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Choice of Law in Denmark: Code-Light or Code-Tight?

Joseph Lookofsky [*]

Danish National Report
Recent Private International Law Codifications
Symeon Symeonides, General Reporter

International Academy of Comparative Law
18th International Congress of Comparative Law
Washington, D.C., July 25 to August 1, 2010

I. Historical Introduction & General Description

Two centuries ago, the German jurist Thibault declared codification to be "the most beautiful gift from heaven" his people could receive.[1]

Few Danish jurists think that highly of codification,[2] but in the last 4 decades many diverse countries have codified their private international law (PIL), and our task is to study, compare, and learn from these recent codifications. While the focus of our PIL project is limited to choice (designation) of the applicable law in contract and tort,[3] we define codification broadly, to include choice-of-law rules within larger civil codes and individual national statutes, as well as international or regional rule-sets, such as the European Union's Rome I and Rome II Regulations.

Although Denmark has been a Member of the (EC and then) EU for nearly forty years, we have significantly less PIL codification than other Member States, and even our codified PIL is different from theirs. Since we have a reputation for being different, our General Reporter needed no advance notice as to what I had in mind. "Yes, I know, he told me. Denmark is always an exception."

The most direct and obvious explanation underlying our EU-PIL exceptions is the special Protocol arrangement – spawned in the wake of the Danish "No" to the Maastricht Treaty (1992)[4] – which still applies to Denmark in respect of EU legislation concerning cooperation in "civil matters."[5]

But before I get more specific about Denmark's exceptional EU-PIL status, I would like to offer a more general explanation of what it is that sets us apart, in law (not to mention life in general),[6] so I will highlight a few factors which relate to our geography, legal history, and legal culture, including some illustrations of why Denmark has had difficulty adjusting to the European (codification) style.

My first introductory point is that the Danish legal system belongs to the Scandinavian (a/k/a Nordic) family.[7] In making that statement, I am well-aware of modern comparative critiques aimed at the organization and grouping of legal systems within larger families,[8] just as I would hasten to acknowledge numerous internal distinctions, both at the regional and national levels. Denmark and Norway, for example, are sometimes best grouped under the narrower sub-heading of "West Scandinavia,"[9] with Norway perhaps the most exceptional of all.[10]

But even allowing for such internal distinctions, the Scandinavian legal family is rightly described as a separate system, distinguishable from other legal families, including the Roman-Germanic.[11] The reason for this distinction has a lot to do with our location. Denmark, like the rest of Scandinavia, is situated above the river Eider, where a stone engraved in Schleswig once marked the Roman Empire's northern boundary: Eidora Romani terminus imperii.[12]

That stone also marked the limit of the legal codification which applied in the large territory below, and in centuries to come the Scandinavian zone remained outside the Roman-Germanic ambit. In our case, the "idea that Danish law is a national law distinct from Roman Law and legal systems based on Roman law has been a landmark in the discussion of the Danish national identity."[13]

Our law has borrowed much from others (including the Romans and the Germans),[14] but one thing which still sets us apart is our pragmatism,[15] our attitude and style of "looking away from first things, principles, 'categories,' supposed necessities … towards last things, fruits, consequences, and facts."[16] So, in our legal culture, the main thing is often the last thing: a just result (material justice);[17] and just results are best achieved – not by creation or codification of a formalistic matrix (legal pigeonholes) – but by a flexible framework, by leaving judges on a leash loose, so to speak.

This helps explain why most of Danish private law, as well as Danish private international law, is judge-made. In accordance with Scandinavian tradition, we codify sparingly,[18] to meet specific needs, and even then we do it the (pragmatic) Scandinavian way.[19] Back in the 1970s, for example, when Danish and Swedish legislators decided to codify their (then judge-made) national law on unreasonable contract terms, two simple sentences were found sufficient: the statutes simply say that unreasonable contract terms are not binding, and that all circumstances remain relevant when the judge determines whether a given term is unreasonable or not.[20] The legislators did not try to define the "point" which determines which promises are binding (or not), because there is no such point, at least not according to Scandinavian law and scholarship, for nearly two hundred years.[21]

When the EU legislator designed harmonizing legislation on the same topic,[22] however, formalistic (Roman-Germanic) traditions prevailed, with the promulgation of a 17-point list of presumably unreasonable contract-term types.[23] Confronted with that culture-shocking development, Denmark and Sweden thought it best to "hide" the EU list in the travaux préparatiores of their implementing national legislation,[24] thus retaining at least the appearance of the more progressive and pragmatic Scandinavian model, our home-grown style of codification: code-light, as opposed to code-tight.

This tension between Scandinavian pragmatism and EU formalism is also apparent in private international law. Assuming the outcome in a given private law dispute – say, whether A should be held liable to B – depends on which State's law applies (X-law or Y-law), that outcome is more likely to be reasonable and just if the choice of law accounts for all relevant "connecting factors."

But the EU legislator's PIL style is different. To help ensure certainty that the courts in all EU States make the same choices, the Rome I and II Regulations have been equipped with formalistic formulas which make a given choice of law hinge on a single connecting factor, even if all logically relevant factors, taken together, might tip the scales of justice the other way.[25]

European legal systems might be converging, but important differences in legal content and culture remain.[26] Just as a French or German jurist cannot "inhabit" English law,[27] we can hardly expect Civilians to feel at home in our Scandinavian system, where pragmaticsolutions regularly take precedence over abstractions and formalistic rules.[28] Could a judge trained in the Civilian (bouche de la loi) tradition sit well on a Danish bench, where the judge's main function is to reach a just and reasonable resultin the concrete case at hand?[29] Could an English judge, trained to stand firmly by prior precedent (stare decisis), understand our flexible and pragmatic approach to law and life? Should Danish judges, trained since Ørsted's day to build bridges of justice between the law and the layman,[30] be retrained to perform robotic functions, as administrators of legislative commands?

I realize these generalizations might overshoot the mark, and my aim (as a marksman from a tiny country) is certainly not to malign influential legal systems which have earned the world's respect. I also realize that our own pragmatic, result-oriented way of doing things might seem too "loose" to outsiders, just as European observers have shown little admiration for the principles advanced by American advocates of pragmatism, material justice and even choice-of-law "revolution."[31]

In fact, Denmark is not always an exception. In some instances, we have even codified willingly, because the benefits of a given harmonization were seen to outweigh the costs. As a result, we now have two PIL rule-sets designed to regulate specific PIL sub-topics, and it is these codifications which provide the main material for the more specific aspects of my Danish Report.

Our most recent (and most significant) choice-of-law codification is the legislation implementing the 1980 Rome Convention on Law Applicable in Contractual Matters.[32] Although Denmark's status as regards this key codification was not "exceptional" at first, the situation has changed: as of 17 December 2009 the Rome I Regulation on the law applicable to contractual obligations replacedthe Rome Convention in all EU Member States except Denmark.[33] Conversely, only Danish courts will continue to apply the Rome Convention (as regards contracts made after that date).

