The application process of hamburg rules, given the context of the emergence and entry into force of the new romanian civil code

• Author: Adriana Elena Belu
• Position: Faculty of Law and Public Administration Craiova, Spiru Haret University, Lawyer, member of the Dolj Bar Association, Romania
• Pages: 34-37

THE APPLICATION PROCESS OF HAMBURG RULES, GIVEN THE CONTEXT OF THE

EMERGENCE AND ENTRY INTO FORCE OF THE NEW ROMANIAN CIVIL CODE

Lecturer Adriana Elena BELU

1, PhD.

Abstract

The paper aims to conduct a compar ative analysis and tries to offer an objective po int of view r egarding a

number of questions arisen in pr actice, related to the a pplicability of the 1978 Hamburg Rules an d keeping public order

of Romanian private inter national law, such as those that aim at: agreeing upon the applica bility of the foreign law by the

Romanian parties; applicability of the Hamburg Rules; public nuisance of the Romania n private internationa l la w;

chara cter of public policy rule of the Hamburg Rules. In the application process of the Hamburg Rules, given the context

of the emergence and entry into force of the New Civil Code, obviously, the provisions of the Romanian Civil Code shall

apply in addition, where the interna tional convention lacks. Therefore, in order to apply the logic of the provisions of the

Civil Code in full compliance with the international standar ds, though giving priority to the latter rules, a rigor ous

ana lysis is requir ed, analysis which becomes more complex given the fact tha t, in accorda nce with Art. 230 of Law no.

71/2011 to implement Law n o. 287 /2009 on the Civil Code, Book II "About Maritime Tra de a nd Sa iling" of the

Commercial Code, will be abolished upon the entry into force of the Maritime Code, as those pr ovisions remain in force,

being applied with prior ity to the rules of the Civil Code.

Keywords: applica bility of the 1978 Hamburg Rules, keeping public order, Romanian p rivate inter national law.

JEL Classification: K33, K40

I. Applicability Rules from Hamburg and keeping public order

The paper aims to conduct a comparative analysis and tries to offer an objective point of

view regarding a number of questions arisen in practice, related to the applicability of the 1978

Hamburg Rules and keeping public order of Romanian private international law, such as those that

aim at:

- agreeing upon the applicability of the foreign law by the Romanian parties;

- applicability of the Hamburg Rules;

- public nuisance of the Romanian private international law;

- character of public policy rule of the Hamburg Rules.

In the application process of the Hamburg Rules, given the context of the emergence and

entry into force of the New Civil Code, obviously, the provisions of the Romanian Civil Code shall

apply in addition, where the international convention lacks. Therefore, in order to apply the logic of

the provisions of the Civil Code in full compliance with the international standards, though giving

priority to the latter rules, a rigorous analysis is required, analysis which becomes more complex

given the fact that, in accordance with Art. 230 of Law no. 71/2011 to implement Law no. 287/2009

on the Civil Code, Book II "About Maritime Trade and Sailing" of the Commercial Code, will be

abolished upon the entry into force of the Maritime Code, as those provisions remain in force, being

applied with priority to the rules of the Civil Code.

1 Adriana Elena Belu - Faculty of Law and Public Administration Craiova, Spiru Haret University, Lawyer, member of the Dolj Bar

Association, Romania, adyelenabelu@yahoo.com