Using case law critically assess the concept of characteristic Essay

Using case law critically assess the concept of characteristic performance in Article 4(2) of the Rome Convention (Rome 1) - Essay Example ution of the terms of the contract which is the main feature of the contract , has , at the juncture of signing the contract , characteristic performance will be decided with his routine domicile, or ,in the case of a company or any incorporated body , its head administration office. Nonetheless, if the contract is carried mainly in the ordinary course of their profession or trade, then the country shall be the country where the chief place of business is located or as per the terms of the contract, the execution of the contract is to be carried out from a place of business instead of chief place of business, the country in which the other kind of business is located.† Article 4(5) of the Rome Convention provides an exception to the rule 4(2). It provides that Article 4(2) will not be applicable if the distinguishing feature cannot be evaluated, and the assumption in the paragraph 2 shall be overlooked if it seems from the background in its entirety that the contract is more intimately linked with another nation. It is to be observed that Rome 1 varies from the Rome Convention as regards to the contract of carriage. In general parlance, the complicated and supple system under the Convention has been replaced by a system with a stern choice of law regulation and with a thin escape clause in Rome I. Where the parties have not consented on the place of delivery, the applicable law under Rome 1 will be, it is advocated, to be concluded under Article 4(2), where the nearest connection litmus test would be extended under the convention. Rome 1 which offers a selection of the law system for contracts of carriages with certainty at the cost of flexibility offered under the Convention. (Ferrari & Ferrari 2009:108). Article 4(2) of the Rome I Regulation uses the stipulation of â€Å"characteristic performance, â€Å"stating that: â€Å"Where the features of the contract would be covered by more than one of the points detailed in (a) to (h) of paragraph or the contract is not