 Well, thank you very much, Louise, and I did want to start by just, you know, mentioning my gratitude very much to the organisers of the conference for all their hard work and their efforts in arranging such a lovely meeting. I think it's not only so important for the vitality of our field and the development of it, but also actually for our wellbeing to have the opportunity to get together in person and meet up with friends of old, but also to get to know new people. So it's really such an important service and we're all terribly grateful to you. And I also wanted to just thank the Faculty of Law for its always warm welcome and gracious hospitality. And today I'm going to talk about the idea or the device of implied intention as it applies in the context of choice of law and also in the related context of jurisdiction. But as we'll see, that's actually quite a different application. So I'm going to start with the conventional, and I guess what is most familiar to people is the idea of the unexpressed choice of law in the context of choice of, sorry, the idea of the unexpressed choice of the parties in the context of choice of law. Now, of course, students of the history of our field will know that originally as the idea of party autonomy was articulated in private international law, it never referred to the party's expressed choices because as it has been noted, that was unheard of for the parties expressly to choose a governing law. So references to party autonomy initially were to the party's implied intentions rather than to their actual intentions. And that's really a very radical difference to the way that we use party autonomy today. So what's also interesting about the historical use of the unexpressed intention of the parties is that many of the writers were referring to the idea of unexpressed choice in the context of family law, in the context of the identification of the regime to regulate the party's marital property entitlements, and also the idea of marriage validity. And I'm going to come back in and mention that briefly a bit later in my presentation. Now, the idea of the party's unexpressed choices in that particular context were not derived by reference to any data about the actual party's preferences, either really or implicitly, but rather the party's preferences were derived by reference to presumptions, and I'm sure that's actually very well known. And these presumptions, as is well known, focused in particular on the law of the place of contracting. But what's really interesting in some of the earlier cases is that those references to the place of contracting were justified in a particular way, which will be familiar to students of political philosophy. And it wasn't about the party's mutual intentions that the law of the place of contracting should govern, but rather by reference to the idea of tacit consent in the style of Locke, that each of the parties to the contract individually and separately had tacitly consented to the application of the law enforced at the place of contracting. Yes, so the mutuality was incidental. The fact is that their consent was derived by their individual, although presumed, consent to the operation of the law enforced at the place of contracting. In some legal systems, that presumption was replaced by another presumption in favor of the law of the place of performance. And that's well known as well, of course. Now there was a lot of consternation about this idea of the reference to the party's presumptions and to the idea of the party's implicit choices. And essentially, those those objections to this device are almost as old as the device itself. It's been pointed out cogently and persuasive by many, many commentators that this is artificial and fictional. It produces a very uncertain result, which makes it unpredictable and often requires litigation. Of course, it's also been pointed out many times that the presumptions often do lead to the application of the law of the forum. And that can be understood, I suppose, because if you're asking the judge to determine the applicable law, this is rarely a question that occurs in the abstract. And in many cases, the question that the court is actually answering is, is the law of the forum the governing law? And when the question is framed in that particular way, you can see the inclination of the court to justify the application of the law of the forum. Because these days, we do actually have information about the factors that influence party choices, leaving aside the question of familiarity, which can only be relevant if one party is able to prevail on the other. But in the event that the parties actually do reach a mutual decision as to the choice of law, the factors which have been shown to influence those choices are the neutrality of the law, the sophistication of the law, and the balance that the law strikes between the parties. And of course, any sensible judge is going to think that the law of their own system has those virtues. So it's understandable in a way that a judge might be inclined to conclude that the law of the forum is the law that should be applied by one means or another. Anyway, notwithstanding those very strident objections, there have been, as we all know, very significant changes to contract choice of law in fact. And that's because of the increasing dominance of that express choice of law clause. So it's gone from being something that was unheard of, to something that is not quite ubiquitous, but extremely common in cross-border contracting to find an express choice of law clause. So that has rendered the need to refer to other choice of law rules, much more marginal. Not only is there a greater focus in practice on express choice of law agreements, but in addition to that, there's this increasing concern that the judges should not be given too much discretion otherwise to apply another law that they might choose by various means. And we can see that in a range of multilateral and regional instruments, for example, in the Hague principles that were referred to earlier, and also in the Rome 1 regulation, this increased constraint on the operation of the unexpressed