This might look like a dubious distinction, with Denmark as the only remaining active adherent to a multi-lateral international convention,[34] but there's more to it than first meets the eye. We were actually one of the first States to put the Convention's rules into effect, since we've long regarded the Convention's main content as being quite close to that of our prior (judge-made) law. This also explains why Danish judges came to apply the controversial default rule in Article 4 in a flexible way. The Dutch judges did it differently, but now the European Court has stamped our (Danish) interpretation as the right one, and since the Convention remains the regime that governs our judges, then we continue to do it "our way,"[35] whereas the judges in all other EU States are now leashed to a much tighter EU-tether, to much stiffer (Rome I Regulation) choice-of-law rules.

Our status also remains exceptional as regards the law applicable to non-contractual obligations, in that the Rome II Regulation entered into force on 11 January 2009 in all EU States except Denmark. So, until further notice, Danish judges remain unconstrained by any delictual PIL codification.[36]

Things might change. Denmark might soon be ready to vote for "full" EU Member status, and if that happens, Denmark will no longer be an exception to any EU-PIL rule. Another possibility is that Denmark will enact national legislation which tracks the main content of Rome I and II.[37]

But my main task at this juncture is to comment on specific features of our currently applicable PIL, including Denmark's recent codifications and (especially) the legislation implementing the 1980 Rome Convention and its interpretation by Danish courts. Since our General Reporter has defined recent to include codifications dating back to the 1960s, and since we do not apply the Rome Convention to resolve conflicts in non-consumer sales, my Report will also refer to the 1955 Hague Convention on the Law Applicable to International Sales of Goods, as implemented by statute in Denmark in 1964. With respect to the Danish choice-of-law rules as regards non-contractual (delictual/tort) matters, my Report will also illustrate how we use our traditional judge-made rules to solve these kinds of PIL problems. I will conclude with a few general observations about the future course of Danish Private International Law.

II. Legal Certainty & Flexibility

A. Before Codification

Long before the (1955) Hague and (1981) Rome Conventions were implemented in Denmark, Danish courts and commentators had occasion to address the tension between the certainty of "hard" single-contact rules as opposed to the concrete justice achieved by more flexible standards, the latter sometimes referred to as the "closest connection" or "center of gravity" tests.[38]

In the 1800s the general tendency of Danish courts and commentators was to focus on a single connecting factor, though there was no general agreement as to which factor should be decisive.[39] Using choice-of-law techniques a bit like those in the First (American) Conflicts Restatement (1934),[40] Danish judge-made PIL sometimes focused on the place where a contract was "made" (lex loci contractus);[41] in other cases, greater emphasis was put on the place of performance or the debtor's domicile.[42] Since no single factor came to dominate, the results might seem pragmatic.[43]

In the early 1900s, however, Danish courts and commentators began to move towards open recognition of an aggregate-contacts test, allowing a multitude of connecting factors to enter the choice-of-law equation.[44] Rather than look to any single factor, Danish courts began to seek out the "center of gravity" of the dispute at hand, a more realistic approach to conflicts resolution, much like that which later came to dominate the Second (American) Conflicts Restatement (1971).[45]

B. The 1984 Statute Implementing the 1980 Rome Convention

The Rome Convention on the Law Applicable to Contractual Obligations took effect as a treaty in 1991 upon ratification by seven European (then Community) Member States, including Denmark.

Denmark was one of the EU Member States which actually took the PIL harmonization lead. Reading the Rome Convention content as largely in harmony with prior Danish judge-made law,[46] Denmark enacted a statute in 1984 with rules which mirrored the content of the Convention content; in this way the Rome rules became the law of our land seven years ahead of EU law elsewhere.[47]

In the absence of a valid choice-of-law by the parties under Article 3 of the Rome Convention, Article 4(1) provides that the contract shall be governed by the law of the country with which it is most "closely connected" – a standard much like the Danish judge-made conception.[48] But this closest connection criterion is modified by an important qualification. According to paragraph (2):

it shall be presumed that the contract is most closely connected with the country where the party who is to effect the performance which is characteristic of the contract has, at the conclusion of the contract, his habitual residence ...

This presumption, said to have origins in both French and Swiss law,[49] was a stranger to prior Danish (judge-made) law. But since it was, after all, "only" a presumption, an appendage tacked on to the main (closest connection) rule, Danish courts and commentators have long regarded the overall content of Article 4 as roughly consistent with prior Danish law.

Still, one might ask, just how "strong" is the presumption? In other words, how much does it take for a court to disregard the presumption in favor of the more general closest-connection rule? Since the Court of Justice of the European Communities did not even become competent to rule on the interpretation of the Rome Convention until 2004,[50] this question was, for many years, left to the courts of the various Member States, and until 2009 the judgments rendered by these national courts revealed at least two fundamentally different answers.

One view, adopted by the Supreme Court of the Netherlands, was that the presumption can only be disregarded when the characteristic performer's habitual residence has "no real connecting value."[51] In the BOA case, Dutch Supreme Court presumed a sales contract to be most closely connected to the Netherlands, for the sole reason that the characteristic performer had a Dutch domicile, thus intentionally ignoring all connecting factors which pointed elsewhere: the sales order concerned had been placed in France, the contract negotiations had taken place in France (and in French), the contract was drafted in French, and the goods were delivered to the French buyer in France.[52]

A far more flexible view, developed (e.g.) in Denmark and England, permits courts in Member States to disregard the Article 4(2) presumption when the existence of other factors establish a closer connection to the law of another State.[53] A 1996 decision by the Danish Supreme Court illustrates this approach.[54] Claiming payment of sums owed by a German company in connection with construction work done in Germany, a painter domiciled in Denmark brought an action in Denmark.[55] Taking account of a long list of relevant connecting factors, the Danish High Court (first instance) concluded that Danish law applied, because the contract was most closely connected to Denmark. The Supreme Court affirmed that decision, but the reasoning was notably different: although Danish domiciliary had done the work in Germany for a developer residing in that country, the Court found no grounds for departing from the presumption in Article 4(2).

In the Intercontainer case (2009),[56] the European Court of Justice finally had occasion to issue a preliminary ruling clarifying the true strength of the presumption, and Danish judges have reason to feel good about that sensible decision, since it proves that our courts got it right, whereas the Netherlands Supreme Court got it wrong in BOA: the single-contact presumption in Article 4(2) is – obviously – only a presumption, and it's not nearly as strong as the Dutch Court had thought.

