Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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