»28. versus 2. Regime« – Kollisionsrechtliche Aspekte eines optionalen europäischen Vertragsrechts
Volume 76 (2012) / Issue 2, pp. 401-442 (42)
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»28 th« versus »2 nd« Regime – An Optional European Contract Law from a Choice of Law Perspective Ten years after placing the idea of a European contract law on the political agenda, the European Commission has finally taken legislative action. On 11 October 2011, a proposal for a Regulation on a Common European Sales Law was published. The regulation would create a set of European contract rules which would exist alongside the various national regimes and could be chosen as the applicable law by the parties to a sales contract. Such an instrument raises a number of questions with regard to private international law in general and the Rome I Regulation in particular. Should the choice of the European contract law be subject to the general rules on party choice under Rome I or does the new instrument call for special rules? Also, should the European contract law be eligible only where the relevant choice of law rules refer the contract to the law of a Member State or should the parties also be allowed to opt for the European rules where private international law designates the law of a third state as the law applicable to the contract? The paper examines which solution is the best suited to achieve the primary goal of the optional instrument, i.e. to improve the functioning of the internal market. Moreover, it seeks to shed some light on the terms of »28th regime« and »2nd regime« that are often used to identify different possible approaches of how to fit the optional instrument into the system of private international law. Moreover, the paper deals with the relationship between the optional instrument and the CISG as well as other uniform law conventions. The article concludes by addressing a number of specifi c issues such as the prerequisites for a valid choice of the instrument, the applicability of the pre-contractual information rules, gap-fi lling, and the relationship between the optional instrument and national overriding mandatory provisions (Eingriffsnormen).