|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Maltese Laws |
ACT No. III of 2006
AN ACT to provide for the Ratification of the Accession Convention of the 14 April 2005 to the 1980 Rome Convention on the law applicable to contractual obligations and to the First and Second Protocols thereof.
BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled and by the authority of the same, as follows>–
PART I
1. The short title of this Act is the Rome Convention on
Contractual Obligations (Ratification) Act, 2006.
2. In this Act, unless the context otherwise requires>
“2005 Accession Convention” means the Convention of the
14 April 2005 on the Accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the Convention on the law applicable to contractual obligations opened for signature in Rome on the 19
June 1980 and to the First and Second Protocols thereto on
interpretation by the Court of Justice of the European Communities<
Short title.
Interpretation.
A 98
“Contracting State”, in relation to and for the purposes of the Rome Convention, as having the force of law in Malta, means those Member States of the European Union that are from time to time parties to the Rome Convention and which are from time to time specified by the Minister by an order made under article 4<
“the Minister” means the Minister responsible for justice<
Act<
“prescribe” means prescribe by regulations made under this
“Rome Convention” means the Convention on the law applicable to contractual obligations opened for signature in Rome on the 19 June 1980 and the First and Second Protocols thereto on interpretation by the Court of Justice of the European Communities.
Ratification of
2005 Accession
Convention.
Contracting States.
Rome Convention
to have force of law.
Power to make regulations.
Amendment of the European Union Act, Cap. 460.
3. The Government of Malta is hereby authorised to ratify the
2005 Accession Convention.
4. (1) The Minister may, by order in the Gazette, from time to time specify the Contracting States, other than Malta, for the purposes of the Rome Convention.
(2) Such order shall specify the date of coming into force of the Rome Convention, as between Malta and any State specified in the order.
5. (1) The Rome Convention shall, subject to the provisions of this Act, have force of law in Malta as from such date as the Minister may prescribe.
(2) The 2005 Accession Convention and the Rome Convention shall be included in the First and Second Schedules respectively of this Act and the said schedules may from time to time be amended as may be prescribed by the Minister for the purpose of being kept updated with the official text of the said Conventions as appearing in the Official Journal of the European Union.
6. The Minister may make regulations prescribing anything that in virtue of this Act is required to be or may be prescribed and generally for carrying out the provisions of this Act and for doing anything that may be required for the purpose of satisfying the obligations of Malta under the Rome Convention.
7. The European Union Act shall be amended as follows>–
(a) in article 2 thereof, immediately before the definition
“the Communities”, there shall be added the following definition>
“acts adopted by the European Union” include regulations, directives, and other acts which Malta is bound to accede to as a Member State of the European Union, treaties and international conventions which Malta may accede to by virtue of its membership within the European Union, and treaties and international conventions which Malta is bound to ratify in its own name or on behalf of the European Community by virtue of its membership within the European Union<”< and
(b) in sub-article (2) of article 4 thereof, for the words “or rights as aforesaid.” there shall be substituted the words “or rights as aforesaid>
Provided that with regard to treaties and international conventions which Malta may accede to as Member State of the European Union, and treaties and international conventions which Malta is bound to ratify in its own name or on behalf of the European Community by virtue of its membership within the European Union, these shall come into force one month following their being submitted in order to be discussed by the Standing Committee on Foreign and European Affairs.”.
PART II
8. This Part amends and shall be read and construed as one with the Land Acquisition (Public Purposes) Ordinance, hereinafter in this Part referred to as “the principal Ordinance”.
9. Immediately following the proviso to sub-article (3) of article
12 of the principal Ordinance, there shall be added the following new proviso>
“Provided also that when a Notice to Treat has been issued and the person entitled to compensation elected not to accept the price offered therein, simple interest at the rate of five per centum per annum shall accrue on the value of the land in accordance with Schedule 3, and for the period indicated in that Schedule, in favour of any person having a right of compensation in respect of any land acquired by absolute purchase thereof under this Ordinance.”.
A 99
Amendment to the Land Acquisition (Public Purposes) Ordinance, Cap. 88.
Amendment of article 12 of the principal Ordinance.
A 100
Amendment of article 22 of the principal Ordinance.
Amendment of Schedule 2 of the principal Ordinance.
10. In the Maltese text, in the second proviso of sub-article (3) of article 22 of the principal Ordinance, the word “qlieg[” wherever it appears in this proviso shall be deleted and substituted by the word “d[ul”.
11. In Schedule 2 of the principal Ordinance, for the formula
A-B
2
x 5 x
100
C
365
there shall be substituted the formula
A+B x
2
5 x
100
C
365
Addition of new Schedule to the principal Ordinance.
12. Immediately after Schedule 2 to the principal Ordinance, there shall be added the following new Schedule>
“SCHEDULE 3
Article 12 (3)
second proviso
P+Q
2
x 5 x
100
R
365
where “P” is the value of land determined in the Notice to
Treat<
“Q” is the value of the land determined by the Land Arbitration
Board<
“R” is the number of days between the date of taking of possession of the land by the competent authority, and the date of transfer by title of absolute purchase in favour of the Government of Malta.”.
PART III
13. This Part amends and shall be read and construed as one with the Judicial Actions (Various Measures) Act, 2005, hereinafter in this Part referred to as “the principal Act”, and it shall be considered to have come into force on the 16th January, 2006.
14. Immediately after article 76 of the principal Act, there shall be added the following new article>
A 101
Amendment to the Judicial Actions (Various Measures) Act, 2006.
Addition of new article to the principal Act.
“Interpretation of Laws, etc.
