"КОНВЕНЦИЯ О ПРАВЕ, ПРИМЕНИМОМ К ДОГОВОРНЫМ ОБЯЗАТЕЛЬСТВАМ" [англ.](Вместе с "ПРОТОКОЛОМ" и <СОВМЕСТНЫМИ ЗАЯВЛЕНИЯМИ>)(Заключена в г. Риме 19.06.1980)
ON THE LAW APPLICABLE TO CONTRACTUAL OBLIGATIONS
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,
agreed as follows:
Title I. SCOPE OF THE CONVENTION
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
2) They shall not apply to:
involving the status or legal capacity of natural persons, without prejudice to
b) Contractual obligations relating to:
- Wills and
- Rights in property arising out of a matrimonial
- 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;
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;
constitution of trusts and the relationship between settlors, trustees and
h) Evidence and procedure, without prejudice to Article
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.
Application of law of non-contracting States
specified by this Convention shall be applied whether or not it is the law of a
Title II. UNIFORM RULES
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
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".
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.
Applicable law in the absence of choice
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.
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.
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:
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
- 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
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.
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
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.
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.
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.
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.
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.
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
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:
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
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.
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
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
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.
2) The same rule applies where several
persons are subject to the same contractual claim and one of them has satisfied
Burden of proof, etc.
1) The law
governing the contract under this Convention applies to the extent that it
contains, in the law of contract, rules which raise presumptions of law or
determine the burden of proof.
2) A contract or an act intended to have
legal effect may be proved by any mode of proof recognised by the law of the
forum or by any of the laws referred to in Article 9 under which that contract
or act is formally valid, provided that such mode of proof can be administered
by the forum.
Exclusion of renvoi
The application of
the law of any country specified by this Convention means the application of the
rules of law in force in that country other than its rules of private
The application of a
rule of the law of any country specified by this Convention may be refused only
if such application is manifestly incompatible with the public policy (ordre
public) of the forum.
No retrospective effect
Convention shall apply in a Contracting State to contracts made after the date
on which this Convention has entered into force with respect to that State.
In the interpretation and
application of the preceding uniform rules, regard shall be had to their
international character and to the desirability of achieving uniformity in their
interpretation and application.
States with more than one
1) Where a State comprises several territorial units each of
which has its own rules of law in respect of contractual obligations, each
territorial unit shall be considered as a country for the purposes of
identifying the law applicable under this Convention.
2) A State within
which different territorial units have their own rules of law in respect of
contractual obligations shall not be bound to apply this Convention to conflicts
solely between the laws of such units.
This Convention shall not affect the application of
provisions which, in relation to particular matters, lay down choice of law
rules relating to contractual obligations and which are or will be contained in
acts of the Institutions of the European Communities or in national laws
harmonised in implementation of such acts.
with other conventions
This Convention shall not prejudice the application
of international conventions to which a Contracting State is, or becomes, a
1) Any Contracting State may, at
the time of signature, ratification, acceptance or approval, reserve the right
not to apply:
a) The provisions of Article 7, paragraph 1;
The provisions of Article 10, paragraph 1 (e).
2) Any Contracting State
may also, when notifying an extension of the Convention in accordance with
Article 27, paragraph 2, make one or more of these reservations, with its effect
limited to all or some of the territories mentioned in the extension.
Any Contracting State may at any time withdraw a reservation which it has made;
the reservation shall cease to have effect on the first day of the third
calendar month after notification of the withdrawal.
Title III. FINAL
1) If, after the date on which this Convention
has entered into force for a Contracting State, that State wishes to adopt any
new choice of law rule in regard to any particular category of contract within
the scope of this Convention, it shall communicate its intention to the other
signatory States through the Secretary-General of the Council of the European
2) Any signatory State may, within six months from the date
of the communication made to the Secretary-General, request him to arrange
consultations between signatory States in order to reach agreement.
If no signatory State has requested consultations within this period or if
within two years following the communication made to the Secretary-General no
agreement is reached in the course of consultations, the Contracting State
concerned may amend its law in the manner indicated. The measures taken by that
State shall be brought to the knowledge of the other signatory States through
the Secretary-General of the Council of the European Communities.
1) If, after the date on which this Convention has entered into force
with respect to a Contracting State, that State wishes to become a party to a
multilateral convention whose principal aim or one of whose principal aims is to
lay down rules of private international law concerning any of the matters
governed by this Convention, the procedure set out in Article 23 shall apply.
However, the period of two years, referred to in paragraph 3 of that Article,
shall be reduced to one year.
2) The procedure referred to in the
preceding paragraph need not be followed if a Contracting State or one of the
European Communities is already a party to the multilateral convention, or if
its object is to revise a convention to which the State concerned is already a
party, or if it is a convention concluded within the framework of the Treaties
establishing the European Communities.