choice. So now what we're looking for is not a choice that can be imputed from the facts, but one which is demonstrated with a reasonable degree of certainty or however you like to express those particular terms. Notwithstanding that refinement to the rules, many concerns persist about the use of the unexpressed intention in practice. And very similar concerns are consistently and persistently raised by commentators, particularly about the uncertainty of the product, the unpredictability, the fictionality of the exercise that's been engaged in. And sometimes more colourfully, this has been described by one writer in particular as a useless and dangerous method, which probably slightly overstates the case. But that's typical of the writing of this terrific fellow. I'm sure you're all more or less familiar with Thomas Batty. Is that how you pronounce it, Richard? Great. We're going with Batty. I commend him to you highly. I'm sure you've heard of his very famous sort of throwaway line that private international law is the fugal music of law. Yes. And other terrific little characterizations. This is taken from his little book called Polarized Law, which was published in 1914. I commend it to you very highly. It's an absolute page turner. And it's marked seriously. It's marked by his great enthusiasm for the subject. He's much claimed by public international lawyers, and indeed most of his work is in that area. But there's too many interesting things to say about Thomas Batty. I will just, by way of example, mention to you that he used to write under the pseudonym of Irene Clyde in the 1920s and 30s. And what he was writing about under the pseudonym of Irene Clyde was utopian feminism. That is absolutely not to the point of this paper. That is terrific. And I love this paper as well. He was also an early proponent of vegetarianism, which is also not relevant. But I love this because he loves, you know, whenever I'm teaching the topic of jurisdiction, I always get caught up on the idea of the natural forum, which to me doesn't look like the roles building. To me, it looks more like this sort of setting. The idea of the parties really slamming it out in the context of some sort of bushwalk in the forest. Anyway, that's good. It's not on the exam. The idea of unexpressed choice can be found in many, many other areas of private international law. And just to toss out a couple of examples is the idea of the reasonable or the legitimate expectations of the parties. And that was much referred to in the previous session. And this is a terribly interesting idea of the parties reasonable or legitimate expectations as to choice of law. Indeed, it's often used in order to justify the choice of law, law and contract. But it's used as well sometimes to justify at an abstract level the taught choice of law rule. And the High Court of Australia in 2000 said that the reasonable expectations of the parties was the chief theoretical justification in favor of the application of the law of the place of the delete. Now that becomes curious, if not bizarre, when you bear in mind that five years later the High Court said that when we in Australia, if the talk occurred abroad, the Australian Court must also consult the choice of rules of the forum legal system. And whether that comports to the reasonable expectations of the parties is an open question. And the empirical research has yet to be done. But I feel fairly certain that outside of this room, there aren't too many mums and dads who worry about the question of world war. So it's used in this context. And it has been once again, persuasively and cogently attacked in the commentary, particularly as being entirely circular, that the parties reasonable expectations must be based on what the law is, at least in part. So to, you know, attempt to justify the law by reference to what the law itself is, is obviously unhelpful. In addition, quite interestingly, of course, implied choice plays a prominent role in determining the governing law for matrimonial property. And the common law way is to use the contract choice of law rules to determine the applicable law for matrimonial property regimes. Indeed, it was used in this context by the so-called father of party autonomy. Does anyone know who that is? French? Anyone? Hooray! Yes, this is one of the contexts in which he developed the idea of party autonomy in particular in fact, he used the idea of expressed and implied agreement interchangeably. But really what he was referring to was the parties implied choices of law to govern their matrimonial property regime. And of course, it's been used many times since by courts, including by the New South Wales Court of Appeal in this interesting 2010 case of Murakami Uriati. In which case, Chief Justice Spiegelman, who was a hero of private international law in Australia, said that the parties to an Indonesian marriage had a reasonable expectation that their entitlement to property brackets, including real estate in New South Wales, was to be determined according to Indonesian law. And the way of giving effect to this reasonable expectation was to refer to an implied agreement. And there was absolutely no doubt of what's the will of to support that expectation or the agreement in that case. In addition, and probably most importantly these days, the idea of the parties presumed or reasonable expectations as reasonable business people is very frequently employed in the context of interpreting pathological and incomplete jurisdiction agreements. And I'm sure you're familiar with it in that context. That brings me on to the second part. Oh, my God. Six minutes, six. All right, that's lucky. This is exactly how long this takes. So in the context of jurisdiction, the idea of implied choices are rather different. Of course, we don't try to resolve the question of jurisdiction in the same way that we resolve the question of choice of law. Although we in both contexts start off with the express choices of the parties, we don't then say any absence of an effective express choice of court. What is the parties implied choice of court? Of course, law and economics would have a crack at justifying