76A. (1) Where, according to the provision of any law, any judicial proceeding is to be commenced by writ of summons it shall, notwithstanding the provisions of the said law or of any other law, be permissible to commence the said judicial proceeding by means of a sworn application and the said sworn application shall, as from the 16th January, 2006, be deemed to fully satisfy the requirements of any law whereby a procedure by writ of summons is stipulated.
(2) The Minister responsible for justice may, by regulations, amend the provisions of any law for the purpose of providing that any judicial procedure to be commenced by writ of summons shall be commenced by sworn application.”.
PART IV
15. This Part amends and shall be read and construed as one with the Commissioners for Oaths Ordinance, hereinafter in this Part referred to as “the principal Ordinance”.
16. In the proviso to article 4 of the principal Ordinance, the words “or legal procurators” shall be deleted.”.
PART V
17. This Part amends and shall be read and construed as one with the Legal Procedures (Ratification of Conventions) Act, hereinafter in this Part referred to as “the principal Act”.
18. Article 2 of the principal Act shall be amended as follows>
Amendment to the Commissioners for Oaths Ordinance, Cap. 79.
Amendment of article 4 of the principal Ordinance.
Amendment to the Legal Procedures (Ratification of Conventions) Act, Cap. 443.
Amendment of article 2 of the principal Act.
A 102
Amendment of article 4 of the principal Act.
Deletion of Part and articles of the principal Act.
Amendment of the First Schedule to the principal Act.
Amendment of the Fifth Schedule to the principal Act.
(a) the definition of “the Lugano Convention of 1988” shall be deleted< and
(b) in the definition of “Conventions”, the words “and the
Lugano Convention of 1988,” shall be deleted.
19. In subarticle (1) of article 4 of the principal Act, the words
“other than the Lugano Convention of 1988,” shall be deleted.
20. Part V, together with articles 29 to 40 (both inclusive) which occur immediately after article 28 of the principal Act, shall be deleted.
21. Part D of the First Schedule to the principal Act shall be deleted.
22. Paragraphs 3 and 4 of the Fifth Schedule to the principal Act shall be deleted.
A 103
THE HIGH CONTRACTING PARTIES TO THE TREATY ESTABLISHING THE EUROPEAN COMMUNITY,
BEARING IN MIND the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus,
the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic
of Slovenia and the Slovak Republic, and the adjustments to the Treaties on which the European Union is founded, and in particular
Article 5(2) thereof,
RECALLING that by becoming Members of the European Union, the new Member States undertook to accede to the Convention on the Law applicable
to Contractual Obligations, opened for signature in Rome on 19 June 1980, and to the First and Second Protocols on its interpretation
by the Court of Justice as modified by the Convention signed in Luxembourg on 10 April 1984, on the accession of the Hellenic Republic,
the Convention signed in Funchal on 18 May 1992 on the accession of the Kingdom of Spain and the Portuguese Republic, and the Convention
signed in Brussels on 29 November
1996 on the accession of the Republic of Austria, the Republic of Finland and the
Kingdom of Sweden,
HAVE AGREED AS FOLLOWS:
TITLE I GENERAL PROVISIONS Article 1
The Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic
of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic hereby accede to:
(a) the Convention on the Law applicable to Contractual Obligations, opened for signature in Rome on 19 June 1980, hereinafter
referred to as ‘the Convention of
A 104
1980’, as it stands following incorporation of the adjustments and amendments made thereto by:
- the Convention signed in Luxembourg on 10 April 1984, hereinafter referred to as “the Convention of 1984”, on the accession
of the Hellenic Republic to the Convention on the Law applicable to Contractual Obligations,
- the Convention signed in Funchal on 18 May 1992, hereinafter referred to as “the Convention of 1992”, on the accession
of the Kingdom of Spain and the Portuguese Republic to the Convention on the Law applicable to Contractual Obligations,
- “the Convention of 1996”, on the accession of the Republic of Austria, the Republic of Finland and the
Kingdom of Sweden to the Convention on the Law applicable to Contractual Obligations;
(b) the First Protocol, signed on 19 December 1988, hereinafter referred to as ‘the First Protocol of 1988’ on the
interpretation by the Court of Justice of the European Communities of the Convention on the Law applicable to Contractual
Obligations, as it stands following incorporation of the adjustments and amendments made thereto by the Convention of 1992 and the
Convention of
1996;
(c) the Second Protocol, signed on 19 December 1988, hereinafter referred to as ‘the Second Protocol of 1988’, conferring
on the Court of Justice of the European Communities certain powers to interpret the Convention on the Law applicable to Contractual
Obligations.
TITLE II
Article 2
The following indents shall be inserted in Article 2(a): (a) between the first and the second indents:
“ - in the Czech Republic: Nejvyšší soud České republiky Nejvyšší správní soud’
(b) between the third and the fourth indents: “ - in Estonia:
Riigikohus”
A 105
(c) between the eighth and the ninth indents:
“ - in Cyprus:
Ανώτατο ∆ικαστήριο
- in Latvia:
Augstākās Tiesas Senāts
- in Lithuania:
Lietuvos Aukščiausiasis Teismas
Lietuvos vyriausiasis administracinis teismas” (d) between the ninth and the tenth indents:
“ - in Hungary: Legfelsõbb Bíróság
- in Malta:
Qorti ta’ l-Appell”
(e) between the eleventh and the twelfth indents: “ - in Poland:
Sąd Najwyższy
Naczelny Sąd Administracyjny”
(f) between the twelfth and the thirteenth indents: “ - in Slovenia:
Ustavno sodišče Republike Slovenije
Vrhovno sodišče Republike Slovenije
- in Slovakia:
Najvyšší súd Slovenskej republiky”.
