"КОНВЕНЦИЯ О ПРАВЕ, ПРИМЕНИМОМ К ДОГОВОРНЫМ ОБЯЗАТЕЛЬСТВАМ" [англ.](Вместе с "ПРОТОКОЛОМ" и <СОВМЕСТНЫМИ ЗАЯВЛЕНИЯМИ>)(Заключена в г. Риме 19.06.1980)
CONVENTION
ON THE LAW APPLICABLE TO CONTRACTUAL
OBLIGATIONS
(Rome, 19.VI.1980)
Preamble
The High Contracting Parties
to the Treaty establishing the European Economic Community,
Anxious to
continue in the field of private international law the work of unification of
law which has already been done within the Community, in particular in the field
of jurisdiction and enforcement of judgments,
Wishing to establish
uniform rules concerning the law applicable to contractual obligations,
Have agreed as follows:
Title I. SCOPE OF THE CONVENTION
Article
1
Scope of the Convention
1) The rules of this Convention shall apply to
contractual obligations in any situation involving a choice between the laws of
different countries.
2) They shall not apply to:
a) Questions
involving the status or legal capacity of natural persons, without prejudice to
Article 11;
b) Contractual obligations relating to:
- Wills and
succession;
- Rights in property arising out of a matrimonial
relationship;
- Rights and duties arising out of a family relationship,
parentage, marriage or affinity, including maintenance obligations in respect of
children who are not legitimate;
c) Obligations arising under bills of
exchange, cheques and promissory notes and other negotiable instruments to the
extent that the obligations under such other negotiable instruments arise out of
their negotiable character;
d) Arbitration agreements and agreements on
the choice of court;
e) Questions governed by the law of companies and
other bodies corporate or unincorporate such as the creation, by registration or
otherwise, legal capacity, internal organisation or winding up of companies and
other bodies corporate or unincorporate and the personal liability of officers
and members as such for the obligations of the company or body;
f) The
question whether an agent is able to bind a principal, or an organ to bind a
company or body corporate or unincorporate, to a third party;
g) The
constitution of trusts and the relationship between settlors, trustees and
beneficiaries;
h) Evidence and procedure, without prejudice to Article
14.
3) The rules of this Convention do not apply to contracts of
insurance which cover risks situated in the territories of the Member States of
the European Economic Community. In order to determine whether a risk is
situated in these territories the court shall apply its internal law.
(4)
The preceding paragraph does not apply to contracts of re-insurance.
Article
2
Application of law of non-contracting States
Any law specified by this
Convention shall be applied whether or not it is the law of a Contracting
State.
Title II. UNIFORM RULES
Article 3
Freedom of choice
1) A
contract shall be governed by the law chosen by the parties. The choice must be
express or demonstrated with reasonable certainty by the terms of the contract
or the circumstances of the case. By their choice the parties can select the law
applicable to the whole or a part only of the contract.
2) The parties
may at any time agree to subject the contract to a law other than that which
previously governed it, whether as a result of an earlier choice under this
Article or of other provisions of this Convention. Any variation by the parties
of the law to be applied made after the conclusion of the contract shall not
prejudice its formal validity under Article 9 or adversely affect the rights of
third parties.
3) The fact that the parties have chosen a foreign law,
whether or not accompanied by the choice of a foreign tribunal, shall not, where
all the other elements relevant to the situation at the time of the choice are
connected with one country only, prejudice the application of rules of the law
of that country which cannot be derogated from by contract, hereinafter called
"mandatory rules".
4) The existence and validity of the consent of the
parties as to the choice of the applicable law shall be determined in accordance
with the provisions of Articles 8, 9 and 11.
Article 4
Applicable law in
the absence of choice
1) To the extent that the law applicable to the
contract has not been chosen in accordance with Article 3, the contract shall be
governed by the law of the country with which it is most closely connected.
Nevertheless, a severable part of the contract which has a closer connection
with another country may by way of exception be governed by the law of that
other country.
2) Subject to the provisions of paragraph 5 of this
Article, it shall be presumed that the contract is most closely connected with
the country where the party who is to effect the performance which is
characteristic of the contract has, at the time of conclusion of the contract,
his habitual residence, or, in the case of a body corporate or unincorporate,
its central administration. However, if the contract is entered into in the
course of that party"s trade or profession, that country shall be the country in
which the principal place of business is situated or, where under the terms of
the contract the performance is to be effected through a place of business other
than the principal place of business, the country in which that other place of
business is situated.
3) Notwithstanding the provisions of paragraph 2 of
this Article, to the extent that the subject matter of the contract is a right
in immovable property or a right to use immovable property it shall be presumed
that the contract is most closely connected with the country where the immovable
property is situated.
4) A contract for the carriage of goods shall not
be subject to the presumption in paragraph 2. In such a contract if the country
in which, at the time the contract is concluded, the carrier has his principal
place of business is also the country in which the place of loading or the place
of discharge or the principal place of business of the consignor is situated, it
shall be presumed that the contract is most closely connected with that country.
In applying this paragraph single voyage charter-parties and other contracts the
main purpose of which is the carriage of goods shall be treated as contracts for
the carriage of goods.
5) Paragraph 2 shall not apply if the
characteristic performance cannot be determined, and the presumptions in
paragraphs 2, 3 and 4 shall be disregarded if it appears from the circumstances
as a whole that the contract is more closely connected with another
country.
Article 5
Certain consumer contracts
1) This Article
applies to a contract the object of which is the supply of goods or services to
a person ("the consumer") for a purpose which can be regarded as being outside
his trade or profession, or a contract for the provision of credit for that
object.