the rules in those terms. But it's very rarely asserted that the parties implicitly agreed to an unwritten choice of court agreement. But instead, most of the actual applications of implied choice in the context of jurisdiction concern unilateral choices of the parties. And one of the most well known, of course, is the idea that the subjection of the defendant to the common law courts jurisdiction based on presence can be justified by reference to their tacit consent, reflecting what I was saying earlier. So that's very well known. And again, it's been much discussed and criticized by many learned authors. And I'm just going to leave it there as a very prominent example of the application of implied choice in this context. But otherwise, the kinds of unexpressed choices that come up regularly, again, one of the most famous is again, a basic common law rule of jurisdiction relating to the implied submission of the defendant. And this occurs when the defendant has grounds on which to contest the jurisdiction of the court and fails in a timely way to raise those concerns, they will be taken to have waived their rights to contest jurisdiction. It's a bit unfortunate that the doctrine of waiver is commonly used in this context because it's awfully confused. And indeed, you can tell the level of confusion that occurs in this context because the courts will commonly mix up the ideas of waiver and election in a way that we can understand, but it hardly assists in the clarity of the law. Secondly, and actually quite commonly these days is a circumstance in which it's alleged that one of the parties has lost the right to apply for a stay of proceedings on the basis of their being an international arbitration agreement or an exclusive foreign jurisdiction agreement by reference to the way that they've conducted themselves in proceedings. And again, this is generally determined on the basis of waiver. There are some very nice and very interesting points that I could go on to make in this context. The one that I find the most beguiling is the question of choice of law to determine these waivers, almost without exception, courts apply the law of the foreign to that particular point. And that can be justified sometimes on the basis that what's been waived is a procedural question, which ought to be determined by the law of the foreign. It has also been suggested that it could be governed by the law of the foreign, at least in crazy legal systems like Australia, where we insist that on equitable points, the law of the foreign must be applied if you treat questions of waiver and election as equitable principles. In the context of loss of rights to insist on a jurisdiction or an arbitration agreement, it's a different matter altogether, though. It seems fairly clear as a matter of principle that loss of those rights ought to be governed by the proper law of the jurisdiction or the arbitration agreement. But in practice, in the English and Australian courts, any way the courts typically refer only to the law of the foreign without any choice of law analysis. So where does this leave us altogether? It's a difficult concept, the implicit choice of the parties. It certainly does leave a wide margin of discretion to whoever's enforcing the law. Certainly it's very difficult to rely on the same justifications for upholding implicit choices, as is used for explicit choices. So the ideas of efficiency and relative simplicity in judicial decision making, the idea of certainty and predictability do not conform with this particular technique. However, it is a very interesting concept. It's proved to be incredibly durable, notwithstanding consistent criticism, pretty much starting with Westlake and continuing to date. Indeed, it's fairly commonly suggested that because the idea of implied choice of law overlaps to some extent with the idea of the objective proper law of the contract, we should shoot the whole concept in the head and push it into the river. I think that goes much too far. I think it's an interesting concept. I've only described some of the potential applications of it here. I'm not sure if it's ubiquitous. I think it might come fairly close to it. And I think in addition, it might be one of the golden threads of private international law. Thank you. Okay. Ladies and gentlemen, of course I have first to express my sincere thanks to the organisers for all the wonderful work they have done on for offering the opportunity to this most distinguished audience. So just how free is the free choice of law? At first glimpse, this appears to be a non-topic. Don't we all know Article 3 Paragraph 1 clause, one of the Rome 1 regulation expressing the choice of law is free? Yes, of course we do. But this is only the better of international commercial contracts. It appears to be pretty clear and, in particular, it appears to be conclusive. But all those aficionados of European conflicts know very well that there is a plethora of inter-systematic challenges already. I have only to name articles 3 paragraphs 3 and 4 and articles 5, 6, 7, 8 and 9 of the Rome 1 regulation. So this already this might be an indication that the adults are not what they seem to be and that article 3, Paragraph 1 of the Rome 1 regulation is not as conclusive as it should be. But the challenges don't stop here. Recently, at least in some countries or states on the continent, we've experienced challenges from quarters outside the Rome 1 regulation which could possibly and deeply affect the validity choice of law clauses. These challenges have been raised from the quarters of the unfair contract terms directive, okay, consumer contracts once again, or beloved favorites. They have been raised from the quarters of the law against unfair commercial practices and they have raised under the means of the injunctions directive which is now directive 2009-22 EU. Those challenges have occurred, of course in my home country, Germany, they have occurred at least at the first instance level in Spain and third late, they have occurred in Austria where they have reached the level of the Supreme Court and amongst other questions, the Austrian Oberste Gerichtshoff held