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Interpretation of Conflict of Laws Rules of International Conventions – The Example of Interpretation of Conflict of Laws Rules of the Hague Convention on the Law Applicable to Traffic Accidents
Vesna Tomljenović
; Pravni fakultet Sveučilišta u Rijeci, Rijeka, Hrvatska
Sažetak
The paper deals with the question of interpretation of conflict of laws rules contained in international conventions through reviewing Croatian, Austrian and French case law. It is emphasised that while interpreting conflict of laws rules, the courts should be guided by aims of conflict of laws as well as the principles of its realisation: choice of mostly connected law and choice of law legitimately expected by the parties.
It is especially emphasised that conflict of laws rules contained in international conventions of private law unification are distinct since those conventions often expressly provide for interpretation of provisions in accordance with their international character and requirement of their uniform application which leads to so called autonomous interpretation. Considering the mentioned, while interpreting convention provisions, the courts must, as much as they can, consider court practice of other signatories, with respect to the same provision.
The review of Croatian court practice with respect to Article 4 (a) second line of the Hague Convention on the Law Applicable to Traffic Accidents, the author points to non uniformity of standpoints with regard to the interpretation of the scope of application of the mentioned provision. The discord in interpretation, that is, the discord in choice of law governing non contractual liability occurs in practice depending on whether the claimant is passenger-victim or its close relatives. Author critically scrutinises Croatian case law and pleads for more extensive interpretation of the mentioned provision, i. e. for the application of same applicable law notwithstanding who is the claimant in order to ensure realisation of the principle of closest connection and legitimate expectation and in order to disable dépeçage of non contractual torts. Author argues that such an interpretation accords to subject and aim of the Convention as well as court to practice of other signatories.
Afterwards, it is explained which law should be applicable to admissibility and merits of such a claim.
Finally, author points to provisions of the Rome I Regulation which do not provide for differentiation of the relation of liability with respect to direct and indirect victims. The theory justifies such a solution by requirement of uniformity, i. e. the single regime of liability for direct and indirect victims, and by requirement of predictability.
Ključne riječi
conflict of laws rules; interpretation; Hague Convention on the Law Applicable to Traffic Accidents; law applicable to non-contractual liability; Rome II Regulation
Hrčak ID:
93095
URI
Datum izdavanja:
3.5.2012.
Posjeta: 2.306 *