If we look at the larger EU-PIL picture, however, we see that the Dutch (not the Danes) are the real winners, since as of 31 December 2009, the new Rome I Regulation replaced the Rome Convention in all EU Member States except Denmark, and the most important difference between the two rule sets is precisely the replacement of the flexible Article 4 presumption with a new stiff-as-Dutch single-contact rule, thus effectively depriving the courts in all EU Member States (except Denmark) of any significant measure of judicial discretion to determine the applicable law.[57]

C. The 1964 Statute Implementing the 1955 Hague Convention

The 1955 Hague Convention on the Law Applicable to the International Sale of Goods has been in effect in Denmark since 1964. Although these Hague rules are in some respects similar to the 1980 Rome Convention rules for the resolution of contract conflicts in general, the supplementary (seller's law) rule in the Hague Convention is less flexible that the corresponding presumption (tied to the residence of the characteristic performer) in Article 4 of the Rome Convention.

Denmark's acceptance of the 1955 Hague approach has been explained, though hardly justified, by the forum-shopping argument.[58] But now that nearly all key trading States have ratified the 1980 Convention on Contracts for the International Sale of Goods (CISG), we seldom need the Hague rules to decide which country's sales law applies. These days, in cases where the parties have their places of business in different CISG Contracting States, there is, quite simply, no conflict of laws.[59]

III. Issue-by-Issue Choice and Dépeçage

A. The 1984 Statute Implementing the 1980 Rome Convention

At regards contractual matters Denmark adheres to the general principle that all questions arising within the context of a given contractual relationship should – as a starting point and absent contrary agreement – be resolved by the application of a single set of rules.

In limited circumstances, however, the Rome Convention permits Danish courts to engage in dépeçage in the absence of an express contractual clause: Article 4(1) provides that a separable part of a contract which has a closer connection with another country (than the country whose law would normally apply) may, by way of exception, be governed by the law of that other country.[60]

The issue arose in 1988 Danish Court of Appeals case,[61] involving a Danish student who had signed a registration form binding her to an 18-month sports-instructor course offered by an instructor in Germany. As it turned out, the student (unable to find suitable lodging or employment in Germany) did not participate in (or pay for) the course, and the instructor sued her for damages in Denmark. Although both parties agreed that German law applied to the substance of the contract,[62] the student argued that certain questions relating to contract formation and validity (including the question of whether she could avoid the contract by reason of "failed assumptions"),[63] should be decided under Danish law. Citing the unitary principle in Article 4(1) of the Rome Convention, however, the court refused to apply the laws of different states to different aspects of the contractual relationship.[64]

B. The 1964 Statute Implementing the 1955 Hague Convention

Some older (non-Danish) authorities have interpreted the 1955 Hague Convention on the Law Applicable to International Sales of Goods as precluding depéçage,[65] but that interpretation has been displaced by modern-day reality, since most international sales contracts are now governed by the CISG Convention. In particular, the CISG governs "only" the rights and obligations of the parties, whereas other issues relating to (e.g.) sales contract validity still need to be resolved by application of the national substantive law designated by the 1955 Hague rules.[66]

IV. State-Selection & Conflicts Justice vs. Content-Oriented Law-Selection & Material Justice

Although Danish judges rarely reveal the philosophy which guides their decision-making,[67] some available evidence supports the claim that Danish judges consider the content and purpose of competing substantive rules, at least where no inflexible PIL codification stands in their way.

One illustrative example is a tort (driving accident) case decided by a Danish High Court of Appeals in 1982.[68] Two Danes (A & B), having met through a magazine advertisement, embarked on a hunting trip in Scotland. Once there, they rented a car, obtained the usual insurance and drove off to the woods. Returning to Glasgow on the last day of the trip, A's negligence at the wheel led to an accident, and B died. B's widow then sued A for damages, but by the time her sluggish Danish lawyer got around to filing her claim, the action was time-barred according to Scottish (but not Danish) law. By that time, A's Scottish liability insurance had also ex­pired.

Under the then-applicable Scottish law, a time-bar was characterized as a procedural question. For this reason, the plaintiff (B's widow) argued that the Scottish statute should not bar the action in the Danish court, i.e., even assuming that the Danish court would apply lex loci delicti as the substantive lex causae of the case. Refusing to accept this argument, however, the Danish High Court of Appeals held for the defendant (A), and the reasoning (ratio) of the Court was as follows:

"The accident occurred in Scotland while [A and B] used a car registered in that country and covered by insurance according to Scottish law. Therefore, the dispute should be governed by Scottish law. [B's widow is] prohibited from starting legal proceedings in Scotland pursuant to Section 17 of the [Scottish] law of 1973, as the statutory 3-year period has elapsed. The court finds that this [time-bar] provision cannot be disregarded in this case [...] even though it is a procedural rule under Scottish law, and the court therefore orders for a judgment in favor of [A]."[69]

To an outside observer, this ratio might be read as indicating that the Court regarded the Scottish statute as part of lex loci delicti and that the lex loci principle then "dictated" the result (time bar of the action in Denmark). To insiders, however (including a law professor who later became a Danish Supreme Court judge), the ratio fails to reveal the real legal logic which motivated (as opposed to dictated) the outcome: it was, in all likelihood, the content of the Scottish time bar (which had caused A's Scottish insurance to expire) which motivated the choice of law, and not vice-versa.[70]

Seen this way, the case provides an example of how Scandinavian legal pragmatism "unstiffens all our theories, limbers them up and sets each one at work."[71] Instead of letting the stiff (single contact) lex loci delici theory "dictate" the outcome-determinative choice of law, the Danish judge first assesses all aspects of the case, so as to gain a general impression of the situation and form an initial opinion of the most just and reasonable outcome. Then, taking account of all relevant choice-of-law theories, including the center-of-gravity approach, the judge uses these theories to test the correctness of that (intuitive) conclusion.[72] In this case, the judges in the Danish Court of Appeal seem to have had less sympathy for the widow than for the negligent driver, because the inaction of the widow's lawyer (chosen by the widow to protect her rights) had deprived the driver of insurance protection.[73] This kind of pragmatic legal thinking has also been called "reasoning backwards."[74]

Under our currently applicable rules for choice of law in tort, our judges can still do things this way. Under the EU Rome II Regulation, however, pragmatic reasoning and pragmatic results have been effectively banned. These days, the judges in all Member States (except Denmark) would have no choice but to decide a case like this the other way (in the widow's favour), because the fact that parties both have Danish domicile would require the application of Danish law (lex communis).[75]

[V.-VI. Omitted]

VII. Ordre Public and Mandatory Rules

A. Ordre Public

I don't know of reported Danish case-law on this topic, but a brief hypothetical should serve to illustrate how ordre public might be applied by our courts, as a (narrow and unusual) exception to the law otherwise applicable under Danish judge-made choice-of-law rules in delict.

