Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS irrespective of the country in which the injurious conduct occurred (Switzerland), and irrespective of the country in which the indirect consequences of the injury are felt (England). Thus, the general rule of Rome II is nothing but a restatement of the traditional lex loci delicti rule, with its “last event” sub-rule. It purports to be as categorical as the corresponding rule of the American First Restatement. In its penchant to avoid any ambiguity, the Restatement provided numerous minute localization sub-rules which, for example, defined the place of injury as the place where “the harmful force takes effect upon the body” in personal injury cases, and the place where “the deleterious 72 substance takes effect” in cases of poisoning. The fact that the Restatement never attained certainty, despite having attained clarity, is a lesson that subsequent codifiers ignore at their peril. The Rome II codifiers note that “[t]he principle of the lex loci delicti commissi is the basic solution for non-contractual obligations in virtually all the Member 73 States,” which of course is true, except for the fact that in many countries this solution is subject to several exceptions. The drafters also correctly note that many 74 countries disagree in defining the locus delicti. Indeed, some countries opt for the 75 76 place of conduct, others opt for the place of injury, others apply the law of the place of conduct in some specified cases and the law of the place of injury in other cases, 77 78 others leave the question unanswered, while others allow the victim or the court to 79 choose between the two laws. The Rome II drafters decided to resolve these differences by unequivocally choosing the law of the place of injury, because such a solution “strikes a fair balance between the interests of the person claimed to be liable and the person sustaining the damage, and also reflects the modern approach to civil 80 liability and the development of systems of strict liability.” Neither of these two reasons are self-explanatory, and the second reason regarding strict liability is certainly debatable. As for the first reason, the only balance the lex loci damni rule strikes between the parties is that it can be equally unfair to the plaintiff in some cases as to the defendant in others. 72. AMERICAN LAW INSTITUTE, RESTATEMENT OF CONFLICT OF LAWS § 377 Note (1933). 73. ROME II, recital (15). 74. See ROME II, recital (15). 75. See, e.g., AUSTRIAN PIL ACT of 15 June 1978 § 48(1); POLISH PIL ACT of 1965 art. 33(1). 76. See DUTCH PIL ACT, art. 3(2); ENGLISH PIL ACT of 1995 § 11 (subject to exceptions). 77. See PORTUGUESE CIV. CODE, art. 45(1) and (2); SWISS PIL ACT, art. 133(2). 78. See SPANISH CIV. CODE art. 9; GREEK CIV. CODE, art.26; CZECHOSLOVAKIAN PIL ACT of 1963, art 15. 79. See EGBGB art 40(1); HUNGARIAN PIL DECREE of 1979 § 32(1)(2); ITALIAN PIL ACT of May 31, 1995, art 62(1). 80. ROME II, recital (16). 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 16 OF 46
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS This is not to say that, just because the lex loci damni is an old rule, or just because it produces unfair results in some cases, the rule is bad in all cases. Despite the recent tendency, especially among American academics, to summarily reject this rule as an outmoded remnant of the past, a dispassionate examination of actual cases indicates that this rule produces good or defensible results in several fact-law patterns, although by no means all. To properly evaluate this rule one should first evaluate the 81 exceptions to which it is subject, and, second, examine the results the rule produces in several typical patterns formed by the aggregation or disbursement of the pertinent 82 contacts (conduct, injury, and parties’ domiciles ) and the content of the laws of each contact state. Specifically, it is helpful to distinguish between cases depending on: (1) whether the injurious conduct and the resulting injury occurred in the same state (intrastate torts), or in different states (cross-border torts); (2) whether the tortfeasor and the victim were domiciled in the same state (common-domicile cases), or in different states (split-domicile cases); and (3) whether the conflict is between laws that primarily regulate conduct (conduct-regulating rules) or primarily allocate the economic loss resulting from the injury (“loss-allocation” or “loss-distribution rules”). The above quoted terms are neither self-explanatory nor universally accepted. Generally speaking, the distinction between conduct-regulating and loss-distributing rules corresponds to the two grand objectives of tort law—deterrence and reparation. Although these two objectives are often interconnected, conduct-regulating rules serve primarily the first objective, while loss-distributing rules serve primarily the second objective. Rome II does not adopt this distinction, except in a oblique and limited way through Article 17, which authorizes “taking account” of the “safety and conduct” 83 rules of the conduct state. In the United States, this distinction, which was first articulated by the New York Court of Appeals in the 1963 landmark case Babcock v. 84 Jackson, has been adopted by many courts, albeit without always using this 85 terminology and without a consensus on its precise contours. In the words of the New York court, conduct-regulating rules are those that “have the prophylactic effect 86 of governing conduct to prevent injuries from occurring.” This category includes not only “rules of the road” like speed limits and traffic-light rules, but also rules that prescribe the civil sanctions for violating traffic rules, including presumptions and 81. See infra IV. 82. Hereafter, the term “domicile” is used interchangeably with the term “habitual residence” as used in Rome II. 83. Art. 17 is discussed infra VIII. 84. 191 N.E.2d 279 (N.Y. 1963). 85. See SYMEONIDES, THE CHOICE-OF-LAW REVOLUTION 123-29 and authorities cited therein. 86. Padula v. Lilarn Props. Corp., 644 N.E.2d 1001, 1002 (N.Y. 1994). 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 17 OF 46
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