To come back to Brexit and private international law, click here.
What the Regulation deals with
Regulation (EC) No 593/2008 provides for the uniform rules the courts of the Member States of the European shall apply in order to identify the law applicable to contracts.
The conditions of applicability of the Regulation
The applicability of the Regulation does not depend on the fact that the parties to the contract or the contract itself are linked to a Member State rather than to a third State.
The Regulation, moreover, as provided for by Art. 2, has a universal character. This means that its rules operate regardless of whether the law they refer to is the law of a state bound by the Regulation, or not.
What changes after the end of the transitional period
Indeed, with the exception indicated immediately below, the end of the transitional period does not involve any alteration of the normal operation of the Regulation in Italy and in the other Member States. Therefore, the rules of the Regulation will continue to be applied even in cases related to the United Kingdom, and may continue to determine, depending on the circumstances, the application of English law, Scottish law or Northern Irish law.
Art. 3, para. 4, of the Regulation, regarding the choice of applicable law, provides for the hypothesis in which “all other elements relevant to the situation at the time of the choice are located in one or more Member States”, establishing that in such eventuality, the choice of the law of a third State shall not prejudice the application of the mandatory provisions of EU law concerning contractual obligations, “where appropriate as implemented in the Member State of the forum”.
In order to assess the applicability of Art. 3, para. 4, for situations whose ‘relevant elements’ are located in the United Kingdom, it is necessary to establish whether the choice of law was made when the United Kingdom was still a Member State of the Union (in the sense set out immediately below), or was not more. In the first case, the situation must be considered localized in the Union for the purposes of Art. 3, para. 4. Not so, however, in the second.
According to the opinion that appears to be preferable, based on the consideration of the purpose of Art. 3, para. 4 (the contrast to the possible European Union’s mandatory rules via a choice of law), the relevant date for the purposes of the assessment now referred to is not 20 February 2020, but 1 January 2021, given that the United Kingdom, although having lost its status as a Member of the European Union on the first of the two dates, remained bound to respect European Union law, by virtue of the Withdrawal Agreement, until 31 December 2020.
Note – The legal analysis set out, representing the personal contribution of the author, does not bind the partners of the EJNita – Building Bridges project and does not in any way constitute legal advice.