If, for example, a Danish plaintiff were to bring a product liability action in a Danish court against an American defendant, seeking compensation for injuries sustained in Denmark in connection with the use of an allegedly defective product purchased by the plaintiff while on holiday in New York,[76] the Danish court might find New York law to be the applicable substantive law.[77] The Danish court would not, however, award punitive (exemplary) damages to the defendant,[78] because an award of such damages would almost surely be regarded as contrary to Danish ordre public.[79]

As regards contract conflicts, the 1980 Rome Convention, implemented by statute in Denmark, contains an ordre public provision. According to Article 16, the application of a rule of the law of any country specified by the Convention may be refused if such application is "manifestly incompatible" with the public policy (ordre public) of the forum. This requirement underlines the fact that a mere showing of incompatibility will not suffice to displace the otherwise applicable rule. Indeed, even a State Y rule which runs contrary to a mandatory rule in State X is not necessarily incompatible with the ordre public of State X.

B. Mandatory Rules and the 1980 Rome Convention

Under the Rome Convention mandatory rules of the contract law of a given country (X) are generally treated on a par with other rules of the contract law of that country.[80] The starting point, in other words, is that such mandatory rules apply if (and only if) the law of that country is the applicable lawunder Articles 3 or 4. By definition, a mandatory rule of country X cannot be derogated from by a contract to which the law of X is applicable by virtue of Article 3 or 4. In certain circumstances, however, the parties to that contract may derogate from that mandatory X-rule by the contractual choiceof the law of another country (Y).[81]

Article 3(3) of the Convention places a very narrow limit on the parties' freedom to choose the applicable law.[82] Another, potentially more relevant limit on the parties' freedom of choice is laid down by Articles 5 and 6 of the Convention on consumer contracts and individual employment contracts, respectively.[83] These provisions not only displace the general (closest connection) default rule in Article 4 (with special gap-filling rules); they also provide that the contracting parties' choice of a given foreign law shall not deprive the consumer or employee of the protection afforded by provisions of the law applicable in the absence of choice which cannot be derogated from by contract. This means that, as regards consumer and individual employment contracts, the special gap-filling rule can also function as a kind of mandatory rule. Finally, Article 7 of the Convention contains a more general provision regarding internationally mandatory rules which, depending on the circumstances, may be permitted to trump (override) the otherwise applicable law.[84]

In the Transocean Drilling case (2000)[85] the Supreme Court of Denmark had occasion to consider the interaction and application of the just-named rules.[86] AScottish company (C) had employed a Scottish doctor (D) to work on board an oil rig located over the Danish continental shelf in the North Sea. According to the employment contract, D had no right to "vacation" as such, but the work was organized so that he worked continuously for 21 days (with pay) and then had 21 days off (also with pay); he spent that time off in Scotland. The employment relationship lasted for 5 years. Later, the Danish Ministry of Labor demanded that C deposit 5 years of vacation benefits payable under mandatory provisions of Danish law which (unlike Scottish law) provide that an employee cannot validly forego the right to paid (5-week) vacation, even if (paid) working periods alternate with (paid) off-periods; it is, in fact, a criminal offence for an employer not to pay vacation benefits owed on demand.

According to the Rome Convention matrix, the first step was to determine the lex causae. Applying Article 3(1) of the Rome Convention, the Supreme Court emphasized that the contract in question – which did not contain an express choice-of-law clause (though it did contain reference to a British Act of Parliament) – was concluded between a Scottish national and a Scottish employer. On this basis, and with reference other (unspecified) "circumstances," the Court held that the parties had impliedly chosen (designated) "[Scottish] law" as the law applicable to their contract.

Although the parties' own (implied) choice of Scottish law under Article 3 of the Convention could not have deprived D of the protection afforded to him by the law otherwise applicable by virtue of the default choice-of-law rule in Article 6(2), the closest-connection element in that specialized default rule also pointed to Scottish law.

So the ultimate question was whether the Danish Court should exercise its right under Article 7(2) to apply the vacation-with-pay provisions of Danish (forum) law to the employment relationship, irrespective of the otherwise applicable (Scottish) law. The key question, in other words, was whether the (clearly mandatory) rules of the Danish Vacation Act should be characterized as internationally mandatory (or not). Since the Danish Act did not address this question, the Supreme Court had to interpret the Act. In a situation like this – where both the parties' choice of law and the default rule in Article 6 both pointed to foreign law – the Court said that only "compelling reasons" could lead to the conclusion that the Vacation Act applied, and since neither D nor E had any connection to Denmark (apart from the drill-rig's location), the Court found no such compelling reasons to hold the Act applicable to the employment relationship concerned.

Was the outcome of this case driven (solely) by the absence of compelling reasons to apply Danish law? The ratio which expressly supports the Court's decision is characteristically brief,[87] and it's hard to read between the lines. Still, I think Danish pragmatists would be likely to regard the court's denial of Danish vacation benefits ("on top of" paid time-off) as both reasonable and just.

C. The 1964 Statute Implementing the 1955 Hague Convention

Under the Hague Convention the parties' freedom to choose the applicable law is unrestricted by the letter of Article 2. On the other hand, a Danish court need not apply the law chosen by the parties if the result would be to give effect to a substantive rule contrary to the public policy of the forum (Article 6). This corresponds to the reservation on ordre public in the Rome Convention Article 16 and, it too should be applied narrowly.

VIII. Renvoi

Danish courts do not employ renvoi – neither under Danish judge-made PIL, nor under the Rome Convention (which expressly bans it outright).[88]

IX. Characterization or Qualification

The 1980 Rome Convention applies to contractual obligations (Article 1). According to Article 10, the law applicable to a contract by virtue of the Convention governs interpretation, performance, the consequences of breach, including the assessment of damages in so far as it is governed by rules of law, prescription and limitation of actions and the consequences of contract nullity. According to Article 8(1) even the very existence and validity of a contract or contract term shall be determined by the law which would govern it under this Convention if the contract or term were valid.

Apart from the general exclusion of delictual coverage, Article 1(2) of the Convention lists certain contract-related areas to which the Convention rules do not apply, inter alia: questions of status and capacity, wills, certain rights deriving from matrimonial and family relationships, negotiable instruments, arbitration and forum agreements, company law, agency, and trusts, etc.

Since Denmark has ratified the 1955 Hague Convention (on the law applicable to international sales of goods), Denmark must apply that Hague Convention (and not the Rome Convention) to resolve (true) "sales conflicts" in non-consumer sales, to the extent that these exist despite the CISG.[89]

X. Judicial Application of the 1984 Statute Implementing the 1980 Rome Convention

For illustrations of how Danish courts have applied the 1984 statute implementing the 1980 Rome Convention in Denmark, see the discussion in parts II(B) III(A), IV and VII(B) above.