newly applied to make a reference to the European Court of Justice in the penning case of the Einverkonsumenteninformation versus Amazon. And I cannot do better than to borrow the words from the commentator on their reference in Euro law rather, who wrote. In the tiny grand duchy of Luxembourg is a tiny branch of the corporate Amazon. It subjects its customers to buying their goods under Luxembourg law. Is that fair? And what happens to Amazon's choice of law after it has been forced through the latest measures of six pieces of EU legislation which determine the applicable national law? So it might at first glimpse appear as a non-topic but in fact it is a topic. Let me first address the challenge arising from the possible challenge, arising from the quarters of the unfair contract terms directive which of course is limited to consumer contracts. In the annex number one literary queue of that very directive we find some kind of ban on jurisdiction arbitration clauses. They are expressly listed and some of you might know that the Court of Justice has taken a rather firm stance against chart clauses. But coming back to our topic, choice of law clauses are not mentioned expressly in that very list. Can we just draw from jurisdiction arbitration clauses being expressly listed and choice of law clauses being not listed and argumentum incontrario in favor of choice of law clauses? Well another time the case is not that clear since the annex is not exhaustive. It only lists certain clauses but in an exemplary manner. So well and of course we know that jurisdiction clauses are subject to a review under the Brussels 1, Brussels 1 B's regime 2 so that the Rome Convention might not be the utmost defense against the challenge from this quarter. Next challenge from arising under the unfair contract terms directed on consumer contracts is there a transparency review to be constituted under article 5 clause 1 of that very directive. It appears rather surprising to disregard the clause reading something like this contract was subject to English law as not being not transparent but something like this has been argued in lower German courts and for instance the choice of law clauses inserted in the standard terms and conditions of Orion Air of course referring to English law have been made subject to close scrutiny. Okay and for which reason yes this appears to be an unconditional choice of law but remember article 6 paragraph 2 clause 2 of the Rome 1 regulation establishing the more favorable law principle which is not expressly mentioned and reiterated in this kind of choice of law clauses and it might inspire a wrong impression on the consumer that only chosen law will govern the contract so the seemingly unconditional choice of law clause might collide at first glance with the more favorable law principle well shall we urge upon businesses to repeat to reiterate article 6 paragraph 2 well imagine a clause mirroring this very article and being presented to consumers is proposed a severe challenge of being intransparent non-transparent in itself for the very wording of the rule isn't that clear most of us have taken weeks to study it and to come to grips with it so some kind of confusion has to vanish from the minds of the judges anyway a distinction has to be made between the choice as such and the content of the chosen law the content of the chosen law must not be subject to a transparency review nor this is another challenge which has been posed at the level of lower courts in Germany most the allegation that the chosen law lacks objective connections with the contract the circumstances under which the contract operates well this clearly collides and is in a strong contrast with article 3 paragraph 1 of the convention which that would should do the trick let me step forward to the next topic namely the possible relation between parties choice of law the law against unfair commercial practices the letter the law against unfair commercial practices takes an abstract approach looking on the effect on the market and of course this has to be reconciled with the relevance of the concrete contract how shall we do it and the experts of European conflicts law and amidst as of course well sorry law against unfair commercial practices and conflict of laws that's article 6 Rome 2 not Rome 1 anyway so how to reconcile this in fact a two-tire approach in conflicts law has to be adopted and is adopted in court practice the first tire relates to determining a law applicable to unfair commercial practices and that's where article 6 Rome 2 is about together if you refrain from characterizing the matter as one coming against coming under article 6 you have to stick with article 4 as some authors suggest so this the law applicable determined under article 6 Rome 2 might raise an incidental question namely ask which law is applicable to the contract and of course this is where Rome 1 and article 3 Rome 1 step in but under the auspices of a challenge based on the law against unfair commercial practices one piece of Tijiczo cannot be applicable namely article 3 paragraph 5 in conjunction with article 10 paragraph 1 the so-called bootstrap principle because this relates to the level of the concrete contract and not to the abstract level and the effect on the markets well another thought is worth to be considered namely whether they could not whether there is a protection paradox ensuing if the challenge under the law against unfair commercial practices exerts a negative result in validating the choice of law clause particularly in consumer contracts striking out the choice of law clause would deprive the concrete consumer of any benefits he might gather from the chosen law might reduce him to his position under the law applicable to contract absent the choice of law one of the two limbs necessary for the more favorable law principle coming into operation appears to vanish well is this the price one the concrete consumer has at a concrete a consume concrete consumer and a concrete contract has to pay for the abstract review and for keeping the market claim one might doubt that if one has a closer look at the holding which might