Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
Nevertheless, a closer look at some of the other articles reveals that Rome II
does not—because it cannot—entirely avoid an issue-by-issue analysis and thus the
possibility of dépeçage. First, some of Rome II’s articles speak of the law applicable
to the “obligation” arising out of a tort or delict, rather than to the tort or delict as a
whole. This is a wise choice of terms, which will enable courts to engage in a more
individualized evaluation of the multiple obligations that may arise from the same
events. Moreover, if Rome II uses the term obligation in its original sense of the legal
bond between the obligor and the obligee that encompasses both the obligor’s duties
and the obligee’s rights, the court will be able to further differentiate among the rights
of the individual victims and proceed accordingly.
Rome II consciously stops short of the next logical step of encouraging or even
permitting an issue-by-issue analysis of the various aspects of the obligation. Even so,
some of Rome II’s other articles contain the possibility for further splitting the issues.
Among the latter articles are:
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(a) Article 8(2) on intellectual property rights;
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(b) Article 14 on choice-of-law agreements;
(c) Articles 16 on mandatory rules and 26 on ordre public; 63
(d) Article 17 on rules of “safety and conduct”; 64
65
(e) Article 18 on direct actions against insurers;
(f) Articles 19 and 20 regarding subrogation, indemnification, or
60. (...continued)
assessment of damage or the remedy claimed; injunctive relief, the proper beneficiaries of the
right to claim damages, and its transferability or heritability, respondeat superior, and the
extinction or prescription of the obligation (statutes of limitation).
61. This provision can lead to the application of community law to some issues and national law to
other issues. Art, 27 can also lead to the same phenomenon by recognizing that a case may be
governed partly by the law designated by Rome II and partly by the law designated by other
choice-of-law rules contained in other community instruments.
62. Art. 14 can lead to dépeçage through several different routes. For example, the parties may
choose different laws for different aspects of the case, or they may choose one law for some
issues and none for others. Even when they choose one law for all issues, that law will not be
applied to the extent it violates the mandatory rules described in art. 14(2) or the community
rules described in art. 14(3).
63. Arts. 16 and 26 allow courts to displace the applicable law to the extent necessary to satisfy the
mandatory rules of the forum state, or to the extent that law is incompatible with the forum’s
ordre public.
64. Art. 17 (discussed infra VIII) allows the court to “take account” of the conduct rules of the
conduct state when the rest of the case is governed by the law of another state.
65. Under art. 18, the victim’s right to directly sue the tortfeasor’s insurer may be governed by the
law governing the insurance contract, although the tort may be governed by another law.
56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 14 OF 46