Flexible Choice-of-Law Rules: Panacea or Oxymoron?
Flexibility is not an acknowledged legal concept, however, and there is no common understanding what fl exibility really means. In fact, the term “fl exibility” is hardly ever defi ned, it is not used uniformly and it may consequently carry rather different meanings depending on the context.2 Furthermore, the doctrinal viability of fl exibility normally remains unexplained. I have previously discussed related general aspects in an article which was published in 2011.3 Based on feedback which I have received in the meantime and further research, this article refi nes my conclusions and – more importantly – explores the signifi cance of fl exibility in the choice-of-law context. To set the scene the fi rst section provides a brief introduction to the potential meanings of “fl exibility” and how this term is used in the legal discourse.4
The Operation of the Escape Clauses in the Rome Convention, Rome I Regulation and Rome II Regulation
An escape clause is a provision inserted in a legal instrument to supplement or cure the defect in the main rule, especially where the main rule has little or no connection with the issue to be resolved before the court. Escape clauses honour the claim that no legal instrument is perfect and strive to improve the instrument by giving the court the discretion to locate the law of a country that is more or most closely connected with the subject-matter. This feature in an escape clause makes it deserving of special attention.
CHOICE OF LAW IN CONTRACT: THE MISSING PIECES OF THE ARTICLE 4 JIGSAW?
Article 4 of the Rome Convention determines the law governing a contract in the absence of choice by the parties. Despite its practical importance, and several decisions of the Court of Appeal, the correct construction of Article 4 remains unclear. This article considers the existing approaches and the Commission's proposal for reform, ventures to suggest an alternative, and analyses the recent cases in this light.