ensue from a claim based on the law against unfair commercial practices namely that this has only affects pro fituri and might not affect contracts already concluded so the assumption that a choice of law clause which is found in contracts already concluded might be subject to be to striking out is guilty fund this might protect against the protection paradox which is not ensuing at all so the third challenge I mentioned at the very beginning appears to arise under the injunctions directive but well some scrutiny should be invested in the question whether this is an additional challenge at all and whether the injunctions directive adds anything to do over picture which has not to be related to the unfair contract terms directive on one hand or the unfair commercial practices directive on the other hand and so it is the injunctions directive has an accessory nature it only offers the procedural means to the enforcement of the directives listed in the annex to the injunctions directive and the injunctions directive does not implement own substantive standards yet again as they are protection paradox ensued and the answer is no not as tweaks not further than it would extend appear under the unfair commercial practices directive my last point as some kind of a classic and already some 15 years old at least this is whether we have a review of content of the terms of law clause as to substance there have been two different strands of such review as to substance the first applying the standards taken from the Lex Fori from the law of the forum and the second one operating under the old species of the law which would be applicable absent the choice of the argument against allowing permitting such a review of content as to substance should be clear it's an argumentary contrary of ensuing consequentially from the articles articles of the Rome 1 regulation expressly addressing situations where the european legislator founded worth to implement particular mechanisms protecting against possible effects of choice of law clauses only have to name the more favorable law principle as enshrined in article six paragraph two and article eight paragraph two of the Rome 1 regulation the european legislator was aware of the necessity to protect weaker parties and it did so by implementing true conflicts mechanisms skating and skipping any review of content as to substance another time i beg your pardon if i remind you to recall that the more favorable law principle presupposes that there is a valid choice of law else there wouldn't nothing to be compared to the law absent the choice of law so it has to be put forward in favour of a review of content as to substance that article three paragraph five refers to the law designated in the choice of law clause right but this paragraph comes only into operation where the trick is not already done by the previous paragraphs this time article three paragraph one does not allow to open an internet system open up an inter-systematic challenge furthermore a review based on the change chosen law would have a polite with the exclusion of a gridded friend of a long while as enshrined in article 20 of the wrong wrong one regulation but one regulation for reviewing the choice of law clause necessarily implies some conflictual content of the review standards which to apply which is not permitted by the exclusion of wrong one so i'm gonna not even eat up those five minutes i come to my concluding remarks and ask your forgiveness if i take a fairly firm stance interesting challenges to party autonomy are not only ahead but they are already present remember the pending reference with the Lixin Public Court and we have to learn that article three paragraph one wrong one regulation is not a solitaire a standalone that has to be seen in wider context yet most challenges i've outlined are arguable at best so the principle of party autonomy cherished and heralded as it is might survive those challenges thank you very much dear colleagues and friends i am really very glad to be here and i am honored to present my paper within the plenary session choice of law i have to thank two organizers of this conference my issue is escape clauses and legal certainty in private international law and the paper is divided into four parts first the role of escape clauses then i will concentrate to national private international law codification third european private international law and for some final remarks introductory remarks concern the role of escape clauses escape clauses are important instrument of private international law that allows for derogation from a general conflict rule they are used in special cases when a particular situation shows closer relation to a law other than that determined as applicable by the conflict rule the typical criteria are manifestly closer relation strongest relation but even reasonable arrangement it is also rather important criterion example is article four paragraph three of the rule one regulation on the law applicable to contractual obligations where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with the country other than that indicated in paragraphs one or two the law of that other country shall apply i have to say that the problem is what approach should be taken to escape clauses how could we establish the balance between flexibility and legal certainty so flexibility and legal certainty it is one of crucial point regarding escape clauses escape clauses allow for certain flexibility they give certain space to judges and they are really demanding on judges in particular in the Czech Republic but i think also in common law countries on the other hand escape clauses may represent some danger if legal certainty and predictability is concerned there is a famous latin saying that claims exceptional firmat regulam and the practice shows that exceptions to rules may be generally permitted and the rule itself should not be threatened thereby however there are some serious objections regarding escape clauses and one of the crucial question is whether it is practically practicable to set some exact conditions into the escape clause if you look in the past probably