TITLE III FINAL PROVISIONS Article 3
1. The Secretary-General of the Council of the European Union shall transmit a certified copy of the Convention of 1980, the
Convention of 1984, the First Protocol of
1988, the Second Protocol of 1988, the Convention of 1992 and the Convention of 1996 in the Danish, Dutch, English, Finnish, French,
German, Greek, Irish, Italian, Portuguese, Spanish and Swedish languages to the Governments of the Czech Republic, the Republic
A 106
of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta,
the Republic of Poland, the Republic of Slovenia and the Slovak Republic.
2. The texts of the Convention of 1980, the Convention of 1984, the First Protocol of
1988, the Second Protocol of 1988, the Convention of 1992 and the Convention of 1996 in the Czech, Estonian, Hungarian, Latvian, Lithuanian,
Maltese, Polish, Slovakian and Slovenian languages shall be authentic under the same conditions as the other texts of the Convention
of 1980, the Convention of 1984, the First Protocol of 1988, the Second Protocol of 1988, the Convention of 1992 and the Convention
of 1996.
Article 4
This Convention shall be ratified by the signatory States. The instruments of ratification shall be deposited with the Secretary- General of the Council of the European Union.
Article 5
1. This Convention shall enter into force between the States which have ratified it, on the first day of the third month following
the deposit of the second instrument of ratification.
2. Thereafter, this Convention shall enter into force, for each signatory State which subsequently ratifies it, on the first
day of the third month following the deposit of its instrument of ratification.
Article 6
The Secretary-General of the Council of the European Union shall notify the signatory
States of:
(a) the deposit of each instrument of ratification;
(b) the dates of entry into force of this Convention for the Contracting States.
Article 7
This Convention, drawn up in a single original in the Czech, Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian, Irish, Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Slovakian, Slovene, Spanish and Swedish languages, all 21 texts being equally authentic, shall be deposited in the archives of the General Secretariat of the Council of the European Union. The Secretary-General shall transmit a certified copy to the Government of each signatory state.
A 107
Done at Luxembourg on the fourteenth day of April in the year two thousand and five.
(Signatories)
“The High Contracting Parties, meeting in the Council at the time of the signature of the Convention on the accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic to the 1980 Rome Convention on the law applicable to contractual obligations, declare that they will take the necessary steps to ratify this Convention within a reasonable time and, if possible, before December 2005.”
“The Member States request that the Commission submit, as soon as possible and at the latest by the end of 2005, a proposal for a Regulation on the law applicable to contractual obligations.”
The Governments of the Kingdom of Belgium, the Czech Republic, the Kingdom of Denmark, the Federal Republic of Germany, the Republic
of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus,
the Republic of Latvia, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Hungary, the Republic of Malta,
the Kingdom of the Netherlands, the Republic of Austria, the Republic of Poland, the Portuguese Republic, the Republic of Slovenia,
the Slovak Republic, the Republic of Finland, the Kingdom of Sweden and the United Kingdom of Great Britain and Northern Ireland,
on signing the 2005 Convention on accession to the Convention on the law applicable to contractual obligations, opened for signature
in Rome on 19 June 1980, and to the First and Second Protocols on interpretation by the Court of Justice of the European Communities,
as amended,
desiring to ensure that the provisions of the First Protocol are applied as effectively and as uniformly as possible,
declare themselves ready to organise, in cooperation with the Court of Justice of the European Communities, an exchange of information
on judgments which have become res judicata and have been handed down pursuant to the Convention on the law applicable to contractual obligations by the courts referred
to in Article 2 of the said Protocol. The exchange of information will comprise:
A 108
- the forwarding to the Court of Justice by the competent national authorities of judgments handed down by the courts referred
to in Article 2(a) of the First Protocol and significant judgments handed down by the courts referred to in Article 2(b) of that
Protocol,
- the classification and the documentary exploitation of these judgments by the Court of Justice including, as far as necessary,
the drawing up of abstracts and translations, and the publication of judgments of particular importance,
- the communication by the Court of Justice of the documentary material to the competent national authorities of the States
parties to the Protocol and to the Commission and the Council of the European Communities.
A 109
THE HIGH CONTRACTING PARTIES to the Treaty establishing the European
Economic Community,
ANXIOUS to continue in the field of private international law the work of unification of law which has already been done within the
Community, in particular in the field of jurisdiction and enforcement of judgments,
WISHING to establish uniform rules concerning the law applicable to contractual obligations,
HAVE AGREED AS FOLLOWS:
TITLE I
Article 1
1. The rules of this Convention shall apply to contractual obligations in any situation involving a choice between the laws
of different countries.
2. They shall not apply to:
(a) questions involving the status or legal capacity of natural persons, without prejudice to Article 11;
(b) contractual obligations relating to:
A 110
- wills and succession,
- rights in property arising out of a matrimonial relationship,
- rights and duties arising out of a family relationship, parentage, marriage or affinity, including maintenance obligations
in respect of children who are not legitimate;
(c) obligations arising under bills of exchange, cheques and promissory notes and other negotiable instruments to the extent
that the obligations under such other negotiable instruments arise out of their negotiable character;
(d) arbitration agreements and agreements on the choice of court;
(e) questions governed by the law of companies and other bodies corporate or unincorporate such as the creation, by registration
or otherwise, legal capacity, internal organization or winding up of companies and other bodies corporate or unincorporate and the
personal liability of officers and members as such for the obligations of the company or body;
(f) the question whether an agent is able to bind a principal, or an organ to bind a company or body corporate or unincorporate,
to a third party;
(g) the constitution of trusts and the relationship between settlors, trustees and beneficiaries;
(h) evidence and procedure, without prejudice to Article 14.
3. The rules of this Convention do not apply to contracts of insurance which cover risks situated in the territories of the
Member States of the European Economic Community. In order to determine whether a risk is situated in those territories the court
shall apply its internal law.