XI. Concluding Considerations

I know of only two Danish jurists who followed in Thibault's (code-from-heaven) footsteps.[90] The first such code aficionado was Frederik Vinding Kruse who drafted a 400-page Nordic Code, intended for Nordic use (but never used).[91] Then came Ole Lando, who not only spearheaded the European Contract Principles,[92] but (now) also a Nordic Restatement.[93] Ultimately, both these Lando-led projects envision total private-law harmonization: a European Civil Code.[94]

The pro-Code people have always had their work cut out for them, not only because codification runs contrary to the traditions of some systems, but also because its "difficult to get business people to support a legal cause when their legal advisors and governments council against."[95]

The jury is still out, but the code movement is gaining ground, and with it the (undocumented) argument that (all) private law harmonization is actually "worth it," that bottom-line harmonization benefits outweigh the tremendous cost of federalizing EU private law. Enthusiastic about almost everything "international," even new wave Nordic jurists would rather go with the (EU-funded) flow,[96] caught in the current, from code-light to code-tight:[97] First Rome I and II, then the full monty: Towards a European Civil Code.[98] The codification skeptics are few and far between,[99] the harmonizers well-organized,[100] and subsidiarity a mere phantom.[101]

The process will take time. In order to participate, Denmark will first need to get back in step. In November 2007, the Danish Government published a general political program which suggests the time has at least come for a referendum aimed at withdrawing Denmark's reservation under the special civil-matters Protocol.[102] If political developments continue to point in that direction, Denmark would, as part of such a larger yes-package, automatically sign on to Rome I and II.[103] Denmark could also achieve the same PIL result without a referendum, by passing legislation which tracks the content of these two EU Regulations;[104] if so, few non-jurists in Denmark would notice.

The Emperor is wearing new clothes, but their single-contact cut reminds me of models once elsewhere the rage.[105] Just as earlier generations witnessed the dismantling of the formal system of the classical theorists;[106] the new PIL millennium brings its own unlikely resurrection,[107] a revival of old-school formalism.[108] Code-tight will keep the judges and their law-choices in line, but for those once trained to embrace PIL pragmatism, the transition will be tough. "Certainty in the law is largely an illusion at best, and altogether too high a price may be paid in the effort to attain it."[109]

[XII-XIII (Law Governing Torts and Contracts) are covered in the topical sections above]


A. Links to Danish statutory texts:

1984 statute implementing 1980Rome Convention

1964 statute implementing 1955 Hague Convention

B. Links to scholarly commentaries on recent PIL codifications



* Professor of Private and Commercial Law, University of Copenhagen, Faculty of Law, Centre for Studies in Legal Culture. B.A. Economics Lehigh University (1967); J.D. New York University School of Law (1971); Cand.jur. (1981) & dr.jur. (1989) University of Copenhagen.

1. See Schepel, The European Brotherhood of Lawyers: The Reinvention of Legal Science in the Making of European Private Law, 32 Law & Social Inquiry 183, 185 (2007).

2. For the names of two Danes who think (or thought) that way, see text infra with notes 91-92.

3. See generally Joseph Lookofsky & Ketilbjørn Hertz, EU-PIL: European Union Private International Law in Contract and Tort (2009), Chapters 3 and 4.

4. See Joseph Lookofsky, Desperately Seeking Subsidiarity: Danish Private Law in the Scandinavian, European and Global Context, 19 Duke Journal of Comparative & International Law 161 (2008), also at <http://www.law.duke.edu/shell/cite.pl?19+Duke+J.+Comp.+&+Int%27l+L.+y161>.

5. As regards procedural PIL codifications, which lie outside the scope of this (choice of law) Report, the Brussels I Regulation (No 44/2001) entered into force on 1 March 2002, when it replaced the Brussels Convention as between all Member States except Denmark. Brussels I entered into force in Denmark some 5 years later, upon implementation of a special 'Parallel Agreement' effective 1 July 2007. See Lookofsky & Hertz, EU-PIL (supra note 3)at 34.

6. Denmark is, for example, also "exceptional" when it comes to taxation (world's highest), income-disparity (world's lowest) and "happiness" (world's most). See (e.g.) <http://edition.cnn.com/2008/HEALTH/07/02/nations.happiness/>; Denmark 'Happiest Place on Earth,' BBC News, July 28, 2006, <http://news.bbc.co.uk/2/hi/5224306.stm>. See also Lookofsky, Desperately Seeking Subsidiarity, supra note 4, at 161-185.

7. See Ditlev Tamm, The Danes and Their Legal Heritage, in Danish Law in a European Perspective 33 (2nd ed. Copenhagen 2002, Dahl, Melchior & Tamm eds.); Sverre Blandhol, Nordisk rettspragmatisme (2005) 11 ff. Although "Nordic" covers more territory than "Scandinavian," the terms are sometimes used interchangeably. Finland is often added to the more traditional "Scandinavian" country list: Denmark, Norway & Sweden. But compare KonradZweigert and Hein Kötz,An Introduction to Comparative Law Ch. 19 (3rd ed. 1998) at 277, alleging that "neither Denmark nor Iceland forms part of Scandinavia in the geographical sense" (emphasis added). In fact, Denmark (now connected to Sweden by bridge) has always been considered Scandinavian (and Nordic); the Kingdom of Denmark (1380–1814) actually included Norway (see note 10 infra). Iceland is clearly Nordic, but was never Scandinavian.

8. See (e.g.) Mark Van Hoecke & Mark Warrington, Legal Cultures, Legal Paradigms and Legal Doctrine: Towards a New Model for Comparative Law, 47 International and Comparative Law Quarterly 495 (1998), 498-502.

9. This grouping emphasizes certain relevant distinctions between these West-Scandinavian States, on the one hand, and Sweden and Finland (in the East).

10. Norway is a not in the European Union, but the EEA agreement extends EU Single Market legislation (with the exception of Agriculture and Fisheries) to Norway (as well as Iceland and Liechtenstein). Norway has not ratified the 1980 Rome Convention – a PIL rule-set which still applies in Denmark (but not in any other EU Member State): see text infra with notes 32-33. As a result, Norway has even less codified PIL than Denmark. In 2006 the Norwegian Supreme Court relied on Danish scholarly opinion (Lookofsky) comparing the closest-connection test in Article 4 of the Rome Convention to a 1923 Norwegian precedent (Irma-Mignon) which, decades ago, had influenced Danish judge-made PIL thinking: see <http://conflictoflaws.net/2006/norwegian-supreme-court-on-the-lugano-convention-art-51/>.

11. Regarding the "Romanistic" and "Germanic" Legal Families (combined as the "Roman-Germanic" by Van Hoecke & Warrington, supra n. 8) see Zweigert & Kötz, supra note 7, at 74-169.

12. See Tamm, The Danes (supra note 7), at 41. So this (not the one suggested by Zweigert and Kötz, supra, note 7) marks the relevant boundary line.

