Private International law Sciences Po Paris Spring 2017

1. Private International lawSciences Po ParisSpring 2017 PIL for contract law Giuditta Cordero-Moss, Ph.D., Dr.Juris Professor, Oslo University

2. Forum • Norwegian seller • Italian buyer • The goods do not comply with contract, buyer pays only part of the price • Alt. 1: Seller sues to obtain payment • Alt. 2: Buyer sues to obtain specific performance

3. Sources • Lugano Convention • If German seller: Brussels I • If Italian defendant and claimant outside EU/EEA: Brussels I • If Norwegian defendant and claimant outside EU/EEA: Norwegian civil procedure (controversial)

4. Court’sdiscretion? • Brussels I, Lugano: No discretion • Norwegian civil procedure: Some discretion (controversial) • US, UK civil procedure: Discretion

5. General rule • Art. 4 Brussels I, Art. 2 Lugano: The defendant’s domicile • Alt. 1: Forum in Italy • Alt. 2: Forum in Norway

6. How to determine domicle I • Art. 62 Brussels I, Art. 59 Lugano: Domicile is determined by the law of the place where a party is domiciled.

7. How to determine domicle II • Art. 63 Brussels I, Art. 60 Lugano: A company is domiciled at the place where it has its: • statutory seat; • central administration; or • principal place of business

8. Alternative forum for activity of branch • Art. 7.5 Brussels I, art. 5.5 Lugano: (5) as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place where the branch, agency or other establishment is situated

9. Alternative forum for contracts • Art. 7.1 Brussels I, 5.1 Lugano: • in the courts for the place of performance of the obligation in question; • for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be: — in the case of the sale of goods, the place in a Member State where, under the contract, the goods were delivered or should have been delivered, — in the case of the provision of services, the place in a Member State where, under the contract, the services were provided or should have been provided; • if point (b) does not apply then point (a) applies;

10. Qualification • Contract: obligation freely assumed by one party towards the other.(C-51/97) • Autonomous interpretation(C-12/15, C-196/15) • Membership in an association (C-34/82) • Not: direct claim against producer(C-26/91) • Not: guarantor’s recourse against debtor (C-265/02) • Not: culpa in contrahendo (C-334/00)

11. Place of performance • Swap agreement between Norwegian and German bank • Place of performance of monetary obligations: • German law: debtor’s place • Norwegian law: creditor’s place • How do you define place of performance?

12. Place of peformance is determined under the lexcausae • Under the law that governs the contract • C-12/76 • Under the law that would have governed the contract, if the contract had been valid • C-38/81

13. Place of performance of «the obligation in question» • Brussels Convention: The obligation on which the claim is based • C-12/76 • To avoid creditor’s forum: Brussels I (44/2001): Characteristic obligation for sales and services

14. Special forum rules for weak contractual party • Insurance • Sec. 3 Brussels I, Lugano • Consumer contracts • Sec. 4 Brussels I, Lugano • Individual employment contracts • Sec. 5 Brussels I, Lugano

15. Choice of forum agreements • Art. 25 Brussels I, art. 23 Lugano: courts are bound by choice of forum agreements • “Any disputes arising from this contract shall be brought before the courts of Oslo” • But: CDC C-352/13 21.5.15: not for disputes on damages following anti-competitive agreements • Does not apply to exclusive fora

16. Choice of law • Party autonomy • Default conflict rule

17. Party autonomy • Norwegian seller • Italian buyer • Governing law clause: “This contract shall be governed by the laws of Norway”

18. Effects of the parties’ choice • Mandatory rules of the otherwise applicable law are not applicable • In domestic contracts: mandatory rules are applicable(art. 3.3 Rome I) • In intra-EU contracts: EU mandatory rules are applicable (art. 3.4 Rome I) • Overriding mandatory rules prevail (art. 9 Rome I)

19. Scope of the parties’ choice • Governing law clause chooses Norwegian law • The Italian party alleges it lacks legal capacity according to Italian law • Norwegian court • Shall the court apply only the chosen law, or shall it apply also the laws of each of the parties?

20. Tacit choice • ”Clearlydemonstrated by the terms ofthecontract or thecircumstancesofthecase” (art. 3 Rome I) • The choice must be actual • Use of standard form clearly drafted under a specific law • Hypothetical choice is not allowed • Choice of forum • Contract clauses inspired by a legal system

21. Lacking parties’choice • Norwegian seller • Italian buyer • No governing law clause • The habitual residence of the party making the characteristic performance (art. 4 Rome I)

22. Evolution of the rule • Rome Convention • Closest connection • Presumption: habitual residence of characteristic debtor • Exception: closest connection • Rome I • General connecting factors for named contract types • Habitual residence of characteristic debtor for other contracts • Exception: closest connection

23. Special conflict rules • Carriage (Art 5 Rome I) • Consumer (Art 6 Rome I) • Insurance (Art 7 Rome I) • Individual employment contracts (Art 8 Rome I)