Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS One difference between traditional and modern PIL is the extent to which each considers the content of the substantive laws of the involved states before choosing the law that would govern the case at hand. In traditional PIL, the choice was based exclusively on the physical contacts of the involved states (“jurisdiction-selection”), 46 without regard to the content of their substantive laws. In contrast, in modern PIL, the choice is based not only on physical contacts but also on the content and underlying policies of the laws of the contact states (“content-oriented law 47 selection”). Content-oriented law selection is easier when the court is not bound by statutory choice-of-law rules. When such rules exist, however, a content-oriented law selection is possible only to the extent these rules allow it. The question here is to what extent the rules of Rome II require jurisdiction-selection and to what extent they permit content-oriented law selection? Under Rome II, jurisdiction-selection is the norm and content-oriented law selection is a limited, often unintended, exception. The majority of the dispositive articles of Rome II designate the state whose law governs because of that state’s physical contacts rather than because of the content of its law. This alone is not a reason to criticize Rome II. After all, in most codified PIL systems, jurisdictionselecting rules are bound to outnumber content-oriented rules. Secondly, as 48 documented elsewhere, carefully crafted, narrowly tailored jurisdiction-selecting rules can achieve functionally sound results. For this to happen, however, the drafters must identify the various typical law-fact patterns and consider whether the application of a given state’s law produces an equally good result regardless of the content of that law. If the answer to this question is affirmative, a jurisdiction- 49 selecting rule would be acceptable. If the answer is negative, then one or more content-oriented rules should be drafted to accommodate the various patterns. One question explored later in this essay is whether the jurisdiction-selecting rules of Rome II meet this test. Before addressing this question, it is worth noting that Rome II contains several provisions that, directly or indirectly, permit consideration of the content of the substantive laws of the involved countries. These provisions can be divided into three categories: (1) traditional provisions that allow the court to refuse to apply the normally 46. The term “jurisdiction-selection” was first coined by Professor Cavers. See David F. Cavers, A Critique of the Choice-of-Law Problem, 47 HARV. L. REV. 173 (1933). 47. For a full discussion of these concepts, see Symeon C. Symeonides, American Conflicts Law at the Dawn of the 21st Century, 37 WILLAMETTE L. REV. 1, 46-60 (2000). 48. See Symeonides, THE CHOICE-OF-LAW REVOLUTION 399-404. 49. One example of such a rule is the common-domicile rule for loss distribution conflicts. As explained infra at text accompanying note 112, this rule produces good results not only when the law of the common domicile favors the victim, but also when it favors the tortfeasor. 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 10 OF 46
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS applicable law to the extent it violates the forum’s mandatory rules (Article 16) or its ordre public (Article 26); (2) provisions that require the court to choose a law that produces a particular result, such as Article 18, which authorizes a direct action against the insurer if such action is allowed by either the law applicable to the tort or the law applicable to the insurance contract; and Article 14(2) and (3) which provide that the contractually chosen law shall be disregarded to the extent it violates certain mandatory rules; and (3) provisions that directly allow one litigant to choose between two laws, such as: Article 7, which allows the victim of an environmental tort to choose between the law of the place of conduct and the law of the place of injury; and Article 6(3)(b), which allows the plaintiff to choose the law of the forum in certain cases involving anti-competitive restrictions. Although some of these content-oriented provisions have long been accepted by traditional PIL, the presence of the remaining ones suggests a selective receptiveness to the idea of content-oriented selection on the part of the drafters of Rome II. Moreover, as in other codifications, certain choice-of-law rules that purport to choose a state because of its contacts rather than its law, in fact are based on certain assumptions about the likely content of that law and to that extent they disguise specific substantive choices. One possible example from Rome II is Article 5 on products liability, which, as explained below, will lead to the application of the law 50 of the victim’s habitual residence in the great majority of cases. When the plaintiff is a resident of an EU country with a generous pro-consumer law and the manufacturer is based in a state with a pro-manufacturer law, Article 5 will ensure that the EU plaintiff will be protected under EU standards. However, in the converse situation, the same article will ensure that the EU defendant will be held accountable under the lower standards of the plaintiff’s foreign residence. Similar thinking seems to underlie recital 33 regarding damages for victims of traffic accidents. The recital states that, “when quantifying damages for personal injury in cases in which the accident takes place in a State other than that of the habitual residence of the victim,” the court should “take into account all the relevant actual circumstances of the specific victim, including in particular the actual losses 51 and costs of after-care and medical attention.” The history and meaning of this recital 52 are discussed later. Suffice it to say that, despite its precarious placement and equivocal wording, this recital does more than recognize the relevance of foreign facts (i.e., the costs of after-care and medical attention); it also recognizes the relevance of 50. See infra text following note 154. 51. ROME II, recital (33). 52. See infra at text accompanying note 44. 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 11 OF 46
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