THE EMERGENCE AND EVOLUTION OF THE LEX VOLUNTATIS PRINCIPLE IN PRIVATE INTERNATIONAL LAW.
The resolution of the conflicts of laws relating to international contracts is marked by the principle of the autonomy of will (lex voluntatis), which is enshrined in both international conventions (regarding the standardization of conflict resolution) and in the systems of the private international law of states (Stefanescu and Rucareanu, 1983: 76-81; Capatana and Stefanescu, 1985: 139; 1987: 136-139; Costin and Deleanu, 1995: 45-46).
The principle of lex voluntatis, as a conflict of laws, authorizes the parties to appoint the law applicable to international contracts.
2. Antiquity and the Middle Ages
In antiquity, there were no texts granting the value of a conflict of laws to the autonomy of will (1). In the period after the fall of the Roman Empire (5th-10th centuries), the Romanized population continued to observe the Roman law, and the populations that settled in the former empire retained these laws.
The early Middle Ages was characterized by a closed economy, trades being carried out (especially) within the boundaries of fiefs; due to the lack of a centralized state, territorial customary laws were formed, at the local level. In the 13th-15th centuries, the cities (remaining from the Roman period or the new ones) began to develop, due to the increase in the production and trade of goods. Each city had its own system of legal rules, called statutes (Filipescu and Filipescu, 2007: 76).
The gloss writers brought the first solutions to the conflicts of laws. Magister Aldricus's Gloss (12th century) contains the answer to the question regarding the customary law applicable by the judge, when the parties to a dispute are from various provinces (governed by different customary laws). In such a situation, the gloss writer says that there should be applied the customary law that seems more useful and more appropriate, given the circumstances.
Charles Dumoulin (1500-1566) was one of the defenders of the idea regarding the unification of the French customary law, based on the customary law of Paris. Dumoulin founded the theory on the autonomy of will, in private international law, claiming that the parties may also submit their contract to laws other than the one of the place where the contract was concluded. According to the above-mentioned author, in respect of its matter and effects, the contract shall obey the law expressly determined by the parties (by the concluded contract itself), and if this law is not expressly shown, it shall be inferred from all the circumstances where the contract was concluded.
3. The Bourgeois Revolutions and the Formation of the National States
The bourgeois revolutions and the formation of the national states determined a real current of national encodings, and the issues raised by the conflicts of laws become much more stringent. In this context, the private international law was developed as a remedy to the conflict of laws. The States developed their own rules and principles of private international law, contained either in the positive law or in jurisprudence and doctrine (as is the case in France).
Friedrich Carl von Savigny (1779-1861). Savigny's theory corresponded to the interests of the German bourgeoisie, which sought to impose itself internationally. His conception of the conflict of laws is set forth in his work, The Current Roman Law System, published in 1849. Choosing the applicable law means finding the seat of the legal relationship, i.e. its connection to a binding legal system. In order to establish the seat, two presumptions are used, namely: a) the presumption of localizing the legal relationship, i.e. the departure point of its substantive connection in space shall reveal the competent law; b) the presumption of the voluntary submission of the parties to the law of the place where the relationship is located. However, establishing the seat of a legal relationship can sometimes be difficult. In this case, the location is replaced by another criterion. In order to determine the applicable law, the court shall analyze the nature of things or of the legal relationships considered. In contracts, the parties are free to submit their relationships to the law that they expressly or tacitly approved. In the absence of choices, the will of the parties comes off from the presumed localization (Macovei; Cazanel, 2013: 17).
4. The 14th and the 20th Centuries--The Crystallization of the Notion in Jurisprudence and in the Positive Law
During the second half of the nineteenth century, the first codifications appeared in this field. The Civil Code of Zurich represents such an instance from 1855, which, in Article 5, stipulates that the contractual obligations be subject to the law of the country chosen by the parties, explicitly or implicitly. Among the first court decisions establishing the principle of lex voluntatis is the one issued by the Swedish Federal Tribunal, in Scholder versus Wolff, in 1885, which states that the law applicable to an international contract is the one chosen by the parties, and, in its absence, the law that their hypothetical will would indicate (Carler, 1992: 65).
