Reference : The Significance of the Place of Performance in Commercial Contracts under the Europe...
Dissertations and theses : Doctoral thesis
Law, criminology & political science : European & international law
Law / European Law
http://hdl.handle.net/10993/37186
The Significance of the Place of Performance in Commercial Contracts under the European Union Choice of Law Rules
English
Okoli, Chukwuma Samuel Adesina mailto [University of Luxembourg > Faculty of Law, Economics and Finance (FDEF) > Law Research Unit >]
3-Oct-2018
University of Luxembourg, ​Luxembourg, ​​Luxembourg
Docteur en Droit
388
Cuniberti, Gilles mailto
[en] place of performance, choice of law, private international law, ; conflict of laws, jurisdiction, mandatory rules ; Escape clause
[en] The central theme of this thesis is that the place of performance is of considerable significance as a connecting factor in international commercial contracts. This thesis challenges and questions the approach of the European legislator, which does not explicitly give the place of performance special significance in the determination of the applicable law in the absence of choice for commercial contracts.

This thesis proposes that the place of performance should be explicitly given special significance under a revised Article 4 of Rome I Regulation.

Second, it is argued that the absolute significance given to the place of performance in determining foreign country overriding mandatory rules is a good reason why the place of performance should be explicitly given special significance under a revised Article 4 of Rome I Regulation.

Third, inspired by the coherence between matters of European Union jurisdiction and choice of law in civil and commercial matters, it is argued that the place of performance which is given special significance under the European Union rules on the allocation of jurisdiction for commercial contracts is a good reason why the place of performance should be explicitly given special significance under a revised Article 4 of Rome I Regulation.

