Rechtswahl und ius cogens im Internationalen Schuldvertragsrecht

Choice of Law and ius cogens in Conflict of Laws for Contractual Obligations 1. Choice of law is a key principle of the Rome I Regulation concerning the conflict of laws for contractual obligations. However, the impact of a choice of law is limited by several rules which provide for a parallel application of ius cogens. This solution is based on the idea of a proportional balancing between the interest of the parties in a choice of law and other conflict of laws principles.2. Article 3(3) Rome I Regulation allows for a choice of law in purely domestic contracts, but limits the effects of such a choice by the parallel application of the domestic ius cogens. However, it would be more convincing to preclude a choice of law in these cases and to limit the parties to an incorporation of foreign law as terms of the contract.3. With regard to consumer contracts in the meaning of Art. 6(1) Rome I Regulation, it would also have been more persuasive to preclude a choice of law. This would not have amounted to a grave interference with international competition. Furthermore, it would have brought forward clarity and homogeneity in conflict of laws.4. The concept of overriding mandatory provisions (Art. 9(1) Rome I Regulation) should be confined to genuine public policy provisions which are primarily enforced by public authorities. In contrast, the increasing incorporation of mandatory contract law in the concept of overriding mandatory provisions threatens the effectiveness of a choice of law and may cause an inhomogeneous cumulation of applicable rules.5. According to Art. 9(2) Rome I Regulation, overriding mandatory provisions of the law of the forum are to be applied without a close-mesh filter on a conflict of laws level. However, the application of these provisions may be restricted by the fundamental freedoms of EU law.6. Overriding mandatory provisions of a chosen law are not to be applied according to Art. 3(1) Rome I Regulation, but only according to Art. 9(2) and (3) Rome I Regulation. Thus, the concept of applicable law (Arts. 3 to 8 Rome I Regulation) and the concept of overriding mandatory provisions (Art. 9 Rome I Regulation) are mutually exclusive.7. Foreign overriding mandatory provisions may only be given effect under the requirements of Art. 9(3) Rome I Regulation or by an analogical application of this provision. However, the means of an analogy should only be used with caution.