The early twentieth century was characterized by a real gap between doctrine and jurisprudence. While the doctrine was dominated by objectivist theories, which, essentially, aimed at subjecting the contract to the law determined by the court, based on objective localization, the jurisprudence embraced the subjective theories that granted the parties the freedom to submit the contract to the law chosen by mutual agreement (Cf. idem, 67). The principle of the autonomy of will is stated in a number of causes such as: Vita Food Production versus Unus Shiping Co. Ltd, 1939 (2) (England); Nicolaas Chalutier Salbandera, in 1924 and 1947 (Netherlands); Ville d'Anvers, on 24th February 1938 (Belgium) (Cf. idem, 67-73).
In the twentieth century, the French jurisprudence was ordered in several periods, oscillating between the mere application of lex voluntatis (with some penchant for subjective theories) and the objective location of the contract (Jacquet, 1999: 38).
In the first period (1900-1952), the French jurisprudence consistently applied the subjective doctrine (on the determination of lex contractus) (3). In the court, decision issued for the case America Trading / Quebec Steamship (5 December 1910) (Ancel and Lequette, 2006: 94-102), the French Court of Cassation stated, "The law applicable to (international) contracts is chosen by the parties." However, a number of uncertainties about the meaning of autonomy, reflecting, thus, a strong controversy in the literature of that period, marked the decision issued by the Court of Cassation.
In a decision issued in 1950 (Messageies Maritimes), the French Court of Cassation showed that any international agreement had to be necessarily subject to a state law ("tout contrat international est necessairement rattache a la loi d'un Etat") (Cf. idem, 194-209); this rule is consecrated (directly or indirectly) in most contemporary systems of private international law. In another case, in 1952, the Court of Cassation referred openly to the "presumed intention of the parties regarding the location of their contract" (Jacquet, 1999: 39). In that case, the French court joined the subjective theories, since it considered that lex contractus could be only the law chosen by the parties, or the law that the parties could have considered upon the conclusion of the contract (but which was not revealed clearly, as in the case of the tacit will), i.e. the presumed intention.
In the second period (1952-1980), the jurisprudence of the Court of Cassation gave up looking for the presumed will and determined that lex contractus was chosen (expressly or tacitly) by the parties. In the absence of willingness, be it tacit, the presumed intention was no longer searched for, but subsidiary solutions were applied (the objective location of the contract). Such an instance is represented by de Decision issued by the Court of Cassation on 6th July 1959 (Societe des Fourrures Renel c / Allouche). This court decision clearly reveals that the will of the parties does not have the meaning granted by the subjective doctrine; it represents only the application of the conflict principle of lex voluntatis (4).
The third stage began in 1980, when the case Mercator Press marked a clear option of the Court of Cassation (France) for the objective theory of localizing the contract, the lex voluntatis principle being removed. Thus, the parties could locate the contract by their will, (in a given state), but the court's role was to assess the common intention of the parties and to determine the applicable law (5). After the entry into force of the Rome Convention (1980), the Court of Cassation recognized and applied (regarding the international contracts) the principle of lex voluntatis in all cases (Cf. ibidem).
The lex voluntatis principle in Romanian jurisprudence was applied regularly, both before 1947 (6) and after (the communist regime period) and even more so after 1989 (when it returned to the democratic political system and to a market economy). During the communist regime (1947-1989), the practice of the Arbitration Commission of the Chamber of Commerce and Industry gave us a broad and nuanced elaboration of the lex voluntatis principle (7). In 1992, Law 105 was adopted on the regulation of international private law relationships, which, in Articles 73-76, enshrined the principle of lex voluntatis. Based on this legal basis, the lex voluntatis principle was applied in the jurisprudence, after the law had entered into force.
5. The Significance of the lex voluntatis Principle in the Contemporary Period
In the contemporary period, the conflicts of laws for determining the law applicable to contracts with foreign elements have reached certain uniformity in national legal systems.