4. The preceding paragraph does not apply to contracts of re-insurance.
Article 2
Any law specified by this Convention shall be applied whether or not it is the law of a
Contracting State.
A 111
TITLE II UNIFORM RULES Article 3
1. A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with reasonable
certainty by the terms of 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.
2. The parties may at any time agree to subject the contract to a law other than that which previously governed it, whether
as a result of an earlier choice under this Article or of other provisions of this Convention. Any variation by the parties of the
law to be applied made after the conclusion of the contract shall not prejudice its formal validity under Article 9 or adversely
affect the rights of third parties.
3. The fact that the parties have chosen a foreign law, whether or not accompanied by the choice of a foreign tribunal, shall
not, where all the other elements relevant to the situation at the time of the choice are connected with one country only, prejudice
the application of rules of the law at the country which cannot be derogated from by contract, hereinafter called ‘mandatory rules’.
4. The existence and validity of the consent of the parties as to the choice of the applicable law shall be determined in
accordance with the provisions of
Articles 8, 9 and 11.
Article 4
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. Nevertheless, a separable part of the contract which
has a closer connection with another country may by way of exception be governed by the law of that other country.
2. Subject to the provisions of paragraph 5 of this Article, it shall be presumed that the contract is most closely connected
with the country where the party who is to effect the performance which is characteristic of the contract has, at the time of conclusion
of the contract, his habitual residence, or, in the case of a body corporate or unincorporate, its central administration. However,
if the contract is entered into in the course of that party’s trade or profession, that country shall be the country in which the
principal place of business is situated or, where under the terms of the contract the performance is to be
A 112
effected through a place of business other than the principal place of business, the country in which that other place
of business is situated.
3. Notwithstanding the provisions of paragraph 2 of this Article, to the extent that the subject matter of the contract is
a right in immovable property or a right to use immovable property it shall be presumed that the contract is most closely connected
with the country where the immovable property is situated.
4. A contract for the carriage of goods shall not be subject to the presumption in paragraph 2. In such a contract if the
country in which, at the time the contract is concluded, the carrier has his principal place of business is also the country in which
the place of loading or the place of discharge or the principal place of business of the consignor is situated, it shall be presumed
that the contract is most closely connected with that country. In applying this paragraph single voyage charter-parties and other
contracts the main purpose of which is the carriage of goods shall be treated as contracts for the carriage of goods.
5. Paragraph 2 shall not apply if the characteristic performance cannot be determined, and the presumptions in paragraphs
2, 3 and 4 shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with
another country.
Article 5
1. This Article applies to a contract the object of which is the supply of goods or services to a person (‘the consumer’)
for a purpose which can be regarded as being outside his trade or profession, or a contract for the provision of credit for that
object.
2. Notwithstanding the provisions of Article 3, a choice of law made by the parties shall not have the result of depriving
the consumer of the protection afforded to him by the mandatory rules of the law of the country in which he has his habitual residence:
- if in that country the conclusion of the contract was preceded by a specific invitation addressed to him or
by advertising, and he had taken in that country all the steps necessary on his part for the conclusion of the contract, or
- if the other party or his agent received the consumer’s order in that country, or
- if the contract is for the sale of goods and the consumer travelled from that country to another country and there gave
his order, provided that the consumer’s journey was arranged by the seller for the purpose of inducing the consumer to buy.
A 113
3. Notwithstanding the provisions of Article 4, a contract to which this Article applies shall, in the absence of
choice in accordance with Article 3, be governed by the law of the country in which the consumer has his habitual residence if it
is entered into in the circumstances described in paragraph 2 of this Article.
4. This Article shall not apply to: (a) a contract of carriage;
(b) a contract for the supply of services where the services are to be supplied to the consumer exclusively in a country other
than that in which he has his habitual residence.
5. Notwithstanding the provisions of paragraph 4, this Article shall apply to a contract which, for an inclusive
price, provides for a combination of travel and accommodation.
Article 6
1. Notwithstanding the provisions of Article 3, in a contract of employment a choice of law made by the parties shall not
have the result of depriving the employee of the protection afforded to him by the mandatory rules of the law which would be applicable
under paragraph 2 in the absence of choice.
2. Notwithstanding the provisions of Article 4, a contract of employment shall, in the absence of choice in accordance with
Article 3, be governed:
(a) by the law of the country in which the employee habitually carries out his work in performance of the contract, even
if he is temporarily employed in another country; or
(b) if the employee does not habitually carry out his work in any one country, by the law of the country in which the place
of business through which he was engaged is situated;
unless it appears from the circumstances as a whole that the contract is more closely connected with another country, in which case
the contract shall be governed by the law of that country.
A 114
Article 7
1. When applying under this Convention the law of a country, effect may be given to the mandatory rules of the law of another
country with which the situation has a close connection, if and in so far as, under the law of the latter country, those rules must
be applied whatever the law applicable to the contract. In considering whether to give effect to these mandatory rules, regard shall
be had to their nature and purpose and to the consequences of their application or non-application.
2. Nothing in this Convention shall restrict the application of the rules of the law of the forum in a situation where they
are mandatory irrespective of the law otherwise applicable to the contract.
Article 8
1. The existence and validity of a contract, or of any term of a contract, shall be determined by the law which would govern
it under this Convention if the contract or term were valid.
2. Nevertheless a party may rely upon the law of the country in which he has his habitual residence to establish that he did
not consent if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance
with the law specified in the preceding paragraph.
Article 9
1. A contract concluded between persons who are in the same country is formally valid if it satisfies the formal requirements
of the law which governs it under this Convention or of the law of the country where it is
concluded.
2. A contract concluded between persons who are in different countries is formally valid if it satisfies the formal requirements
of the law which governs it under this Convention or of the law of one of those countries.