If a Contracting
State considers that the unification achieved by this Convention is prejudiced
by the conclusion of agreements not covered by Article 24, paragraph 1, that
State may request the Secretary-General of the Council of the European
Communities to arrange consultations between the signatory States of this
Any Contracting State may request the revision
of this Convention. In this event a revision conference shall be convened by the
President of the Council of the European Communities.
This Convention shall apply to the European territories of the Contracting
States, including Greenland, and to the entire territory of the French
2) Notwithstanding paragraph 1:
a) This Convention
shall not apply to the Faroe Islands, unless the Kingdom of Denmark makes a
declaration to the contrary;
b) This Convention shall not apply to any
European territory situated outside the United Kingdom for the international
relations of which the United Kingdom is responsible, unless the United Kingdom
makes a declaration to the contrary in respect of any such territory;
This Convention shall apply to the Netherlands Antilles, if the Kingdom of the
Netherlands makes a declaration to that effect.
3) Such declarations may
be made at any time by notifying the Secretary-General of the Council of the
4) Proceedings brought in the United Kingdom on
appeal from courts in one of the territories referred to in subparagraph (b) of
paragraph 2 shall be deemed to be proceedings taking place in those courts.
1) This Convention shall be open from 19 June 1980 for
signature by the States party to the Treaty establishing the European Economic
2) This Convention shall be subject to ratification,
acceptance or approval by the signatory States. The instruments of ratification,
acceptance or approval shall be deposited with the Secretary-General of the
Council of the European Communities.
1) This Convention
shall enter into force on the first day of the third month following the deposit
of the seventh instrument of ratification, acceptance or approval.
This Convention shall enter into force for each signatory State ratifying,
accepting or approving at a later date on the first day of the third month
following the deposit of its instrument of ratification, acceptance or
1) This Convention shall remain in force for ten
years from the date of its entry into force in accordance with paragraph 1 of
Article 29, even for States for which it enters into force at a later date.
2) If there has been no denunciation it shall be renewed tacitly every five
3) A Contracting State which wishes to denounce shall, not less
than six months before the expiration of the period of ten or five years, as the
case may be, give notice to the Secretary-General of the Council of the European
Communities. Denunciation may be limited to any territory to which the
Convention has been extended by a declaration under paragraph 2 of Article
4) The denunciation shall have effect only in relation to the State
which has notified it. The Convention will remain in force as between all other
The Secretary-General of the Council of
the European Communities shall notify the States party to the Treaty
establishing the European Economic Community of:
a) The signatures;
b) The deposit of each instrument of ratification, acceptance or
c) The date of entry into force of this Convention;
Communications made in pursuance of Articles 23, 24, 25, 26, 27 and 30;
e) The reservations and withdrawals of reservations referred to in Article
The Protocol annexed to this Convention shall form an
integral part thereof.
This Convention, drawn up in a
single original in the Danish, Dutch, English, French, German, Irish and Italian
languages, these texts being equally authentic, shall be deposited in the
archives of the Secretariat of the Council of the European Communities. The
Secretary-General shall transmit a certified copy thereof to the Government of
each signatory State.
The High Contracting
Parties have agreed upon the following provision which shall be annexed to the
Notwithstanding the provisions of the Convention, Denmark
may retain the rules contained in Soloven (Statute on Maritime Law) paragraph
169 concerning the applicable law in matters relating to carriage of goods by
sea and may revise these rules without following the procedure prescribed in
Article 23 of the Convention.
time of the signature of the Convention on the law applicable to contractual
obligations, the Governments of the Kingdom of Belgium, the Kingdom of Denmark,
the Federal Republic of Germany, the French Republic, Ireland, the Italian
Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the
United Kingdom of Great Britain and Northern Ireland,
I. Anxious to
avoid, as far as possible, dispersion of choice of law rules among several
instruments and differences between these rules,
Express the wish that
the Institutions of the European Communities, in the exercise of their powers
under the Treaties by which they were established, will, where the need arises,
endeavour to adopt choice of law rules which are as far as possible consistent
with those of this Convention;
II. Declare their intention as from the
date of signature of this Convention until becoming bound by Article 24, to
consult with each other if any one of the signatory States wishes to become a
party to any convention to which the procedure referred to in Article 24 would
III. Having regard to the contribution of the Convention on the
law applicable to contractual obligations to the unification of choice of law
rules within the European Communities, express the view that any State which
becomes a member of the European Communities should accede to this
The Governments of the
Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the
French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg,
the Kingdom of the Netherlands, and the United Kingdom of Great Britain and
On signing the Convention on the law applicable to
Desiring to ensure that the Convention is
applied as effectively as possible;
Anxious to prevent differences of
interpretation of the Convention from impairing its unifying effect;
Declare themselves ready:
1. To examine the possibility of conferring
jurisdiction in certain matters on the Court of Justice of the European
Communities and if necessary to negotiate an agreement to this effect;
2. To arrange meetings at regular intervals between their representatives.