Common European Sales Law and Third State Sellers
In October 2011, the European Commission published its Proposal for a Regulation on a Common European Sales Law.
From a choice of law perspective, two important features of the Proposal are that the Common European Sales Law (CESL) would be optional, and that it would not be a 28th regime, but rather a second regime in the substantive law of each Member State. As a consequence, the CESL would only apply if the parties agree on its application, and if the law of a Member state is otherwise applicable. The CESL will, as such, never govern a contract; the law of a Member state will and, as the case may be, within this law, the CESL.
Choosing CESL when a Third State Law Governs
The problem with this regime, and more specifically with the doctrine that CESL may not apply autonomously is that it is easy to conceive many situations in which parties may want to provide for the application of CESL while the contract is otherwise governed by the law of a third state. In the European conflict of laws, the law of the seller governs (Rome I Regulation, art. 4, 1955 Hague Convention, art. 4). This means that each time the sale will involve a third state seller, the applicable law will, in all likelihood, be the law of that third state. And Europe does buy alot from third states. The factory of the world is China, not Greece.
Of course, in theory, the parties could, and indeed should, choose the law of a Member state as the governing law. Let’s face it, however: there are many reasons to believe that they often will not. CESL is designed for small and medium businesses. For many, if not the majority, of these commercial people, it will be very hard to understand why choosing the CESL is not enough, and why the law of a member state must also be chosen. Indeed, at first sight, this does not look quite logical to choose the law of a particular member state after choosing European law.
If I am correct that expecting a high level of legal sophistication from small and medium businesses is unrealistic, then the result will often be a contract governed by Chinese law, with a clause providing for the application of European law.
Implicit Choice of Law?
What will happen in such cases? In theory, the answer is clear: if the law of a member state does not apply, choosing CESL is not permissible. Thus, the law of the third state will govern. Quite clearly, this will come as a big surprise for the parties.
Is there a way out of this absurd outcome? One could argue that the choice of CESL is an implicit choice for the law of a EU state. But which one? And would it be satisfactory for the Regulation to be silent on the issue?
A more responsible answer to the problem would be to provide an express solution. It could be designed either as an objective subsidiary choice of law rule, or as a presumption of the will of the parties. If the European lawmaker wanted to remain consistent with its claim that the CESL Regulation leaves the Rome I Regulation untouched, I guess that the latter solution would appear as more appealing.
The problem that I have identified will occur when the seller will have its habitual residence outside of the EU. By definition, one of the parties must have its habitual residence in the EU for the CESL to be available. The Regulation could thus provide that parties providing for the application of CESL will be presumed to have implicitly chosen the law of the habitual residence of the buyer.
An additional paragraph could be added to Article 11 of the draft Regulation along the following lines:
(a) Where the parties have validly agreed to use the Common European Sales Law for a contract, but have not chosen the applicable law, they are presumed to have chosen the law of a Member state.
(b) This law shall be the law designated by Article 4 of the Rome I Regulation or any other applicable choice of law rule.
(c) If the law referred to in (b) is not the law of a Member state, this law shall be the law of the habitual residence of the buyer.
This proposal does not distinguish between B2B and B2C contracts, but I am not sure that’s necessary. I am limiting for the timebeing my analysis to B2B contracts and will discuss B2C contracts in a later post.
In any case, all comments welcome !
I quite agree with your analysis. In particular, I believe that things would be much easier if the CESL applied autonomously.
If the rule you propose is to cover also B2C contracts it may be wise to mention not just Article 4 Rome I, but also Article 6 (1) Rome I. Otherwise one might assume that the parties to a B2C contract are presumed to have chosen the law of the country where the seller has his habitual residence. This does not seem sound and would also give rise to difficult questions involving Article 6 (2) Rome I.
I wonder whether a special presumption rule is really necessary. In relation to the CISG, it seems to be the general view that the agreement to use the CESL implies an ‘opt-out’ from the Convention (see also recital 25 of the Proposal). Why don’t we adopt the same approach with regard to the third state cases at issue here and take the view that the choice of the CESL contains an implicit choice for the law of a Member State?
I think that you are right that Article 6 deserves independant analysis, and I am thus limiting my proposal to B2B contracts.
With respect to the implicit meaning of choosing CESL, I agree that it makes sense to consider that the parties implicitly chose the law of a Member state, but we have to find a way to determine which one. And I think that it is not responsible for the European lawmaker to merely remain silent on such an important issue. One of the arguments against CESL is already that its interpretation will remain uncertain as long as courts will not have ruled on it.