3. Where a contract is concluded by an agent, the country in which the agent acts is the relevant country for the purposes
of paragraphs 1 and 2.
4. An act intended to have legal effect relating to an existing or contemplated contract is formally valid if
it satisfies the formal requirements of the law which under
A 115
this Convention governs or would govern the contract or of the law of the country where the act was done.
5. The provisions of the preceding paragraphs shall not apply to a contract to which Article 5 applies, concluded in the circumstances
described in paragraph 2 of Article 5. The formal validity of such a contract is governed by the law of the country in which the
consumer has his habitual residence.
6. Notwithstanding paragraphs 1 to 4 of this Article, a contract the subject matter of which is a right in immovable property
or a right to use immovable property shall be subject to the mandatory requirements of form of the law of the country where the property
is situated if by that law those requirements are imposed irrespective of the country where the contract is concluded and
irrespective of the law governing the contract.
Article 10
1. The law applicable to a contract by virtue of Articles 3 to 6 and 12 of this
Convention shall govern in particular: (a) interpretation;
(b) performance;
(c) within the limits of the powers conferred on the court by its procedural law, the consequences of breach, including the
assessment of damages in so far as it is governed by rules of law;
(d) the various ways of extinguishing obligations, and prescription and limitation of actions;
(e) the consequences of nullity of the contract.
2. In relation to the manner of performance and the steps to be taken in the event of defective performance regard shall be
had to the law of the country in which performance takes place.
Article 11
In a contract concluded between persons who are in the same country, a natural person who would have capacity under the law of that country may invoke his incapacity resulting from another law only if the other party to the contract was aware of this
A 116
incapacity at the time of the conclusion of the contract or was not aware thereof as a result of negligence.
Article 12
1. The mutual obligations of assignor and assignee under a voluntary assignment of a right against another person (‘the
debtor’) shall be governed by the law which under this Convention applies to the contract between the assignor and assignee.
2. The law governing the right to which the assignment relates shall determine its assignability, the relationship between
the assignee and the debtor, the conditions under which the assignment can be invoked against the debtor and any question whether
the debtor’s obligations have been discharged.
Article 13
1. Where a person (‘the creditor’) has a contractual claim upon another (‘the debtor’), and a third person
has a duty to satisfy the creditor, or has in fact satisfied the creditor in discharge of that duty, the law which governs the third
person’s duty to satisfy the creditor shall determine whether the third person is entitled to exercise against the debtor the rights
which the creditor had against the debtor under the law governing their relationship and, if so, whether he may do so in full or
only to a limited extent.
2. The same rule applies where several persons are subject to the same contractual claim and one of them has satisfied the
creditor.
Article 14
1. The law governing the contract under this Convention applies to the extent that it contains, in the law of contract, rules
which raise presumptions of law or determine the burden of proof.
2. A contract or an act intended to have legal effect may be proved by any mode of proof recognized by the law of the forum
or by any of the laws referred to in Article 9 under which that contract or act is formally valid, provided that such mode of proof
can be administered by the forum.
A 117
Article 15
The application of the law of any country specified by this Convention means the application of the rules of law in force in that country other than its rules of private international law.
Article 16
The application of a rule of the law of any country specified by this Convention may be refused only if such application is manifestly incompatible with the public policy (‘ordre public’) of the forum.
Article 17
This Convention shall apply in a Contracting State to contracts made after the date on which this Convention has entered into force with respect to that State.
Article 18
In the interpretation and application of the preceding uniform rules, regard shall be had to their international character and to the desirability of achieving uniformity in their interpretation and application.
Article 19
1. Where a State comprises several territorial units each of which has its own rules of law in respect of contractual obligations,
each territorial unit shall be considered as a country for the purposes of identifying the law applicable under this Convention.
2. A State within which different territorial units have their own rules of law in respect of contractual obligations shall
not be bound to apply this Convention to conflicts solely between the laws of such units.
A 118
Article 20
This Convention shall not affect the application of provisions which, in relation to particular matters, lay down choice of law rules relating to contractual obligations and which are or will be contained in acts of the institutions of the European Communities or in national laws harmonized in implementation of such acts.
Article 21
This Convention shall not prejudice the application of international conventions to which a Contracting State is, or becomes, a party.
Article 22
1. Any Contracting State may, at the time of signature, ratification, acceptance or approval, reserve the right not to apply:
(a) the provisions of Article 7 (1);
(b) the provisions of Article 10 (1) (e).
2. (Paragraph deleted by Article 2 (1) of the 1992 Accession Convention)
3. Any Contracting State may at any time withdraw a reservation which it has made; the reservation shall cease to have effect
on the first day of the third calendar month after notification of the withdrawal.
TITLE III FINAL PROVISIONS Article 23
1. If, after the date on which this Convention has entered into force for a Contracting State, that State wishes to adopt
any new choice of law rule in regard to any particular category of contract within the scope of this Convention, it shall
communicate its intention to the other signatory States through the Secretary-General of the Council of the European Communities.
A 119
2. Any signatory State may, within six months from the date of the communication made to the Secretary-General, request him
to arrange consultations between signatory States in order to reach agreement.
3. If no signatory State has requested consultations within this period or if within two years following the communication
made to the Secretary-General no agreement is reached in the course of consultations, the Contracting State concerned may amend its
law in the manner indicated. The measures taken by that State shall be brought to the knowledge of the other signatory States through
the Secretary-General of the Council of the European Communities.
Article 24
1. If, after the date on which this Convention has entered into force with respect to a Contracting State, that State wishes
to become a party to a multilateral convention whose principal aim or one of whose principal aims is to lay down rules of private
international law concerning any of the matters governed by this Convention, the procedure set out in Article 23 shall apply. However,
the period of two years, referred to in paragraph 3 of that Article, shall be reduced to one year.
