romeconvention罗马公约.docx

1、romeconvention罗马公约CONVENTION ON THE LAW APPLICABLE TO CONTRACTUAL OBLIGATIONS opened for signature in Rome on 19 June 1980 (80/934/EEC)Official Journal L 266 , 09/10/1980 p. 0001 - 0019 Spanish special edition.: Chapter 1 Volume 3 p. 36 Portuguese special edition Chapter 1 Volume 3 p. 36PREAMBLETHE

2、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,

3、 WISHING to establish uniform rules concerning the law applicable to contractual obligations, HAVE AGREED AS FOLLOWS:TITLE I SCOPE OF THE CONVENTIONArticle 1Scope of the Convention1. The rules of this Convention shall apply to contractual obligations in any situation involving a choice between the l

4、aws 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 a

5、nd 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 obli

6、gations 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, le

7、gal capacity, internal organization 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 compa

8、ny 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 r

9、isks 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 2Application of law o

10、f 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 RULESArticle 3 Freedom of choice 1. A contract shall be governed by the law chosen by the parties. The choice must be expressed or demonstrated with re

11、asonable 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,

12、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 parti

13、es. 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 o

14、f 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 4Applicable law in

15、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 connect

16、ion 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 char

17、acteristic 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 partys trade or profession, that country shall be the co

18、untry 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 provisi

19、ons 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 fo

20、r 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 princi

21、pal 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 th

22、e 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 5Ce

23、rtain 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

24、 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 prec

25、eded 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 consumers order in that country, or - if the contract is for the sale of goods

26、and the consumer travelled from that country to another country and there gave his order, provided that the consumers 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

27、 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 contr

28、act 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

29、 combination of travel and accommodation. Article 6Individual 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 ru

30、les 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 carri

31、es 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 appea

32、rs 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 7Mandatory 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 in so far 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 mandat