THE INTERNATIONAL JUDICIAL COMPETITION
The attribution of the international judicial competition to the Spanish tribunals would come determined by that prepared in the Convention of Brussels of September of 1968, 27 but only when the defendant has his home in territory of the union.
If the contract in litigation falls outside of the material environment of application of the Convention of Brussels or if it lacks the defendant's home in the community, the Spanish judge will have to decide if it is or not competent.
But judges met with many doubts:
- Must all the obligations complete in Spain?.
According to what law does she/he decide the place of celebration of
In the Spanish Private International right this question was traditionally resolved by virtue of the article 10.5 of the Civil Code.
The integration of Spain in the European Community forced the negotiation that in 1980 it culminates with the signature and later ratification of the Convention of Rome of June 19 1980 on applicable law to the contractual relationships, for what they become unified the norms of conflict of the States members in this matter, in such a way that the national judges will apply oneself international juridical régime when the litigation turns on some of the contemplated contracts, contributing this way to the predictability objective to which serves all process of international unification.
This Agreement is the result of the negotiating effort of some of States members of the European Community, it has been said that it is encounter point among the old and modern, when combining classic solutions and known by all the countries with new solutions for some of them.
In what concerns to Spanish International Right the impact it is enormous concerning the subsidiary and special connections.The Convention of Rome this endowed with effectiveness erga omnes, it will still be applied when the right rector of the contract is the law of a third State. It must always be applied by the Spanish judge when the litigious supposition falls under its application environment.
Also, the Agreement contemplates the practical entirety of the contractual modalities.
We can affirm, therefore that the article 10.5 of the Civil Code has been displaced by the Convention, he still has left a residual function, all that contracts taken place previously to the entrance in vigor of the Convention and regarding the contractual modalities not contemplated by the Convention.
ENVIRONMENT OF APPLICATION
THE NOTION OF INTERNATIONAL CONTRACT.
International character of the contract
The notion of international contract seeks to define an extremely complex reality, what hinders to arrive to an unitary notion. The Convention of Rome does without it and it defines the application environment starting from the most ambiguous and imprecise expression - “in the situations that imply a conflict of laws, to the contractual obligations”. The international adjective takes us to the contemplated contractual relationships but it prevents to embrace all the possible situations..
In principle it is international that contract whose elements objective -place of situation of the good, place of delivery of the thing- or subjective -nationality of parts- they appear dispersed under the environment of different juridical classifications.
The renouncement to define this notion on the part of the community legislator being declared applicable in the situations that imply a conflict of laws it is eloquent. Not alone they seek to survive the problem of reaching an autonomous qualification of the notion, it is also sought to leave open the road to two concrete situations:
First type is the exclusively connected contracts with two or more non state classifications. In Spain it would be doubtful that today in day you presents a conflict of laws since among different autonomous communities these they have little power when dictating norms on private right. Nevertheless the case could be given due to the survival of norms of statutory civil right in the unknown Catalan right in the common right that could affect to properties located outside of Catalonia.
The article 19 of the Agreement allow and it doesn't impose to the States the application of the Agreement in the internal environment. But, the disposition goes directed to the States, not to the judicial authorities, and if anything is indicated when incorporating it to the classification it complicates even more the question of the application environment. Therefore, formally it is necessary to understand each other effective the Spanish solution for the internal conflicts or linked with two or but juridical systems.
Second type are a particular situation, contemplated in the article 3 of the Convention. When allowing the election of a right or of a foreign jurisdiction when all the other elements of the contract are located in the same country, provided the imperative dispositions of the classification are respected in competent principle, seemingly this tolerating the internationalization of the purely internal contract for the will of the parts. That foreign right penetrated in the contract like a clause more, or, as something on what the parts can prepare. The election will always operate with the limit of the imperative norms of the classification with which the contract is linked.
In definitive, neither the Civil Code neither the Convention of Rome define the notion of international contract." But we can define it as a contract linked at two or but state juridical systems.
THE NOTION OF CONTRACTUAL MATTER:
Contract is a fiction that many times will designate an economically unique reality that however, it is legally complex. As wing article 1 of the Convention of Rome are excluded the following contractual obligations:
1.- Obligations born in testaments and successions.
2.- Convention is not applicable to the patrimonial régime.
3.- Obligations derivered of letters of change checks and notes.
4. - Agreements of jurisdiction election are excluded..
5.- Abitration agreements and compromissary clauses are excluded.
6. - It won't be applied to the obligations born in the association environment to the questions regulated by the right of societies, associations and juridical people, such as the constitution, artificial capacity, internal operation and the breakup of societies, associations and juridical people, as well as the legal responsibility of partners and of organs for debts of the society.
