Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS
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Article 7 would allow the victim to opt for Swiss law. The drafters decided not to
extend this option (which the Report characterizes as “the principle of favouring the
98 victim”) to other torts , because “this solution would go beyond the victim’s
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legitimate expectations.”
This, however, is the wrong dilemma. The dilemma is not whether one should
favor victims over defendants, but rather whether—in a subject called “conflict of
laws”—one should seek to first determine whether the involved laws actually conflict.
As in the case of environmental torts, the reason for giving victims a choice is not to
benefit victims as such, but rather out of deference to the policies of the state of
conduct, which is the only state that has something to lose from the non-application
of its law. In this case, Switzerland’s negligence per se rule is intended to deter people
from engaging in inherently dangerous operations like blasting. Because the defendant
acted within Swiss territory, Switzerland has every reason to insist in determining the
legal consequences of that activity, even if in this case, the injury occurred across the
border. The effectiveness of this policy of deterrence would be seriously impaired if
exceptions to it were made for out-of-state injuries. Moreover, in terms of fairness and
party expectations, there is nothing unfair in subjecting a tortfeasor to the law of the
state in which he acted. Having violated the standards of that state, the tortfeasor
should bear the consequences of such violation and not be allowed to invoke the lower
standards of another state. Conversely, there is little reason to apply French law. Its
ordinary negligence rule was intended to protect mining defendants who operate
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within French territory, not foreign operators operating elsewhere. In conclusion,
there is a good deal of wisdom in the rules that allow the victim or the court to choose
between the laws of the state of conduct and the laws of the state of injury in cases of
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cross-border torts. It is regrettable that the drafters of Rome II have chosen not to
adopt a similar rule as they did with regard to environmental torts. 102
A. The List
97. Art. 7 is discussed infra VII.
98. Report, art. 3, 11.
99. Id. at 11-12.
V. THE EXCEPTIONS
As noted earlier, one cannot properly evaluate Rome II without also analyzing
the exceptions to its basic rule of lex loci damni. A careful perusal of the whole
100. Similar arguments could be made if France, but not Switzerland, limited the amount of damages
that could be recovered from mining operators. Again, art. 4(1) would mandate the application
of French law, albeit subject to the “closer-connection” escape of art. 4(3). However, for
reasons explained later, this escape will not necessarily lead to Swiss law.
101. See, e.g., EGBGB arts. 40.1, 41; SWISS PIL ACT Arts. 133(2), 136-39; ITALIAN PIL ACT art. 62;
VENEZUELAN PIL ACT art. 32(2); HUNGARIAN PIL ACT art. 32(2).
102. For contrary views, see Hay, supra note 7, at I-145; Wagner, supra note 7, at 379.
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