Real estate management fiducia” and the concept of “contractual obligations” in Rome I Regulation

Abstract

The determination of the sources of regulation of the “real estate management fiducia” in international trade is certainly complex. The internationalization of this new business framework, its controversial legal nature, the existing normative disparity in comparative law, the failure of certain unifying attempts in fiduciary matters, and the consequent need to resort to the traditional conflictual method, constitute the main features that characterize the regulation of this type of fiduciary transactions in international commercial traffic. In this work some of the qualification problems posed by these frameworks in conflictive headquarters are analyzed. Since we are facing a significant “complex operation”, made up of some legal relationships of different nature, it must be determined whether some of them are contractual in the sense of the Rome I Regulation, and whether they are subsumed within the material scope of said European instrument. To do this, not only must the European concept of "contractual obligations" be brought up; the meaning and scope of the exclusion of trusts provided for in art. 1.2.h) of the Rome I Regulation must also be examinated. These provisions, in any case, must be interpreted and applied in a uniform manner by all States parties, regardless of the treatment that these institutions receive in their legal system.