Overriding Mandatory Rules as a Vehicle for Weaker Party Protection in European Private International Law

Abstract

The Rome I Regulation on the law applicable to contractual obligations contains several provisions aimed explicitly at the protection of 'weaker' contracting parties, such as consum-ers and employees. However, in addition to this, the inter-ests of weaker parties are sometimes also safeguarded through the application of 'overriding mandatory provi-sions', which are superimposed on the law applicable to the contract to protect a fundamental interest of a Member State. This article is an attempt to clarify the extent to which the concept of overriding mandatory provisions may serve as a vehicle for weaker party protection. To do this, it exam-ines the definition and limitations of the concept and its relation to conflict of laws rules based on the protective principle. Finally, the article seeks to establish whether the doctrine of overriding mandatory provisions remains rele-vant in the case of harmonisation of substantive law at the EU level, for which it will differentiate between full and min-imum harmonisation.