Internationally, there are two important conventions containing rules applicable to all categories of commercial contracts with international elements, i.e. the 1980 Rome Convention (replaced by Regulation (EC) no. 593/2008 (8)) and the Inter-American Convention on the law applicable to international contracts (Ciudad de Mexico, 1994) (for comparison, see Stefanescu, 2007). Both Conventions belong to the uniform conflict of laws, thus proving that, at this level, the unification of the conflicts of laws is easier than the one of substantive laws.
The Rome Convention (1980) implied unifying the conflicting solutions in the Member States of the European Communities, applicable to the contractual obligations with foreign elements, entailing a conflict of laws. Although, when drafting the Law 105/1992, Romania was only a state associated to the European Communities, the Romanian legislator used this convention as a major source of inspiration. Currently, Regulation (EC) No. 593/2008 on the law applicable to contractual obligations replaced the Rome Convention, at the EU level.
The system of the conflict of laws that shall determine the law applicable to the contract generally retains the same architecture as the one enshrined in the Rome Convention. The spirit of the Regulation is dominated by the philosophy adopted by the Commission--enhancing the certainty and predictability of the conflicting solutions (this option was clearly expressed in the Explanatory Memorandum that accompanied the proposal for a regulation). This new Regulation contains a number of definitions, clarifications and the conflict of laws is formulated more thoroughly and with greater accuracy (compared to the corresponding formulations of the Convention). The Regulation resumes the traditional conflict of laws enshrined in the Rome Convention, but with some nuances.
The Mexico Convention (CIDIP Convention), signed on 10th March 1994 and entered into force on 15th December 1996, engages the Member States of the Organization of American States (OAS).
Rome I Regulation and the CIDIP Convention contain similar conflicts of laws: first, generally, the parties have the right to determine the law applicable to the contract; without the express will of the parties, the contract shall be subject to the law, which has the closest connection to it. Furthermore, Rome I Regulation contains customized solutions for specific types of contracts, as already mentioned.
Comparing the conflict resolutions (regarding the international trade agreement) contained in international conventions and enshrined within the domestic law, we notice the mutual influence between the two plans. On the one hand, the development of the international conventions on the conflict of laws in the field started from comparing the solutions enshrined in national legal systems; on the other hand, many national legislators chose to take as a model, on the occasion of reforming the private international law, the consistent modern conflict resolutions crystallized in the 1980 Rome Convention (replaced by Regulation (EC) No. 593/2008) and in the Inter-American Convention on the law applicable to international contracts (Mexico City, 1994).
Currently, in most of the (national) private international law systems, lex voluntatis is developed in several important rules that constitute its content. Usually, the parties may choose the applicable law both expressly and tacitly; rarely, in some legislations, it is required that the parties have expressed their willingness expressly. The principle of lex voluntatis is enshrined either in international private law, or in judicial and arbitration practice.
We can say that the principle of lex voluntatis is the fundamental conflict of rules under which the substantive conditions, except for the abilities of the parties and the obligation effects of the international trade agreement, are subject to the law designated by the Contracting Parties. The principle of lex voluntatis fulfills a conflict function, not a substantive one. The will of the parties to an international trade agreement has no original and autonomous value, detached from any system of laws. The principle of lex voluntatis has its basis in the system of private international law of the forum.
The principle of lex voluntatis did not appear spontaneously, but it has a particular historical development and the contemporary full understanding of the concept involves taking into account these developments. The principle of lex voluntatis was formulated in judicial practice, filtered in the "flasks" of the legal doctrine and, not least, it was enshrined within the positive law (both in national legal systems and in international conventions). The principle of lex voluntatis replaced the old rule of obedience to the law of the place where the contract was concluded (lex loci contractus), being enshrined within the jurisprudence since the beginning of last century (Melin, 2005: 175). Currently, the international conventions and the national legal systems consistently and uniformly devote the same conception of the principle of lex voluntatis.
(1.) Since the second century BC, Rome turned into a Mediterranean empire. Legally, the Roman Empire was not a unitary state, but a federation of cities-states, having bilateral treaties with Rome. The residents of the cities built under the Treaties and those of the unincorporated cities, but which had treaties, were called Peregrines. Jus gentium was regulating the relationships between the Peregrines and the relationships between them and the Roman citizens. See Filipescu and Filipescu (2007: 74).
