Rome I Flashcards
Nikiforidis
temporal application (art 28)
- amended contracts
- there needs to be an intensity in change for it to be a new contract
consent and material validity (art 10)
- Von Munchausen/the bootstrap
- validity of the contract is determined by the putative lex contractus
- AG suggested this for the question of intensity in change
- CJEU ignored this question
GDE LLC & Anor v. Anglia Autoflow
choice of law (art 3)
- choice of law needs to be clearly demonstrated
- court is not looking for the choice that the parties probably would have made
- no fabricated choice of law
Khalifeh v. Blom Bank
consumers (art 6)
- habitual residence
- connecting factor is looked at in the very beginning
- change in habitual residence of the consumer does NOT have an impact on the application of consumer title (>< Commerzbank)
VK v. N1 Interactive Ltd
consumers (art 6)
- identified laws are exhaustive
- law identified in art 6 is applicable even if the law under art 4 (of which the applicant seeks the application and which would be applicable outside consumer context) is more favourable to the applicant
Schlecker
employment (art 8)
- escape clause
- closer connections test
- even if there is habitual residence, this may be trumped by other circumstances
- in case: national insurance and tax payments
French SC in 2021
consumer and employees (art 6 and 8)
- judge by default needs to identify the default law
- targeted comparison
- SC shoved lex voluntatis aside (other law was fully applied), professor disagreed
ADO Den Haag
absence of choice (art 4)
- escape clause
- manifestly closer connection
- characteristic performance test
- in casu characteristic performance test –> habitual residence is China
- this was corrected = case was manifestly more connected to the Netherlands
Vinyls Italia & Inkreal
mandatory law in purely domestic contracts (art 3.3)
- you can internationalise your contract by your choice of forum law
- opens up a massive amount of purely domestic situations where you can use PIL to get your court and law of choice
Arblade
overriding mandatory law (art 9)
- overriding mandatory provisions = crucial for the protection of political, social or economic order
Unamar
overriding mandatory law (art 9)
- gold-plating
- you can give preference to gold-plated provisions
- you need to show that MS really considered those gold-plated provisions to be of such an importance that they fall under art 9
- careful: this case was held under RC