13. See Tamm, id. at 46.

14. See generally Tamm, id.

15. See generally Blandhol, rettspragmatisme (supra note 7); Jørgen Dalberg-Larsen, Pragmatisk retsteori (2001). See also generally Patrick Atiyah, From Principles to Pragmatism: Changes in the Function of the Judicial Process and the Law, 65 Iowa L. Rev. 1249 (1979-1980). Scandinavian pragmatism is sometimes equated with Scandinavian realism (Blandhol, id. at 12), though the "realism" of Alf Ross is not the pragmatism of Viggo Bentson (Blandhol, id. at 73); see also note 28 infra. For pragmatic Scandinavian private law applications, see Joseph Lookofsky, Consequential Damages in Comparative Context (1989) at 192-93.

16. William James, What Pragmatism Means, William James Writings 1902-1910 (1987) at 510. See also Blandhol, rettspragmatisme (supra note 7) at 24-27, linking the ideas of James to the earlier thinking of Scandinavian scholars.

17. Regarding "material justice" see generally Symeonides, Result-Selectivism in Private International Law, 3 Roman. Priv. Int'l L. & Comp. Priv. L. Rev. (2008) 1, 3-4.

18. See Blandhol, rettspragmatisme (supra note 7) at 189-91, citing Ditlev Tamm, Anders Sandøe Ørsted 1778-1978 (1980) at 25, noting that Ørsted opposed private-law codification, as did his contemporary, the German jurist, Savigny. Still, Ørsted's legal philosophy was clearly different from that of Savigny (see following note). Regarding the (Medieval) Law of Jutland and the Danish Code of 1683, see Tamm, The Danes (supra note 7), at 43-50.

19. Sverre Blandhol, The Rhetorical Foundations of Nordic Jurisprudence, at <http://www.ideasinhistory.org/cms/uploads/File/articles/Sverre_Blandhol.pdf> (37-38): The Dane "Anders Sandøe Ørsted [<http://en.wikipedia.org/wiki/Anders_Sand%C3%B8e_%C3%98rsted>] was Savigny's contemporary […]. While Savigny searched for "the leading principles" (what today is called foundationalism) and pointed to geometry as a model for legal reasoning (known as logical formalism), Ørsted warned against "abstract philosophy" and emphasised instead the importance of a profound, empirical knowledge of law and society. Savigny aimed at objectivity and scientific autonomy, whereas Ørsted considered legal study alone to be insufficient and its results to be uncertain. According to him, knowledge of legal texts would have to be united to practical knowledge of the nature and dynamics of the legal circumstances. In this respect, the two developed in a formalistic and a pragmatic direction respectively." Regarding Ørsted's practical (businessman) orientation, see Blandhol, rettspragmatisme (supra note 7) at 193, citing Tamm, Fra Lovkyndighed til Retsvidenskab (1976).

20. See Joseph Lookofsky, The Limits of Commercial Contract Freedom: Under the UNIDROIT 'Restatement' and Danish Law, American Journal of Comparative Law, Vol. 46, No. 3, (Summer, 1998), p. 496, also at <http://www.cisg.law.pace.edu/cisg/biblio/lookofsky2.html>.

21. See Blandhol, rettspragmatisme (supra note 7) at 247, quoting Schweigaard (1834): ikke noe Punkt, hvortil man kan henvise som til et Grændseskjæl.

22. Although only with respect to consumer contracts (whereas the corresponding Scandinavian legislation – see preceding note – applies to all contracts). See Council Directive 93/13/EEC of 5 April 1993 on Unfair Terms in Consumer Contracts at <http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:31993L0013:EN:HTML>.

23. See id., Annex of Terms (a-q), referred to in Article 3(3).

24. Sweden was later sued by the EC Commission for not properly implementing the EC Directive's Grey List, but the European Court of Justice held that non-inclusion of the grey list in the black letter of the Swedish statute did not provide proof that Sweden planned to "ignore" the list. See Case C-478/99, Comm'n v. Sweden, 2002 E.C.R. I-4147, para. 24.

25. See generally Lookofsky & Hertz, EU-PIL (supra note 3), Chapters 3 and 4.

26. Accord: Pierre Legrand, European Legal Systems are Not Converging, 45 International & Comparative Law Quarterly (1996).

27. See Pierre Legrand, The Same and the Different, in Comparative Legal Studies: Traditions & Transitions (2003, Legrand & Munday eds.) at 290.

28. See generally Blandhol, rettspragmatisme (supra note 7); Lookofsky, supra note 4 and Consequential Damages, supra note 15,at 192 (with references to Ross, Trolle, Gomard & Skovgaard); Viggo Bentzon, Skøn og regel (1914): praktisk vigtige Afgørelser ved Skøn ser man noget skævt til … Principmennesker (eller Principryttere) respekterer Livet imidlertid ikke … I alle praktiske Forhold kommer de, hvis de gør Alvor af at gennemføre deres Principper, til en kluntet Livsførelse.

29. See generally Joseph Lookofsky, Precedent and the Law in Denmark, Precedent and the Law (2007, Hondius ed.), also at <http://www.cisg.law.pace.edu/cisg/biblio/lookofsky15.html>.

30. See Blandhol, rettspragmatisme (supra note 7) at 193. Regarding the Danish jurist and politician Anders Ørsted see also supra note 18.

31. At least before dénouement set in (in some, but not all American jurisdictions). See generally Joseph Lookofsky & Ketilbjørn Hertz, Transnational Litigation & Commercial Arbitration: An Analysis of American, European and International Law (3rd Edition forthcoming 2010), Chapter 3. See also generally Symeon Symeonides, Choice of Law in the American Courts in 2009: Twenty-Third Annual Survey (2009) at http:/ssrn.com/abstract=152993.

32. See generally Lookofsky & Hertz, EU-PIL (supra note 3), Ch. 3. Although the Rome Convention took effect as a treaty (between EC Member States) on 1 April 1991, the choice-of-law rules in the Convention – as opposed to the Convention itself – took effect in Denmark in 1984: see text infra with notes 46-47.

33. The Preamble to the Regulation provides: (46) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European Community, Denmark is not taking part in the adoption of this Regulation and is not bound by it or subject to its application.

34. Regarding the relationship between the Regulation and the Convention, Article 24(1) of the Rome I Regulation provides as follows: This Regulation shall replace the Rome Convention in the Member States, except as regards the territories of the Member States which fall within the territorial scope of that Convention and to which this Regulation does not apply pursuant to Article 299 of the Treaty.

35. Regarding Article 4 of the Rome Convention, and the recent decision by the EU Court in the Intercontainer case, see text infra with note 56.

36. Regarding the special "parallel agreement" which allowed Denmark to join (and codify the procedural PIL rules in) the Brussels I Regulation on Jurisdiction and Judgments, see supra note 5.