2. The procedure referred to in the preceding paragraph need not be followed if a Contracting State or one of the European
Communities is already a party to the multilateral convention, or if its object is to revise a convention to which the State concerned
is already a party, or if it is a convention concluded within the framework of the Treaties establishing the European Communities.
Article 25
If a Contracting State considers that the unification achieved by this Convention is prejudiced by the conclusion of agreements not covered by Article 24 (1), that State may request the Secretary-General of the Council of the European Communities to arrange consultations between the signatory States of this Convention.
Article 26
Any Contracting State may request the revision of this Convention. In this event a revision conference shall be convened by the President of the Council of the European Communities.
Article 27
(Paragraph deleted by Article 2 (1) of the 1992 Accession Convention)
A 120
Article 28
1. This Convention shall be open from 19 June 1980 for signature by the States party to the Treaty establishing the European
Economic Community.
2. This Convention shall be subject to ratification, acceptance or approval by the signatory States. The instruments of
ratification, acceptance or approval shall be deposited with the Secretary-General of the Council of the European Communities.
Article 29
1. This Convention shall enter into force on the first day of the third month following the deposit of the seventh
instrument of ratification, acceptance or
approval.
2. This Convention shall enter into force for each signatory State ratifying, accepting or approving at a later date on the
first day of the third month following the deposit of its instrument of ratification, acceptance or approval.
Article 30
1. This Convention shall remain in force for 10 years from the date of its entry into force in accordance with Article 29
(1), even for States for which it enters into force at a later date.
2. If there has been no denunciation it shall be renewed tacitly every five years.
3. A Contracting State which wishes to denounce shall, not less than six months before the expiration of the period of 10
or five years, as the case may be, give notice to the Secretary-General of the Council of the European Communities. Denunciation
may be limited to any territory to which the Convention has been extended by a declaration under Article 27 (2).
4. The denunciation shall have effect only in relation to the State which has notified it. The Convention will remain in force
as between all other Contracting States.
Article 31
The Secretary-General of the Council of the European Communities shall notify the
States party to the Treaty establishing the European Economic Community of: (a) the signatures;
(b) deposit of each instrument of ratification, acceptance or approval;
A 121
(c) the date of entry into force of this Convention;
(d) communications made in pursuance of Articles 23, 24, 25, 26 and 30;
(e) the reservations and withdrawals of reservations referred to in Article 22.
Article 32
The Protocol annexed to this Convention shall form an integral part thereof.
Article 33
This Convention, drawn up in a single original in the Danish, Dutch, English, French, German, Irish and Italian languages, these
texts being equally authentic, shall be deposited in the archives of the Secretariat of the Council of the European Communities.
The Secretary-General shall transmit a certified copy thereof to the Government of each signatory State.
In witness whereof the undersigned, being duly authorized thereto, having signed this
Convention.
Done at Rome on the nineteenth day of June in the year one thousand nine hundred and eighty.
(Signatures of the plenipotentiaries)
A 122
The High Contracting Parties have agreed upon the following provision which shall be annexed to the Convention:
‘Notwithstanding the provisions of the Convention, Denmark, Sweden and Finland may retain national provisions concerning the
law applicable to questions relating to the carriage of goods by sea and may amend such provisions without following the procedure
provided for in Article 23 of the Convention of Rome. The national provisions applicable in this respect are the following:
- in Denmark, paragraphs 252 and 321 (3) and (4) of the “Solov” (maritime law),
- in Sweden, Chapter 13, Article 2 (1) and (2), and Chapter 14, Article 1 (3), of
“sjölagen” (maritime law),
- in Finland, Chapter 13, Article 2 (1) and (2), and Chapter 14, Article 1 (3), of
“merilaki”/“sjölagen” (maritime law).’
In witness whereof the undersigned, being duly authorized thereto, have signed this
Protocol.
Done at Rome on the nineteenth day of June in the year one thousand nine hundred and eighty.
(Signatures of the Plenipotentiaries)
A 123
At the time of the signature of the Convention on the law applicable to contractual obligations, the Governments of the Kingdom of
Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the French Republic, Ireland, the Italian Republic, the Grand Duchy
of Luxembourg, the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern Ireland,
I. anxious to avoid, as far as possible, dispersion of choice of law rules among several instruments and differences between
these rules, express the wish that the institutions of the European Communities, in the exercise of their powers under the Treaties
by which they were established, will, where the need arises, endeavour to adopt choice of law rules which are as far as
possible consistent with those of this Convention;
II. declare their intention as from the date of signature of this Convention until becoming bound by Article 24, to consult
with each other if any one of the signatory States wishes to become a party to any convention to which the procedure referred to
in Article 24 would apply;
III. having regard to the contribution of the Convention on the law applicable to contractual obligations to the unification
of choice of law rules within the European Communities, express the view that any State which becomes a member of the European Communities
should accede to this Convention.
In witness whereof the undersigned, being duly authorized thereto, have signed this Joint
Declaration.
Done at Rome on the nineteenth day of June in the year one thousand nine hundred and eighty.
(Signatures of the Plenipotentiaries)
A 124
The Governments of the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the French Republic, Ireland,
the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the United Kingdom of Great Britain and Northern
Ireland,
On signing the Convention on the law applicable to contractual obligations; Desiring to ensure that the Convention is applied as effectively
as possible;
Anxious to prevent differences of interpretation of the Convention from impairing its unifying effect;
Declare themselves ready:
1. to examine the possibility of conferring jurisdiction in certain matters on the Court of Justice of the European Communities
and, if necessary, to negotiate an agreement to this effect;
2. to arrange meetings at regular intervals between their representatives.
In witness whereof the undersigned, being duly authorized thereto, have signed this Joint
Declaration.
