The Member State Caught in the Middle. The Tension between Global and Local Obligations

Since the entrance into force of the conflict of law regulations Rome I and II in 2009 there is an overlap of the scope of application of these regulations and the international carrier liability conventions. Although both sets of supra-national rules intend to stimulate legal security, they do so by very different means. Whereas the carriage conventions contain mandatory provisions of material transport law to this end, the EU regulations in Rome I and II only contain conflict of law rules in order to clarify which set of (national) rules governs the contractual or non-contractual obligation at stake. Due to the overlap between the regimes the legal security sought after by both is endangered, as it is likely that the application of these instruments does not lead to identical results. Moreover, due to the importance that the regulations attach to the freedom of parties to choose the law applicable, granting precedence to the regulations over the carriage conventions – as the ECJ seems to do in the TNT v. AXA case concerning the Brussels I regulation on jurisdiction – may very well provide the parties involved in transport with the means to circumvent the heretofore mandatorily applicable material law of the carriage conventions altogether by simply choosing a national law regime of a state that is not party to the relevant carriage convention. Whether this is objectionable remains to be seen, but the fact is that there have been international carriage conventions containing mandatory law for more than a hundred years now – more are drafted still – and these conventions are adhered to by many states all over the world. The proposed research establishes whether an actual conflict between the two legal regimes described exists, and if so, which rules are to govern international carriage contracts and the non-contractual obligations arising therefrom.