Protective EU Rules
The EU rules on the choice of law seek to protect consumers and employees. These rules override whatever may be contained in a contract. The consumer rules apply where the purpose of the contract is to supply goods or services to a person outside of his or her trade or profession.
Mandatory requirements are requirements that are imposed irrespective of the country where the contract is concluded and irrespective of the law governing the contracts, which cannot be derogated from by agreement.
- certain consumer contracts and
- employment contracts.
Choice of Law & Mandatory Rules
The consumer is entitled to the benefit of the mandatory rules of the country where he or she habitually resides. Even if the contract includes a choice of law, the consumer cannot be deprived of the mandatory rules of the place where he or she habitually resides.
Where the law chosen in the contract is more advantageous to the consumer than the law of his habitual residence, this chosen law should apply. Where the contract does not include a choice of law, the law of the consumer’s habitual residence is the applicable law. This is the case even if the contract is more closely connected with another country.
An Irish consumer must receive the benefit of Irish consumer protection legislation irrespective of what Court the proceedings are in. The degree of variation between the mandatory rules of various states has been greatly reduced. For example, unfair consumer terms and consumer protection legislation has been harmonized across the EU.
The consumer rules do not apply to contracts of carriage or to contracts where the services are to be supplied exclusively in a country other than that which the consumer has his habitual residence. The consumer rules only apply in this latter case, provided the following additional conditions are satisfied:
- the contract was preceded by a specific invitation addressed to the consumer or advertising in the country of the consumer’s habitual residence and the consumer in that country took all steps necessary on his part for the conclusion of the contract; or
- the other party or his agent received the consumer\’s order in the country of the consumer\’s habitual residence; or
- the contract is for the sale of goods and the consumer travels from the country of his habitual residence to another country to give his order provided the journey was arranged by the seller for the purpose of inducing the consumer to buy.
Package contracts for accommodation and travel are subject to special rules.
There are mandatory rules in relation to employment contracts. If the domestic employment law does not make a choice, the EU rules determine the position.
In this case, the employment contract is governed by the laws of the country in which the employee habitually carries out his work in the performance of the contract, even if he is temporarily employed in another state or if he does not habitually carry out his work in one State by the laws of the State in which the place of business to which is engaged in is situated.
This applies unless it appears from the circumstances as a whole that the contract is more closely connected with another state in which case the contract is governed by the law of that State. An employee is regarded as habitually carrying out work where he establishes the effective centre of his work obligations.
If a choice of law is made, this presumptively governs the contract. However, as with consumer protection, it cannot deprive him of the mandatory rules of law which would have applied without a choice. Therefore, the mandatory rules of his habitual residence prevail over the choice.
Mandatory Rules Issues
The mandatory rules applicable below are provided for public policy reasons. It is not possible to contract to the contrary. The purpose is to protect a perceived weaker party. The rules take effect notwithstanding anything to the contrary in a contract.
The question arises as to whether mandatory rules must apply to transactions where the law of a State is adopted but which are outside the scope of the relevant jurisdiction, making them mandatory.
In certain cases, the Convention applies by reference to rules that are mandatory under the law of the particular country. There is a second category of mandatory rules, which are deemed to be mandatory irrespective of a choice of law.
The application of the rules of law of the forum, which are mandatory irrespective of the law otherwise applicable, is not to be restricted by the Convention. Accordingly, the Court may apply its own mandatory rules notwithstanding a choice of law, even if a choice of law under the Convention would otherwise overrule it.
The types of rules concerned are those legislated for in the public interest, such as consumer protection rules. Overriding laws are almost invariably statutory in nature. There are relatively few common law rules which cannot be circumvented by contract.
Terms of Mandatory Rules
In some cases, the relevant statute will set out the territorial scope of the overriding provision. It may prohibit those within the jurisdiction from overriding the mandatory rules by choosing a foreign country\’s laws under which the provisions are not mandatory.
Many of the consumer protection laws that have developed over the last 40 years have emanated from the European Union. Accordingly, there are fewer cases where an anomaly might arise. They will usually apply throughout the EU.
The extent to which the law is to have effect with reference to international practice and circumstances is a matter of interpretation. In some cases, it might be expressly stated to have effect in respect of persons in particular scenarios connected with the home jurisdiction. In other cases, there may be scope for interpretation for a broader territorial scope.
There are some circumstances in which the common law prohibits contracts to the contrary. See the section on contract law and public policy. There are some cases where the courts do not enforce contracts on public policy grounds. Their scope and territorial extent will be a matter of interpretation.
Rome Convention & Regulation
The Convention and Regulation may, in certain cases, go so far as to make mandatory domestic rules override foreign mandatory rules. When applying under the Convention, effect may be given to the mandatory rules of law of another country with which the situation has a close connection if and insofar as under the laws of the latter country, the rules must be applied whatever the law applicable to the contract.
In considering whether to give effect to these mandatory rules, regard should be had to their nature and purpose and to the consequence of their application or otherwise. The Rome Rule Regulation makes similar provisions but in clearer terms.
The Regulation introduces the concept of an overriding mandatory provision. This is a provision which is regarded as crucial by a country for safeguarding its public interest, such as its political, social, or economic organisation, to such an extent that they are applicable to any situation falling within its scope, irrespective of the law otherwise applicable under the Regulation.
Such provisions are applicable irrespective of the law otherwise applicable under the Regulation. Noting in the Regulation is to restrict the application of the overriding mandatory provisions of the law of the forum.
The Regulation provides that effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of a contract have to be or have been performed in so far as those overriding mandatory provisions render the performance of the contract unlawful. In considering whether to give effect to such provisions, regard shall be had to their nature and purpose and to the consequences of their application or non-application.
Some States have not opted into this provision. In considering the mandatory provisions of a foreign law, it is to be considered whether it is regarded as so important by the country that it requires other country’s Courts to give overriding effect to it under the Rome Regulation.
Refusal Mandatory Rules
The Convention provides that the application of a rule of law of any country specified in a Convention may be refused only if such application is manifestly incompatible with the public policy of the forum Court. This requires that the application of foreign law is against the public policy of the domestic Court. This is only intended to be used in exceptional cases.
Accordingly, courts may refuse to apply the mandatory rules of a foreign State if this would be against the public policy of the home state. This may happen where the foreign rule conflicts with mandatory domestic rules. The Rome Regulation provides that if a foreign law, even a mandatory law which would be against overriding public policy in the home state, the domestic court need not apply it.