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Oslo Law Review - nr. 1/2019

  • Assignment of Claims and Proprietary Effects: Overview of Doctrinal Debate and the EU Commission’s Proposal

    Both the 1980 Rome Convention and the Rome I Regulation on the law applicable to contractual obligations have not addressed the issue of the proprietary effects of assignments. Intense doctrinal debate, discussion of the issue in various appellate courts’ jurisprudence as well as (limited) empirical research are the basis for a current draft Regulation that proposes a two-tiered system of connecting factors (law of the assignor’s habitual residence, law of the assigned claim in specific cases). Subject to a few clarifications that are, in the author’s view, highly recommendable the instrument will deliver greatly enhanced legal certainty.

  • Contracts of Carriage and International Conventions

    The relationship between uniform substantive law conventions and private international law rules is contentious. In this paper, the author discusses why resort to private international law has to give way to the application of uniform substantive law conventions.

  • Choice of Law for Insurance Contracts: History of Article 7 of Rome I, Particularly Regarding the Relationship with Directives 88/357 and 90/619 in Light of Directive 2009/138

    Article 7 of Rome I contains the same rules on choice of law for insurance contracts as previously found in various insurance directives. The rules are technically very complicated. They may be explained as a compromise between Member States wanting to protect their own insurance industry from cross-border competition, and Member States more eager to provide export opportunities for their insurance providers.

  • Autonomous Interpretation of ‘Civil and Commercial Matters’: Do Public Authorities’ Claims for Clean-up Costs for Pure Environmental Harm Qualify?

    Recovery of public authorities’ costs for pure environmental harm, ie harm that does not entail an economic loss on part of the authorities, is unlikely to be considered a ‘civil matter’ under Rome II – or the Judgments Regulation/Lugano Convention. The greater problem is probably recognition and enforcement, not choice of law.

  • Choice of Law for Defamation, Privacy Rights and Freedom of Speech

    The conflict between defamation and privacy rights on the one hand and freedom of speech on the other in international litigation is very controversial in the EU. The phenomenon, also known as libel tourism, is caused by a mixture of national and EU rules of jurisdiction, choice of law and recognition and enforcement of judgments, even though the former and latter are harmonised by the EU. The problem is that the EU has not yet harmonised the choice-of-law rules for defamation and privacy rights. Thus, proposals for reform of the EU choice-of-law rules are discussed.

  • Choice of Law and Intellectual Property Rights

    An increased number of intellectual property rights infringements challenges modern society and its legal institutions. The development is enhanced by digitalisation, following in the footsteps of the emerging information society and the ease by which intellectual property rights can be shared. The fact that sharing is a borderless activity has made it crucial to find solutions to a growing number of cross-border disputes. The development unfolds in two ways: the enhancement of legal initiatives as regards substantive intellectual property protection, and an increasing interest in private international law.

    In this article, this development is discussed with a specific focus on choice-of-law issues that arise in cross-border infringement cases. The solution of applying the law of the protecting country as a principle rule that is found in Article 8 in the Rome II Regulation is thoroughly analysed, and some alternative ways to solve ‘choice of law’ issues are presented in light of the development of a new choice-of-law regime in Norway.

  • Rationale of the Exclusion of Choice of Law by the Parties in Articles 6(4) and 8(3) of Rome II Regulation

    This paper analyses the reasons why Rome II restricts party autonomy in Articles 6 and 8.

  • Choice of Law by the Parties in Rome II: Rationale of the Differentiation between Consumer and Commercial Contracts

    The article explores Article 14 on choice of law by the parties in Rome II and the possibilities for party autonomy. There is a limit to party autonomy where both parties are not ‘pursuing commercial activities’, which is meant to protect weaker parties. This protection is not identical to the protection from party autonomy afforded weaker parties by the Brussels I and Rome I Regulations, and the author questions whether the differences are the result of careful thought. What is more, the protection given in Article 14 could be removed through ‘the back door’ via the reference to a contract concluded between the parties in Article 4(3) and other provisions of the Rome II Regulation.

  • The Relationship between the Rome II Regulation and the 1973 Hague Convention

    An analysis of the 1973 Hague Convention on the law applicable to product liability and the Rome II Regulation leads to the conclusion that the former takes precedence. What is more, both the explanatory report to the Hague Convention and case law from the Court of Justice of the European Union agree that in case there is lacunae in the Hague Convention, the answer should be sought in the Rome II Regulation.