7. - It is excluded the Trust.
8. - Obligations born in the environment of the test and the process.
9. - Convention won't be applied to the contract of insurance that cover risks located in the territory of the Union.
AUTONOMY OF THE WILL AND SUBSIDIARY CONNECTIONS.
It has been said that in the Convention of Rome has been known how to conjugate the maximum of freedom of the matters in the appointment of the applicable right, next to the maximum state interventionism that it would come determined by the judge's position, in the configuration of special conflict norms.
1. - The principle of the autonomy of the will.
The autonomy of the will of the parts is the source of the contractual obligations. The matters have to be able to choose the right rector of their contractual relationships. It completes a predictability function, the parts will know according to that right will be solved their differences and a function of agility and freedom, necessary in the international contracts.
B) Juridical régime of the agreement of election:
The election clause picks up the agreement of the parts for which the classification juridical rector of the mutual interests of the contracting parties is designated. Once such clauses are admitted there are three questions to decide their validity.
1. - The form of expression of the consent:
* To of being expressed:
written or if it is verbal, confirmed later in writing.
* To of being certain according to the terms of the contract or the circumstances of the case, the judge go to circumstances or external elements to the contract to assure the truthfulness of the will.
2. -This allowed the election and the later modification
3.- The agreement of wills validly concluded it places the low contract the environment of a classification.
C) Reaches and limit of the election.
Scope:The parts can designate a law that governs the entirety of the contract or alone a part of the same one. It fits the election of an unique law and a multiple election of state laws. To this ability you the flame dépéçage, to be able to of the parts to divide hiring in how many parts wants.
This ability will be used in economically unique but legally complex operations that are composed of a plurality of united contracts. In these cases it is necessary to decide a priori that aspects of the contract are detachable and they can undergo a different law. Most of the positions point to that to of having an internal coherence.
Limit: the will to of operating on the existent base of an international contract and the contract should be subject to the law of a State.
2.- Lack of election.
If parts didn't have intention of designating an applicable right to the contract, if doesn't reach an agreement or if they appealed to misleading formulas that prevented to know which is the applicable, if alone right a partial election it was made. The Convention places the national judge in a central position when deciding the applicable right to the contract.
Contractual modalities that they receive an autonomous treatment and matter due to the Convention of Rome for different reasons exist.
Articles 5 and 6 of the Convention constitute exceptional régimes regarding the general régime being their function, to assure the application of certain imperative norms of the classification in principle more linked with the contemplated operations, in detriment of the freedom of the parts.
But in any event, have you in bill that the main edge to the will of the matters will come determined by the action of the calls imperative norms.
1.- Concluded contracts for consumers.
A) Application environment.
The article 5 of the ConventioN of Rome only understands some contracts concluded by consumers endowing them of a special régime that it comes marked by the restrictive function attributed to the will in the determination of the applicable right. With the result that with previous character it is necessary to define the personal environment and material of application of the norm, operation that will allow to locate us in front of the “protected suppositions”.
The article 5 is applied to contracts in one of parts is consumer, understanding each other for such the physical person that acquires goods or services for use that can be considered as unaware to its professional activity or what is the same thing, with a purpose non professional or domestic personnel.
Can the norm raise difficulties of diverse degree:
- consumer it is who acquires for double, personal use and professional?
- is it necessary to qualify as sale to consumer the one that is carried out among matters?.
As for the material environment they are contemplated all contracts that have for object the supply of goods corporal furniture and the supply of financing of this supplies, and those that have for object a combined benefit of transport and services.
Estrictu sensu is excluded those that have for object goods properties, material goods and the contracts of transport.
To this personal delimitation and material the legislator adds other objective conditions:
* It is necessary that the operation has been preceded of previous offer or publicity in the country of the consumer's habitual residence having had at least in this country the necessary acts for the celebration of the contract.
* Another possibility is that in that without being carried out the previous circumstances, the salesperson or supplier receives the responsibility in the country of the consumer's habitual residence.
* The last case is given when the consumer moves to the foreigner and acquire urged by a salesperson (acquisitions carried out in the course of organized tourist trips).
The objective conditions are key to understand the purpose of the norm.
The Convention doesn't protect to all consumers neither all the consumption acquisitions contemplated in the supposition. Inside the supposition of the norm the protection is limited the sedentary or passive consumer, that that remains in its residence country and it is involved in an international contract without having conscience of it. The Convention foresees the derived surprises of the submission from the contract to a classification different from that in that it hired.
