Mandatory norms in the context of Estonian and European international contract law: the examples of consumers and posted workers

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Series Details Number 74
Publication Date 08/10/2019
ISBN 978-9949-03-190-0
ISSN 1406-6394
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International contract law is known to widely adhere to the principle of freedom of choice of law. Therefore, the parties to the contract are generally free to choose the law to govern their contract. Nevertheless, the Rome I Regulation, which regulates the law applicable to contractual obligations, also sets forth certain important limits to party autonomy. These serve mainly to safeguard the fundamental principles of the forum country (e.g overall mandatory provisions and public policy clause) as well as to protect the typically weaker parties to international contracts (these include, for example, contracts with consumers and employees). However, the interface of these general and specific limitations to party autonomy is unsettled. What is more, the criteria to designate the law applicable to such contracts involving a weaker party is, in domains such as various consumer contracts and individual employment contracts involving the posting of workers, further supplemented by specific conflict-of-law provisions deriving from different EU directives that require transposition into national laws.

It is therefore worth asking which role do these directives and their national implementing measures play in relation to the protective rules already established in the Rome I Regulation. In addition, the conformity of the Estonian transposing provisions as well as of the Estonian jurisprudence to the directives need further analysis. These are the matters this research aims to tackle. The dissertation concludes that the questions of determining whether the consumer retains the protection granted by the directives in situations wherein the law applicable to the contract is that of a third country should subsequently be referred to the Rome I Regulation. However, it also indicates the continuous need, in addition to the Rome I Regulation, for an instrument which takes into account the specificities of postings. Finally, the research leads to the conclusion that the role of the public policy exception in protecting consumers and posted workers is likely to remain marginal.

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