Resumen de La ley aplicable a los contratos internacionales en defecto de elección: el artículo 4 del Reglamento Roma I
William Fernando Martínez Luna
ABSTRACT The norms about applicable law to international contracts of the European Union were showed during many years in an International Convention (Rome Convention of 1980). Such Convention was a direct answer to the problems presented by forum shopping, this means, the fraudulent location of the juridical relation in the country in which the conflict norm identifies the more favorable Law to its interests. The Article 4° of the Rome Convention was a novelty provision that tried to conciliate two different juridical tends, the Civil Law and the Common Law, through the inclusion of the closer connections rule, which was modulated by some suggestions, where the characteristic performance theory was its main reference. This provision was a great tool in order to determine the Appicable Law to the contract during its 20 application years; however and in spite of its undeniable contribution, the erroneous application by the courts transformed a novelty solution in a part of the problem. Thus, the juridical security of the European Union that the Rome Convention tried to protect was affected, specially by the heterogenous application of the Article 4° of Rome Convention. Such provision was surrounded of a great doctrinal and jurisprudencial discussion, mainly focused between the closer connections rule and the presumptions by one side, and the application of the characteristic performance theory on the other hand. In this way, the Article 4° of the Rome Convention did not identify the applicable law to the contract with a highest degree of predictability, which imposed to the contracting to assume an increasing in the international suits costs. The Rome I Regulation has replaced to the Rome Convention of 1980 with a double objective: to include the norms about applicable law to the international contracts in the proper Law of the European Union and to introduce modifications which allow to solve the different problems presented in the application of the Rome Convention. 3. The work object of study has as first objective to study the role executed the uniform conflict norms in the inner of European Union Law. Particularly, will be examined the features that characterize the modern conflict norms and its influence in the legal uniformity process to inner of European Union Law. The second objective of this thesis is to analize the new structure of the Article 4° of Rome I Regulation from a doctrinal and jurisprudencial study of the Article 4° of Rome Convention in order to identify and examine the main problems presented by this provision in order to verify if the changes made to the Article 4° of Rome Regulation supply a real solution to such problems. Specially, the work is focused to determine if the Article 4° of Rome I Regulation is a conflict of law rule predictable for the contracting which guarantee the juridical security of the international exchanges. The structure of this work goes from the study of key questions about uniform conflict norms. The first title starts with an introduction chapter comprising the basic notions of the conflict norm from the point of view of the modern unified Private International Law. Later, there is a searching on the role executed by Private International Law. In the current norms unification process in the European Union enhancing the importance of the competence of the European Union in order to unify Private International Law norms and specially, about laws conflict. Below, there is the study of the uniform texts that joint the provisions about the applicable law to the international contracts in the European Union. It begins with a reference to the Rome Convention of 1980, taking its antecedents, its main characteristics, enhancing the main application problems, and finally, to detail the transformation process to a European Union Regulation. The following chapter of the first title comprises the study of the Rome I Regulation from the objectives proposed by the Legislator of the European Union, its main features, the new general structure, and further, to deep in the analysis of the different application fields, which will allow to establish to which international contracts is applied the conflict norm of the Article 4° of Rome I Regulation. The second title continues the structure in stages of the Article 4° of the Rome I Regulatory and study carefully its four points. The initial point is the analysis of the rigid norms designed for eight of the most important contracts of the foreign trade, where is deep the study of two provisions contained in the Article 4° of the Rome I Regulation: distribution and franchise contracts. The work is mainly focused in these two contracts due to the Legislator of the European Union has recognized that they are the only contracts of Article 4.1 of Rome I Regulation which were object of discussion and of a divergent jurisprudence in the Rome Convention. Effectively, the designation of the applicable law to these two contractual relations was surrounded of a wide doctrinal and jurisprudencial discussion regarding the application of characteristic performance theory of Rome Convention. For this reason, has been taken its study in order to determine the scope that designation of the rigid provisions have in the identification of the applicable law to the international contracts of the European Union. Later, is studied the applicable law to the contracts do not covered by the first point of the Article 4° of the Rome I Regulation; for such situations, the Regulation uses the characteristic performance theory in order to identify the lex contractus, which has suffered great changes of enormeous importance. Following, is analyzed the exception clause which has been reformulated by the Rome I Regulation in order to solve the problems presented in the escape clause of Rome Convention. Finally, is examinated the closing clause last resort clause, final stage of the Article 4° of Rome I Regulation and of the investigation work. The analysis of all these chapters is made from a similar structure. In firts place, from the content of the Rome Convention, examinating its juridical figue and identifying the problems presented in the provisión application; then, the changes introduced in the Rome I Regulation are identified and finally is made a diagnosis of the provisión application in order to establish if it meets with the objective presented by the Legislator of the European Union. This work can conclude that the modifications in the Rome I Regulation allow to affirm that overall objective of Regulation "unify the provisions on the law applicable to international contracts in the EU, to ensure the legal certainty which will contribute to the proper functioning of the internal market", has been fulfilled since the European Union benefit from provisions on the law applicable to international contracts much more predictable than the contained in the Rome Convention. Accordingly, this work reveals that the changes made to article 4 Rome I Regulation have real capacity to solve major problems that were presented in the implementation of article 4 Rome Convention, because achieve predictability and agility with the rigid designation of the applicable law by articles 4.1 and 4.2 Rome I Regulations, through the broad interpretation of the eight most important international trade contracts, and apart from greater application that has the theory of the characteristic performance given the inclusion of the concept of center of gravity. In addition, the discretionary power of the judge to dismiss the appointment of law done by general standards through the armored exception clause is limited, and preserves the rule of closest connections as a final solution in the the last resort clause, allowing a necessary margin of flexibility in the designation of the applicable law. Finally, as with Art. 4 Rome I Regulations considerably increases the predictability of the applicable law, and to provide a homogeneous application of the precept by judges of the Member States (corrected eventually by the Court of Justice of the European Union), undoubtedly this provision increases the legal certainty of the EU, the main objective of the Rome I Regulation. In this way, it contributes to the free movement of judicial decisions as the cornerstone for achieving an area of freedom, security and justice in the EU.
