contracting States to give effect to the overriding mandatory rules of a foreign country with which the situation had a close connection, even if the law of that country was not the lex causae. However, seven Contracting States, including the United Kingdom, considered Article 7(1) to be too radical and reserved the right not to apply its provisions. The Rome I Regulation4 replaced the Rome Convention on 17 December 2009. It achieved a full unification of the treatment of mandatory rules in the field of contract in the European Union (‘EU’). The cost of this was a new Article 9(3), which was modelled on the English common law rules on foreign illegality and has significantly curtailed the ability of Member State courts to give effect to third countries’ overriding mandatory rules. The drafters of the Rome II Regulation5 eventually decided not * Associate Professor, Faculty of Laws, University College London. 1 This article does not deal with the overriding mandatory rules of the lex fori and rules which cannot be derogated from by agreement in purely domestic situations. 2 This article deals with some recent developments regarding the treatment of third countries’ overriding mandatory rules in Europe. It does not address developments elsewhere. 3 Convention on the law applicable to contractual obligations, opened for signature on 19 June 1980 [1980] OJ L266/1 (entered into force 1 April 1991). 4 Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations [2008] OJ L177/6. 5 Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations [2007] OJ L199/40.
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