the first escape clause was included in the so-called Vienna draft of private international law act of 1913 1914 which was the basis for private your private international law legislation in central europe section 16 reads if the circumstances of a particular case make it obvious that not these laws but different laws correspond to the reasonable arrangement of legal relations the different laws should be applied and of course i have to point out the the most obvious most important escape clause general escape clause included in swiss private international law act of 1987 which was inspiration for private international law codifications word-wide escape clauses are included not only in national codifications but also in international conventions several international conventions and of course also in european private international law typical problem is this interpretation of escape clauses as escape clauses are not defined in general somewhere so the formulations that are included are not identical in general delegation from applicable law is permitted if the case has much closer connections with another law considering all circumstances so that is the general concept but sometimes as you probably know the escape clauses include some additional conditions to be applied objections relevant objections are connected with the danger of excessive flexibility we speak about the purposive decisions to which may lead escape clauses sometimes it is said that escape clauses undermine conflict rules and may lead to abuse of the likes for you my last general remark concerns overlapping issues because there are also other instruments of private international law that are used to assure flexibility and use sometimes the same criteria that is either closest connection or reasonable arrangement among others flexible connecting factors or means for solving gaps but sometimes they can be also overlapped with auto public or even overriding mandatory rules let's turn to national codifications there are national in national codifications we find general and specific escape clauses and regarding general escape clauses the most famous example probably is article 15 paragraph one of the Swiss private international law act which reads as an exception any law referred to in this act is not applicable if considering all the circumstances it is apparent that the case has only very loose connections with this law and that the case has much closer connections with another law I take the liberty to be here and to introduce the check act on private international law which is very recent which entered into force on 1st of January 2014 and section 24 also includes a general escape clause it shall be possible in completely exceptional cases to decline from the application of the law which should be applied under the provisions of this act provided it seems inappropriate and contrary to a reasonable and fair arrangement of the participants relation following a due and recent assessment of a set of all the circumstances of the case in particular the reasonable expectations of the participants regarding the application of another legal order under these conditions and provided the rights of third persons are not prejudiced the law the application of which corresponds to such an arrangement shall be applied I would like just to mention that this clause if we compare it with the Swiss private international act with which identically was inspiration for this clause is brought it includes a lot of conditions which are perhaps important guideline for the judges these general escape clauses will be used only exceptionally and the cases really are rare I have one example in recent practice of Czech courts it was a case of a Czech German marriage a judicial action to determine that immovable property located in the territory of the Czech Republic is part of the community property of spouses so it was a declaratory action and it was a particular situation as the claimant was the wife she was German nationality the defendant the husband had both Czech and German citizenship so that under the Czech law he was considered to be Czech citizen under the German law there is a specific institution community of accrued gains and under the conditions of the particular case this property would not become part of community property during the marriage while under the Czech law and thus otherwise agreed which was not not the case such a property there were immovables the and the husband asserted that he gained the immovables only with his own separate money and he was a sole owner recorded in the Czech register of immovables so under the Czech law unless otherwise agreed this property was part of community property the former private international law act had only one simple provision property relations between spouses shall be governed by the common nationality if the nationality is different Czech law will be applied so there was no escape no possibility and the judges expressed both in the first instance and in the second instance expressed their doubts the spouses were habitual resident in Germany they married in Germany they were at the stage they both just started in Germany and this case was decided in the Czech court so the argument would be inconsistency in decision-making no external harmony and i think that would right be a case where a general escape clause might be applied but i have to say that under the new Czech private international law act this criterion of nationality has been replaced by the habitual residence so that under the new codification this case would be clearly governed by the German law as regards a specific escape clauses unfortunately within the time and is which i am supposed to observe i only have to say that while general escape clauses may be applied against any rule within the codification specific escape clauses are always formed as an exception to a particular rule let's start with european private international law there are some examples in both Rome regulations and even in Rome zero there is included a general escape clause so i will start with article four of the Rome Convention on applicable law in the absence