37. See infra under head XI.

38. In Danish PIL theory: den individualiserende metode (literally: "the individualizing method").

39. Alan Philip, Dansk international privat- og procesret (1976) at 292. Danish PIL theory first took significant form in Anders Ørsted, Eunomia (Vol. 4, 1822). See H. Federspiel, Den internationale Privatret i Danmark. Almindelig Del (1909).

40. American Law Institute, Restatement of the Law: Conflict of Laws (1934).

41. In a contract by correspondence, this place is not easily determined. Regarding the famous Brinkibon case in England, see Lookofsky & Hertz, Transnational Litigation (supra note 31), Ch. 2 under 2.4.2.

42. See Philip, supra note 39, at 292. See also Arnt Nielsen, Peter Arnt Nielsen, International privat- og procesret (1997) at 18.

43. Accord: Arnt Nielsen, id: "I sin almindelige del af den international privatret var Ørsted ganske kortfattet og pragmatisk."

44. See note 38 supra. See also generally Philip, supra note 39, at 292-95.

45. American Law Institute, Restatement (Second) of the Law: Conflict of Laws (1971). See generally Lookofsky & Hertz, Transnational Litigation (supra note 31), Chapter 3.

46. See generally Philip, supra note 39, at 295-97. But see Erik Siesby in Ugeskrift for Retsvæsen 1983 at 429 (emphasizing divergences, including the controversial presumption in Article 4(2)).

47. The Danish law (no. 188) was passed on May 9, 1984; it took effect in Denmark on July 1st that year. Like Denmark, Belgium and Germany were also ahead of the pack: see Lookofsky & Hertz, EU-PIL (supra note 3) at 74.

48. See text supra with note 44.

49. See Mario Giuliano and Paul Lagarde, Report on the Convention on the law applicable to contractual obligations (OJ 1980 C 282, p. 1)> at 19.

50. See Lookofsky & Hertz, EU-PIL (supra note 3) at 74-75.

51. Société Nouvelle des Papeteries de l'Aa SA v BV Machinenfabriek BOA [1992] Nederlanse Jurisprudentie 750, commentary by Hudig-van Lennep in XLII Netherlands International Law Review 259 (1955).

52. See id.

53. See (e.g.) Ennstone Building Products Ltd v Stanger Ltd [2002] 2 All ER 479. Other recent English decisions, however, reflect a tendency to disregard the presumption in favor of the law of the place of performance: see Clarkson & Hill, The Conflict of Laws (3rd ed. 2006) at 192-93.

54. SP Massivbau-System GmbH v Malerfirmaet F. Ørbech & Søn, reported in Ugeskrift for Retsvæsen [1996] 937.

55. Invoking Article 5(1) of the then-applicable Brussels Convention as the basis of jurisdiction. Regarding the delayed replacement of the Brussels Convention with the Brussels I Regulation in Denmark, see note 5 supra.

56. Case C-133/08 Intercontainer Interfrigo SC (ICF) v Balkenende Oosthuizen BV [2009].

57. Regarding the very narrow safety valve in Article 4(3), see Lookofsky & Hertz, EU-PIL (supra note 3) at 92.

58. The argument that the Hague rules would somehow lead to reduced "forum shopping" was earlier advanced by Alan Philip, supra note 39, at 322. While it is true that (e.g.) American plaintiffs sometimes forum-shop within the United States, and that European plaintiffs sometimes shop for American (tort) law in American courts, I see no evidence that European plaintiffs are willing to run the considerable risk of shopping for more plaintiff-friendly sales laws in "foreign" European fora (i.e., in EU Member State courts with different procedural rules, unfamiliar languages, etc.).

59. At least not in the many cases which concern the rights and obligations of the parties: see text infra with note 66. When only one of the parties resides in a CISG State, the CISG and the Hague rules work in tandem. According to CISG Article 1(1)(b), the 1980 Convention also applies to sales contracts between parties in different States when "the rules of private international law [of the forum: in Denmark, the 1955 Hague rules] lead to the application of the law of a Contracting State.

Another complicating factor is that Denmark, upon its ratification of the CISG, made an Article 92 declaration (reservation) as regards the Convention's Part II rules on Formation of Contract. Although the intent of that reservation was to escape the application of CISG Part II, CISG Article 1(1)(b) sometimes lead to the application of Part II in cases where one party has its place of business in Denmark. For details see Joseph Lookofsky, Understanding the CISG(3rd Worldwide Edition 2008) §§ 2.4 and 8.4.

60. See the second sentence of Article 4(1) of the 1980 Rome Convention.

61. Reported in Ugeskrift for Retsvæsen1988 p. 626 (Eastern High Court of Appeal).

62. By virtue of Article 4(1)-(2).

63. In Danish: bristede forudsætninger.

64. As authority for its conclusion, the court might also have cited another Rome Convention rule: "The existence or validity of a contract, or of any term of a contract, shall be determined by the law which would govern it under this Convention if the contract or term were valid." See Article 8(1) of the Convention. See also Joseph Lookofsky & Ketilbjørn Hertz, International privatret på formuerettens område (4th ed. 2008), at 74-75.

65. Unless expressly authorized by the terms of the parties' agreement. SeeArticle 2 of the Convention and Vitta, International Conventions and National Conflicts Systems,Recueil Des Cours, Vol. 126 (1969/I) at 217.

66. See Lookofsky, Understanding the CISG (supra note 59) § 2.6. See also text supra with note 59.

67. See generally Lookofsky, Precedent (supra note 29).

68. Reported in Ugeskrift for Retsvæsen 1982 at 886.

69. My translation, emphasis added.

70. See J. Nørgaard i Ugeskrift for Retsvæsen 1985 B at 47. See also Lookofsky & Hertz, International Privatret (supra note 64), at 121-122.

71. William James, supra note 16, at 510.

72. This description of Danish legal pragmatism corresponds to the commentary provided by a Danish Supreme Court judge regarding the similar ("lesser of evils") reasoning underlying another well-known Danish Supreme Court case. See Lookofsky, Consequential Damages (supra note 15)at 192-93.

73. See Jørgen Nørregard in Ugeskrift for Retsvæsen 1985, Vol. B, at 47: "Should the fact that the lawyer chosen by the plaintiff (herself) did nothing for more than 3 years affect the outcome of the plaintiff's case, especially considering that this same failure removed the defendant from the shelter of Scottish insurance coverage?" Translation mine.

74. See Lookofsky, The Limits of Commercial Contract Freedom (supra note 20) at 489 (with reference to Atiyah).

75. See Article 4(2) of the Rome II Regulation. The extremely narrow safety valve in Article 4(3) would, if properly applied, not affect the outcome in a case like this. See Lookofsky & Hertz, EU-PIL (supra note 3) at 125-26.

