Rome II and Tort Conflicts: A Missed Opportunity Abstract Contents

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SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS 97 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 99 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 100 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 101 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. 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 20 OF 46
SYMEON C. SYMEONIDES ROME II AND TORT CONFLICTS document reveals that this rule is subject to many more exceptions than are readily apparent. They can be divided into general exceptions, namely those that apply to all cases, and specific exceptions that apply to particular torts. The general exceptions include the following: (1) The application of the law of the parties’ common habitual residence, under Article 4(2); (2) The application of the law of a state that has a “manifestly closer connection,” under the escape clause of Article 4(3); (3) The application of the mandatory rules of the forum state, under Article 16; (4) The “taking into account” (and possible application) of the “safety and conduct” rules of the state of conduct, under Article 17; (5) The application of the law chosen by the parties before or after the occurrence of the tort, under Article 14; (6) The non-application of the lex loci (or any other law) when it is manifestly incompatible with the ordre public of the forum, under Article 26. The specific exceptions include the following: (7) In product liability cases, the application of the law of the common domicile of the tortfeasor and the victim, the domicile of the victim, the state of the product’s acquisition, or the state of the “manifestly closer connection,” under Article 5; (8) The application of the law of the forum in certain cases involving restrictions to competition under Article 6(3)(b); (9) The application of the law of the state of conduct at the victim’s behest in environmental torts, under Article 7; and (10) The possible application of the law of the victim’s habitual residence for quantifying recoverable damages in traffic accident cases, under recital 33. Because of space limitations, this essay discuses only some of the exceptions. 103 B. The Common Habitual-Residence Rule The first “official” exception to the lex loci rule is found in paragraph 2 of Article 4, which provides that, if at the time of the injury, the tortfeasor and the victim have their habitual residence in the same country (hereafter “common domicile”), then 103. Additional exceptions can be found in arts. 10-12 in cases of unjust enrichment, negotiorum gestio, and culpa in contrahendo, which are not discussed here. 56 AMERICAN JOURNAL OF COMPARATIVE LAW (2008) PAGE 21 OF 46
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