modernisation, Brussels, 14.1.2003 COM(2002) 654 final, p. 23. The document can
be found at www.europa.eu.
DETERMINATION OF THE APPLICABLE LAW: NATIONAL REGIMES
346
Although it was the international legislators intention to admit clear choices only,
this
the lex fori73. Since there may be differences in the rules of legal procedure
applied by the various courts the plaintiff can choose to address, these rules may
to the Brussels I Regulation by Schlosser the rules on jurisdiction and enforcement
of a conv
clause also shows that it is clearly drafted by someone who had the carriers best
interests in mind, and not especially those of the consignor. The clause contains a
choice for either the Hague or the Hague-Visby Rules, from which the other terms
of the b
the contract or the circumstances of the case. By their choice the parties can select
the law applicable to the whole or a part only of the contract.
The second sentence of the paragraph provides some rules on the form in which
the choice of law must be m
gem 452 a HGB bekannt ist, ist auch fr die Ermittlung des hypothetischen
Teilstreckenrechts im Sinne von 452 a Satz 1 HGB deutsches Recht mageblich.
Denn in diesem Zusammenhang lt sich ebenfalls eine Rechtswahl im Sinne von
Art. 27 EGBGB damit begrnden, d
by
the
shipping
company
expunged. This departure from the Rome Conventions text was not preserved
however. The final text of the Rome I Regulation refers to the habitual residence
of the consignor in Article 5(1). 173 In Boonks opinion it is the shipper m
cause the sea carriage stage to be governed by said uniform regime, since these
Articles state:
Article 10 HVR The provisions of these Rules shall apply to every bill of lading
relating to the carriage of goods between ports in two different States if (c)
(13) This Regulation does not preclude parties from incorporating by reference
into their contract a non-State body of law or an international convention.
Whether this means that the choice of non-State law such as a convention can be
deemed a choice that
The first thing triggered by the choice of a specific forum is the application of the
procedural law of the State where the forum is located. Only in second instance
does such a choice trigger the application of the private international law of said
State
or another. On the other hand, the only alternative to the application of Article 30
VC or the generally accepted principles mentioned does not seem very desirable
either. If there is no conflict of convention provision to grant precedence then it is
up t
displaced by mandatory Dutch law to the extent applicable). (3) The Hague-Visby
Rules would govern any cargo damage that occurred during the Rotterdam-toMontreal sea leg. (4) The bill of lading would probably govern any cargo damage
that occurred in the p
law, English domestic law will be applied as though the case were wholly
domestic88. The English seek the justification for this manner of conduct in their
rules on jurisdiction. These rules, the court is obliged to apply ex officio, as
opposed to the rul
case is necessary under those circumstances. The question is how such a rule
should be given shape. Its specific nature prevents it from fitting in a general
convention such as the Vienna Convention. Neither is incorporating the rule into
one or more of t
reserved for conflicts stemming from the entry into force of the Rotterdam Rules
alone. A rather substantial problem is embodied by the fact that the system of
Article 30 VC which can at this point be said to be used only for want of a better
solution is
of the States is party to the Rotterdam Rules but both States are party to the elder
convention, such as the COTIF-CIM or the CMR. In situations where there is no
convention that the States in question are both party to however, the Vienna
Convention does
found in Article 8:1102(1) BW117. Article 8:1102BW allows parties to deviate from
the compulsory rules on carrier liability in relation to road carriage found in Article
8:1095 BW, if they expressly agree to do so in relation to the intended carriage,
and
uniformity that is to be generated by the instrument. Perchance the opinion
prevailed under the drafters that in practice, the remaining conflict situations are
not likely to cause that much commotion, as the three main issues in carriage law
are networke
company. For a more detailed explanation of the feasibility of a choice of forum
by means of a principal place of business of the carrier clause see Smeele 1997.
177 Article 28 WC and Article 33 MC. 178 Dettling-Ott 2006, Article 28 WC, No. 11.
See also O
concluded by the same parties. Especially this last requirement is unlikely to be
met in relation to overlapping carriage conventions115. The last existing means
mentioned that may be used to determine precedence when a conflict occurs
between carriage co
After the discussion on the peculiarities of legal procedure, it is time to take a
closer look at the private international law rules of the Rome I Regulation. It is this
Regulation that establishes uniform rules concerning the law applicable to
contractu
Although the Court of Justice is not authorized to give preliminary rulings on the
interpretation of the CMR as such the Hoge Raad establishes that according to the
report
DETERMINATION OF THE APPLICABLE LAW: NATIONAL REGIMES
340
On the whole, the concept
which lay down conflict-of-law rules relating to contractual obligations are
granted precedence under the Regulation. Unlike the Rome Convention, the Rome
I Regulation does not grant precedence to conventions that come into effect after
the mentioned time
CMR and Article 1(3) and (4) COTIF-CIM. These provisions clearly mention that
they extend the regime they are part of beyond the mode of carriage that is its
main target under certain circumstances. The second cause for conflict, the
discordant scope of a
approach is also applied by courts in Germany, see for instance OLG Stuttgart 1
July 2009, TranspR 2009, p. 309-315. 78 In France, they follow a course that is less
strict to some extent. Officially, French courts are obligated to apply foreign law ex
off
This provision specifically designed for carriage contracts emphasizes the
importance of the principal place of business of the carrier. The more generic
provision in Article 4(2) RC on the other hand, attaches to the place where the
party who is to effec
1. To the extent that the law applicable to the contract has not been chosen in
accordance with Article 3, the contract shall be governed by the law of the country
with which it is most closely connected
As a result it is clear that the Article is meant i
carrier should refer to the party to the contract who undertakes to carry the
goods, whether or not he performs the carriage himself.
Pertaining to the identification of the carrier this does not change much; the
habitual residence, the place of central a
carrier is somewhat lessened. Where under the Rome Convention the law of the
State where the carrier had his principal place of business was likely to be the
law applicable to the contract based on Article 4(1) RC if Article 4(4) RC did not
provide an ans
responsibility under the majority of the carriage conventions. See also Section
10.3.5 of this Chapter. 186 Hof Arnhem 5 August 2003, S&S 2004, 80. 187 HR 28
March 2008, S&S 2008, 80; Hof Amsterdam 2 August 2007, S&S 2008, 114
(Leliegracht); Rb Arnhem 8 A
direct contract with the carrier in respect of the particular stage of carriage where
the loss of, or damage to goods, or an event or circumstance causing delay in their
delivery occurred and as such can cause rules of an international instrument to
apply
