Regulation of the European Parliament and of the Council on the Law Applicable to Contractual
Obligations (Rome I Regulation): with particular focus on the principal changes from the RomeConvention(2012) 63-6 Doshisha Law Review pp. 1-46 (in Japanese)
Koji Takahashi
Professor, Doshisha University Law School
English summary:This article compares the Rome I Regulation with its predecessor, the Rome Convention, withrespect to four key aspects: party autonomy and its restriction by the mandatory rules, special
rules for certain categories of contracts to protect the weaker parties, legal predictability andcertainty, and the simplicity of the rules. It examines in particular the following provisions:
Article 3 (freedom of choice), Article 4 (applicable law in the absence of choice), Article 6(consumer contracts), Article 8 (individual employment contracts) and Article 9 (overriding
mandatory provisions).
Besides presenting the comparative analysis, this article considers a number of issues
concerning those provisions. Among them, the following two points seem worth highlighting inthis English version.
Under the Rome I Regulation, the special rules for consumer contracts are applicableonly where the professional either (a) pursues its commercial or professional activities in thecountry where the consumer has his habitual residence or (b) directs such activities to thatcountry (proviso to Article 6(1)). The same phrase in the Brussels I Regulation (Article15(1)(c)) was interpreted by the European Court of Justice in Peter Pammer v Reederei KarlSchlüter and Hotel Alpenhof GesmbH v Oliver Heller (joined cases C-585/08 and C-144/09 (7Dec. 2010)). It follows from that ruling that, where a professional merely makes its website
globally accessible and does nothing more in terms of directing its activities to the country of
the consumer with whom it has concluded a contract, the contract is not subject to the special
rules for consumer contracts. In other words, the mere fact that a professional has concluded acontract with a consumer who had consulted the professional’s website in the country of his
habitual residence is not enough to bring the contract within the special rules for consumer
contracts. This is at variance with the position under the Japanese choice-of-law Act since its
special rules for consumer contracts (Article 11) would be applicable in such a situation. TheJapanese Act makes its special rules for consumer contracts applicable irrespective of whether
the professional directs its activities to the consumer’s country. It instead excludes theapplication of those special rules in certain cases by reference primarily to the consumer’sbehaviour. For example, where the consumer concludes the contract in the professional’scountry, those special rules are inapplicable (For details, see K. Takahashi, “A Major Reform ofJapanese Private International Law" [2006] 2 Journal of Private International Law 311, 323).
1The Rome Convention also relied partly on the consumer’s behaviour to delineate the scope ofapplication of its special rules for consumer contracts. However, that approach seems to havebeen consciously abandoned by the Rome I Regulation. The origin of that policy is traceable to
the Commission’s Green Paper (COM(2002) 654 final 2003) which stated that the approach of
the Rome Convention was not well adapted to the era of the new distance selling techniques(Pay-TV, Internet) as it required the localisation of measures taken by the parties (paras. 3.2.7.2
and 3.2.7.3). This reasoning is hardly convincing. Private international law cannot shield itself
from the need of localisation whatever communication technique is used. That is indeed
demonstrated by the fact that the criterion adopted in lieu, i.e. whether the professional directs
its activities to the consumer’s country, is in need of elucidation with respect to electronictrading, a difficult challenge which was not met with great success by the Court of Justice in theaforementioned cases.
The second point worth noting is the dearth of interest shown in the Rome I legislativeprocess in bringing it closer in line with the laws of third countries. Thus, nowhere in theCouncil documents made in the course of Rome I negotiations (numbering almost 100), is it
possible to find reference to the law of Japan, the United States, or Switzerland as a possiblemodel. The present author is aware of only one exception: in the draft report of the Committee
on Legal Affairs of the European Parliament (2005/0261 (COD)), concern was raised about
adopting a proposed rule which would deviate from the position prevailing in third countries.
The inward-looking attitude may be attributable to the fact that it is hard enough to obtainconsensus among the Member States. But the responsibility may also lie with third countries as
no effort seems to have been made to make their voice heard in the context of the Rome I
preparation. It would be preferable if more conscious effort were made on both sides to promote
greater harmonisation on a global scale.

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