2) Notwithstanding the provisions of Article 3, a choice of law
made by the parties shall not have the result of depriving the consumer of the
protection afforded to him by the mandatory rules of the law of the country in
which he has his habitual residence:
- If in that country the conclusion
of the contract was preceded by a specific invitation addressed to him or by
advertising, and he had taken in that country all the steps necessary on his
part for the conclusion of the contract, or
- If the other party or his
agent received the consumer"s order in that country, or
- If the contract
is for the sale of goods and the consumer travelled from that country to another
country and there gave his order, provided that the consumer"s journey was
arranged by the seller for the purpose of inducing the consumer to buy.
3) Notwithstanding the provisions of Article 4, a contract to which this Article
applies shall, in the absence of choice in accordance with Article 3, be
governed by the law of the country in which the consumer has his habitual
residence if it is entered into in the circumstances described in paragraph 2 of
this Article.
4) This Article shall not apply to:
a) A contract of
carriage;
b) A contract for the supply of services where the services are
to be supplied to the consumer exclusively in a country other than that in which
he has his habitual residence.
5) Notwithstanding the provisions of
paragraph 4, this Article shall apply to a contract which, for an inclusive
price, provides for a combination of travel and accommodation.
Article
6
Individual employment contracts
1) Notwithstanding the provisions of
Article 3, in a contract of employment a choice of law made by the parties shall
not have the result of depriving the employee of the protection afforded to him
by the mandatory rules of the law which would be applicable under paragraph 2 in
the absence of choice.
2) Notwithstanding the provisions of Article 4, a
contract of employment shall, in the absence of choice in accordance with
Article 3, be governed:
a) By the law of the country in which the
employee habitually carries out his work in performance of the contract, even if
he is temporarily employed in another country, or
b) If the employee does
not habitually carry out his work in any one country, by the law of the country
in which the place of business through which he was engaged is situated,
unless it appears from the circumstances as a whole that the contract is more
closely connected with another country, in which case the contract shall be
governed by the law of that country.
Article 7
Mandatory rules
1)
When applying under this Convention the law of a country, effect may be given to
the mandatory rules of the law of another country with which the situation has a
close connection, if and insofar as, under the law of the latter country, those
rules must be applied whatever the law applicable to the contract. In
considering whether to give effect to these mandatory rules, regard shall be had
to their nature and purpose and to the consequences of their application or
nonapplication.
2) Nothing in this Convention shall restrict the
application of the rules of the law of the forum in a situation where they are
mandatory irrespective of the law otherwise applicable to the
contract.
Article 8
Material validity
1) The existence and validity
of a contract, or of any term of a contract, shall be determined by the law
which would govern it under this Convention if the contract or term were
valid.
2) Nevertheless a party may rely upon the law of the country in
which he has his habitual residence to establish that he did not consent if it
appears from the circumstances that it would not be reasonable to determine the
effect of his conduct in accordance with the law specified in the preceding
paragraph.
Article 9
Formal validity
1) A contract concluded between
persons who are in the same country is formally valid if it satisfies the formal
requirements of the law which governs it under this Convention or of the law of
the country where it is concluded.
2) A contract concluded between
persons who are in different countries is formally valid if it satisfies the
formal requirements of the law which governs it under this Convention or of the
law of one of those countries.
3) Where a contract is concluded by an
agent, the country in which the agent acts is the relevant country for the
purposes of paragraphs 1 and 2.
4) An act intended to have legal effect
relating to an existing or contemplated contract is formally valid if it
satisfies the formal requirements of the law which under this Convention governs
or would govern the contract or of the law of the country where the act was
done.
5) The provisions of the preceding paragraphs shall not apply to a
contract to which Article 5 applies, concluded in the circumstances described in
paragraph 2 of Article 5. The formal validity of such a contract is governed by
the law of the country in which the consumer had his habitual residence.
6) Notwithstanding paragraphs 1 to 4 of this Article, a contract the subject
matter of which is a right in immovable property or a right to use immovable
property shall be subject to the mandatory requirements of form of the law of
the country where the property is situated if by that law those requirements are
imposed irrespective of the country where the contract is concluded and
irrespective of the law governing the contract.
Article 10
Scope of the
applicable law
1) The law applicable to acontract by virtue of Articles 3 to
6 and 12 of this Convention shall govern in particular:
a)
Interpretation;
b) Performance;
c) Within the limits of the powers
conferred on the court by its procedural law, the consequences of breach,
including the assessment of damages insofar as it is governed by rules of
law;
d) The various ways of extinguishing obligations, and prescription
and limitation of actions;
e) The consequences of nullity of the
contract.
2) In relation to the manner of performance and the steps to be
taken in the event of defective performance regard shall be had to the law of
the country in which performance takes place.
Article
11
Incapacity
In a contract concluded between persons who are in the
same country, a natural person who would have capacity under the law of that
country may invoke his incapacity resulting from another law only if the other
party to the contract was aware of this incapacity at the time of the conclusion
of the contract or was not aware thereof as a result of negligence.
Article
12
Voluntary assignment
1) The mutual obligations of assignor and
assignee under a voluntary assignment of a right against another person ("the
debtor") shall be governed by the law which under this Convention applies to the
contract between the assignor and assignee.
2) The law governing the
right to which the assignment relates shall determine its assignability, the
relationship between the assignee and the debtor, the conditions under which the
assignment can be invoked against the debtor and any question whether the
debtor"s obligations have been discharged.
Article 13
Subrogation
1)
Where a person ("the creditor") has a contractual claim upon another ("the
debtor"), and a third person has a duty to satisfy the creditor, or has in fact
satisfied the creditor in discharge of that duty, the law which governs the
third person"s duty to satisfy the creditor shall determine whether the third
person is entitled to exercise against the debtor the rights which the creditor
had against the debtor under the law governing their relationship and, if so,
whether he may do so in full or only to a limited extent.