76. The Danish court might be competent in such circumstances if the defendant owned property in Denmark. See Lookofsky & Hertz, Transnational Litigation (supra note 31), Ch. 2 under 2.1.2(D).

77. Although Denmark has not ratified the 1973 Hague Convention on the Law Applicable to Product Liability, Danish judge-made PIL in this area is regarded as compatible with that Convention. See Lookofsky & Hertz, id. under 3.2.4.

78. Even if such damages (depending on the circumstances) might be awarded against a defendant under New York law, and even assuming (as is likely) that the Danish court would characterize this as a "substantive" issue.

79. SeeLookofsky & Hertz, International privatret (supra note 64), at 125.

80. See generally Lookofsky & Hertz, EU-PIL (supra note 3) pp. 93-99.

81. Providedthat not all relevant contacts point to X, that the contract is not subject to the special Convention provisions (on consumer contracts etc.), and that the mandatory rule in question is not given effect as an 'overriding' mandatory provision. In some situations, the Rome Convention permits the application of mandatory rules of the contract law of another country. This is, for example, the case in a situation when all relevant contactsare to one country only (and the parties make a contractual choice of the law of another country), in respect of some types of contracts (e.g. transborder consumer contracts), and in respect of somemandatory rules. See generally id.

82. The fact that the parties have chosen the law of a given country shall not prejudice the application of another country's mandatory rules, provided that all the relevant elements point to the country concerned.

83. Article 5 of the Convention designates the law of the country of the consumer's habitual residence, provided that certain requirements with respect to the other party's marketing in that country are fulfilled. Article 6 designates the law of the country in which the employee habitually carries out work, unless it appears from the circumstances as a whole that the contract is more closely connected with another country.

84. Unlike the mandatory-rule limitations in Articles 3, 5 and 6 of the Rome Convention, Article 7 affects not only the law chosen by the parties, but also the application of the Convention's own supplementary rules which apply in the absence of choice. Article 7(1) provides that a court 'may' give effect to another country's mandatory rules. Even this measure of discretion is only authorized (a) where the given contractual situation is closely connectedto that country and (b) where that country would apply the mandatory rule in question whatever the applicable law. This second qualification has been described as referring to 'internationally mandatory' rules. In addition, under Article 7(2), nothing in the Convention restricts the application of internationally mandatory rules of the forum.

85. Reported in Ugeskrift for Retsvæsen (2000) at 1099 ff.

86. For a translation and case-commentary see Lookofsky & Hertz,Transnational Litigation (supranote 37) 3.2.1(C).

87. Regarding Danish judicial tradition on this point see Lookofsky, Precedent (supra note 29).

88. RegardingArticle 15 see Lookofsky & Hertz, International privatret (supra note 64), at 18 f.

89. See text supra with note 59. See also Lookofsky & Hertz, EU-PIL (supra note 3) Chapter 3 under 3.2.2 and 3.3.2.

90. See note 1 supra.

91. In 1947 Vinding Kruse (University of Copenhagen) proposed a broad codification of Nordic private law, reaching far beyond earlier, more specific Scandinavian Model Laws. His idea attracted few followers, but his Draft Code was published in English (in the last year of his life). See Fr. Vinding Kruse, A Nordic Draft Code (Copenhagen 1963).

92. The so-called "Lando Commission" on European Contract Law promulgated the Principles of European Contract Law (PECL). See <http://frontpage.cbs.dk/law/commission_on_european_contract_law/survey_pecl.htm>: "The European Parliament has twice called for the creation of a European Civil Code. The Principles of European Contract Law are essential steps in these projects."

93. See Ole Lando, En Nordisk Restatement, 122 Tidsskrift for Rettsvitenskap, 122 (2009) 495–506. In his call for a Nordic Restatement, Lando makes no mention whatsoever of Vinding Kruse or his Nordic Draft Code (supra note 91).

94. See supra note 92. See also Lando, id. at 506, suggesting that an (English language) Nordic Restatement might influence the content of the (now-developing) European Common Frame of Reference and thus ultimately, albeit indirectly, have a positive impact on the content of a coming European Civil Code.

95. Ole Lando, En europæisk lovbog på formuerettens område inJulebog (Copenhagen Business school Christmas Book 1996) at 18 (translation mine).

96. See (e.g.) Nordic Group for Private International Law, Proposal for Amendments to the [Rome] Convention at <http://ec.europa.eu/justice_home/news/consulting_public/rome_i/doc/nordic_group_private_international_law_en.pdf>. But compare Mads Bryde Anderson & Joseph Lookofsky,> Nationale aftaleregler og EU-integration: Problemer og løsningsmodeller, Ugeskrift for Retsvæsen (2002) at 211 (advocating greater restraint with respect to contract-law harmonization).

97. See (e.g.) Ana López Rodríguez, Lex Mercatoria and Harmonization of Contract Law in the EU (2003) at at 351: "the need to promote cross-border transactions may require a comprehensive harmonization of contract law."

98. Hartkamp & von Bar, Towards a European Civil Code (3rd ed. 204). For an early critique of this movement (and the Hague meeting which led to the 1st edition of this work) see Joseph Lookofsky in Ugeskrift for Retsvæsen (1997) B 251; Lookofsky, The Harmonization of Private and Commercial law: Towards a European Civil Code, Scandinavian Studies in Law (2000) 111.

99. See (e.g.) Legrand, P., Against a European Civil Code, 60 Modern Law Review 44 (1997).

100. See (e.g.) the activities of the Study Group on a European Civil Code, chaired by Christian von Bar, at <http://www.sgecc.net/>.

101. See generally Lookofsky, Desperately Seeking Subsidiarity (supra note 4).

102. See text supra with note 4.

103. Or an (unlikely) 5/6 majority vote in Parliament. This is because the withdrawal of the Danish reservation would entail the transfer of additional legislative powers to the EU. See Lookofsky & Hertz, EU-PIL (supra note 3)at 75 f.

104. Such a solution would be possible, because – unlike Brussels I – there are no "reciprocal" provisions in Rome I and II requiring EU States to "respect" each other's judicial acts. See Ole Lando and Peter Arnt Nielsen, EU-kommissionens forslag til lovvalgsregler for kontrakter, Ugeskrift for Retsvæsen (2007) at 8-9. The application of such unilaterally enacted PIL rules by Danish courts would, however, not be supervised by the European Union Court.

105. Regarding the First (American) Conflicts Restatement, see text supra with note 40.

106. Grant Gilmore, The Death of Contract (1974) at 103 (as regards the demise of classical Common contract law).

107. Borrowing again from Gilmore (atid.): "It may be that [the leader of that resurrection] "is already waiting in the wings to summon us back to the paths of righteousness, discipline, order, and well-articulated theory."

108. See text supra with note 39.

109. Charles Corbin, Contracts, Vol. 3, § 609, at 689 (Rev. ed. 1960).

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