This thesis then concludes by proposing a model revised Article 4 of Rome I Regulation that could be used as an international solution by legislators, judges, arbitrators, and other decision makers who wish to reform their choice of law rules in determining the applicable law in the absence of choice for international commercial contracts.
University of Luxembourg
Luxembourg National Research Fund
http://hdl.handle.net/10993/37186
1
REPORT ON THE DEFENSE OF THE DOCTORATE
OF MR CHUKWUMA OKOLI
Mr Chukwuma Okoli wrote his doctoral thesis on “The Significance of the Place of Performance in Commercial Contracts under the European Union Choice of Law Rules” at the University of Luxembourg under the supervision of Professor Gilles Cuniberti.
Mr Okoli defended his doctoral thesis on October 3rd, 2018, in Luxembourg before a jury composed of Professor Adrian Briggs (University of Oxford, United Kingdom), Professor Olivera Boskovic (Université Paris Descartes, France), Professor Stephanie Francq (Université Catholique de Louvain, Belgium), Professor Gilles Cuniberti (Supervisor, University of Luxembourg) and presided by Professor Matthew Happold (University of Luxembourg).
I
The President of the jury first gave the floor to the supervisor of the candidate, Professor Gilles Cuniberti. In a brief statement, Professor Cuniberti congratulated Mr Okoli for completing his thesis and defending it. He underscored that, during his time at the University of Luxembourg, Mr Okoli had not only conducted his doctoral research, but also taught several classes and assisted him on various research projects. His work in each of these capacities was very much appreciated.
Mr Okoli was then offered the possibility to briefly present his work. The central claim of his thesis is that the current choice of law rule applicable in contractual matters in the absence of choice (Art 4 of EC Regulation no 593/2008, also known as the Rome I Regulation) should be reformed. In the majority of cases, the rule currently provides for the application of the law of the habitual residence of the party required to effect the characteristic performance of the contract. The thesis of Mr Okoli is that it should be instead the law of the place where the characteristic obligation of the contract is performed.
II
The President then gave the floor to the first external examiner, Professor Adrian Briggs. Professor Briggs started by saying that he had enjoyed reading the doctorate of the candidate.
He then moved to a first issue that the proposal of the candidate to rely on the place of the performance of the contract might raise. Prof. Briggs wondered how such place of performance would be determined. Should it not be for the applicable law to answer, but under the candidate’s proposal, the purpose of the exercise would precisely be to designate the applicable law. The candidate answered that, in accordance with the case law of the Court of Justice of the European Union, it could be determined from a factual standpoint. Prof. Briggs asked Mr Okoli to consider more specifically a case where no performance would have occurred. The candidate
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replied that, should it be impossible to determine the place of performance, he has proposed a residual rule that could be used.
Prof. Briggs then challenged the candidate on the usefulness of the concept of true professional. Prof. Briggs wondered why, in a contract of sale, a professional buyer would be any les professional than a professional seller. Mr Okoli agreed, but answered that the true professional, for choice of law purposes, was the professional giving his name to the contract. Prof. Briggs wondered then about different linguistic names for contracts, and the impact this may have. Ultimately, Prof. Briggs wondered whether the concept was of any use, and whether it was not enough to refer to the concept of characteristic performer. Mr Okoli replied that he had not invented the concept of true professional, and that it had been put forward by a number of scholars to justify the use of the habitual residence of the characteristic performer as a connecting factor for choice of law purposes.
Prof Briggs then asked the candidate to defend his argument on the coherence of jurisdictional and choice of law rules. Prof. Briggs underscored that, while Art 7(1) of the Brussels Ibis Regulation certainly referred to the place of performance, it was unclear whether it was often used by commercial parties, who might prefer to sue in the domicile of the defendant’s court, or in the court agreed upon by the parties. Does the coherence argument really work, then? Mr Okoli replied that there were certainly many cases of the European Court of Justice on Art 7(1) of the Brussels Ibis Regulation, which might reveal that this head of jurisdiction was very often used.
Finally, Prof. Briggs wondered why nobody had made a similar proposal in the past? The candidate answered that he was not the first to make this proposal, and that his work built on the work of others, in particular the Scottish law commission.
III
The President then gave the floor to the second external examiner, Professor Olivera Boskovic. Professor Boskovic congratulated the candidate for his work. She underscored that the thesis reads well, and that she liked the style of writing. Most importantly, she insisted that the doctorate of Mr Okoli was a ‘real thesis’, a work advancing a very clear claim, and that he was to be lauded for this. Yet, while Prof. Boskovic did appreciate the focus of the work on its thesis, she thought that the candidate could have developed certain points more. For example, the concepts of neutrality and state interests as well as the necessity for coherence between jurisdiction and choice of law could have been more developed.
Also, Prof. Boskovic points out that some of Mr Okoli’s arguments in favour of the suggested rule or against the current one are debatable. For example she would have welcomed more explanations on the concept of neutrality used by the candidate. Is it really true, as he claims, that the current choice of law rule in Art 4 of the Rome I Regulation betrays neutrality and the aim of protecting weaker parties? Yet, resorting to the habitual residence as a connecting factor does not mean to resolve the choice of law problem by looking at the substance of the law. Hence, is Mr Okoli really talking about neutrality or is it rather foreseeability? In addition, when the Rome I Regulation insists it protects weaker parties, the reference is clearly to certain identified situations: consumers, employees, insured. The candidate answers that he used the term in a commercial sense, and argues that the current choice of law rule gives an advantage
3
to one of the parties by designating his home law. With respect to weaker parties, Mr Okoli recognizes that the Rome I Regulation protects certain defined ones, but he points out to scholars who have underscored that the professional is generally a stronger party in a relationship. Prof. Boskovic then wonders whether the claim of the candidate is that the concept of habitual residence raises more problems than the concept of place of performance would. Mr Okoli replies that his claim is more limited, and that he only argues that the concept of habitual residence is not straightforward, and that the argument that it is necessary clearer than the concept of place of performance is unconvincing.
Prof. Boskovic then discusses shortly with the candidate the concept of state interests in the context of Art 9 of the Rome I Regulation.
Finally, Prof. Boskovic challenges the candidate on his argument based on the coherence between jurisdiction and choice of law. She is not convinced by several examples that Mr Okoli takes and which could be explained by specific rationales. Mr Okoli explains that his position is pragmatic and justified by the costs that the parties would save when the law of the forum would apply. In Prof. Boskovic’s opinion, however, it is hard to identify specific reasons to pursue this goal in general contractual matters, and she wonders in which circumstances it would be appropriate to rely on coherence to determine choice of law rules.
IV
Finally, the President gave the floor to the last external examiner, Professor Stephanie Francq. Professor Francq starts by saying that she appreciated many aspects of the work of Mr Okoli. In particular, she likes his pragmatism and his intellectual honesty when he discusses problems.
With respect to the methodology adopted by the candidate, Prof. Francq notes that he excluded from the scope of his inquiry scholarship written in languages other than English. This is understandable, but the candidate might have tried too much to justify himself and some of his statements in this respect could be interpreted as dismissive. She urges the candidate to avoid such misleading statements. She also notes that Mr Okoli does refer to a few decisions of civil law courts, in particular French, and then draws general conclusions from them. Again, she believes that such conclusions cannot be drawn from a limited number of cases from a given jurisdiction available in English, and she urges the candidate to be careful and make the necessary corrections.
Prof. Francq then moves to the substance of the thesis of Mr Okoli. She first focuses on the idea that the state would have an interest to apply their law to contracts performed on their territory, and that a choice of law rule relying on the place of performance of contracts would perform a regulatory function. She engages the candidate on the concept of regulatory function. She asks him to distinguish between various concepts to which he refers: proximity, seat of the relationship in the thought of Savigny, governmental interest analysis.
Prof. Francq moves to the legislative proposal of the candidate. She wonders whether it would work for easy cases, but might not for more complex cases. In particular, she wonders whether it will create more problem than it will solve for cases where identifying the characteristic performance of the contract will be difficult, and where it will be difficult to identify its location. What about blockchain, for instance? The candidate answers that he believes that the vast
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majority of contracts are simple and will not raise any of these issues. For other contracts, for instance, the CJEU has already started to offer guidance in its interpretation of Art 7 of the Brussels Ibis Regulation, and it will be possible to rely on its case law in the context of a new Art 4 of the Rome I Regulation amended along the lines of Art 7 of the Brussels Ibis Regulation. Prof. Francq stresses that the legislative proposal is entirely dependent on the existence of a jurisdiction apt to provide uniform interpretation and can thus not be generalized outside the EU.
V
After deliberating, the jury unanimously decided to award Mr Okoli the degree of Doctorate in Law of the University of Luxembourg with the grade “Very Good”.
FnR ; FNR6843123 > Chukwuma Samuel Adesina Okoli > ECACF > The Significance of Escape Clauses and their associated Connecting Factors in European Union Applicable Law Rules in the Law of Obligations > 01/07/2014 > 30/06/2018 > 2013

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