of choice the principle is the closest connection this principle is as you all well know followed by presumptions the first presumption being characteristic performance principle in paragraph four is included escape clause these presumptions shall be disregarded if it appears from the circumstances as a whole that the contract is more closely connected with another country and this paragraph five was already subject matter of important case law of the european court of justice article four met with a lot of criticism and as you know you know within the Rome one regulation it was completely restructured with similar tools but it's another question and an escape clause is now included in paragraph three the contract should be manifestly more closely connected with another country that means that the importance of escape clause in my opinion has weakened it there is however important provision in recital 20 in the preamble which reads where the contract is manifestly more closely connected with the country other than that indicated in article four one or two an escape clause should provide that the law of that other country is to apply in order to determine that country account should be taken into alia of whether the contract in question has a very close relationship with another contract or contracts famous case law there are two cases the first being intercontainer and second being hager schmitt with respect to my time limit i will just introduce the closing remark or the legal sentence of the european court of justice in intercontainer because this case was also referred to in very interesting article which is in journal of private international law so where is it clear from the circumstances as a whole that the contract is more closely connected with the country other than that determined on the basis of article four two to four of their own 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 so the criterion of the court was that the circumstances should clearly suggest that the law that should be applied may be derogated from the rule that should be applied that is from the general presumption based on the principle of characteristic performer and his establishment or his seat hager schmitt a relatively new case which is i think still more interesting because there are two commission contracts for the contracts for the arrangement of courage the verse first was concluded between french contractor and french agent while the second commission contract was concluded between the french contractor that was the french agent of the first contract and the german agent so i simplified the agent whose place of business is germany it's a company hager schmitt there was a raised compensation for loss it was sought from both forewarning agents in the french court and the question was which law should be applied there is the general resumption in article four paragraph two of the wrong convention that clearly leads to the german law that was the law of establishment of the german agent whose performance is characteristic i think that can be clear on the other hand there was a french law and french law metatrily because the first contract was concluded between two french companies and also it france was the place of delivery the questions for preliminary ruling were connected with the characteristic of the commission contract i am afraid i have to leave aside this interesting question and just concentrate on the escape clause so the question that was referred to by the court de cassation was the use of the escape clause if the set contract would not be considered a courage contract and as such would be subject to the general presumption in article four paragraph two is it possible to allow the law applicable to the relationship between the contractor first agent and the second agent to be determined on the basis of the place of establishment of the first agent the court decided regarding just the interpretation of the escape clause so first the question whether the applicable law can be determined solely according to the location of the principal first forwarding agent who was french and the second forwarding agent was german the court arrived to conclusion that the court that means referring court must compare the connections between that contract and on the one hand the country whose law is designated by the presumption and on the other the other country concerned in so doing the court must take account of the circumstances as a whole including the existence of other contracts connected with the contract in question I think this decision may raise some question so first in my opinion this contract between the german agent and the french contractor was clearly commission contract the characteristic performance was the agent the agent concluded the contract in his name having responsibility and I think it would expect that the contract be governed by the german law so the presumption in article four paragraph two of the wrong convention in my opinion is fully applicable here the argument of the court that there is change chain of contracts so it refers clearly at least in my opinion to that recital 22 preamble of the wrong one regulation this argument cannot be accepted because the contract were not concluded between the same contracting parties there were different subjects of these contracts I know that my opinion is perhaps considered to be conservative in particular English jurisprudence would characterize it as a strong model and English jurisprudence would be perhaps somewhere in the on the halfway between the strong and the weak model but I think that what really matters is legal certainty in this case if I am conservative I apologize perhaps that can be subject matter of further discussion final remarks I know that my time is up so just a note at the very end discretion of a decision-making authority plays a significant role in the whole process it would depend on a judge whether he or she would be brave enough to break through the rule in favor of an exception on the one hand and on the other to point out at limits to be respected in the interests of legal certainty thank you for your attention