Historical Background: From Savigny and the “Lib...
The classic choice-of-law system is based on the “Seat Theory” advocated by German writer Savigny,as Chapter One of Part Two of this book has already mentioned.However,Savigny recognized that there were certain rules that were immune to the multilateral approach which he called “strictly positive,mandatory laws”.2 By this he meant rules that express a moral,political,or economic policy strong enough to resist displacement by foreign law,and which are therefore not susceptible to the multilateral approach.[1]Savigny considered such “mandatory rules” to be “anomalous” and believed that they would vanish as time went on.
Nevertheless,Savigny’s forecast was incorrect.Contrary to his prediction,during the 20th century,modern states have increasingly regulated private relationships.The so-called “liberal state” that left its citizens to control their own legal relations has slowly but surely been replaced by the “welfare state” that aims to intervene actively in private relationships in the economic and social interests of the community.Interventionism has prompted an unprecedented proliferation of “strictly positive statutes” designed to promote the common weal.3
Alongside the growing amount of economic dirigisme,mandatory legislation based on sociopolitical intentions to protect groups of individuals has been enacted to an ever greater degree.Rules intended to protect or promote policies of the State based on social,economic or political considerations are,for example,rules on anti-trust practices,import and export prohibitions,exchange control regulations and price control regulations.Examples of mandatory legislation intended to protect individuals are rules protecting the weaker contracting parties,such as consumers or employees.Trade restrictions are also examples of mandatory legislation.They do not serve protectionist goals of economic or social policy,but they do pursue interests of a security nature,or may exert political pressure on foreign countries,for example,by means of embargoes.Such restrictions may also endeavour to prevent the loss of cultural treasures or to protect the environment.4
The issue of mandatory rules in private international law is rendered important by the increase in the number of rules that intervene in the private relationship in order to advance the interests of the state.These rules may affect relationships between individuals either by requiring action,making a particular provision obligatory,or prohibiting certain conduct or a specific provision in a contract.All these rules are binding and do not permit any derogation.Often the state interest in upholding these rules is of such importance that the provision is designed to apply irrespective of the law that governs the contract according to the “normal” choice of law rules.They are therefore exceptions to the normal choice of law rules.In England they are known as “overriding statutes” or “directly applicable statutes”.Elsewhere they are referred to as “lois de police” or “lois d’application immédiate” or “Eingriffsnormen”.5
Thus,“mandatory rules” which originally were lumped together with ordre public reservation has gradually gained an independent status.To be more specific,in the past,some authors,say,Franz Kahn argued that ordre public assumed both negative and positive functions,i.e.,it is used not only to exclude otherwise applicable foreign rules but also to justify the application of forum law regardless of the conflict rules at all.6 However,since the second half of the 20th century,with the growing number and importance of mandatory rules,ordre public has played a lesser role,as it becomes but a negative concept whose positive function is now believed to fall within the domain of mandatory rules.In other words,under the current private international law doctrine,ordre public is used in a purely defensive manner to bar the application of foreign law,whereas mandatory rules are resorted to justify the application of forum law.
It should be stressed that mandatory rules under the context of private international law is different from those in purely domestic setting.Mandatory rules in a domestic sense are compulsory in a domestic setting,but they are still subject to the normal rules of private international law.The Rome Convention of 1980,for instance,refers to this type of rule in Article 3(3) and defines mandatory rules as rules “which cannot be derogated from by contract”,i.e.,contractual ius cogens rules.(https://www.daowen.com)
Mandatory rules in an international sense,in addition to the criterion that they are compulsory in a domestic setting,must claim application irrespective of the law governing the foreign-related disputes.Therefore,mandatory rules under the context of private international law are generally called “internationally mandatory rules”,or “conflicts mandatory rules”,or “overriding mandatory rules”.6 These rules have been described as being “more” mandatory than the mandatory rules in a domestic sense.For example,the parties cannot exclude them by contract,nor can they exclude them by choosing another law as the proper law.Internationally mandatory rules determine their own scope of application.7
It is worth noticing that the latest development of EU private international law suggests that the doctrine of mandatory rules permit courts,in certain circumstances,to apply not only the mandatory law of the forum,but also the mandatory law of other countries connected with the transaction in question.For example,Rome I Regulation departs from the Rome Convention by introducing a definition of “overriding mandatory provisions”.Article 9(1) defines these as “provisions the respect for which is regarded as crucial by a country for safeguarding its public interests,such as its political,social or economic organisation,to such an extent that they are applicable to any situation falling within their scope,irrespective of the law otherwise applicable to the contract under this Regulation”.
The advantage of introducing a definition of overriding mandatory provisions under Article 9(1) is that it helps to separate out two different senses in which the concept of mandatory provisions is used in Article 3(3) and 9 of the Regulation.[2]Thus,in addition to the overriding mandatory provisions of the forum reflected in Article 9(2),overriding mandatory provisions under the Rome I Regulation,[3]may,in some situations,refer to those of other countries under Article 9(1).8
In order to help courts to determine the overriding mandatory provisions of other countries,Article 9(3) goes on to state that “effect may be given to the overriding mandatory provisions of the law of the country where the obligations arising out of the contract have to be or have been performed,in so far as those overriding mandatory provisions render the performance of the contract unlawful.In considering whether to give effect to those provisions,regard shall be had to their nature and purpose and to the consequences of their application or non-application.”
EU secondary regulations vest courts with broad authority to give effect to the mandatory rules of other countries reflects the fact that the economic and social interests of EU member states are highly interactive and inseparable.