(2.) The case Vita Food Production versus Unus Shiping Co. Ltd refers to an international contract of carriage (of a quantity of herring), concluded between a shipping company from Nova Scotia (Canada)--the defendant--and a company in New York--the plaintiff. The goods had to be shipped from a port in Nova Scotia to a New York harbor. The court designated by the parties to the dispute was English. During the transport, due to a navigational error, the goods went off. According to the law of the Canadian state, the alteration of goods by the fault of the ship captain triggers the liability of the transport company. The contract contained an electio juris clause, which designated the English law, and an express clause of exemption from liability of the carrier (for all damages caused by the negligence of the captain). The Judge (Lord Wright) rejects the plaintiff's action, exempting the carrier from liability, subjecting the agreement to the English law (nominated by the parties) and applying the express provisions of the contract on the liability.
(3.) According to the subjective doctrine, the parties agree only by contract, which has the force of law. In other words, the will of the parties has an originating, autonomous nature, triggering alone the contractual rights and obligations, without being required to relate to a system of law. If the parties refer, however, to a law, the law designated is received contractually; it does not govern the contract, but is part of it. If the parties have not appointed a law, the judge shall determine the lex contractus based on the hypothetical will of the parties; this will is sought in the contract terms, in the behavior of the parties and in the circumstances of the case. Finally, it calls to the objective elements for the localization of the contract.
(4.) The Decision issued by the Court of Cassation, on 6th July 1959 (Societe des Fourrures Renel c/ Allouche) states that "the law applicable to contracts, in respect of their conclusion, substantive conditions and effects, is the one chosen by the parties; in the absence of express statements by the parties, judges have the task to search for the law that should govern the contract, in the light of all the terms and circumstances of the case." Source: Ancel, and Lequette (2006: 298).
(5.) In the case of Mercator Press, the Court of Cassation states that "if the location of the contract depends on the will of the parties,
the judge shall deduct, after the sovereign interpretation of this location made by the common intention of the parties, the law applicable to the contract in question." Source: Jacquet (1999: 39).
(6.) In this regard, we mention the Decision no 1086 of 9th October 1931 of Ilfov Court, Section III: "it is accepted in private international law that the parties determine, by their own convention, the law they agreed to obey to"; the Decision no. 457 of 20th November 1935 of the Court of Appeal from Bucharest, Section III; the Decision no. 2086 of 2nd November 1938 of the Court of Cassation, Section II. Source: Stefanescu and Rucareanu, 1983: 76.
(7.) In this respect, we mention the arbitration decision no. 9 of 19th March 1965: "since the substance of the dispute concerns an international sale agreement, we are in a field that the Romanian private international law submits to the application of the principle according to which its effects and consequences can be governed by the law designated jointly by the parties concerned"; the arbitration decision no. 22 of 7th July 1970: "in the international agreements under the Romanian private international law, applicable as lex fori, the parties have the ability to establish the law that shall govern their contractual foreign trade relationships"; the arbitration decision no. 3 of 28th January 1972: "the Romanian private international law recognizes the freedom of the parties to determine by their consensus, in regard to patrimonial contracts, the substantive applicable law"; the arbitration decision no. 45 of 31st May 1974; the arbitration decision no. 50 of 22nd June 1976; the arbitration decision no. 125 of 27th April 1979; the arbitration decision no. 226 of 16th December 1980. Source: Capatana (1973: 239-240); Capatana (1978: 60); Stefanescu and Rucareanu (1983: 77).
(8.) Regulation (EC) No. 593/2008 of the European Parliament and of the Council of 17th July 2008 on the law applicable to contractual obligations (Rome I), published in the Official Journal of the European Union, no. L 177/6 of 4th July 2008; Calafus et al (2003: 425).
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BOGDAN CRISTIAN TRANDAFIRESCU
b_trandafirescu @ yahoo.com
Ovidius University of Constanta
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|Author:||Trandafirescu, Bogdan Cristian|
|Publication:||Contemporary Readings in Law and Social Justice|
|Date:||Jul 1, 2017|
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