Done at Rome on the nineteenth day of June in the year one thousand nine hundred and eighty.
(Signatures of the Plenipotentiaries)
A 125
THE HIGH CONTRACTING PARTIES TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY,
HAVING REGARD to the Joint Declaration annexed to the Convention on the law applicable to contractual obligations, opened for signature
in Rome on 19 June 1980,
HAVE DECIDED to conclude a Protocol conferring jurisdiction on the Court of Justice of the European Communities to interpret
that Convention, and to this end have designated as their Plenipotentiaries:
(Plenipotentiaries designated by the Member States)
WHO, meeting within the Council of the European Communities, having exchanged their full powers, found in good and due form,
HAVE AGREED AS FOLLOWS:
Article 1
The Court of Justice of the European Communities shall have jurisdiction to give rulings on the interpretation of:
(a) the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980,
hereinafter referred to as ‘the Rome Convention’;
(b) the Convention on accession to the Rome Convention by the States which have become Members of the European Communities since
the date on which it was opened for signature;
(c) this Protocol.
Article 2
Any of the courts referred to below may request the Court of Justice to give a preliminary ruling on a question raised in a case pending before it and concerning interpretation of the provisions contained in the instruments referred to in Article 1 if that court considers that a decision on the question is necessary to enable it to give judgment:
A 126
(a) - in Belgium:
‘la Cour de cassation’ (‘het Hof van Cassatie’) and ‘le Conseil d’État’ (‘de Raad van
State’),
- in Denmark:
‘Højesteret’,
- in the Federal Republic of Germany:
‘die obersten Gerichtshöfe des Bundes’,
- in Greece:
‘Τα ανϖτατα ∆ιχαστηρια’,
- in Spain:
‘el Tribunal Supremo’,
- in France:
‘la Cour de cassation’ and ‘le Conseil d’État’,
- in Ireland:
the Supreme Court,
- in Italy:
‘la Corte suprema di cassazione’ and ‘il Consiglio di Stato’,
- in Luxembourg:
‘la Cour Supérieure de Justice’, when sitting as ‘Cour de cassation’,
- in Austria:
the ‘Oberste Gerichtshof’, the ‘Verwaltungsgerichtshof’
and the ‘Verfassungsgerichtshof’,
- in the Netherlands:
‘de Hoge Raad’,
- in Portugal:
‘o Supremo Tribunal de Justiça’ and ‘o Supremo Tribunal Administrativo’,
- in Finland:
‘korkein oikeus/högsta domstolen’,
‘korkein hallinto-oikeus/högsta förvaltningsdomstolen’,
‘markkinatuomioistuin/marknadsdomstolen’ and ‘työtuomioistuin/arbetsdomstolen’,
- in Sweden:
‘Högsta domstolen’, ‘Regeringsrätten’, ‘Arbetsdomstolen’ and ‘Marknadsdomstolen’,
A 127
- in the United Kingdom:
the House of Lords and other courts from which no further appeal is possible; (b) the courts of the Contracting States when
acting as appeal courts.
Article 3
1. The competent authority of a Contracting State may request the Court of Justice to give a ruling on a question of interpretation
of the provisions contained in the instruments referred to in Article 1 if judgments given by courts of that State conflict with
the interpretation given either by the Court of Justice or in a judgment of one of the courts of another Contracting State referred
to in Article 2. The provisions of this paragraph shall apply only to judgments which have become res judicata.
2. The interpretation given by the Court of Justice in response to such a request shall not affect the judgments which gave
rise to the request for interpretation.
3. The Procurators-General of the Supreme Courts of Appeal of the Contracting States, or any other authority designated by
a Contracting State, shall be entitled to request the Court of Justice for a ruling on interpretation in accordance with paragraph
1.
4. The Registrar of the Court of Justice shall give notice of the request to the Contracting States, to the Commission and
to the Council of the European Communities; they shall then be entitled within two months of the notification to submit statements
of case or written observations to the Court.
5. No fees shall be levied or any costs or expenses awarded in respect of the proceedings provided for in this
Article.
Article 4
1. Except where this Protocol otherwise provides, the provisions of the Treaty establishing the European Economic Community
and those of the Protocol on the Statute of the Court of Justice annexed thereto, which are applicable when the Court is requested
to give a preliminary ruling, shall also apply to any proceedings for the interpretation of the instruments referred to in Article
1.
2. The Rules of Procedure of the Court of Justice shall, if necessary, be adjusted and supplemented in accordance with Article
188 of the Treaty establishing the European Economic Community.
Article 5
This Protocol shall be subject to ratification by the Signatory States. The instruments of ratification shall be deposited with the Secretary-General of the Council of the European Communities.
A 128
Article 6
1. To enter into force, this Protocol must be ratified by seven States in respect of which the Rome Convention is in force.
This Protocol shall enter into force on the first day of the third month following the deposit of the instrument of ratification
by the last such State to take this step. If, however, the Second Protocol conferring on the Court of Justice of the European Communities
certain powers to interpret the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June
1980, concluded in Brussels on 19 December 1988 enters into force on a later date, this Protocol shall enter into force
on the date of entry into force of the Second Protocol.
2. Any ratification subsequent to the entry into force of this Protocol shall take effect on the first day of the third month
following the deposit of the instrument of ratification, provided that the ratification, acceptance or approval of the Rome Convention
by the State in question has become effective.
Article 7
The Secretary-General of the Council of the European Communities shall notify the
Signatory States of:
(a) the deposit of each instrument of ratification; (b) the date of entry into force of this Protocol;
(c) any designation communicated pursuant to Article 3 (3); (d) any communication made pursuant to Article 8.
