CASE HUK-COBURG-ALLGEMEINE VERSICHERUNG II: ARE WE SHIFTING THE COURSE ON OVERRIDING MANDATORY PROVISIONS?

Abstract

The presented article addresses the issue of overriding mandatory provisions, with a focus on a comparative analysis of the doctrinal discourse in private international law and the rulings of the Court of Justice of the European Union in the case of HUK-COBURG-Allgemeine Versicherung II. The issue of overriding mandatory provisions within the context of conflict-of-laws solutions in the Rome I and Rome II Regulations is highly complex. These regulations provide for certain forms of moderation in the application of foreign law through the active enforcement of overriding mandatory provisions, which may not necessarily be confined to the lex fori. It is within the discretion of individual states to determine which provisions within their legal system are considered absolutely cogent and non-derogable. In its judgment in the case of HUK-COBURG-Allgemeine Versicherung II, the Court of Justice examined the interpretation of provisions concerning overriding mandatory norms under the Rome II Regulation, which governs the general framework for determining the applicable law for non-contractual obligations within the Union acquis. While the Court’s conclusions on the central issue may not have been surprising to some, the aim of this article is to explore whether the Court’s approach to the application of overriding mandatory provisions deviated from or even exceeded the traditional doctrinal understanding in private international law.