Sensu contrario the Agreement doesn't protect who assumes the risk of acquiring abroad (except for the case of the contracts concluded in the course of the programmed tourist trips), because to such a person she/he is supposed the conscience of being entering in an international contract and she/he is supposed preparing the means to make in front of an eventual submission to the foreign law. The Convention neither protects to the contracts that have for object goods properties, neither those of benefit of financial services.
B) Solutions for the protected suppositions:
The protection is organized restricting the game of the autonomy of the will.
In these contracts there is not equality in the positions of parts, for those that the consumer lacks negotiation power. The consumer accepts conditions or he doesn't enter in the contract. The other part, seeks to rationalize its economic activity and it aspires to subject all differences that arise to an only classification, to be possible, the next to its establishment.
For their protection parts can designate the applicable right to the contract. But they can not stop the imperative norms of the consumer's protection foreseen by the law of their habitual residence to be applied. What doesn't imply accumulative application, but an alternative application, the parts will choose the most favorable law to the contracting consumer. The imperative norms of the contracting consumer's protection, contained in the law of the consumer's habitual residence give the minimum parameter of protection.
C) Solutions for the not protected suppositions:
Under this title has fit the contractual modalities so much not contemplated inside the environment of the article 5, as those in that the objective circumstances of application of the norm are not completed. In the practice of some European countries in the application of the Convention has put on of the relief how the call general régime can be unjust in the cases in that the consumer (tourist) he moves to the foreigner and he acquires in the country salesperson, being subject the contract to such a law. That law doesn't give the consumer the same rights that the law of its habitual residence.
Correction roads have been looked for through the article 7.2:
* The judge's solution:
- The judge will apply the norms of the consumer's protection contained in his own classification.
- This solution would be rejected because the article 7 doesn't refer specifically to the imperative norms of the contracting consumer's protection."
* The application of the designated foreign right:
- When the contract contains remission clause to juridical classification of a country of the European Union or when the consumer moves and he acquires in country of the U.E.
- The national consumer of a community country can not be been about favorable way hands that the national one for another classification of community country for the non discrimination principle (art. l0treaty of the European Union) I begin axis of in the construction of the Interior market.
- When the not contemplated contract is located under the environment of the legislation of a third country and this he is less protector than that of a community country the application of this legislation it will be impeded.
* The European consumer that not acquires goods or services in a third country belonging to the Market should run with the risk of seeing subject his operation to a legislation whose protection parameters are inferior to those of a European country.
2. - Individual control of work:
The objective is to guide the worker that moves to the foreigner, the one considered weak part in the contractual relationship.
A) Protected suppositions:
The Convention doesn't define the contract but it can understand each other for such a to make in exchange for a remuneration. Inside the art.l0 exist three suppositions:
General: the contract is international for the nationality of the company that hires the worker in the country of its habitual residence or because the worker settles in another country and there ready his services.
The solution foreseen for this case will be the application of the law where he habitually lends its work.
Special: to the worker who is dedicated temporarily to a country different from that in that usually ready their services.
The solution will be to apply the law of the place in that habitually ready its
Special: Those salaried activities in fact characterized because they must lend successively in diverse countries. The agreement foresees the submission of such contracts to the law of the country in that it is the establishment that has hired the worker. Although there are difficulties the same thing is it the “establishment” to the place of establishment of the contract?. It facilitates the manager the unit of juridical régime for all the contracts that it concludes.
THE IMPERATIVE NORMS
If we return to the previous idea according to which parts have a wide power of election from the applicable right to the contract, it is not possible to affirm that parts can design for their contract kind of a suit to measure.
The imperative norms mark beds inside which the power of self-regulation of the matters should reflect.
The articles 5 and 6 make reference that is to say to those norms that are not available for the parts in the internal plane, that are not revocable for contract.
The article 7 mentions to “police law”, they are norms not revocable it is the applicable law to the contract, that is to say, they are not revocable in the international suppositions. They constitute the vehicle of intervention of the state in the since economy they design the economic pattern from the state to which they belong.
They are also denominated intervention norms or control norms it has more than enough changes or on protection of the historical and artistic patrimony. It is necessary the imperative norms that correspond to a private interest of norms to differ of with public purpose.
For example in a consumption contract he would be necessary the norms that fix the consumer's of irreplaceable character under rights to differ it punishes of incurring in cause of contract nullity and the state norms that regulate (for example) the indication of the price in the products.
In the normal suppositions in those that parts designate the applicable right the question resides in solving if the remission to the designated law also understands the imperative norms of that foreign classification.
The Convention of Rome says that will have to understand norms that affect to the contract and enter for the applicable designated law while others respond to the dominant public interest.
Therefore they will be applicable the lex contractus and the lex fori.