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Corporate & Commercial Law
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  • FREE
30 minutes of audio
(+ optional 5 minute online quiz)
Plays on Computer:
Yes Downloadable as MP3:    Yes
Course Aims:

This podcast is a critique of the EU's governing law regulations Rome I (dealing with contractual claims) and Rome II (dealing with non-contractual claims).

In relation to Rome I, it will compare and contrast the new provisions to the old Rome Convention in a number of areas: the principal of choice and the method of determining a governing law in the absence of choice. Attention will be given to the new concept of 'habitual residence' and how the absence of choice is affected by the general let-out provision whereby the governing law is the law of the country 'manifestly more closely connected' to the contract. The section on Rome I will also touch on the potential difficulties posed by the new provision on branches, agencies and governing law issues for complex financial instruments.

The section on Rome II will focus on the failure of the EU's co-decision process to resolve the differences between common law and civilian frameworks for classifying non-contractual claims. Attention will be given to issues regarding its scope, its relationship to Rome I and the hardy perennial disputes regarding equitable claims.

After completing the course you will:
  • Understand what Rome I and Rome II are for and how they determine issues of governing law;
  • Understand the key points of contrast and improvement in the Rome I Regulations from the Rome Convention;
  • Be aware of the different regimes operating in contractual claims where there is a choice of law and claims where no choice has been made;
  • Understand the criticism directed at Rome I with regard to branches, agencies and complex financial instruments;
  • Be aware why the Rome II have been criticised Understand the problems associated with the concept and definition of a 'non-contractual obligation';
  • Understand the arguments relating to the general exclusion of 'voluntary trusts' from the Rome II Regulations.
Complex Difficulty: 4 of 5
Legislative Updates
Sources and References:
  • Intercontainer Interfrigo v Balkenende Oosthuizen BV & Mic Operations BV C-133/08;
  • Council Regulation (EC) No 864/2007 (Rome II);
  • Council Regulation (EC) No 593/2008 (Rome I);
  • Rome Convention on the Law Applicable to Contractual Obligations 1980;
  • Council Regulation (EC) No 2201/2003 (Brussels II bis);
  • M v M 2007 2 FLR 1018;
  • Moore v McLean[2005] 1 FLR 666;
  • Somafer SA v Saar-Ferngas AG C-33/78;
  • Jacobs v Motor Insurers Bureau [2010] EWHC 231 (QB);
  • Al Sabah & Anor v Grupo Torras SA & Anor[2005] UKPC 1;
  • Casio Computer Co Ltd v Sayo [2001] EWCA Civ 661;
  • Harding v Wealands. [2006] UKHL 32.

In this podcast, Charles Samek QC discusses the Rome I and Rome II Regulations. This EU legislation has largely replaced the English governing and choice of law rules in relation to contractual and non-contractual claims. However, as with all new legislation, there are a number of provisions where difficulties are still arise which will be identified and discussed.

Podcast added: 24/03/

Podcast last reviewed: 2011-03-28

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