Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS foreign law as Parliament’s unsuccessful amendment expressly provided. Indeed, it is the law of the foreign state that makes these facts relevant, not the other way around. Stated another way, the fact that medical costs are high in the victim’s residence is not significant unless the victim would be entitled to recover medical costs under that state’s law. To this extent, recital 33 can be seen as an example of a content-oriented law selection. E. State or National Interests A casual look at Rome II confirms the impression that, like most traditional PIL systems in Europe, Rome II does not subscribe to the notion that ordinary conflicts disputes at the private-law level implicate the interests of the involved countries. Indeed, none of Rome II’s articles refer to state policies, much less interests, and both the Preamble and the Explanatory Report contain several statements describing Rome II’s goal as one of “ensur[ing] a reasonable balance between the interests of [the parties, i.e.,] the person claimed to be liable and the person who has sustained damage.” 53 Yet, one who looks below the surface would discover that Rome II is not oblivious to state interests. In several instances, the Preamble refers to broader societal interests that reach beyond the interests of private litigants. For example, with regard to products liability, recital 20 of the Preamble speaks of the policies of “fairly spreading the risks, . . . protecting consumers’ health, stimulating innovation, securing 54 undistorted competition and facilitating trade.” With regard to unfair competition, recital 21 speaks of the need to “protect competitors, consumers and the general public 55 and ensure that the market economy functions properly.” Recital 25, with regard to environmental torts, states that the need for a “high level of [environmental] protection” and the “principle that the polluter pays” justify a choice-of-rule of 56 “discriminating in favour of the person sustaining the damage.” Finally, recital 31 recognizes the need to impose certain restrictions on the parties’ power to choose the governing law so as to protect the weaker parties. 57 More importantly, some of Rome II’s dispositive articles can only be explained in terms of public (and thus state) interests, rather than in terms of private interests. Besides Article 26 which codifies the traditional ordre public exception, and Article 16 which allows the forum to interpose its own mandatory rules, many other provisions of Rome II are designed to be sensitive to certain preferred substantive 53. ROME II, recital (16). 54. Id. at recital (20). 55. Id. at recital (21). 56. Id. at recital (25). 57. Id. at recital (31). 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 12 OF 46
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS polices. The clearest example is Article 7 pertaining to environmental torts, which is 58 discussed in some detail later. Other less obvious examples are: Article 14(2)-(3), prohibiting choice-of-law clauses to the extent they violate certain mandatory rules of a non-chosen state or of the Community; Article 14(1)(b), allowing pre-tort choice-oflaw clauses only in contracts between commercial parties and subjecting them to certain limitations; and Article 6(4), prohibiting choice-of-law agreements in cases of unfair competition and restrictions to competition. F. Issue-by-Issue Analysis and Dépeçage Modern choice-of-law doctrine and practice have come to recognize that in many cases the conflict is confined to only some aspects or “issues” of the case, and that in other cases the involved states may be interested in different aspects of the case. Consequently, rather than seeking to choose a law as if all aspects of the case were in dispute, the modern decisionmaker focuses on the narrow issues with regard to which a conflict exists and proceeds accordingly. Such issue-by-issue analysis is easier and more likely when the decisionmaker is not bound by statutory choice-oflaw rules. When such rules exist, however, such an analysis is possible only to the extent the rules permit it. In turn, this depends on whether these rules are phrased in broad terms designating the law that would govern the case as a whole, or whether they are phrased in narrower terms. On the whole, Rome II takes a negative stance towards issue-by-issue analysis, apparently because of the drafters’ desire to avoid as much as possible one of its byproducts—the phenomenon of dépeçage, namely the application of the laws of different states to different issues in the same case. Indeed, the Council and the Commission specifically rebuffed the rapporteur’s and Parliament’s efforts to introduce issue-by issue analysis. One of Parliament’s amendments on first reading had attached the following concluding sentence to what became the general rule of Article 4: “In resolving the question of the applicable law, the court seised shall, 59 where necessary, subject each specific issue of the dispute to separate analysis.” The Council and Commission rejected this amendment. In the end, most of Rome II’s articles were phrased in broad terms designating the law that would govern the case as a whole, the “tort/delict.” Article 15 reaffirms this holistic approach by providing a long list of issues that comprise the scope of the law applicable under these articles. 60 58. See infra VIII. 59. EUR. PARL. FINAL A6-0211/2005, (June 27, 2005) p. 19/46. 60. Art. 15 provides that the scope of the applicable law encompasses virtually all issues likely to arise in tort litigation, including the basis and extent of liability, the grounds for exemption from liability, any limitation of liability and any division of liability, the existence, the nature and the (continued...) 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 13 OF 46
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