https://doi.org/10.31261/PPPM.2010.06.08
As corretly underlined in the decision of the European Court of Justice of 6th October 2009, C‑133/
08 the split of the contractual status definited in the article 4 sec. 1 sentence 2 of the Rome Convention may happen only exceptionally and only in the situation when the part of the contract can be treated as autonomous to the other part of the contract. The author notices that the role of the phrase part of the contract provided in the article 4 sec. 1 sentence 2 and article 3 sec. 1 sentence 3 of the Convention is different. It is confirmed by the context of the phrases. In the first of the abovementioned rule the phrase is associated by the phrase exceptionally. The second of the abovementioned rule concerns the matter of the admissibility of the split of the contract. According to the article 3 sec. 1 sentence 3 the parties are allowed more, than can do the judge who applies article 4 sec. 1 sentence 2 of the Convention. The author inclines to the opinion of the Tribunal that the court during the process of finding the applicable law should always try to rely on the presumptions provided by article 4 sec. 2—4 of the Convention. Nevertheless, when the contract demonstrates the more closest connection with the other country than the country determined by the presumtion, the court according to the article 4 sec. 5 sentence 2 may apply the law of that other country. It was positively appreciated the interpretation of the article 4 sec. 4 which allows to the apllication of the rule to the charter contract. It was found as too far‑reaching the thesis no 2 of the decision which provides that during the process of searching the applicable law for the autonomous part of the contract it should be always applied the article 4 sec. 1 sentence 2 of the Convention. In the opinion of the author autonomous part of the contract can have the properties which would justify the application of one of the presumption from article 4 sec. 2—4 of the Convention. Finally, during the process of searching the law applicable for the transport contract, when the prerequisites of the presumptions from article 4 sec. 4 sentence 2 are not fulfilled — the article 4 sec. 2 of the convention should be applied.
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Vol. 6 (2010)
Published: 2010-06-30
10.31261/PPGOS
This work is licensed under a Creative Commons Attribution-ShareAlike 4.0 International License.
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