Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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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: 61 (a) Article 8(2) on intellectual property rights; 62 (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
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS 66. Under arts. 19 and 20, the rights of subrogation, indemnification, and contribution between the parties mentioned in the articles may be governed by a law other than the law governing the victim’s claims against these parties. 67. See supra text accompanying note 51. 68. In fact, the possibility of dépeçage is the main reason cited by the Council and Commission for rejecting Parliament’s express rule to that effect. Although the recital does not enjoy the same status as an express rule in the Regulation’s main body, the recital either means what it says, in which case the possibility of dépeçage remains, or it does not mean what it says, in which case Parliament did not get anything from the purported compromise. 69. See infra at text accompanying notes 129-34. 70. ROME II, art. 4(1). 71. Id. 66 contribution; and 67 (g) Recital 33, which, as noted earlier, purports to authorize the application of the law of the habitual residence of the victim of a traffic accident in quantifying the recoverable damage, even when all the other issues resulting from the accident are governed by the law of the accident state. 68 The above is a much longer list than the opponents of dépeçage would ordinarily tolerate, but one provision that is missing is the general rule of Article 4, especially the general escape of paragraph 3 in which issue-by-issue analysis (with the possibility of dépeçage) would have been most useful. The resulting problems are discussed later. 69 IV. THE GENERAL RULE Rome II’s central provision is Article 4, which contains the general and residual rules. Paragraph 1 of Article 4 provides that the applicable law shall be the 70 law of the country in which “the damage occurs” (lex loci damni). This law governs “irrespective of the country in which the event giving rise to the damage occurred” and “irrespective of the country or countries in which the indirect consequences of that event occur.” 71 The operation of this rule can be illustrated by the following hypothetical scenario, which is used throughout this essay: Blasting operations by a Swiss mining company in the Swiss Alps cause a snow avalanche in the French Alps injuring a group of English tourists. Although there is some room for contrary argument, it seems that Article 4(1) views Switzerland as the country of the “event giving rise to the damage,” France as the country in which “the damage occurs,” and England as the country in which “the indirect consequences of that event occur.” Translated into simpler English, Article 4(1) provides that the applicable law is the law of the country in which the injury occurs, and more precisely the harmful physical impact (France), 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 15 OF 46
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Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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