Intercontainer Interfrigo SC (ICF) v Balkenende Oosthuizen BV and MIC Operations BV.
Date: 2009-10-06
22. As the Advocate General pointed out in paragraphs 33 to 35 of his Opinion, it is apparent from the preamble to the Convention that it was concluded in order to continue, in the field of private international law, the work of unification of law set in motion by the adoption of the Brussels Convention of 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters (OJ 1972 L 299, p. 32).
25. In the absence of a choice by the parties as to the law applicable to the contract, Article 4 of the Convention provides for connecting criteria on the basis of which the court must determine that law. Those criteria apply to all categories of contracts.
26. Article 4 of the Convention is based on the general principle, which is enshrined in Article 4(1), that in order to establish a contract’s connection with a national law, it is necessary to ascertain the country with which that contract is ‘most closely connected’.
27. As is apparent from the Giuliano and Lagarde report, the flexibility of that general principle is modified by the ‘presumptions’ in Article 4(2) to (4) of the Convention. In particular, Article 4(2) sets out a presumption of a general nature, which consists in applying as the connecting criterion the place of residence of the party to the contract who effects the performance characteristic of that contract, whereas Article 4(3) and (4) establish special connecting criteria as regards contracts the subject matter of which is a right in immoveable property and contracts of carriage respectively. Article 4(5) of the Convention contains an exception clause which makes it possible to disregard those presumptions.
The first question and the first part of the second question, relating to the application of Article 4(4) of the Convention to charter-parties
Observations submitted to the Court
32. In that regard, it must be noted, as a preliminary point, that, pursuant to the second sentence of Article 4(4) of the Convention, a contract for the carriage of goods is governed by the law of the country in which, at the time the contract is concluded, the carrier has his principal place of business if the place of loading or the place of discharge or the principal place of business of the consignor is situated in that same country. The last sentence of Article 4(4) of the Convention provides that, in applying that paragraph, ‘single voyage charter-parties and other contracts the main purpose of which is the carriage of goods shall be treated as contracts for the carriage of goods’.
33. It is apparent from the wording of that provision that the Convention equates with contracts of carriage not only single voyage charter-parties but also other contracts, in so far as the main purpose of those contracts is the carriage of goods.
34. Therefore, one of the aims of that provision is to extend the scope of the rule of private international law laid down in the second sentence of Article 4(4) of the Convention to contracts the main purpose of which is the carriage of goods, even if they are classified as charter-parties under national law.  In order to ascertain that purpose, it is necessary to take into consideration the objective of the contractual relationship and, consequently, all the obligations of the party who effects the performance which is characteristic of the contract.
62. As is apparent from the wording and the objective of Article 4 of the Convention, the court must always determine the applicable law on the basis of those presumptions, which satisfy the general requirement of foreseeability of the law and thus of legal certainty in contractual relationships.
63. However, where it is clear from the circumstances as a whole that the contract is more closely connected with a country other than that identified on the basis of the presumptions set out in Article 4(2) to (4) of the Convention, it is for that court to refrain from applying Article 4(2) to (4).
64. In the light of those considerations, the answer to the fifth question must be that Article 4(5) of the Convention must be construed as meaning that, where it is clear from the circumstances as a whole that the contract is more closely connected with a country other than that determined on the basis of one of the criteria set out in Article 4(2) to (4) of the Convention, it is for the court to disregard those criteria and apply the law of the country with which the contract is most closely connected.
Costs