Article 8
The Contracting States shall communicate to the Secretary-General of the Council of the European Communities the texts of any provisions of their laws which necessitate an amendment to the list of courts in Article 2 (a).
Article 9
This Protocol shall have effect for as long as the Rome Convention remains in force under the conditions laid down in Article 30 of that Convention.
Article 10
Any Contracting State may request the revision of this Protocol. In this event, a revision conference shall be convened by the President of the Council of the European Communities.
A 129
Article 11
This Protocol, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese
and Spanish languages, all 10 texts being equally authentic, shall be deposited in the archives of the General Secretariat
of the Council of the European Communities. The Secretary-General shall transmit a certified copy to the Government of each Signatory
State.
In witness whereof, the undersigned Plenipotentiaries have affixed their signatures below this Protocol.
Done at Brussels on the nineteenth day of December in the year one thousand nine hundred and eighty-eight.
(Signatures of the Plenipotentiaries)
A 130
The Governments of the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the
Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands,
the Portuguese Republic and the United Kingdom of Great Britain and Northern Ireland,
On signing the First Protocol on the interpretation by the Court of Justice of the European Communities of the Convention on the law
applicable to contractual obligations, opened for signature in Rome on 19 June 1980,
Desiring to ensure that the Convention is applied as effectively and as uniformly as possible,
Declare themselves ready to organize, in cooperation with the Court of Justice of the European Communities, an exchange of information
on judgments which have become res judicata and have been handed down pursuant to the Convention on the law applicable to contractual obligations by the courts referred
to in Article 2 of the said Protocol. The exchange of information will comprise:
- the forwarding to the Court of Justice by the competent national authorities of judgments handed down by the courts referred
to in Article 2 (a) and significant judgments handed down by the courts referred to in Article 2 (b),
- the classification and the documentary exploitation of these judgments by the Court of Justice including, as far as
necessary, the drawing up of abstracts and translations, and the publication of judgments of particular importance,
- the communication by the Court of Justice of the documentary material to the competent national authorities of the States
parties to the Protocol and to the Commission and the Council of the European Communities.
In witness whereof, the undersigned Plenipotentiaries have affixed their signature below this Joint Declaration.
Done at Brussels on the nineteenth day of December in the year one thousand nine hundred and eighty-eight.
(Signatures of the Plenipotentiaries)
A 131
The Governments of the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the
Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands,
the Portuguese Republic and the United Kingdom of Great Britain and Northern Ireland,
On signing the First Protocol on the interpretation by the Court of Justice of the European Communities of the Convention on the law
applicable to contractual obligations, opened for signature in Rome on 19 June 1980,
Having regard to the Joint Declaration annexed to the Convention on the law applicable to contractual obligations,
Desiring to ensure that the Convention is applied as effectively and as uniformly as possible,
Anxious to prevent differences of interpretation of the Convention from impairing its unifying effect,
Express the view that any State which becomes a member of the European Communities should accede to this Protocol.
In witness whereof, the undersigned Plenipotentiaries have affixed their signatures below this Joint Declaration.
Done at Brussels on the nineteenth day of December in the year one thousand nine hundred and eighty-eight.
(Signatures of the Plenipotentiaries)
A 132
THE HIGH CONTRACTING PARTIES TO THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY,
WHEREAS the Convention on the law applicable to contractual obligations, opened for signature in Rome on 19 June 1980, hereinafter
referred to as ‘the Rome Convention’, will enter into force after the deposit of the seventh instrument of ratification, acceptance
or approval;
WHEREAS the uniform application of the rules laid down in the Rome Convention requires that machinery to ensure uniform interpretation
be set up and whereas to that end appropriate powers should be conferred upon the Court of Justice of the European Communities, even
before the Rome Convention enters into force with respect to all the Member States of the European Economic Community,
HAVE DECIDED to conclude this Protocol and to this end have designated as their
Plenipotentiaries:
(Plenipotentiaries designated by the Member States)
WHO, meeting within the Council of the European Communities, having exchanged their full powers; found in good and due form,
HAVE AGREED AS FOLLOWS:
Article 1
1. The Court of Justice of the European Communities shall, with respect to the Rome Convention, have the jurisdiction conferred
upon it by the First Protocol on the interpretation by the Court of Justice of the European Communities of the Convention on the
law applicable to contractual obligations, opened for signature in Rome on 19 June
1980, concluded in Brussels on 19 December 1988. The Protocol on the Statute of the Court of Justice of the European Communities and
the Rules of Procedure of the Court of Justice shall apply.
2. The Rules of Procedure of the Court of Justice shall be adapted and supplemented as necessary in accordance with Article
188 of the Treaty establishing the European Economic Community.
A 133
Article 2
This Protocol shall be subject to ratification by the Signatory States. The instruments of ratification shall be deposited with the Secretary-General of the Council of the European Communities.
Article 3
This Protocol shall enter into force on the first day of the third month following the deposit of the instrument of ratification of the last Signatory State to complete that formality.
Article 4
This Protocol, drawn up in a single original in the Danish, Dutch, English, French, German, Greek, Irish, Italian, Portuguese
and Spanish languages, all 10 texts being equally authentic, shall be deposited in the archives of the General Secretariat
of the Council of the European Communities. The Secretary-General shall transmit a certified copy to the Government of each signatory.
In witness whereof, the undersigned Plenipotentiaries have affixed their signature below this Protocol.
Done at Brussels on the nineteenth day of December in the year one thousand nine hundred and eighty-eight.
(Signatures of the Plenipotentiaries)
A 134
Passed by the House of Representatives at Sitting No. 371 of the 28th March,
2006.
ANTON TABONE
Speaker
RICHARD J. CAUCHI
Clerk to the House of Representatives
WorldLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.worldlii.org/mt/legis/laws/trcocoanio2006679